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Sayad Abdula Edrus Vs. Sayad ZaIn Sayad Hasan Edrus and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom555
AppellantSayad Abdula Edrus
RespondentSayad ZaIn Sayad Hasan Edrus and ors.
Excerpt:
mahomedan law - sajjadanishin, khilafat and mvdavalli, offices of--primogeniture--custom--eldest son's right to hold the offices--wakf, inheritance to--predecessor in the office to appoint his successor, right of--construction. - - he says clearly in his plaint that according to the custom of the country, shareh (musalman law), and family usage, and according to the deed of appointment given by his grandfather to his father, and by his father to him, the offices of sajjadanishin, khilafat and mutavalli devolved on him alone as the eldest son, and, therefore, that it is his sole right to take possession of and manage the shrines and the wakf property. this is laid down distinctly by macnaghten in his chapter on endowments, paras. if, on the other hand, it is found that the appointments..........no less than twenty-seven holders of the office: eight of these were only sons, fourteen were eldest sons, and five were other than eldest sons. such a course of devolution does not, in our opinion, sustain the contention that there was any right in the eldest son to succeed as such. moreover, in many cases, there is direct evidence that the successor was appointed by his predecessor. the very fact that an appointment was made at all shows that there could have been no right of succession. we must, therefore, decide that no custom is proved under which the eldest son succeeds by right.6. we have next to deal with the custom alleged, that; the eldest son alone has the right to be appointed. in considering the evidence of this custom we must bear in mind the principles of the.....
Judgment:

Parsons, J.

1. The plaintiff sues for a declaration that the office of sajjadanishin and khilafat held by the Edrus family has devolved on him, and not on his younger brother, the defendant No. 1, and that he alone is entitled, as mutavalli, to take possession ft and manage the whole wakf property, the value of which is stated to be over two lakhs of rupees. The basis of his claim is the fact that he is the eldest son. He says clearly in his plaint that according to the custom of the country, shareh (Musalman law), and family usage, and according to the deed of appointment given by his grandfather to his father, and by his father to him, the offices of sajjadanishin, khilafat and mutavalli devolved on him alone as the eldest son, and, therefore, that it is his sole right to take possession of and manage the shrines and the wakf property.

2. So far as the claim is made to rest on a deed of appointment, we may at once dismiss it, for it is proved that that appointment was made at a time when his father was attacked with cholera and thought he was dying, and that it was cancelled a few days afterwards when the father recovered, and that that cancellation was assented to by the plaintiff, who withdrew all rights he might have had under it. That such an appointment can legally be cancelled on recovery is shown by an extract from the Tankih Hul Hamadia, page 185. Indeed, such an appointment may be compared to a donatio mortis causa, and may be treated on the same principles.

3. The claim on custom rests on a much larger basis, and must be considered at length. No doubt the right which the plaintiff sets up in his plaint is the right of primogeniture pure and simple,

4. There can be no doubt that the general Mahomedan law is opposed to his contention. It is said over and over again in the law books that no right of inheritance can attach to an endowment. It is by appointment that one officer succeeds to another, appointment either by the original appropriator, or by his successor or executor, or by the Superintendent for the time being, or, failing all these, by the ruling power. This is laid down distinctly by Macnaghten in his chapter on endowments, paras. 5 and 6; in his Precedents of Endowments, cases IX and X, and in appendix No. 52. It is also so stated in books of authority. It is written in the Alamgiri at page 127: 'It is the mutavalli's right at his death to appoint another as his successor and to give him charge.' Again in the Tankih Hul Hamadia, at page 183, it is written: 'If a mutamlli dies and has made a will in favour of a certain person, then the vasi of the mutamlli is in the place of the mutavali, because certainly the mutamlli is in the place of the vasi, and a vasi is entitled to appoint another vasi.' The Fatawa Kazikhan, page 145, is to the same effect; and Kazi Mohammed Ismail the witness called as an expert, says: 'There is no book which throws the least doubt upon the power of the mutavalli to appoint a person to succeed to him.' So also another expert, Nurul Hussain Shahbuddin, says: 'The sajjadanishin for the time being is entitled to appoint in his place any one of his sons ant in the same manner the mutavalli of a walf can appoint a mutavalli' The custom therefore claimed, that the eldest son succeeds by virtue of inheritance, being opposed to the general law, must be a supported by strict proof.

5. Now, if we examine the past history of this sajjadanishin-ship, we find that there have been from the founder to the father of the parties no less than twenty-seven holders of the office: eight of these were only sons, fourteen were eldest sons, and five were other than eldest sons. Such a course of devolution does not, in our opinion, sustain the contention that there was any right in the eldest son to succeed as such. Moreover, in many cases, there is direct evidence that the successor was appointed by his predecessor. The very fact that an appointment was made at all shows that there could have been no right of succession. We must, therefore, decide that no custom is proved under which the eldest son succeeds by right.

6. We have next to deal with the custom alleged, that; the eldest son alone has the right to be appointed. In considering the evidence of this custom we must bear in mind the principles of the Mahomedan law as laid down in the Dural Mukhtan to the effect that 'so long as there is a fit person among the relatives of the endower, an outsider should not be appointed mutavalli;' and as stated by Maonaghten (Principles and Precedents of Mahomedan Law, 4th ed., p. 344): 'It is usual to prefer the late incumbent's family to persons who are entirely strangers;' and 'in conferring the trust, regard should be had to superiority of qualifications, and supposing all the sons to be equal in this respect, respect should be paid to seniority.' Thus, Mahomedan law appears decidedly to favour the appointment of a son and of an eldest son as a successor, and as the Subordinate Judge remarks, it is in accordance with human nature that each mutavalli will select and appoint his own eldest son to succeed him in the office. It will be necessary, therefore, to examine the appointments and see on what grounds they were made. If in any of them the absolute right of the eldest son to be appointed is admitted, it will go a long way to establish the plaintiff's case. If, on the other hand, it is found that the appointments were made on other grounds than those of seniority, and especially if in any case a younger son or brother is found to be appointed for precisely the same reasons as an elder son is appointed, it will not be too much to say that the plaintiff's case entirely fails. Now, the earliest appointment, of which we have evidence, is that of Sayad Ali, who 'was clad in the religious habiliments by the hand of his father and who obtained the office by the order of his glorious father' (page 192 of the Tazal Urus). The next instance is that of Abu Bakar Sakran, who also said to have obtained the office by order of his glorious father, being selected from among his children (page 225). Then we come to the case of Abdulla I from whom the family derives its name of Edrus. He lived in the fifteenth century. The former mutavalli had died without making any appointment, and Abdulla was appointed by the people, on the ground that 'all the miracles and supernatural powers which, were exhibited by his predecessors showed themselves in him.' Indeed, so far was Abdulla from claiming any right on the ground of inheritance that we read (pages 337 and 338) that at first he declined on account of tender age (he was twenty-three years old) and the existence of paternal uncles, and he only accepted the office after much pressure and hesitation. He appointed his own son Abu Bakar to succeed him (page 342) by investiture, because he fully possessed the abilities qualifying him for the office. There is some confusion as to who succeeded Abu Bakar, probably owing to the gadis at Tarim and Aden being separated. That Ahmad, the eldest son of Abu Bakar, did not immediately succeed is dear. Shekh I probably first succeeded, and then Ahmad, and then Abdulla II. There is, however, no doubt that the latter appointed his younger son, Shekh II, to succeed him, although his eldest son, Abu Bakar, was then alive. This fact is distinctly stated in the Tazul Urus at page 438, and the grounds of the appointment are also plainly given, viz., superiority in saintly virtues (see also page 447). Shekh II was succeeded at Surat by his eldest son Mahomed I. The Tazul Urus shows that Shekh II appointed his second son Zainulabedin to the more ancient and honourable office at Tarim, while he appointed Mahomed to the office at Surat, and this is relied upon by the defendants as showing that eldest sons could be superseded at the will of their fathers. Passing on through four generations of only sons, we come to Abdulla, V, A.D. 1717--1784. Inasmuch as these mutamllis lived in Arabia and managed the endowments at Surat and Broach by deputies, there is no direct evidence as to how the office, were handed down. The parvana of the Emperor, granted during this time, contains nothing which supports the claim of the plaintiff; it rather negatives it, since if such a right existed, we should have expected that it would have been distinctly asserted and relied upon by Zainulabedin. Abdulla V made a regular tauliyatnami (exhibit 285), in which, after reciting how his father had been nominated, appointed and installed by his father Zainulabedin in the same manner as Zainulabedin himself had received possession from his ancestors, he appoints his eldest son, Mahomed III, to be his own successor. It is expressly to be noticed that the ground of the appointment is not because Mahomed is his eldest son; the appointer does not even here say that the appointee is his eldest son; he says only that he appoints him, because 'he is possessed of learning and acts accordingly, and is adorned with holiness and piety, and is decorated with the garb of honesty and trustworthiness.' By the same document Abdulla appoints his second son Zainulabedin to be nazir or supervisor, in order that his first son, the mutavalli, may perform his duties with the advice of, and consultation with, the said second son. A dispute arose in consequence of this dual appointment. Zainulabedin, it appears, on the strength of the appointment as nassir, claimed partnership with his brother in the mutavalli-ship, and the parties took the dispute before the Government of the day. The decision was given against Zainulabedin (see exhibit 309). It is, however, essential to note that, throughout this dispute, Mahomed III never made any claim on the ground of seniority, for he says only that he is adorned with holiness and piety, and is deserving of the office of tauliyat and of sajjadankhin, and is, according to the grants' the general and permanent mutavalli. His claim and the decision were both founded on the allegation that it was the custom that one person alone should be appointed mutavalli and that one person alone should be the mutavalh. It is impossible to suppose that, had there been any right in the eldest son alone, that right would not have been put forward. The decision is noteworthy in other respects also, because in it the leading principles of Mahomedan law are cited, and among them one to the effect that 'hereditary right has no particular claim for the acquirement of gain or of offices,' and it is expressly stated that 'the offices of tauliyat and sajjadanishin are not the same as an estate in respect of which any family claim could be sustained.'

7. It is, however, argued that this tauliyatndmd, by which Mahomed was appointed, and the two later tauliyatndmdv,by which Sheriff Shekh and Hasan were appointed, lay down a rule of appointment under which the eldest son must be appointed. The words relied on are 'and after him (that is, the newly-appointed mutavalli), any one of his male sons and his son's sons, son's son's sons, progeny after progeny, generation after generation, and age after ages, for ever, who may be the eldest, and more pious, and more God-fearing, shall be the mutavalli, and sajjadanishin, and successor, in the same way and manner as described, without any partner and sharer, the foremost shall be the foremost, and the eldest shall be the eldest, and the nearest shall be the nearest, and the distant shall be the distant.' With regard to this argument it is almost sufficient to say that no mutwalli can prescribe any rule of appointment which will bind his successor. However, the above words appear to us to express no more than the general rule of Mahomedan law which we have already, quoted, for it is impossible to ignore the words 'pious and God-fearing,' which upon the obvious construction of the passage are as much a part of the necessary qualification as the word 'eldest,' and, indeed, in two out of the three tauliyatndmas, the correct translation of the expression used is not 'eldest,' but 'of full age.'

8. Considering, then, that the history of this family shows that whereas appointments have been made in numerous instances--so numerous indeed that we are almost justified in inferring that they were made in every case--no single appointment is shown to have been made on the ground of seniority alone: considering also that eldest sons have not invariably been appointed, but that, on the contrary, in no less than five cases, eldest sons have been passed over: and seeing that no claim to succeed or to be appointed, on the ground of being the eldest son, has ever before been raised, even in cases of dispute in which we should certainly have expected that it would have been raised had the right or custom existed, we are unable to bold that the custom that the plaintiff contends for is proved. We concur, therefore, with the Subordinate Judge in rejecting the plaintiff's claim to the religious offices and to the management of the wakf property.

9. There is no dispute at present existing as to the private property. The prayer, however, of the plaintiff for mesne profits of the immoveable property was rejected, having apparently been overlooked by the lower Court, and this rejection has been made one of the grounds of appeal. We think that he ought to obtain such, mesne profits, subject to a deduction on account of debts and such. funeral expenses as may have been defrayed by the executors, and we amend the decree by awarding them to him from the 17th September 1881 (the date of the father's death), to delivery of possession, or until the expiration of three years from the date of this decree, whichever event first occurs, the net amount to be determined in execution. It has also been made a ground of appeal that the lower Court did not observe the provisions of Section 208 of the Code and state the amount of of money to be paid, as an alternative, if delivery of the moveables awarded could not be had. There is no evidence on the record as to the value of these moveables, although such evidence ought to have been furnished by the plaintiff. We need not, however, order that evidence to be taken, as the parties agree that the amount so to be paid shall be Rs. 70; we, therefore, amend the decree by inserting that provision. In all other respects we confirm the decree, and we order that the plaintiff-appellant bear all the cost of this appeal. We also order, under Section 412 of the Code that the plaintiff-appellant pay the Court-fees that would have been paid by him if he had not been permitted to appeal as a pauper.


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