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Biyamma Kashimsaheb Inamdar Vs. Ahmadsaheb Mohaddinsaheb Mulla - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case Number Second Appeal No. 285 of 1931
Judge
Reported inAIR1935Bom245; (1935)37BOMLR257
AppellantBiyamma Kashimsaheb Inamdar
RespondentAhmadsaheb Mohaddinsaheb Mulla
DispositionAppeal dismissed
Excerpt:
.....that in some cases widows in the family have been allowed to enjoy the mullanki lands during their lives. the point no longer arises in respect of the mullanki lands, and as regards the other lands, i think the learned district judge is perfectly correct in holding that the plaintiff has no right to recover any share except her own......that she is entitled to succeed to the lands and get the duties of mulla performed by a proxy, the learned district judge says that he conceives it to be 'contrary both to the general principle of distributive justice and also to the particular intentions of the grantor of this sanad.' there are four plots of mullanki lands in dispute. a sanad granted by the british government has been produced in respect of two of them. this was apparently in confirmation of an ancient grant in favour of the family of the parties in pre-british times. the sanad is in these terms :-it is hereby declared that the said land shall be continued, so long as the village community may require the services, as the service emolument appertaining to the office of mulla on the following conditions, that is to say,.....
Judgment:

Broomfield, J.

1. The only question of any importance in this appeal is whether a female is entitled to inherit what are called mullanki or mullagiri lands, that is lands assigned for the remuneration of a village Mulla. The appellant, plaintiff in the suit giving rise to this appeal, is the sister of the last holder. Part of the claim related to lands which are not mullanki lands, and we are not now concerned with them. The trial Judge allowed her claim to succeed to the mullanki lands, and not only to her own share in them but also to that of her sister, defendant No. 2, who has made no claim to them on her own behalf. The District Judge in appeal refused to allow plaintiff to recover her sister's share and also refused her any share in the mullanki lands. The plaintiff now comes in second appeal. Dealing with the plaintiff's contention that she is entitled to succeed to the lands and get the duties of Mulla performed by a proxy, the learned District Judge says that he conceives it to be 'contrary both to the general principle of distributive justice and also to the particular intentions of the grantor of this sanad.' There are four plots of mullanki lands in dispute. A sanad granted by the British Government has been produced in respect of two of them. This was apparently in confirmation of an ancient grant in favour of the family of the parties in pre-British times. The sanad is in these terms :-

It is hereby declared that the said land shall be continued, so long as the village community may require the services, as the service emolument appertaining to the office of Mulla on the following conditions, that is to say, that the holders thereof shall perform the usual service to the community and shall continue faithful subjects of the British Government. As this watan is held for the performance of service it cannot be transferred, and in consequence no nazarana will be levied.

2. By the 'principle of distributive justice' I presume the learned District Judge means equity, but I do not think there is any place here for equitable considerations. Nor does it appear to me that there is anything in the terms of the sanad which is really inconsistent with the plaintiff's claim to perform the services by deputy. I think the question whether she is entitled to inherit the lands must be determined by the personal law of the parties with respect to the rights of females to inherit in cases of this kind. But I agree with the learned District Judge that according to the Muhammadan law, which is the personal law of the parties, plaintiff is not entitled to inherit.

3. The learned advocate for the appellant relied in the first place on a recent decision of this Court relating to mullagiri land in Muktumsab v. Dadabhai : AIR1934Bom495 . It was held there that mullagiri land is governed as to inheritance by the personal law of the holders and is subject to partition. In my opinion this decision does not really assist us in the present case. It is true that partibility of mullagiri land and the right of a female to succeed to it would equally depend on the application of the personal law. But there are special rules as to the disqualification of females to succeed to a religious office or the emoluments thereof which the Court had not to consider in Muktumsab v. Dadabhai. It is also worth noting, I think, that in the latter case there was no sanad and there was nothing to show how the land originally came to be assigned. Mr. Justice Murphy says at p. 1102 after referring to this fact :-

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.

4. These observations, I think, could hardly apply here, since, as I say, the grant by Government was in confirmation of an ancient grant which apparently was in the nature of an endowment.

5. Then Mr. Jahagirdar relied on Munnavaru Begam Sahibu v. Mir Mahapalli Sahib I.L.R(1918) Mad. 1033. In that case it was held on the special facts that a woman was competent to succeed to the office of head Mujavar of a certain astana, but it is quite clear from the judgment that this office was not really one of a religious nature at all. Thus at p. 1036 we find it stated :-

The duties connected with this Astana are nothing more than the organizing and carrying out of certain processions in which the Hindus according to the evidence participate equally with the Muhammadans of the locality.

6. Again at p. 1037, we find :-there is Astana in the proper sense of the word and the Mujavars' duties are only purely of a secular character so far as the evidence shows.

7. There is nothing in. this case, nor in the Privy Council case, Shahoo Bonoo v. Aga Mahomed Zaffer Bindaneem I.L.R (1906). Cal. 118, 9 Bom. L.R. 85,., referred to in it, which can be said to support the proposition that religious duties can be performed by proxy. The duties of a Mulla are, it is hardly necessary to state, of a religious and not a secular nature. Part of his duties is the performance of ceremonies in the mosque. Plaintiff does not deny that she is not capable of performing the duties. As a woman she cannot even enter the mosque.

8. The conclusion at which the learned District Judge has arrived is supported by Mirazamalli v. Hidayatbi (1901) 3 Bom. L.R. 772. There the Court was dealing with a grant of lands for the maintenance of services in certain mosques and there was a claim by female members of the family to perform these services. It was held that the services in the mosque could only be performed by male members of the family and it was not open to female members to have them done by proxy, at any rate when there were already male members of the family in existence. Reference may also be made to Kasamkhan v. Kazi Abdulla I.L.R(1925) . 50 Bom. 133, 28 Bom. L.R. 49, where it was held that an exclusive right to officiate as Kazi, based merely on hereditary grounds, is opposed to Muhammadan law, and, therefore, that a claim to such a right, although supported by a custom established as existing in a particular village, was not one that should be recognised by the Courts. This case is important at any rate as showing that, if the claim now made by the plaintiff is opposed to the Muhammadan law, it cannot be validated by a local custom even if such be established. The learned trial Judge has referred to certain evidence as to the enjoyment of these mullanki lands by females. But all that can be stated to be established is that in some cases widows in the family have been allowed to enjoy the mullanki lands during their lives. There is no proof of a local custom that the daughter or sister, who unlike a widow can take an absolute estate, may succeed to the lands and get the duties performed by proxy. Even if there were such a custom, it could not be allowed to prevail on the authority of the case to which I have just referred.

9. The only other point as to which anything has been said is as to the plaintiff's claim to recover her sister's share. The point no longer arises in respect of the mullanki lands, and as regards the other lands, I think the learned District Judge is perfectly correct in holding that the plaintiff has no right to recover any share except her own. Defendant No. 2 has never put forward any claim, and she has not appealed against the decision which negatived the plaintiff's claim to recover a share of the lands on defendant No. 2's behalf.

10. The appeal is dismissed with costs.


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