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Mahomed Oosman Vs. Essack Saleh Mahomed Vanjara - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
Decided On
Case NumberO.C.J. Suit No. 1411 of 1934
Reported in(1937)39BOMLR502
AppellantMahomed Oosman
RespondentEssack Saleh Mahomed Vanjara
DispositionSuit dismissed
mahomedan law-dargah-waqf, creation of for upkeep of-mujawar, office of-right to hold office hereditarily-office not known to law-right to intercede with saint not recognized-ghalta of dargah-right to offerings or ghalla moneys-claim to occupy part of waaf property rent free-ejectment of alleged mujawars.;a dargah is the tomb of a person who is honoured after his death as a saint and whose tomb is treated as a shrine.;muhammad hamid v. mian mahmud (1922) i.l.r. 50 i.a. 92, 96 : s.c. 25 bom. l.r. 660 piran v. abdool karim (1891) i.l.r. 19 cal. 203 mohiuddin v. sayiduddin (1893) i.l.r. 20 cal. 810 and vidya varuthi thirtha v. balusami ayyar (1921) l.r. 48 i.a. 302, 312, 315 : s.c. 24 bom. l.r. 629 referred to.;a waqf may be created for the upkeep of the tomb of a saint as distinguished from.....tyabji, j.1. the plaintiffs seek to establish a claim to be what they designate hereditary mujawars of the pir haji ali dargah. the history o the dargah is traced in the judgment on the counter-claim on p. 524- eds. see also judgment on counter claim. p. 529. the management of the said dargah and the properties appertaining thereto is subject to a scheme framed by this court in suit no. 1337 of 1916. the defendants are the trustees appointed under the scheme. the plaintiffs claim, independently of the scheme, to act as mujawars, to occupy free of rent certain quarters conveniently designated in the plan (exhibit 7) as the mujawar's quarters, to take and keep for themselves the offerings collected in what is styled the mujawar's ghalla (offering box) and the other offerings specified in.....

Tyabji, J.

1. The plaintiffs seek to establish a claim to be what they designate hereditary mujawars of the Pir Haji Ali Dargah. The history o the dargah is traced in the judgment on the counter-claim on p. 524- eds. See also judgment on counter claim. P. 529. The management of the said dargah and the properties appertaining thereto is subject to a scheme framed by this Court in suit No. 1337 of 1916. The defendants are the trustees appointed under the scheme. The plaintiffs claim, independently of the scheme, to act as mujawars, to occupy free of rent certain quarters conveniently designated in the plan (exhibit 7) as the mujawar's quarters, to take and keep for themselves the offerings collected in what is styled the mujawar's ghalla (offering box) and the other offerings specified in the plaint paragraphs 4 to 8 and prayers (b) to (g). It is also prayed that a suit brought by the trustees to eject the plaintiffs from the mujawar's quarters may be stayed, and that interference with the plaintiffs' possession of the mujawar's quarters and of their duties as mujawars and enjoyment of their aforesaid rights be restrained.

2. The plaint offers no explanation of the word mujawar, nor particulars of the functions ascribed to a person so described, nor any effective reference to his duties as the holder of an office known to the law. The rights and privileges claimed are, on the other hand, abundantly set out in paragraphs 4 to 8 and in prayers (a) to (g). It is only in the 14th paragraph and in prayer (t) that duties are alluded to; but it is not indicated what they are. The reference to services in paragraphs 10 and 12 is not made primarily by the plaintiffs, nor with the purpose of giving the plaintiffs' version. On the contrary it is impliedly denied that the privileges claimed are in part consideration of services to be rendered by the mujawar. The plaint is also cryptic as to the origin, source or derivation of these alleged rights : whether contract grant or operation of any and what law. Long continued enjoyment, it is assumed, satisfies all requirements and establishes rights of every description. The plaintiffs' counsel attempted to fill up these hiatuses in terms that I will presently state.

3. I have, greatly against my inclination, allowed this suit to go on so far. The questions raised are, however, of first impression, and I thought it necessary to show such latitude as might enable the plaintiffs to put forward their best considered and most plausible case, and, if possible, to cite authorities, if any are available, specifying the functions alleged to be performed by mujawars-authorities enabling me to hold that the office is known to the law : in the sense that the existence of such an office, with defined functions, is recognised as a necessary part of the machinery required for the administration of the waqf, or at any rate as being conducive to the fulfilment by the trustees of their duties in the administration of such an endowment as is before me; or that the agglomeration of functions attributed to the alleged office could otherwise in some way be assumed by the plaintiffs. I accordingly postponed the hearing, in spite of well-founded protests from the trustees. Prior to the postponement, the questions that, in my opinion, actually arose, were put to the plaintiffs' counsel so that they might not be taken by surprise. I also allowed the plaintiffs' counsel to develop their case in opening it, with some fulness and much latitude, and to call their first witness Sayyad Yakub Sayyad Muhammad. But the witness spoke not of his own knowledge but of what he had heard, and objections were rightly taken to the relevance of his proffered evidence : Indian Evidence Act, Section 32, Sub-section (4), and Section 49.

4. Ultimately for the reasons that I am about to state I considered it best to stop further evidence of the same kind being adduced.

5. At the outset I must mention that certain arguments on behalf of the plaintiffs, having references to the supposed religious predilections of the Judge, proceeded on a misconception of judicial duties. The views supposed to be held by the Judge who happens to preside-whether particular beliefs are or are not supposed to be acceptable to him, or his views expressed as an author or text-writer, have nothing to do with his judgment which must be. formed after hearing the evidence and the arguments. The judgment must be in conformity with the law by which the particular parties are governed in British India. The law by which the parties are governed depends on circumstances amongst which such supposed personal opinions of the Judge - are not included. Nor are surmises as to such opinions otherwise relevant.

6. The law governing the parties is the Hanafi law. My references to the law are therefore based on my understanding of the Hanafi interpretation of Muhammadan law, and of the doctrines of Islam,-law and religion being in the present instance roughly concentric though having different spheres. I shall have to refer to certain basic ideas, which so far as my knowledge extends are common to all Islamic systems : Akbamlly v. Mahomedally I.L.R. (1931) 57 Bom. 55Whether such basic ideas as I shall have to refer to in the present judgment are or are not recognized by other systems is not a matter for present decision, and I do not intend expressing any opinion on it.

7. To explain what appears to me the real issues, the issues will be found at the end o the judgment on the counterclaim, p. 530-Eds. a reference! to the endowment of dargahs under Muhammadan law as applicable in India is necessary.

8. Dedication of property in perpetuity for objects recognized as religious or charitable is, speaking generally, held valid. The expression ' dargah,' though it has become a commonplace in Indian parlance, is, I believe, not to be met with in the ancient texts. The endowment of a dargah is not mentioned amongst religious or charitable objects generally, nor in connection with waqfs. Mr. Haindaday, well-known as an Arabic scholar, who appeared as counsel for the plaintiffs with Mr. Bhagwati, at the request of his senior addressed me on questions of Muhammadan law, on various occasions during the hearing. He confirmed my views in this respect, but suggested that the Arabic equivalent of dargah, 'rauzah', is to be met with in the texts.

9. The word dargah seems to be of Persian origin, meaning 'The King's Court, a port, portal, gate, door, the lower threshold, a court before a palace i or great house : a large bench or place for reclining upon; a mosque : 'See Wilson's Glossary, and Johnson's Arabic Dictionary. Yule's Dictionary '.explains dargah as 'The shrine of a (Muhammadan) saint, a place of religious resort and prayer.' Hodges in his Travels in India (1793) states : 'On some of the highest of these hills I observed durgaws or burial places with little chapels annexed belonging to the Musulmans.' A shrine or tomb of a person who is honoured after his death as a saint is spoken of in India as a dargah : such a tomb is, it would seem, respectfully referred to as the portal to the (spiritual) palace of the saint.

10. Two judgments of the Privy Council bear this out. Lord Cave L. C, adopting earlier judgments of Syed Ameer Ali (one, while he was in the Calcutta High Court and the other delivered from the Privy Council), refers to the origin of a dargah in the following context (p. 96) :.a khankah is a monastery or (Muhammadan) religious institution where dervishes and other seekers after truth congregate for religious instruction and devotional exercises. It has generally been founded by a dervish or a sufi professing esoteric beliefs, whose teachings and personal sanctity have attracted disciples whom he initiates into his doctrines. After his death he is often revered as a saint, and his humble takia (or abode) grows into a khankah and his durgah (or tomb) into a rauzah (or shrine). The khankah is usually under the governance of a sajjadanashin (the one seated on the prayer mat), who not only acts as mutawalli (or manager) of the institution, and of the adjoining mosque, but also is the spiritual preceptor of the adherents. The founder is generally the first sajjadanashin, and after his death the spiritual line (silsilla) is extended by a succession of sajjadanashins, generally members of his family chosen by him or according to directions given by him in his lifetime, or selected by the fakirs and murids, and formally installed; and the income of the institution is usually received and expended by them:

Muhammad Hamid v. Mian Mahmud approving Piran v. Abdool Karim I.L.R. (1891) Cal. 203 Mohiuddin v. Sayiduddin I.L.R. (1893) Cal. 810 and Vidya Varuthi Thirtha v. Balusami Ayyar .

11. What is significant is that Lord Cave treats a dargah as being synonymous with a tomb,-the tomb of a person revered as a saint.

12. The Prophet's strong disapproval of the erection of an elaborate mausoleum or excessive outlay on tombs and burial is well-known. The traditions on this point are unanimous. Several are set out, from the Mishcat-ul-Masabih, in Kaelloola Sahib v. Nuseemdeen Sahib I.L.R. (1894) Mad. 201 The classical illustration in India of submission to the Prophet's disapproval is the great Emperor Aurangzeb's simple grave of earth without brick or mortar.

13. Since it is not proper to erect a mausoleum, it might have been argued, that the law cannot allow endowment of property for the purpose of the upkeep of a mausoleum, even though a saint be buried underneath. In spite of these traditions, however, beliefs have grown up in India, and the Courts have recognized these beliefs as having binding force, that great religious reverence may customarily be shown (even by persons professing Islam) to the burial place of a person sufficiently holy to be styled a saint : insomuch as to raise his tomb to the standing of a religious object : so that property may validly be dedicated for its upkeep and preservation. In the result, there may be a waqf for the upkeep of the tomb of a saint as distinguished from the tomb of a private person : Futtoo Bibee v. Bhurrut Lall Bhukut (1868) 10 W.R. 299 Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan (1875) 15 Beng L.R. 167 and Mussammat Zinat Bibi v. Mussammat Aimna Kmram Din (1917) P.R. 107.

14. The stages of progress in veneration towards, and following, recognition as a saint's tomb, are indicated in Lord Cave's judgment. In the vicinity of Mahomed such a tomb a mosque may be founded (as has happened in the present case), or side by side a khankah or other religious or charitable institution may grow up; or a khankah may be the parent institution; the preceptor may be buried there and then by the side of his tomb a mosque may be founded.

15. I must here allude to a twofold source of ambiguity. The word 'dargah' is used in one of two senses : either in its strict sense (1) to refer merely to the tomb by itself, or more loosely (2) to include the whole group of buildings of which the tomb is the nucleus-the tomb as well as the mosque, and/or other institutions that may have grown up in the vicinity of the tomb. Moreover when the tomb has acquired such celebrity and sanctity as to be called a dargah, it is convenient to speak of the tomb alone as an institution; because it has become an object fit for an endowment-though it is more accurate to recognize that 'the tomb or shrine cannot by any stretch of language be regarded as a public religious institution : 'Mussammat Zinat Bibi v. Mussammat Aimna Karam Din (1917) P.R. 107.

16. In any case the dargah in its real significance of a tomb is an institution in a very different sense from the sense in which mosques or khankahs are spoken of as institutions'. Speaking of a dargah as an institution where merely the tomb is referred to, is apt to cause an oversight of the fact that the dargah strictly consists of the tomb alone. It is only a reverential mode of speaking of the tomb of a holy person. And a tomb cannot in the nature of things be such a nucleus of human activity as a mosque or a khankah, a library or a madrasa. Veneration for a tomb may give birth in its vicinity to institutions in the ordinary sense. It cannot infuse life and blood into the tomb itself so as to convert the tomb into a similar living institution. An endowment for the purpose of a tomb is restricted by its very nature to the upkeep of the tomb, even though the tomb may be called a dargah.

17. If the income of an endowment for a dargah exceeds what is necessary for the upkeep of the tomb, the excess income must, it seems to follow, be treated as the income of property dedicated with a general charitable or religious object which may be applied to other religious or charitable objects of a similar nature : Ramanadham Chettiar v. Vada Levvai Marakayars and Salebhai Abdul Kader v. Bai Safiabu I.L.R. (1911) 36 Bom. 111.

18. The stages of progress until, on the one hand, the tomb attains the status of a dargah or shrine, and, until, on the other hand, institutions like khankahs or mosques spring up in its vicinity, are reflected in the administration of the group of institutions considered as a whole. The person exercising authority, the methods of exercising authority and the objects for exercising it, all depend on conditions existing at the time when the institution requiring administration springs into being or (as in the case of the tomb) attains by slow growth its full stature as a shrine. The events may start at one end or at the other : (1) the first to come into existence may be the tomb, or (2) before there is a shrine, a khankah or mosque may have been founded. If the latter is the case (as contemplated by Lord Cave) then the upkeep of the tomb and the use to which the offerings are put are naturally attended to from the start by the mutawallis or sajjadanashins (whatever their appellation) charged with the administration of the preexisting mosque or khankah. But if the first to come into existence is the tomb, and the mosque or khankah arises subsequently, then there may be a preliminary stage-while there is a bare tomb not yet recognized as a saints' tomb, not yet venerated by a considerable body of the public as a shrine or as having the status of an object fit for endowment. There is no propriety over a tomb : Muhammadan law does not recognize it as an object of ownership. There can therefore be no one in the position of a. mutawalli or trustee while there is merely a tomb not recognized and venerated as the tomb of a saint. Then, later on the position becomes altered. A real institution like a mosque is founded. The second stage may then be considered to be reached. A mutawalli is now necessary. By this time the tomb has, ex concesds, attained celebrity and importance : having done so it has become a shrine, and is now a quasi-institution. One material effect of this second stage in the history of the tomb may be that the offerings are no more negligible. They require to be administered, i.e. after providing for the upkeep of the tomb a surplus is left which must be put to uses that are charitable in accordance with Islamic notions.

19. Thus the second stage is distinguished from the first in that during the first there is a mere tomb and no property or surplus offerings to administer; during the second there is a real institution like a khankah or mosque with its endowment (probably immoveable property) and there are also considerable offerings. Both these require administration. Between these two stages there may of course be an intermediate stage. During this interval, which may be long or short, the offerings may not be entirely negligible, but no associated mosque or khankah may be in existence to whose mutawalli the upkeep of the tomb and the due disbursement of the offerings may be entrusted. This period is bound to be anomalous from a legal standpoint. One aspect of the anomaly is that there is an incipient institution without a legally authorised administrator : the process of growth is gradual and the persons instrumental in its growth-the body of visitors to the tomt-are numerous. There is no individual occupying the position of the founder of an institution, or the author of a trust, no person whose privilege and duty it is to appoint a trustee and to provide for the due administration of the institution that is being born and for the income which by this time is attaining considerable proportion being put to fitting use.

20. There was much confusion in the argument owing to a disregard of these considerations. But derived from general principles they may seem platitudinous.

21. In the present case the existence of a dargah-a tomb in which a saint is buried-is not denied, nor is it denied that there is an endowment for its upkeep and for the adjoining mosque. The mausoleum over the tomb may be deemed to stand on the same footing as the actual tomb in regard to the endowment. I may add, though it is somewhat anticipating myself, and treading on delicate ground, that quarters for a caretaker may be a necessary adjunct of the endowment as a whole. The endowment before me includes certain rent producing shops and residential quarters, the modern counterpart, perhaps, in a city like Bombay, of a khankah. In addition, offerings are made by visitors to the tomb and mosque. Such offerings are (subject to the plaintiffs' claim, if any) in the nature of recurring donations or accretions to the income of the endowment. There is out of the rents and offerings some surplus over the requirements for the upkeep of the tomb and mosque.

22. In 1916, the suit No. 1337 of 1916 to which I have referred was brought for the removal of the defendants thereto from being trustees of the dargah and mosque, and for a scheme for their management. The decisions in that and other suits with reference to the dargah are in evidence. The pervious history of the dargah is traced in the judgment on the counterclaim on pp. 526, 527. -Eds. the They indicate that for some considerable time prior to 1865 the tomb known as the tomb of Haji Ali was venerated as the shrine of a muslim saint; and that in or about 1865 a person called Haji Essa Haji Fazla (sometimes the name is spelt Fadla)-I shall have occasion to refer to him several times-erected over the tomb a mausoleum which is known as the Haji Ali Dargah. He also built a mosque and a chawl in the neighbourhood, and dedicated the whole as waqf. For the administration of the waqf a scheme was framed, providing for the appointment of trustees and laying down their duties in reference to the dargah and the auxiliary properties. The entire authority in regard to the administration of the dargah and endowed property including the offerings at the dargah is vested by the scheme in the trustees.

23. The claim of the plaintiffs is difficult to reconcile with the scheme. There is no direction in the scheme that any mujawar shall be appointed, no indication that the appointment of the plaintiffs or of any other person as mujawar is a necessary or proper part of the administration of the trusts, nor any recognition of any rights in the plaintiffs to hold the office of mujawars or to set up an authority independent of the trustees. The absence of any provision in the scheme in favour of the plaintiffs is determinative of the fact that no such office as that of mujawars is a necessary part of the machinery needed for the due administration of the institution. It follows that the plaintiffs are not entitled to put forward any claim to an unnecessary office. Assuming for this purpose that the law recognizes the office of a mujawar the scheme shows conclusively that no mujawar is needed in this particular institution. The plaintiffs have not pleaded, and they offer no proof of title to exercise those rights which they say are part of their privileges as the holders of the alleged office. By some process of recondite reasoning, all compressed into the phrases, long established practice and hereditary rights (with the expression from generation to generation as an occasional accession of logical cogency) the plaintiffs claim rights, independently of the wishes or consent of the trustees to live on the premises, to hold exclusive charge of the dargah, emancipated from the authority of the trustees, and to appropriate the specified offerings. See the judgment on the counterclaim, pp. 522-3-Eds.

24. The plaint asserts as a necessary part of the claim, that the dargah was 'founded' by the plaintiffs' ancestors. In the same context, and apparently for the same purpose, some special connection is claimed between the plaintiffs and the four tombs that exist by the side of the dargah. It seems to be implied that these tombs have some controlling influence over the alleged office. In one of the tombs an ancestor of the plaintiffs is said to be buried. The name of the ancestor is not given, nor anything else to identify the ancestor to whom the tomb is said to belong. The tombs themselves bear no inscriptions. The plaintiffs' great grandfather is said to have been named Ghulam Muhammad (not Gul Muhammad, I note), to have died in 1870 and to have been buried there. His tomb again is not identified. The other two tombs are also said to belong to the plaintiffs' ancestors. These ancestors are not named nor is there anything to show which tomb is attributed to which ancestor. I visited with the representatives of the parties the site and saw the dargah and the other four tombs as well as the rest of the property.

25. Assuming that the plaintiffs' ancestors were buried there, nothing can turn on it. Neither the plaintiffs nor their ancestors would thereby in the absence of any evidence of contract or grant or other proof of title acquire any right whether of occupancy or of claiming any offerings or other payments.

26. It was not easy to determine the exact ideas for expressing which the words 'founding a dargah' have been adopted in the plaint. The fact is conceded that the remains covered by the main tomb in question are those of a saint; the claim of the plaintiffs, however, that their ancestors buried the saint is contested. The statement in the plaint that 'the said dargah was founded by the plaintiffs' ancestor and originally consisted of the dargah and a residence for the mujawars', when placed for elucidation before the plaintiffs' counsel, proved to be beyond their powers. They stated that the plaint was loosely drafted and that the case of the plaintiffs must be explained viva voce, and in other language.

27. I gave adequate time to the plaintiffs' counsel to consider the questions involved : pointing out that since their claim is to hold an alleged office hereditarily it is necessary to establish that such an office is known to the law; that the functions alleged to be performed by the holder of the office are necessary for the due administration of the institution in connection with which the office is alleged to exist : so that the office is an integral part of the machinery for administering the waqf; and that the plaintiffs or their ancestors had duly conferred on them the hereditary rights to perform these functions : which again implies that the rights are of such a nature that they may be hereditarily held; and that the title so to hold them may be conferred by the person from whom it is alleged to be derived; or that they may be acquired by operation of law or the happening of the events which are alleged to give rise to them.

28. Having considered these and cognate matters the plaintiffs' counsel explained the claim that their ancestor 'founded the dargah' in the sense that one of their ancestors buried the saint, that he took his place at the tomb and began to perform the 'service' (the Marathi word 'sewa' was requisitioned) at the tomb.

29. What the service at the tomb consisted of, counsel had great difficulty in particularizing. The reason is not far to seek. Islam is singularly free from ceremonial, in the sense of the formal, mechanical observance of external action as a requirement for legal or religious efficacy, or as a means for coming into spiritual relations with the unseen. A striking illustration of this freedom is the absence of form or ceremony for effecting a marriage. The religious duties that the Hanafi law imposes in regard to burial and tombs are no exception in regard to this freedom. The duties fall under two heads : (1) every human being is bound to see to the respectful burial of every other human being; and (2) it is expected that the vicinity of a grave, where death seems imminent, will lead to meditation on the responsibility of life and death. No question arises as regards the duty of burial which has been duly performed. As to the second, a fundamental principle of Islam is contained in a verse the reiteration of which is enjoined in times of trouble : 'Indeed we are from God and indeed to Him we return' (Quran, Sura II, verse 156). A visit to a grave is expected to bring this thought to the mind : and the verse is generally recited on visiting graves. Devotional reading may be expected as a consequence. The Suras of the Quran entitled the Fatiha and Ya Sin are often selected for such devotional readings.

30. Thus it is not the overt act or ceremonial form, but the subjective frame of mind that is the foundation of the religious observance consisting of a recitation from the Quran in the vicinity of a grave. When the grave covers the remains of a holy person the sense of religious duty may be presumed to be intensified. But the law does not annex to the devotional recitation any secular rights. The difficulty in the plaintiffs' case lies in conceiving a complete change of these common duties, in the vain attempts to explain the process by which these duties are transferred from the shoulders of ordinary human beings who visit graves, to those of the mujmuars : and how by the transfer they are converted from the duties of the former into the privileges of the latter.

31. In the manner that I have explained all graves, but particularly the graves of persons specially revered as holy men may become places of religious resort and prayer, leading on to charity.

32. I felt pressed with this and similar difficulties as soon as the plaint was read and doubted whether any useful purpose would be served by allowing the plaintiffs to lead evidence in support of their case. I desired counsel, therefore, to formulate their case and to indicate the nature of their evidence. I was informed that the evidence would be oral and based on reputation : to the effect that, according to common belief, the plaintiffs' ancestors had buried the Pir, Haji Ali, and that they and their descendants had from time immemorial and from generation to generation acted as mujaiums, taken the specified offerings and occupied the mujawar's quarters, and that it was Rule 65 commonly believed, as the plaintiffs alleged was the fact, that this office and' its privileges were hereditary. See judgment on the counterclaim, p. 529, ofr a full statement of the evidence that the plaintiff proposed to adduce. - Eds.

33. The plaintiffs' whole case accordingly hinged on the existence of such an office as they alleged and of the functions appertaining to it,-on the recognition by the law that the agglomeration of rights and functions, with the 'service,' attributed by the plaintiffs to mujawars, forms, with reference to the administration of the waqf, a unit, and that therefore a determinate individual designated mujawar must exercise the rights and perform the functions and service.

34. The meaning given to the word mujawar by the dictionaries is 'a servant or sweeper of a Muhammadan temple or shrine' (Wilson's Glossary); 'a. person fixed to the shrine' (Richardson's Persian and Arabic Dictionary). The literal meaning was stated by Mr. Haindaday to be 'one who lives close by' (viz., near a place deserving veneration).

35. The duties of the mujawars according to the plaintiffs' senior counsel are as follows :-(1) to sit by the tomb; (2) when the devotees come, to read the Fatiha; (3) to invoke the blessings of the Pir for the devotees; (4) to-keep lights burning at the shrine; (5) to put on the ghilaf (covering) and' to do other work; (6) to put on the incense; (7) to weigh the children; (8) to place flowers on the tomb; (9) generally to act as intermediaries between the devotee and the Pir.

36. Bearing in mind the general principles of the law relating to waqfs, and the attitude of Islam to tombs, I had great difficulty in understanding what place the performance of such alleged duties or services could have in the administration of the waqf in question. On my indicating these difficulties, Mr. Haindaday, at the request of his senior, and, with the object of showing that the plaintiffs and their ancestors occupied, in the words of counsel, a peculiar position with reference to the dargah and were entitled to what they claim, formulated in the following terms the plaintiffs' evidence and allegations : that (1) the plaintiffs' ancestors have founded the dargah, viz., built the tomb and had it sanctified, viz., they told people of the virtues of the saint and as to his power of intercession; (2) they were disciples of the Pir; (3) they had all along guarded the tomb and kept it in proper condition; (4) had always stayed on the premises; (5) helped the people to receive-blessings from the Pir, viz., read the Fatiha, the opening Chapter of the Quran, and brought disciples to the Pir and having done so constantly, had acquired a particular position in regard to the Pir; (6) devotees go to the tomb and believe that the plaintiffs are in a better position to help them (the devotees) to recite the Fatiha than any other person; (7) the authorities and texts go so far as to establish that it is permissible for people to go to the tomb of a saint and to request him to help them in the affairs of this world as well as the next by interceding on his behalf with God; (8) since it is necessary for people to know how to ask for the intercession of the Pir, they must have the help of some one else to do it; people who are ignorant must take the help of the mujawar : not only in this dargah, but in all dargahs, it is the custom for people to go to the mujawar and the mujawar to perform this duty; (9) the plaintiffs and their ancestors have always occupied the mujawar's quarters without rent, both before and after the formation of the trust, and that is by virtue of their position as mujawars and descendants of the original founder; (10) the offerings claimed by the plaintiffs have always been taken by them; (11) the people who come to the Pir and desire to have any help may or may not ask for help of the plaintiffs, but the plaintiffs have a right to be there; (12) all the rights claimed in the plaint have been derived from long usage and from the rights having been exercised from generation to generation; (13) so far as the collection of rents, etc., is concerned, the plaintiffs may be employed or may not, that is for the trustees to decide; (14) as to the sandal procession the license is issued to the plaintiffs; and (15) the plaintiffs receive the small offerings on the shamiana. See judgment on counterclaim p. 529-Eds.

37. These propositions are intended to include a full statement of the component parts of the privileges as well as the duties of mujawars.

38. The claim to act as intermediaries or intercessors calls for consideration by itself. Apart from it the plaintiffs do not put forward any such allegations rej letting to their duties or functions as would lead to a decision that the alleged office is known to the law and that the holder of the office is expected to perform those duties. Apart from intercession, what according to their allegations must be deemed to be the mujawars' duties are the ordinary duties, rather amenities, expected from every Muslim. From the performance of such acts of religious courtesy, notwithstanding that the appellation of duties or services be ascribed to them, no one can be excluded or restrained. The right to do such acts cannot be claimed as the special privilege and function of any individual. From the fact, if it be the fact, that such acts of religious courtesy have been done in the past by the plaintiffs and their ancestors, no title to special privileges can be derived. The trustees cannot be prevented from employing any person they may select for the observance or for rendering assistance in the observance of such part of the amenities as may be deemed necessary or proper.

39. On being further pressed, counsel had to concede that to claim an exclusive right or privilege in regard to such acts was out of the question. All that ultimately remained of this claim was that the plaintiffs should be allowed an indefeasible (and in some way preferential) right to assist visitors to the tomb in the performance of their devotional recitations provided that the aid of the plaintiffs was sought. By the last proviso, the preference ascribed to the alleged right is destroyed.

40. Refuge was sought, however, under cover of the claim to act as inter-ceders. It was argued that the Hanafi law allows great latitude in regard to the doctrine of intercession, i.e., an intervention between the devotee and God. It was conceded, what indeed cannot be questioned, that the Quran itself is insistent (Sura LXXIV : verse 49 : LIII : 39-41) that each soul is directly answerable to God (LXXIII : 20; LXXXII : 5, 19; LXXXVIII; 22-26; XX : 76-78): and that no intercession shall avail 'save his whom God shall allow to intercede' ('XX: 108; II : 48, 255; XLIII : 86). But it was argued that the Hanafis in India freely recognize 'Pirs' (saints) and that the Court was bound to give effect to this general recognition.

41. The exposition of the Hanafi law by the authoritative commentators and institutional writers must prevail for the purposes of civil rights.

42. That exposition may no doubt be overridden by commentaries proved to be recognized by a particular community as being of paramount authority, or by particular rules of conduct alleged and proved to have been adopted by custom. No custom altering the Hanafi law has however been pleaded in this suit. The plaint is silent in this respect. No commentary or text has been produced, though I gave time to the plaintiffs to enable them to produce any text that could support their case. In the absence of such allegations in the pleadings and of satisfactory evidence in support of such allegations, the general Hanafi law as expounded in the recognized texts must prevail.

43. I suggested to the plaintiffs' counsel, moreover, that if any amendment to the plaint was sought as a preliminary to reliance upon special custom or usage, or upon any alteration of the general Hanafi law in regard to the subject-matter of this suit, it was open to them to make an application for the purpose. I went further and invited a statement of their case untrammeled by the allegations in the plaint. Then it was alleged, under the categories 5-8 which I have set out above, that there are texts of authority to the effect that pirs or holy persons may be; appealed to as interceders and that the appeal for intercession may be made not only to the saint himself when he is living, but at his tomb after his death. If any civil rights depend upon such beliefs, they can no doubt be made to form part of the pleadings. I, therefore, desired that the texts that were alluded to should be produced, and promised to consider sympathetically any application for amendment of the plaint. But no texts were produced nor any references given. Nothing definite was stated on the subject. No application for amendment to the plaint was made.

44. But even assuming that counsel's statement can be supported in its widest terms by texts, the plaintiffs cannot succeed unless they make out not only that the pir, and after his death apparently his tomb, may be appealed to as an interceder for divine favours, but that the pir himself, or his tomb, must necessarily be approached through the intercession of the plaintiffs and their descendants as the hereditary mujawars, notwithstanding that it is not claimed that the plaintiffs or their ancestors are specially distinguished by piety or learning. The plaintiffs' claim under this head is to act as the exclusive intermediate interceders to the ultimate interceder, the pir, or rather the pir's tomb. It is only on some such preposterous supposition that the claim to the exclusive privilege of intercession as mujawars can be supported. The averment under the head of intercession, stripped of circumlocution and verbiage dwindled in the course of the discussion before me into no more than an exclusive claim to read certain chapters of the Quran, which every literate Muslim is competent and expected to read near, or away from, graves.

45. I cannot claim any special familiarity with the subject. Speaking with this limitation, I find it extremely difficult even to formulate a custom or principle of religious law supporting a reasonable case in favour of the plaintiffs, in the shape that their case (as the result of the discussion before me) ultimately assumed : for their case makes them out to be special interceders to the Pir on behalf of the visitors to the tomb, so that the Pir may intercede with God. Counsel for the plaintiffs did not undertake the task of formulating such a custom or principle.

46. Turning now to the claim that the plaintiffs make to the offerings, and speaking with the same limitation, I cannot help referring to the repeated mention in the Quran of services rendered 'not for the sake of recompense, but only as seeking the face of the most high' (Sura XCI'X : vv. 19, 20). Again and again it is impressed, as a test of the true (religious) teacher that 'he asks of you no reward for this : for the reward is with the Lord of the worlds alone.' (XXVI: 109, 145; VI: 90, 91; XXXIV: 46, 47; XI: 29, 31; X: 72, 73). 'Follow' it is said in the Yasin, which Chapter the plaintiffs claim a right to recite as interceders to the Pir, 'those who ask not of you a recompense' (XXXVI: 20; XXIII: 74). 'Thou shalt not ask any recompense for this. It is simply a reminder for all mankind.' (XII: 104). Though these texts refer to prophets and not ordinary teachers, pious Muslims are reluctant to demand or even receive anything by way of remuneration for any instruction, but especially for religious instruction, or for rendering aid in the performance of religious duties. Where remuneration is accepted they desire to give it the form of a honorarium, a tendency that members of the bar may perhaps find some difficulty in treating with superciliousness.

47. I have considered the plaintiffs' case in the first place from an aspect that the plaint ignores,-the functions of the alleged office. That aspect strikes me as the first essential. The plaint proceeds on the untenable assumption that from mere long continued courses of conduct, rights may be derived to continue acting in the same manner even under altered circumstances and to prevent others from doing the same acts. An important altered circumstance here is the trustees' unwillingness to employ the plaintiffs. Long continued action may no doubt indicate a lawful origin. If the acts could not have been lawful unless a grant or a contract authorized them, then a grant or contract may be presumed to explain their long continuance. But the acts here in question are clearly lawful without any grant or contract. No contract or grant need be presumed. A contract or grant, far from explaining their origin, seems meaningless in connection with them.

48. The plaintiffs have failed even to suggest how they can acquire a right to hold the alleged office. Let it be assumed-some of the assumptions entail contradictions in terms-that the tomb must be treated as a religious institution, and that the performance of unspecified duties by the holder of a hypothetical office is necessary for the due administration of the hypothetical institution. From what authority do the plaintiffs derive an exclusive right to hold this non-existent office and to hold it hereditarily without responsibility to the trustees who are charged with the due administration of the institution? Offices requiring special qualifications cannot easily be deemed hereditary, and even hereditary office-bearers are liable to be removed on adequate grounds : Mahomed Ismail Ariff v. Ahmed Moolla Dawood (1916) L.R. 43 IndAp 127.

49. Passing from allegations that have not been made, though they are essential for establishing or even for suggesting any reasonable theory for the existence of any such claim as the plaintiffs put forward, I come to what is in fact alleged. If all the allegations and implications of fact and law contained in the plaint were accepted, the claims of the plaintiffs would fall under three heads : (1) claim to perform the alleged duties of mujawars, with which I have already dealt, (2) to receive the specified offerings, and (3) to occupy free of rent the mujawar's quarters. I have not so far touched the two latter allegations.

50. Here, again, the plaint and arguments are on the basis that the receipt of the specified offerings in the past is sufficient to establish a right to receive them in future.! The character and occasion of these offerings must, therefore, be considered at the outset. I must, it need hardly be said, put aside anything in the nature of a gift to the plaintiffs personally. There is nothing in law to prevent anyone making or receiving a gift within the precincts of a dargah, subject of course to the observance of such good order and decorum as the trustees or other administrators of the endowment may reasonably impose. Such gifts are not in question in this suit.

51. What are referred to as offerings at the dargah are gifts, in some way specially connected with the dargah, ('sadaqah' is probably the term that ought to be applied to them), brought by those who visit the shrine. The position in law of such offerings ought not to admit of serious question. I have already alluded to the fact that a visit to a tomb is presumed to act as a memento of death and to produce a feeling of heightened spiritual consciousness leading to devotional recitation (from the Quran) and resulting in a desire to fulfill the dictates of religion generally. The Quran has from first to last linked with religion a duty to help the needy. For instance in the celebrated Sura Al-Ma'un (CVII) which begins with the question 'who is it that treats religion as a lie?', the very first part of the answer is : 'He it is who thrusteth away the orphan and stirreth not others to feed the poor.' Prayer is here mentioned only in the second place, and the mention of prayer is again coupled with the twin duty of charity: 'who make a show of devotion but refuse help to the needy.' The thought of death and charity are pointedly brought together in several passages, e.g. 'Oh ye who believe, let not your wealth divert you from remembrance of God : and expend in giving alms and become of the just ere death surprise each of you.' (LXIII : 9, 10 abbreviated; See also LXV : 8; XLVII : 175). Visitors to graves being reminded that death may surprise them, incline to give 'a due share of their wealth to the suppliant and the outcast.' (LI: 19); and thus to 'Lend God a good deed: for whatever good deeds ye send on before for your own behalf ye shall find with God.' (LXXIII: 20).

52. The box of offerings (ghalla) is prima facie an invitation to the visitors to discharge, by immediate action, part of this duty of charity, this necessary step in becoming of the just. The offering proceeds from a trust that it will v. be utilized for the institution itself, or for 'lending God a good deed,' i.e., putting the offerings to fitting charitable uses. The visitor may be presumed to be conscious that the upkeep of the endowment necessitates the subsis or remuneration of those who devote themselves to its administration, and so it is implied that the donation may be utilized for these purposes. Lord Cave contemplates a religious preceptor whose sanctity attracts disciples: Muhammad Hamid v. Mian Mahmud Donations may be given with the express object of supporting him-with due regard to the considerations I have already mentioned. But claims may thereafter be made by others than the original preceptor. These persons may be the descendants of the original preceptor or at any rate his successors who are able after his death to be in the same place, locally if not morally. They may be unwilling to accept an unsophisticated interpretation from the Quran-I have cited some of the relevant passages and may learnedly construe the Quran in a sense that permits an insistence (in some suitable form) on payments being made for such religious teachings or aids in the performance of religious duties, as they profess to give at the tomb. Such claims, even if their assertion is unchallenged for some considerable time, do not build up an office or create any right in favour of the claimants.

53. I have already mentioned that when the offerings are given, the intention to benefit a particular person or object may be indicated. Apart from such indications, the trust is based on a real or assumed feeling of inability on the part of the donor to select an object of charity entirely in consonance with the spirit of Islam. For under Islam not every person is a fit object of charity, or competent to hold himself out for alms. See Mishcat-ul-Masabih, VI, V, 1, 2, (Matthew's Translation).

54. Particular forms of offerings-cocoanuts or sugar or cradles-may for sound, or unsound, or for no reasons, appear most suitable to the visitors. The form or subject of the sadaqah cannot alter the nature of the devotional act or the guidance that is sought or trust reposed, in regard to the selection of a proper object of charity.

55. Amongst the occasions on which some of the specified offerings are made, one is named the sandal paste procession in the plaint. When Mr. Bhagwati, senior counsel for the plaintiffs, came to this expression, he sought guidance from his junior Mr. Haindaday, as he did not know what the expression meant, and how the second word was to be pronounced. He was told that it was to be pronounced ' paste' in two syllables,-some unexplained word suggesting a ceremonial of mysterious power and efficacy. The common place English word 'paste' in one syllable was then suggested by the Court, and this suggestion turned out to be correct. But for this untoward incident the procession might, after this litigation, have acquired a new mysterious designation, and a new status, based on the mystery. I refer to this trivial incident, as it is typical of what is known to happen, and illustrates the ease with which a halo of mystery and inexplicable efficacy may be thrown upon common place actions.

56. No explanation was offered of the weighing of children and adults against copper coins. I am left in the dark as to how the plaintiffs claim that their presence adds to the efficacy or sanctity of the weighing,-whether their presence enhances or lessens the weight of the children.

57. The trustees may perhaps consider the feasibility of taking steps such as organising khutbas to be delivered at the dargah by learned and pious Hanafis so that the visitors to the tomb may be led, without their religious susceptibilities being hurt, to a better and clearer conception of the significance of visiting the graves of holy persons in accordance with Hanafi doctrines. This may lead to forms of offerings and charity being adopted which, judged by Hanafi standards, would not be liable to be classed as superstitious.

58. The plaintiffs' claim to put up a private ghalla for their own benefit and not for donations to the dargah, could only have been supported on some such ground as that (1) the plaintiffs were publicly recognised as being assets of the community, so as to turn their maintenance into a public charitable or religious object, or(2) as being so trustworthy and so well qualified to dispense charity on behalf of less gifted persons, that the ordinary visitor to the dargah,. instead of taking the risk of selecting for himself fitting objects of charity, is induced to entrust the task to the plaintiffs. The plaintiffs impliedly claim such public recognition; though they were apparently too modest to put it forward explicitly. Or, perhaps, their view is that as charity is meant to relieve-the wants of the needy, these offerings, intended for charity, may be safely appropriated by the mujawars to their own use : since charity ought not to be-sent wandering from pillar to post. Assuming that the evidence would have shown that such a ghalla was in the past allowed to remain on the trust premises, it can only show that the trustees or other authorities for the time being permitted it. No legal right can be based on proof of the fact.

59. The scheme adequately provides for the collection and due application by the trustees of all offerings. It is evidently based on the principles that I have stated. All that is material, however, in the present context is that the plaintiffs cannot claim any right from the fact, assuming that it is the fact, that they and their ancestors had been appropriating to their own use donations which may or may not have been meant to be so appropriated.

60. The third right claimed by the plaintiffs is to occupy the mujawar's quarters free of rent. This right is, like the rest, claimed on the bare assertion that the plaintiffs are entitled to be the hereditary mujawars. No attempt is made to explain how the hereditary mujawars (assuming that there are any) acquire the right. It is alleged that the plaintiffs and their ancestors have been occupying the quarters. Except as provided in the waqfnama, no person may occupy waqf property without paying a reasonable rent, and the mutawalli has no authority to let it be occupied without payment of rent : Baillie I, 1st Edn. 597, 2nd Edn. p. 606. Here no legal origin is suggested for a right to the plaintiffs to occupy the quarters. Clearly the occupation was by the leave and licence of the trustees, and as remuneration for services which the due administration of the trust requires to be rendered. The scheme vests the whole property in the trustees without any direction to allow a part of it to be occupied by the plaintiffs. This is fatal to this part of the plaintiffs' claim. If the plaintiffs had any right of residence it is difficult to explain why no mention was made of it in the scheme and why it was not properly provided for. The trustees say that they have in fact recovered rent from the Their evidence is not before me and I do not know if that is the case. But the plaintiffs make out no sort of claim to any part of the trust premises in derogation of the trustees' title thereto. Nor is it explained how the trustees are bound to do what ordinarily the mutawalli has no authority to do.

61. Again it is asserted that the remuneration for performing the duties of the mujawar consisted of the right to occupy the mujawar's quarters; that the right to appropriate the offerings is implied and that no other remuneration was received for acting as mujawars. Assuming that that was so, how do the plaintiffs acquire a right to continue this arrangement when the trustees are dissatisfied with the plaintiffs' performance of their functions? Assuming that there was some kind of hereditary right to be mujawar, the hereditary right to hold the office cannot stand on a higher footing than a similar right in the case of mutawallis : mujawars must be liable to removal, and the trustees' allegations if true would certainly be sufficient cause of removal.! The plaintiffs' case, however, is that they have a right independently of the trustees. The only alleged title to such a right is the much iterated long continued practice.

62. It would be a waste of time to proceed further with the hearing of this suit. If the plaintiffs place before me all the evidence that they say they are in a position to adduce, I should still hold that they cannot have any of the relief's that are claimed in the plaint.

63. The suit must, therefore, be dismissed. I will deal with the costs after hearing the counterclaim.

64. His Lordship next proceeded to hear the counterclaim.

65. April 1, 1935. I have already dismissed the claim of the plaintiffs for a declaration that they are the hereditary mujawars of the Haji Ali Dargah and as such entitled to the possession and enjoyment of the mujawar's quarters. I have now to deal with the counterclaim of the trustees seeking to eject the plaintiffs. I will continue to speak of the defendants to the counterclaim as the plaintiffs, and to use the other expressions common to this and my previous judgment, in the same senses.

66. It might have been expected that on my main judgment the plaintiffs would (subject to the Court of Appeal taking a different view of the plaintiffs' claim to occupy the mujawar's quarters) submit to a decree for ejectment. They did not do so; and it became necessary for the defendants to prove their right to eject the plaintiffs. The plaintiffs' alleged right to stay in the mujawar's quarters might then have been placed before me as a defence to the trustees' counterciaim. But I had already held that the plaint disclosed no cause of action, inasmuch as it proceeded on the unwarranted basis, without actually formulating the allegations, that there is an office known to the law as that of mujawars : that if any such office had been alleged to exist the allegation could' not have been supported in law as I understand it; that the plaintiffs do not state, much less have they proved, how they became entitled, whether by grant or contract or by operation of what law, to exercise those rights which they say are the component parts of the privilege of the alleged office or to receive the offerings specified in the plaint as holders of the said alleged office or to continue to reside in the mujawar's quarters. I did not accordingly allow the plaintiffs to adduce evidence in regard to allegations that are irrelevant if the law is as I understand it. [His Lordship remarked as to the leading of evidence in the case and proceeded :]

67. The evidence given by the plaintiffs themselves establishes several points that I had anticipated : amongst them that the functions which they impute to the mujawar consist of nothing more than the usual amenities expected from every Muslim.

68. The plaintiffs admit that they have no claim to special powers of intercession derived by sanctimonious heredity, pious erudition, or divine gift. The devotional recitations that the plaintiffs in effect claim to be entitled to have an exclusive right to recite at the grave of the Pir are, it had to be admitted, not different from those that Islam requires and literacy enables every Muslim to recite at every grave. Therefore it cannot be recognized by the law to be the exclusive right of any person to perform these duties or to do these meritorious acts of devotion at any grave. Nor can the plaintiffs resist a demand that they should vacate the mujawar's quarters on the ground that they are entitled to officiate as mujawars (in the sense in which they themselves explained the expression) at the tomb and that as a necessary consequence they are entitled to remain on the premises or be in occupation of the said quarters.

69. Similarly with reference to the offerings as the plaintiffs have no right to exact them from the visitors, they cannot claim that they are entitled to be present at the tomb to receive them. I have stated the duties under Islam with reference to graves, of respect to the dead, of visiting graves as a memento of death and as a reminder of the responsibilities of life which ends in death. Such visits are presumed to lead to recitations from the Quran which in their turn may produce a desire to discharge other religious obligations, and amongst them of expending for the benefit of the poor and the deserving. This I take to be the origin of the offerings at the grave : the visitor to the grave being intensely conscious of his religious responsibility feels impelled to perform also his duty of charity. The offerings, therefore, are either charity dispensed immediately and directly by the visitor at the grave, or vicarious charity by handing over a sum to be duly applied thereto by a person who is presumed to be better qualified to expend it in the most proper way. In this manner the person making the offerings immediately discharges his own duty, though the determination of the precise form that the charity is to take may be left to holier and more competent hands. The immediate recipient may be either the agent of the authorities in charge of the tomb or may himself be a person deserving and competent to receive charity. If so, or if the intention is otherwise indicated, he may apply the donation to his own needs. In the present case I have no hesitation in saying that the plaintiffs were to act as the agents of the trustees under the scheme in so far as the offerings are concerned. But there is a second consideration, and either of these is sufficient for the present case, that no legal right can be ascribed imposing on the visitor to the grave a liability to make any offerings at all or to adopt either of the two forms of charity that I have mentioned.

70. I visited the premises and saw what is called as the mujawar's ghalla and I accept the evidence of Haji Abdulla Razak bin Muhammad Arabi given on this point (p. 472 of my notes).

71. The plaintiff in his evidence deposed that visitors to the grave whom he called devotees-a description to which strong exception was justifiably taken by one of the witnesses, Haji Abdulla Razak Arabi, (p. 475)-brought offerings of articles, including images of the human body or of parts of the human body in which pain had been suffered. It is hardly necessary to say that Islam is in general opposed to images. The objection to images arose primarily out of fear that they may be used for devotional purposes as idols. Persons competent to speak on the Hanafi faith, whose opinions would be respected, would, I suspect, strongly disapprove of any offerings in the form of such images being encouraged in the dargah. The rites referred to by the plaintiffs in their evidence-the weighing against copper coins or offerings of goor (jaggery) etc., and the sandal paste procession are also, though in a less degree, ceremonies calculated to bring profit to those who organize them, but for which it would be difficult to find any authority or support in the religious books or tenets of the Hanafis. The trustees will, I have no doubt, earn the approval of all pious and learned Hanafis if they endeavour to guide the charitable instincts of the visitors to the tomb (e.g. by getting learned and pious persons to give addresses on the conception of charity in the Hanafi interpretation of Islam and on the object of visiting tombs by other suitable steps) and it may be that the visitors will in future be induced to adopt channels for their charity, which may find approval with those who are competent to act as guides in regard to the Hanafi doctrines.

72. For the present purposes it is enough to state that for the due administration of such an endowment as is before me, the acts that the plaintiffs claim to do and to have done (which they describe as 'service' at the dargah) are not necessary to be done : nor is the doing of them recognized as forming part of the administration of the endowment so as to give rise to legal rights. Assuming therefore all that the plaintiffs assert, no right is established in them to prevent other people from doing that which they claim to do exclusively; and even assuming that there is need for that being done which the plaintiffs claim to have done, it may be done by others than the plaintiffs, and the trustees may employ other persons than the plaintiffs to do those acts on behalf of the trust.

73. The trustees will have a declaration of their right to take the offerings for the purpose of the endowment. It is their duty under the scheme to see that all the offerings accrue to the trust and that no person appropriates them to his own use. I have nothing to add on this head to what I have stated in :my main judgment.

74. In order to obtain a decree for ejectment the trustees must prove that they 1935 are entitled to be in possession of the quarters of which they claim vacant '- possession.

75. At time when I gave judgment on the plaintiffs' claim, the exact tenure of the land on which the quarters are erected and how the trustees came to hold it, was not clear. But now the available records from the Collector's office have been produced and they furnish evidence of certain events in the history of the, land on which the dargah and the endowed property is situated. The land belongs to Government and is held by the trustees on lease. Some time prior to 1852, it appears, the attention of the Government was drawn to the fact that Haji Ali was buried on an inconspicuous part of Government land, which forms an island when the tide is in, but which is accessible on foot when the sea water is low. The Government was informed that on the island there existed an ancient grave which was venerated as the grave of a Pir. Thereafter certain persons,-including one Gul (or Gool) Muhammad described as the keeper or mujawar of the grave obtained from Government year by year, on threat of ejectment and in consideration of paying a yearly ground rent of Rs. 1, annual licences beginning with 1853 to occupy the place on. sufferance. From 1853 to 1862 there were annual licences issued. Then from. 1863 to 1868 no licences were issued. The matter seems to have escaped the attention of Government. But in 1868 the Collector took action by sending threats to eject the occupants unless they admitted that they were in occupation by leave and license. Thereupon one Jacob Haji sent in an application as required. The annual licence was then issued not however to Jacob Haji but to one Abdulla AUarakhia, of whom we have no further information.

76. The chief events of interest that appear from the Collector's records may be summarized as follows :

(1) On January 7, 1858, a person calling himself Gul Muhammad. mujawar applied for permission to rebuild and enlarge the mosque and to. put up a loose stone embankment. Another petition dated March 20, 1858, shows that the mosque was to be rebuilt by one Haji Ibrahim Cadoo.

(2) On June 22, 1858, there is a report that a faqir named Karimunna. said to be eighty years old and the elder brother of Gul Muhammad mujawar had died and was buried near the south-west corner of the old dargah.

(3) On October 18, 1867, it is reported that 'the bava at Mahaluxmi has again erected a small hut on Government ground.' This was removed under the orders of the Collector on October 21, 1867.

(4) On June 29, 1868, 'the mujawar Gul Muhammad or other manager of the tomb of Haji Ali' was required to attend the Collector's office on July 2, 1868. Gul Muhammad seems to have died prior to this date. At any rate on August 25, another notice is issued addressed to 'the manager of the tomb-of Haji Ali' and ordered to be affixed to the chawl. The notice is to the effect that notwithstanding repeated warnings a chawl had been erected on Government land without permission and that it would be pulled down unless permission to occupy the land and erect the chawl were obtained. Such an application was made three days later-on August 28, 1868, by 'Jacob Hajee manager of Haji Ali Tomb.

(5) Then on August 29, 1868, the Acting Collector reports that up to the year 1862 an agreement was annually taken from the mujawar in the form which accompanied the Collector's Memorandum No. 367 of September 1,1853, but that it was omitted to be taken by the department since 1862; and recommends that the mujawar be granted a lease in the form, a draft of which was forwarded. The approval of the Acting Chief Secretary to Government of this recommendation is endorsed apparently on September 11, 1868.

77. In this way the licence seems to have been granted to the said Abdulla Allarakhia, and after him to one Fazla (whom I mentioned in my main judgment) till 1918, when there was the suit in which a scheme was framed and the single mujawar's place was taken by three trustees of the dargah and the mosque lands and buildings annexed to it.

78. At present Government charges the same nominal rent of Rs. 1 per year for the land on which the dargah, the mosque and the mujawar's quarters are situated. But an additional rent at the ordinary rates amounting to Rs. 111-12-10 is charged for the rest of the land. The trustees are the lessees from the Government of the whole of the land, including that on which the mujawar's quarters stand. They have to administer in accordance with the scheme the trust property which includes the land leased from Government. The scheme contains no recognition of the plaintiff's right to occupy the mujawar's quarters; nor do the plaintiffs pretend that they have obtained a lease of the land in question direct from Government.

79. In the scheme there is no provision made with regard to mujawars, either as to the appointment of any mujawars at all or the plaintiffs' right to act as such. The plaintiffs had therefore to explain away the omission from the scheme. They had great difficulty in doing so. They wished to make out that a trust existed in favour of the mujawars which was not included in the scheme and that in some way the plaintiffs' claims were independent of the scheme. The term mujawar is used in the previous licences. That denomination may well have been applied to himself by the person in charge of the tomb from a consciousness that since no property was in question-the tomb itself is not property in Muhammadan law, and the huts put up by the mujawars were structures on Government land at first unauthorised and then on sufferance-he could not style himself the mutawalli of the dargah. In Munnavaru Begam Sahibu v. Mir Mahapalli Sahib I.L.R. (1918) Mad. 1033 Mr. Justice Abdur Rahim refers to the fact that the expression mujawar was used in the sense of mutawalli; and Syed Sahib Ameer Ali stated in the Privy Council that the curator, whether called mutawalli or sajjadanashin, or by any other name, is merely a manager : Vidya Varuthi Thirtha v. Balusami Ayyar . See p. 509

80. In my main judgment I have referred to the way in which a group of institutions similar to the present may grow up in the vicinity of a tomb. There might be a stage in development in which there is a tomb that is progressing towards being recognized as a saint's shrine before there is any endowed property or mosque or khankah or similar institution annexed to it. In this first stage there is no place for a mutawalli. All that there is to take care of is a tomb, and all the 'administration' that is required or indeed possible is to act as the keeper or caretaker of the tomb.

81. In any case it is clear that the trustees are the lineal successors of those who in the earlier days of huts of a temporary nature (exhibit H, pp. 4 and 5) were styled mujawars or keepers of the tomb. When Fazla and after him the trustees under the scheme, took possession of the properties belonging to the: dargah, they were entitled in accordance with the scheme to exclusive management. The scheme established the fact that all the property was waqf and determined who was to administer the property. After the scheme was framed no person other than the trustee was entitled to exercise authority with reference to the dargah and properties annexed to it. Under the scheme the persons placed in charge of the institution were styled trustees and not merely mujawars.

82. If there existed anything in the nature of a moral claim in favour of the plaintiffs' ancestors or others the mujawars for the time being, to exercise some sort of authority at the dargah, that claim ought to have been placed before the Court in 1917 when the scheme was being framed and the trustees appointed. The failure to do so may have proceeded from a consciousness that there were no such claims, or that the trustees ought to consist of Fazla the person who really endowed the dargah and persons suggested by him. Assuming at the highest that the claim of the mujawars for the time being was overlooked, there can be no rectification of the oversight now, certainly not in the manner suggested for the plaintiffs. The position is entirely different from those created by the scheme in Sevak Kirpashankar v. Gopalrao (1912) 15 Bom. L.R. 13 and the sanad in Ramchandra Narsingrav v. Trimbak Narayan Ekbote I.L.R. (1891) 16 Bom. 374 which cases were relied upon. There, in addition to the trustees, another body was clothed with joint authority, sevaks in one case, gumasthas in the other, to exercise specific and denned powers independently of the trustees.

83. It is established by the evidence that till the middle of 1924 the plaintiffs themselves paid rent to the trustees at the rate of Rs. 12 per month. [After discussing evidence, the judgment proceeded.]

84. The whole of the land on which the dargah and the trust premises are situated was held on tenancy at will till 1917-18 (the evidence of the witness Dwarkanath Rajaram Vaidya, p. 2 of my notes). The plaintiffs could not acquire a right of permanent occupancy over land held on a tenancy at will. Assuming that the plaintiffs' ancestors were in occupation, is it the plaintiffs' case that the Government could not lease their own land to any one else? How could the plaintiffs acquire any right to occupy land belonging to Government and only allowed to be occupied on a tenancy at will (as was the case till 1917-18), and how can the plaintiffs now complain if the Government in 1917-18 decided to give a lease of the land not to the plaintiffs but to the trustees, in apparent oblivion of all that the plaintiffs claim by reason of their meritorious ancestry? The plaintiffs cannot sustain their case in this view unless they can prove that the Government had no power to grant a lease of the land to the trustees without duly reserving their right of residence. Any claim they may have must be against the Government. Would that claim be based on the fact that Government had allowed the plaintiffs' ancestors to occupy as tenants at will the land on which the mujawar's quarters are built? and would that fact lead to the conclusion that the land could not be leased to trustees except subject to such reservation in favour of the plaintiffs? Or, would it be that the Government cannot select the trustees as their tenants because they are mere strangers to the dargah who do not claim to be mujawais, v. neither hereditarily nor otherwise nor to have 'founded' the dargah

85. The lease by Government is followed by the scheme. The trustees have thus been made lessees on trust for certain objects; and the plaintiffs' claim is in the nature of a claim that beneficiaries may make against trustees. But the lease and the scheme are conclusive evidence against any such rights.

86. The plaintiffs' tenancy has been lawfully determined by notice. I hold that the trustees are entitled to eject the plaintiffs from the mujawar's quarters.

87. Certain minor questions of fact remain to be dealt with. [After dealing with these, his Lordship went on.]

88. I am inclined to think that the plaintiffs' ancestors (whatever their names) have been on the premises for some time. Certainly Abdur Rehman was there and possibly another ancestor before him. Haji Abdulla, the Arab, who is proved to have died on March 12, 1898, at the dargah, was in my opinion a mujawar and latterly the senior mujawar. There was later on associated with him Abdur Rehman as an assistant mujawar. So that three mujmvars are proved to have acted (1) Gul Muhammad; (2) the Arab Abdulla Rashid, (who died on March 12, 1898); (3) Abdur Rehman the plaintiffs' grandfather (who died on March 3, 1915)....

89. I am inclined to reject the evidence that the graves by the side of the dargah are all graves of persons belonging to the plaintiffs' family....

90. The documents produced from the Collector's office indicate what is in accordance with what might be expected in regard to such a dargah as is involved in the present case,-that at the start at least, no single person claimed to be the exclusive mujawar or manager of the place. In the early days there seem to have been several persons designated faqirs living on the premises of the dargah. The plaintiffs' witness says that faqirs come to stay at the dargah and may live there for some years (notes p. 440). The persons residing there in the early days do not seem to have been antagonistic to each other. None of them claimed any exclusive right, or required any one else to make place for him or grudged the others living there and sharing the offerings. In those days the offerings must have been small. It is possible that the plaintiffs' ancestors before Abdur Rehman were amongst the group of persons who are mentioned in the documents produced from the Collector's office as having been living round about the grave. When the stage in the history of the dargah is considered it is obvious that no other position could well have existed at that time.

91. To establish a right of hereditary succession to an alleged office it is necessary first to prove that such an office is known to the law. This the plaintiffs have failed to prove. Assuming that such an office is recognized by the law it would have to be proved how the office was established or how it arose in this particular endowment and how the right to occupy the office was claimable by a particular family. From long usage a presumption may, it is true, arise that the original dedicator of the property provided for a here ditary succession to an office necessary in the administration of the endowment; Ismailmiya v. Wahadmi Begam I.L.R. (1911) 36 Bom. 308. There is no room for any such presumption in this case : no facts are proved bringing me to a position in which such a presumption can find place. Speaking with reference to these rights, there is no office, no waqif, no property annexed to the office, no duties thrown upon the office-holder, no rights associated with the alleged office, no place for such an office-holder in the machinery for the administration of the waqf. [The Mahomed provisions of the scheme were referred to.]

92. The point whether the salary admittedly paid to the plaintiffs was for those duties which were described as secular as distinguished from what was alleged to be the mujawar's duties was futile. The position was clearly this. Certain persons assumed the designation of mujawms. There were probably more such persons than one in the beginning. They found it worth their while to remain at the tomb and perform the far from onerous duties if seeing that the tomb appeared clean and that they themselves appeared holy and sanctified. In consideration for this they had free quarters and offerings to take or to share. Then there was a great expansion, due mainly to the munificence of Fazla who erected a mosque and the chawl in the vicinity of the tomb. He naturally assumed the management of the endowment he made. As naturally he did not disturb the persons who had been acting as the caretakers of the tomb. Those persons (the mujaivars) retained their originally lowly occupation and did not come forward and claim the right to be trustees of the property endowed by Fazla when the question was placed before the Court. They could not have put themselves forward as rivals of the donor himself, but were glad enough to be employed as managers of the rent producing property. One of the witnesses Haji Sulaiman Haji Abdul Kadwani (p. 499 of my notes) states that he did not know how the plaintiffs became mujawars. He found that the plaintiff was mujawar when he was appointed trustee.

93. There was much discussion on the two alternative views of the plaintiffs' position : first, that the work that plaintiff No. 1 did as keeper or caretaker of the dargah, and as rent collector or manager of the chawls and residential quarters, formed one indivisible set of duties for which the consolidated remuneration or consideration was (a) a salary, (b) the right to occupy the mujawar's quarters, and (c) the authorised or unauthorised perquisites styled as the offerings. The second alternative was that neither the duties nor the considerations were single, but the duties of mujawar and manager respectively were severable, and the considerations for performing them also were severable. The trustees' case becomes stronger if the former alternative is adopted. In my view that is the only reasonable alternative : what are called the duties of the mujawar are not any special duties known to the law, nor any acts required by law to be done by any single individual as the holder of an office in order that the trust properties may be duly administered in accordance with law. The scheme negatives the suggestion that for the due administration of the institution any person need be appointed to perform the acts which the plaintiffs say constitute the functions of mujawar. The servant or other person employed to do any kind of work (such as caretaking) does not become clothed with any specific rights or liable to perform any specific duties by being called mujawar or by the service being held from generation to generation. Plaintiff No. 1 was willing to receive his whole salary between July and September, 1933, though he did nothing beyond what would according to him be the duties of the mujawar. But assuming that the trustees did divide the functions performed by the plaintiffs under two heads and remunerated the performance of these duties under two severable considerations, the case for the plaintiffs is not advanced.

94. [The judgment here adverted to questions of fact and proceeded.]

95. Before calling upon the plaintiffs' counsel finally to address me I desired him to state categorically the class of oral evidence that he wished to adduce both on the suit and the counterclaim. I delayed this question till after the counterclaim had been fully placed before me both because I wished the plaintiffs to have as much time as possible to consider their case, and because I felt that as in the counterclaim the onus was on the trustees, the plaintiffs would, after the trustees' evidence on the counterclaim had been led, be able most clearly to realize the exact questions that arise and the matters on which evidence would be required on their own behalf both as plaintiffs in the main suit and as defendants to the counterclaim.

96. I will now deal with the points mentioned by Mr. Bhagwati on March 28, 1935, on being so called upon. He stated that he was prepared to adduce evidence on these points :-

(a) that the ancestors of the plaintiffs founded the dargah : founding the dargah means burying the Pir, and doing service at the tomb and acting as mujawars;

(b) that the mujawarship has descended from generation to generation;

(c) that the reputation is that this mujawarship is hereditary;

(d) that the offerings that are claimed by the plaintiffs have been taken by and do belong to the mujawars;

(e) that the quarters known as mujawar's quarters have been occupied by them reputedly free of rent;

(f) that the mujawars are entitled to the takings of the ghalla as claimed in the plaint.

97. My opinion was that evidence with respect to all these points would be irrelevant or unnecessary for the following reasons :

(a) Assuming that the plaintiffs' ancestor buried the Pir, and did the 'service' and 'acted as mujawar' it is clear from the plaintiffs' evidence and otherwise for the reasons stated in my main judgment that such acts cannot give rise to such exclusive claims as the plaintiffs assert.

(b) Assuming that these ordinary and usual acts called the duties of the mujawars have been done by a series of persons each being the descendant of his predecessor no hereditary rights can arise there from.

(c) Reputation is not relevant. Muhammadan law does not favour heredity in regard to offices of trust or offices requiring special qualifications. If this alleged office requires special qualification it cannot be hereditary. If no special qualifications are needed for it, it strengthens the view that there is no need for the alleged office and no pretext for preventing others from doing the acts in question.

(d) Bearing in mind how the offerings are made, it is easy for the person actually receiving them to put them to his own use. It does not follow that he has any right to do so. The law does not give any right to the recipient (in. the absence of something to indicate that that was the intention of the donor) to take the offerings for himself; and the scheme accordingly provides for the trustees taking the offerings, as part of the trust property.

(e) Reputation on this point is not relevant.

(f) The trustees do not press their claim in respect of the offerings made in the past and retained by the plaintiffs to their own use. In regard to the future offerings the trustees are bound to see that decorum and order is observed at the dargah. It is not conducive to decorum and good order that individuals or employees of the trustees should put forward their own hall as invitations to charity to themselves, and in this manner act as rivals to the surrounding institutions. The evidence of past conduct would be irrelevant to the real issue which is one of law.

98. It seems to me that there ought to be a decree in terms of prayers (a), (b) and (e) to the counterclaim.

99. The plaintiffs will pay the costs of the suit and the counterclaim; as well as the costs of the adjournment on March 12, 1935. [After making orders for subsidiary costs and custody of keys, the following findings were recorded on issues raised in the case.]

100. The real issues that arise in the suit and counterclaims and my answers to them are as follows :-

(1) Does the plaint disclose a cause of action?-Ans. No.

(2) Is such an office as that of mujaward of the dargah, (with the functions and emoluments attributed to them in the plaint or otherwise by the plaintiffs) known to the law, and recognized as an office necessary for the due administration of such an endowment as the Haji Ali Dargah Trusts?-Ans. No.

(3) Assuming that such an office is known to the law, are the plaintiffs entitled to hold it by heredity or otherwise?-Ans. No.

(4) Can a right to hold the alleged office be established by the mere fart that it has been held in the past by the plaintiffs' ancestors?-Ans. No.

(5) Have the plaintiffs' ancestors been holding the alleged office and excluding other persons from doing the acts alleged to be the functions of the mujawars?-Ans. Not necessary. I have not allowed the plaintiffs to adduce their evidence. But it was indicated to me that the evidence would be to the same effect as the evidence that the plaintiffs' first witness gave or was prepared to give. The plaintiffs themselves were also examined. On the other side the evidence from the Collector's records was adduced. In view of the evidence that is before me and of the nature of the functions attributed to the mujawars it seems extremely difficult to see how the plaintiffs could have proved their allegations in this issue. My view is that what the plaintiffs allege as the special and exclusive functions of the mujawars are the ordinary amenities expected by Islam from every human being at every grave, and no person can have done the acts to the exclusion of others.

(6) Apart from the existence or non-existence of the alleged office does the law recognize an exclusive right-(a) to perform the alleged duties of the office? (b) to receive the offerings referred to in the plaint?-Ans. No to both parts of the issue.

(7) Have the plaintiffs any right to occupy free of rent the quarters known as the mujawar s quarters?-Ans. No.

(8) Are the plaintiffs bound to account to the trustees for the offerings received by them from the visitors to the dargah?-Ans. Not pressed. On this point the evidence of reputation might have been relevant as evidencing whether the offerings were intended to be taken by the plaintiffs.

(9) Whether the plaintiffs are entitled to any and if so what relief's. Ans. None. The suit must be dismissed with costs.


(10) Whether the trustees are entitled to hold the lands belonging to the Haji Ali Dargah subject to any rights in favour of the plaintiffs therein and in particular subject-(a) to the plaintiffs' right to occupy the mujawar' quarters? (b) to the plaintiffs' rights to receive offerings at the dargah? (c) to the plaintiffs' right to perform the functions that the plaintiffs claim to be entitled to perform?-Ans. Not subject to these rights.

(11) Whether the trustees are entitled to eject the plaintiffs on due notice from the mujawar's quarters?-Ans. Yes.

(12) Whether the plaintiffs have any hereditary right to occupy the mujawar's quarters free of rent.-Ans. No.

(13) Whether the trustees are entitled to the offerings at the dargah? Ans. Yes.

(14) Whether the trustees are entitled to an account from the plaintiffs of the offerings collected by them at the dargah and not already accounted for?-Ans. Yes. But not pressed.

(15) Whether the trustees are entitled to terminate the plaintiffs' services on a monthly notice?-Ans. Yes.

(16) Whether the notice to terminate the plaintiffs' services has been given?-Ans. Yes.

(17) Whether assuming that the plaintiffs had any such right as they allege to act as mujawars, the trustees were in the events that have happened entitled to terminate the term of such office by reason of the plaintiffs' misconduct?-Ans. Yes. The plaintiffs' conduct with regard to the letting of the rooms, their refusal to act according to the instructions of the trustees and their claiming to be entitled to retain the offerings for themselves would be justification for removal from an office of trust-if any such office had been proved to be known to the law.

(18) Whether the trustees are entitled to any and if so what relief?-Ans. Decree in terms of prayers (a), (b) and (c) to the counterclaim.

(19) Ought the plaintiffs to be allowed to adduce the evidence indicated by their counsel on March 28, 1935, either as supporting their claim in the suit or in reply to the trustees' counterclaim?-Ans, No.

101. Quite different issues were suggested by the parties. I did not think it worthwhile to spend time in discussing them and framing the proper issues. I will therefore now deal with the suggested issues and answer them so far as necessary. This will involve my answering certain issues in spite of my not having allowed the plaintiffs to adduce evidence in respect of them. I do so, as, to a certain extent, the credibility of the evidence that is shut out is itself involved in the view of the law on which my answers are based. At any rate my answers are on the evidence that is before me.

Issues suggested by the plaintiffs.

(1) Whether the dargah was founded by the plaintiffs' ancestor and if so by whom?-Ans. The expression 'founded the dargah' is meaningless. Taking it to mean 'burying the saint' the issue is unnecessary.

(2) Whether there are four tombs outside the dargah and whether the said ancestor lies buried in one of the four tombs?-Ans. Unnecessary. There are four tombs. One of the persons buried is Karimunna (see exhibit H). It is not proved that any of the plaintiffs' ancestors are buried there, though Gul Muhammad (who may be the plaintiffs' ancestor) is buried there.

(3) Whether in and prior to 1865 the plaintiffs' great grandfather Ghulam Muhammad was the mujawar of the dargah?-Ans. Unnecessary. Not proved.

(4) Whether the said Ghulam Muhammad lies buried in one of the four tombs outside the dargah?-Ans. Unnecessary. Not proved.

(5) Whether Abdur Rahman the great grandfather of the plaintiffs succeeded the said Ghulam Muhammad as mujawar?-Ans. Haji Abdulla Rashid was the immediate predecessor of Abdur Rahman. It is not proved that there was such a mujawar as Ghulam Muhammad (as distinguished from Gul Muhammad).

(6) Whether ever since the foundation of the dargah, the plaintiffs' ancestors from generation to generation and after them the plaintiffs have been the mujawars of the said dargah?-Ans. No. There were at the start several persons acting as keepers or caretakers. They were really persons who were in unauthorized occupation of Government land until the yearly licences for tenancy at will were issued.

(7) Whether the plaintiffs and their ancestors have been in possession, use and enjoyment of certain premises attached to the dargah independently of the trustees and in their own right?-Ans. No.

(8) Whether the said premises have been after the framing of the scheme in 1918 in suit No. 1337 of 1916 and are now in the possession and occupation of the plaintiffs in their own right and independently of the trustees?-Ans. No.

(9) Whether the other ancestors of the plaintiffs lie buried in the other two of the four tombs outside the dargah?-Ans. Not proved.

(10) Whether the small ghalla is known as the mujawar's ghalla?-Ans. Unnecessary. I have not got the whole evidence before me, but the evidence of the trustees is corroborated by what I saw at the premises when I visited them.

(11) Whether the small ghalla came into existence at the time of the alleged founding of the said dargah?-Ans. Unnecessary.

(12) If the answer to the preceding issue is in the negative when did the small ghalla come into existence?-Ans. Unnecessary.

(13) Whether the moneys collected in the small ghalla have always been taken by the plaintiffs' ancestors and after them by the plaintiffs independently and in their own right?-Ans. Unnecessary. If the plaintiffs and their ancestors have taken certain offerings for their own use, such offerings may be proved to have been given to the plaintiffs or their ancestors as personal gifts. If it is not proved that they were intended to be gifts personal to the plaintiffs or their ancestors, it would be an unauthorized and illegal act on the part of the plaintiffs and their ancestors to put the offerings to their own use. What is enough for the present suit is that the trustees are entitled to administer the trust, and they are entitled and indeed bound to administer the trust in such a manner as to exclude the plaintiffs from deriving any benefit for themselves from the trust. All offerings should accrue to the trust.

(14) Whether out of the offerings in the big ghalla the plaintiffs' ancestors and after them the plaintiffs are entitled to receive and have been receiving every year a sum of Rs. 25 as a matter of right?-Ans. Unnecessary. See answer to issue 13.

(15) Whether the offerings of cocoanuts, sugar and goor belong to the plaintiffs?-Ans. Unnecessary. See answer to issue 13.

(16) Whether such offerings have always been taken by the plaintiffs' ancestors and after them by the plaintiffs independently and in their own right?-Ans. Unnecessary. See answer to issue 13.

(17) Whether the copper coins with which children are weighed belong to the mujawars?-Ans. Unnecessary. See answer to issue 13.

(18) Whether the plaintiffs and their ancestors have always been taking the said coins and appropriating them to their own use independently and in their own right?-Ans. Unnecessary. See answer to issue 13.

(19) Whether the mujawars are entitled to the money-offerings thrown on the shamiana on the occasion of the sandal paste procession?-Ans. Unnecessary. See answer to issue 13.

(20) Whether the plaintiffs' ancestors and after them the plaintiffs have always been receiving the said money offerings and appropriating them to their own use independently and in their own right?-Ans. Unnecessary. See answer to issue 13.

(21) Whether the mujawars are entitled to take the wooden cradles?-Ans. No.

(22) Whether the plaintiffs' ancestors and after them the plaintiffs have always been taking the wooden cradles independently and in their own right?-Ans. Unnecessary. See answer to issue 13.

(23) Whether after the scheme in suit No. 1337 of 1916 was framed in 1918, the plaintiffs continued to exercise and enjoy their alleged right of receiving and retaining in their own right and independently of the trustees (a) all the offerings collected in the small ghalla, (f) the offerings of cocoanut, sugar and goor, (c) the copper coins in which the children are weighed, (d) the money offerings thrown on the shamiana on the occasion of the sandal procession, (e) the wooden cradles.-Ans. No.

(24) Whether plaintiff No. 1 is a servant of the defendants?-Ans. Yes.

(25) Whether the defendants are entitled to terminate the services of plaintiff No. 1?-Ans. Yes.

(26) Whether the plaintiffs are joint mujawars?-Ans. No.

(27) Whether the plaintiffs are hereditary mujawars?-Ans. No.

(28) Whether on the death of Abdur Rehman, the plaintiffs became mu-jawms by virtue of their hereditary right?-Ans. No.

(29) Whether the plaintiffs are entitled to any relief and if so what?-Ans. None.

(30) Whether the defendants are entitled to their counterclaim?-Ans. Yes.

102. Issues raised by the plaintiffs to the counterclaim, i.e. the trustees.

(1) Whether Haji Essa Haji Fazla erected the said dargah or built with his own moneys the mosque and chawls and a building on the adjoining land?-Ans. Yes.

(2) Whether Haji Essa Haji Fazla dedicated the said property to charity and acted as mutawalli thereof? Ans. Yes.

(3) Whether after the death of Haji Essa Haji Fazla his son Tyab Haji Essa succeeded him as mutawalli?-Ans. Yes.

(4) Whether after the death of Tyab Haji Essa, various persons held office as mutawalli until 1916?-Ans. Yes.

(5) Whether the scheme dated December 5, 1918, affects the position of plaintiffs as mujawars of the said dargah?-Ans. Yes. The scheme provides that the administration of the trusts shall be exclusively under the directions of the trustees and provides to what uses the trust properties are to be put. The absence of any provision in favour of the plaintiffs is determinative of their rights. It is also determinative, of the fact that no such office-holders as mujawars are a necessary part of the machinery needed for the due administration of the trust.

(6) Whether Haji Abdulla Rashid was mujawar for many years prior to 1900 a.d. or at all?-Ans. Yes.

(7) Whether on the death of Haji Abdulla Rashid the plaintiffs' grandfather was appointed mujawar and by whom?-Ans. Abdur Rehman the plaintiffs' grandfather acted as the mujawar with the leave and licence of the persons then actually administering the endowment. Abdur Rehman had been assisting Haji Abdulla Rashid as mujawar and slide into the position of the mujawar with or without any express appointment, but with the knowledge and concurrence or acquiescence of the administrator of the endowment.

(8) Whether in the year 1915, plaintiff No. 1 alone was appointed mujawar and by whom?-Ans. Plaintiff No. 1 alone was appointed by the trustees.

(9) Whether on the death of Abdur Rehman plaintiffs became mujawars by virtue of their hereditary right?-Ans. No.

(10) Whether the salary was paid to plaintiffs for looking after and managing the property of the dargah and not for acting as mujawar.-Ans. There is no such office as mujawar in the sense explained by the plaintiffs. The person called mujawar was expected amongst other things to look after and manage the property and the salary was paid for all the work he did.

(11) Whether the plaintiffs were permitted to occupy the mujawar's quarters on a monthly rent of Rs. 12 or on any other rent?-Ans. On rent of Rs. 12, and the condition that plaintiff No. 1 should act as a servant of the trustees.

(12) Whether the dargah is entitled to the offering of sugar, goor, cocoa-nuts, copper coins, etc., as alleged?-Ans. Yes.

(13) Whether the right to receive the said offerings is a right attached to the office of mujawar by custom?-Ans. No.

(14) Whether the mujawar's ghalla was placed by the plaintiffs without the permission of former trustees as alleged?-Ans. Not necessary. If there was no permission it was un authorisedly put there. If there was permission (assuming that there was no breach of trust on the part of the trustees in granting it) the permission may be withdrawn.

(15) Whether the mujawar's ghalla has been in existence from the time of the plaintiffs' ancestors?-Ans. Unnecessary. See answer to issue 14.

(16) Whether prior to September, 1933, the trustees at any time required the plaintiffs or any of them to pay rent for the rooms in their occupation or to account for the offerings as alleged?-Ans. Yes.

(17) Whether the trustees have anything to do with the plaintiffs' appointment as mujawars?-Ans. Without the trustees' consent no person can act as mujawar (or caretaker) or otherwise intermeddle with the trust estate.

(18) Whether the plaintiffs or any of them have wrongfully withheld possession of articles and utensils and other moveables belonging to the dargah and mosque?-Ans. Unnecessary.

(19) Whether the plaintiffs, as mujawars were in the employ of the defendants and are liable to be removed?-Ans. Yes. Their services may be terminated on due notice; or for misconduct they may be summarily dismissed.

(20) Whether the plaintiffs or any of them are liable to render an account of the money and other offerings as alleged and if so of what offerings and for what period?-Ans. Yes. But not pressed, so unnecessary to be answered in detail.

(21) Whether the defendants are entitled to vacant possession of the mujawar's quarters?-Ans. Yes.

(22) Whether the defendants are entitled to Rs. 30 per month by way of compensation for use and occupation of the mujawar's quarters by the plaintiffs?-Ans. Rs. 12 per month. I think this was understood. But I do not remember any arguments on the amount of rent claimed.

(23) Whether the plaintiffs as mujawars are entitled to certain offerings and if so what are the offerings to which they are entitled and to which the trustees are entitled?-Ans. The trustees are entitled to all offerings except those specifically given to any individual in the nature of gifts. The trustees are expected in administering the endowment to make regulations that in the premises of the dargah no offerings should be made and none accepted except such offerings as are to form part of the income of the trust property, which must accordingly be paid over to the trustees.

(24) Whether the plaintiffs' right to receive the offerings is a right attached to the office of mujawar by custom and usage?-Ans. No.

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