1. The only question for decision in this appeal is whether Mullagiri land is partible or not?
2. The suit was for partition of the ancestral property of a Muhammadan family, and a part of this property is land of this description. The first two Courts held that such land could be divided among the heirs to it, like any other land, but in second appeal Mr, Justice Baker held on the point in the contrary sense, and granted a certificate to appeal against his decision.
3. The sanad for the land is not produced. We have only the facts that the land is assigned as remuneration for services useful to the village community, and that it is not transferable. Ordinarily, such holdings are governed, as to inheritance, not by the Watan Act, but by the personal law of the holders, and if this is the case here, the land would be subject to partition.
4. The Mulla's office is admittedly a religious one, but there is no priestly class among Muhammadans, and any sufficiently instructed person may conduct worship and officiate at marriages, funerals and other religious services, though, of course, there are professional experts in these matters. The duties of a village Mulla have been enumerated in the record, but whether correctly or not we are not able to say; and we have not found them defined elsewhere. There is also no case-law on the point. It seems most probable, however, that the duties of the office in this case are to look after the village mosque and to officiate at all necessary ceremonies. It has been found that defendant No. 1 was the officiating Mulla at the time of the suit and that he is in possession of the Mullagiri land.
5. Admittedly, in 1882, the three brothers, Bademiya, Imam and Husen, partitioned the family property. Husen left no descendants. Bademiya had five sons of whom Mohidin the eldest left six sons, who are defendants Nos. 1 to 6. The second son is defendant No. 7, the third, defendant No. 8, and the fifth, defendant No. 9, who supports the plaintiffs, who are the sons of the fourth son Abdul Hak.
6. It appears that in an earlier suit No. 178 of 1922 filed by another branch (Mulla Husen and the widow of Imam) against defendants Nos. 1 to 6, but to which the plaintiffs or their father were not parties, it was held that the Mullagiri land was partible. There have also been some proceedings before the Collector in which exhibit 59, the list of the Mulla's duties, was put in, but the Collector's decision is not now relevant. Mr. Justice Baker relied on three authorities for his view that Mullagiri land is not partible. These were Kasamkhan v. Kazi Abdulla I.L.R.(1925) 50 Bom. 133, 28 Bom. L.R. 49, Sayad Abdula Edrus v. Sayad Zain Sayad Hasan Edrus (1888) 13 Bom. 555, and also Jaafar Mohi-u din Sahib v. Aji Mohi-u-din Sahib (1864) 2 M.H.C.R. 19. The first two do not decide the question we have to-they do not deal with Mullagiri land of this kind and are relied on for the general principle. The Madras case, however, is apposite and in point, and, if it has been correctly decided, it would govern this case. It related to land assigned to the office of Khatibi or preacher. There is no doubt that under Muhammadan Law no right of inheritance attaches to an endowment. One officer succeeds another by appointment as explained in Kasamkhan v. Kazi Abdulla.
7. An endowment or wakf is an appropriation of property made by a Muhammadan for the use of Muhammadans-and the fundamental question seems to me to be, whether this assignment is such an endowment or not. As already stated, we have not the sanad and do not know how the land originally came to be assigned. If it is an assignment by Government for the greater comfort of the Muhammadan community, it would not be a wakf or endowment, but on exactly the same basis as any other of these assignments, such as the ones to Joshis or to carpenters and several other classes of village servants who enjoy them, and this it seems to me is its real character. In such cases the holders have to perform the duties of the office, either by themselves or by a deputy-and if they fail, Government enforces its object by levying full assessment and paying the amount so obtained to an officiator.
8. I have stated above that the Madras case dealt with the office of Khatibi and, if applicable, it covers the debated point here ; but we do not know the origin of the Madras grant, while we have some knowledge of how these assignments came to be made in this Presidency, and what their general character is. There probably was an original inam which was confirmed at the summary settlement, and the general rule is that such holdings are partible. It is not, I think, so much a question of Muhammadan law, as of the character of the grant that I have already described, and if my view is correct, the Mullagiri land would have no special character, but would be governed by the ordinary law.
9. I think, that the decrees made by the original and first appellate Court are correct, and should be restored.
10. We accordingly set aside the appellate Court's decree of Mr. Justice Baker and restore those of the two lower Courts. The appellants must have their costs of the second appeal and this appeal.