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Munnavaru Begam Sahibu Vs. Mir Mahapalli Sahib and Two ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1918)ILR41Mad1033
AppellantMunnavaru Begam Sahibu
RespondentMir Mahapalli Sahib and Two ors.
Cases ReferredDhancooverboi v. Advocate General
Excerpt:
.....some relics of that well-known saint. the evidence clearly shows that this was never the consciousness of the parties, in fact the consciousness of the parties themselves, was just the other way. except in cases of grants given for the express purpose of performing religious duties which are dependent on personal or sex capacity, i fail to see why a female, whether hindu or muhammadan, should be disentitled to perform those duties. i fail to see how there is any inconsistency between the sanad and the compromise......who are in possession. the third plaintiff's case is that she is entitled to the office of head mujavar of the astana in succession to her mother, the first plaintiff. what the nature of the institution is one of the important questions we have to consider in the appeal.2. there was a grant made by nizam-ul-mulk, nizam of hyderabad, in 1725 which is the root of the title of the parties, and one of the questions for consideration is as to the true interpretation of that document. the grant is in persian, and when properly translated the material portions of it are to this effect.--it purports to confirm previous grants by ancient rulers made by way of madad-mash, or (literally translated) subsistence allowance of mir ali akbar and others, sons of mir syed mahomed madani who are to.....
Judgment:

Abdur Rahim, J.

1. The appeal is by the third plaintiff, daughter of the first plaintiff who died since the institution of the suit; The suit was to recover certain lands which are attached to what is described in the plaint as the Astana Bara Imam at Inuguduru, a suburb of Masulipatam, from the defendants who are in possession. The third plaintiff's case is that she is entitled to the office of Head Mujavar of the Astana in succession to her mother, the first plaintiff. What the nature of the institution is one of the important questions we have to consider in the appeal.

2. There was a grant made by Nizam-ul-Mulk, Nizam of Hyderabad, in 1725 which is the root of the title of the parties, and one of the questions for consideration is as to the true interpretation of that document. The grant is in Persian, and when properly translated the material portions of it are to this effect.--It purports to confirm previous grants by ancient rulers made by way of Madad-Mash, or (literally translated) subsistence allowance of Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani who are to recite Darood or blessings on the Prophet and Fatiha in the name of the Imams and the Martyrs, the descendants of the prophet. Then it goes on to say, 'It is necessary that the said lands should be left in the possession of the aforesaid persons so that they should utilize the incomes thereof towards their maintenance and along with their descendants, literally, children and grand-children (aulad and ahfad), should engage themselves in offering prayers for the perpetuity of the State.' If the matter stood merely upon the interpretation of this document, it might be contended that the grant was in absolute terms to the persons mentioned therein, Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani, who were expected to perform certain religious ceremonies. Upon such an interpretation the grant would be of an absolute estate to the persons named in the sanad. But the evidence clearly shows that the parties concerned have put their own interpretation upon the document and the practice and usage has been in accordance with that interpretation. That is to say, they have treated the grant as creating a public religious trust for the performance of Fatiha and certain other ceremonies during the Muharram, and though it might be possible to hold that the grant was of an absolute estate to Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani, I am not prepared to say that the parties' interpretation of the sanad as creating a Waqf is unreasonable. In any case, so far as this appeal is concerned, we must proceed upon that interpretation, for, it is upon it that the parties base their claim.

3. Both the parties, are descendants of Mir Syed Mahomed Madani's sons and they are, according to the interpretation placed' By themselves on the grant, entitled to allowances for maintenance provided they keep up and perform the religious duties mentioned in the sanad. There has been previous litigation with respect to the rights of the parties, some time in 1896, when a suit was instituted by the father of defendants Nos. 1 and 2 in the present suit against'the first plaintiff and another lady. That suit was compromised and a decree passed in the terms of the rajinama marked Exhibit B. By that compromise it was provided that 'the second defendant, (that is, the mother of the appellant) should be Head Mujavar henceforward, the plaintiff should give up the remaining lands for which he had brought the suit in excess heretofore and the part produce, etc. . . . business should be carried on from generation to generation (not lineally as wrongly translated in the paper-book) according to the terms of this agreement.' There cannot be any doubt that if this rajinama is binding on the parties the appellant is entitled to the office of Head Mujavar. This is what has been held by the lower Courts and is undoubtedly in accordance with the correct interpretation of Exhibit B. The lower Court, however, is of opinion that Exhibit B is in violation of, or contrary to, the provisions of the sanad already referred to (Exhibit VI) and cannot bind the parties; and that we have therefore to fall back on the terms of the sanad and in the light of the general Muhammadan Law to ascertain whether the plaintiff or the defendant is entitled to the office of Head Mnjavar.

4. The use of the words Astana and Mujavar prima facie indicates as if there was a shrine or tomb of some holy person which had to be kept up by the endowment. But the evidence shows that these words are used merely to indicate a sort of place in the form of a raised platform where a 'panja' and a 'peer; (staffs which are carried about in a Muharram procession) is planted and where certain ceremonies in connexion with the Muharram are performed. There is no evidence to show that there is any tomb of any well-known Sufi of fakir where any initiation of fakirs takes place as may be the case in some Khankah or Astanad. If we look to the pleadings of the parties, there can be no doubt that all the religious ceremonies which are performed at the place called Astana Bara Imam, are in connexion with Muharram, and the defendants in their written statement never alleged that any Sufi or other doctrines are propagated at this place or any fakirs are initiated into any particular order or brotherhood. It was by the words Astana or Mujavar that the Subordinate Judge who originally tried the case as well as the learned Judge against whose judgment this appeal has been preferred, were misled into thinking that there were some particular religious teachings associated with this so-called Astana. Then unfortunately when the matter came up on a previous occasion before this Court, arguments were addressed on the assumption that there might possibly be certain ceremonies connected with this institution which a woman was not capable of performing. In order to ascertain it this was so, the appeal was remanded to the lower Court for enquiry into this matter. As was to be expected, some of the defendants have now put forward some sort of evidence suggesting that initiation of fakirs actually takes place in this institution in order to make out that the appellant is not fit to be at its head. The evidence, however, is that by 'fakirs' all that is meant is some persons, Hindus or Muhammadans, who are engaged, to carry in the procession the 'panja' and the 'peer' during the ten days of the Muharram. That is to say, these so called fakirs are no more than persons taking part in a Muharram procession. It is not suggested, nor could it well be, that these men have to be initiated into any particular doctrines or they have to perform any ceremonies requiring particular religious status. To describe such a state of things as equivalent to initiation into a religious brotherhood is absolute misuse of words. So is the use of the words Astana and Head Mujavar in this case, for these terms properly used are connected with institution for the up-keep of a shrine of a reputed saint or for the teaching of certain doctrines connected with Sufism, The evidence amply makes out that the parties are absolutely illiterate and know nothing about any religious order or any religious teaching connected with any brotherhood of fakirs properly so called. The duties connected with this Astana are nothing more than the organizing and carrying out of certain processions in which the Hindus according to the evidence participate equally with the Muhammadans of the locality.

5. Many authorities have been quoted to us in connexion with the question' whether a woman can properly be a Head Mujavar of an Astana or not. None of those cases or authorities call for any serious consideration, having regard to the fact that there is no Astana in the proper sense of the word and the Mujavars' duties are only purely of a secular character so far as the evidence shows. We can take it to be the law as laid down by the Privy Council in the case of Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem I.L.R. (1907)Cal. 118 that if. the religious duties connected wish a religious office are such that a woman cannot properly discharge in person or by deputy, then she cannot be appointed to that office. The well-known cases referred to, relate to the office of Sajjadanashins of certain Khankah and also of Mujavar of certain shrines. The word 'Mujavar' literally means a sweeper or the person who cleans the place, but it is conventionally used to denote a person who is looking after a shrine or tomb of a holy person generally called Astana. 'Astana' is a word which is often used to denote a place inspiring-respect and reverence. It need not necessarily indicate a tomb or shrine though in popular use it indicates a shrine or tomb of a holy person. The term Sajjadanashin or Gadhnashin is conventionally used to denote the person in charge of a Khankah or an institution where religious enthusiasts and fakirs congregate and where the superior or the head of the institution has certain doctrines of Sufi-ism to teach. But there is absolutely nothing in connexion with Astan Bara Imam which has anything in common either with a Khankah or an Astana properly so-called. That a woman cannot be a Sajjadanashin may, for the present case, be taken to be sound law, if the duties involve the teaching of certain doctrines to fakirs, necessitating her coming into daily contact with them. It is not, however, the fact that a woman cannot be a sufi or that she is not competent to teach the tenets of Sufi-ism. Sufi-ism, as a school of Muhammadan religion, is equally open to men and women. But having regard to the custom and usage of the country by which women observe seclusion, it is not ordinarily to be expected that women could satisfactorily perform the duties connected with the head of an institution like Khankah which would bring her into contact with fakirs and other men not being her own close relations. Excepting for this local usage and custom, I am not aware of any general provision of Muhammadan Law against a woman specializing in any form of religious teaching and propagating any doctrines of the Muhammadan religion either of orthodox Muhammadan religion or of Sufi-ism. The rule prohibiting women from being appointed to such offices is not confined to the office of Sajjadanashin but there may be other offices which she may not be able to perform, for instance, that of an Imam, in a mosque where she would have to lead the congregation. At any rate in practice women are not known to have officiated as Imams in mosque any more than Christian women are known to have officiated as priests or clergy in Christian churches.

6. It is not necessary for us to consider in this case the extent of the application of the rule precluding the appointment of women to an office like that of Sajjadanashin and the limitations of such a rule. So far as I have been able to trace the history of the question, it had its origin in certain passages in Macnaughten's Principles and Precedents of Muhammadan Law, page 332. It is stated there:

Females are not competent to assume the office of superior of an endowment; and such an act is at variance with the usages of the country, because it is the duty of the superior to instruct and guide his disciples, to teach his scholars, and to keep their company continually, in private and in public, and this cannot be done with propriety by a woman, whose duty it is to live retired and secluded.

7. I think that seems to be a perfectly reasonable proposition so long as it is understood that the prohibition or the disability arises from certain local usages and customs and not by any absolute injunction of Muhammadan religion or law. Mr. Ameer Ali, in stating the law on the subject at page 443, IV Edition, Volume 1, of his Mubammadan Law, states it in similar terms. He also bases it on custom and not on any rule of Muhammadan Theology or canonical law which has in fact very little to do with Sufi-ism, Khankah and Asthacas. One of the earliest decisions on the subject is to he found in Shah Imam Buksh v. Beelee Shahee (1835) VI Sel. Rep. 24. There the learned Judge of the Suddar Diwany Adawlut rely upon the passage in Macnaughten already recited as authority for the proposition in question. There are also some rulings of the Madras High Court on the point; Hussain Beebee v. Hussain Sherif (1868) 4 M.H.C.R. 23, Mujavar Ibrahim Bibi v. Mujavar Hussain Sheriff I.L.R. (1880) Mad. 95. In Mujavar Ibrahim Bibi v. Mujavar Hussain Sheriff I.L.R. (1880) Mad. 95, what is laid down is that a woman is not competent to perform the duties of Mujavar of a durga which are not of a secular nature. What the learned Judges say is that it was established by evidence that the office of Mujavar entailed the discharge of duties of a spiritual character, such as reading the Fatiha, offering prayers and incense, etc., which could not conveniently be performed by a woman, and that there was no satisfactory evidence that the office has ever been held by a woman. Apart from what the special evidence in that case was, I do not think the learned Judges meant to lay down a general proposition that any religious office which entails the performance of Fatiha and other prayers or the offering of incense could not be performed by woman, for I do not think they could have meant that Fatiha which consists in reciting certain suras of the Koran could not be said by woman and that a woman could not say prayers according to the Muhammadan religion. Such a proposition would be incorrect, and apart from the special facts of that particular case, I cannot accept the decision as laying down any such general rule of law as contended for. In Hussain Beebee v. Hussain Sherif (1868) 4 M.H. C.R., 23, it was held that according to Mahammadan Law a woman may manage the temporal affairs of a mosque, but not the spiritual affairs connected with it, the management of the latter requiring peculiar personal qualifications. There the institution to which the office in dispute related was called Shakh Fareed Shukkurgunj Mosque. If it was a mosque in its proper and ordinary sense of the word, that is, a place where prayers are said by Muhammadans, then there are no duties connected with it which a woman could not perform at least through a deputy. But from the evidence in this case and from what we have noticed in other cases, we know that the word 'mosque' or 'Musjid' is applied to all sorts of places, may be a mere tomb or an Imam Bara. The learned Judges in dealing with the law in Hussain Beebee v. Hussain Sherif (1868) 4 M.H.C.R., 23, cite cases connected with the office of Guddeenishin. If that was the real nature of the institution as probably it was from the name, it might have teen a replica of the tomb or a shrine containing some relics of that well-known saint. In that case it would perhaps properly be called a durga. The report does not give what, the actual duties were in connexion with the office then in question, and if the office required any peculiar personal qualifications which might be wanting in a woman, that is to say, duties which could not be performed by her either personally or through a proxy, then undoubtedly the decision was right. The facts do not appear sufficiently fully to enable me to say what the exact scope of that decision is. On the other hand, I entirely agree with a recent decision of this Court in Imam Bee v. Molla Khasim Sahib (1916) 5 L.W., 226, that a religious office can be held by a woman unless there are duties of a religious nature which she cannot perform in person or by deputy and the burden of establishing that a woman is precluded from holding, a particular Office is on those who plead the exclusion and in the absence of anything in the rules by the founder, the usage of the institution governs the case. In that case the office was that of a Mujavar in a mosque. I believe the duties attached to the office were simply those of a Muttavalli though the word used there is Mujavar. In this Presidency the word 'Mujavar' is not seldom used in the sense of Muttavalli of an ordinary religious trust.

8. Here the appellant, as a member of the family of the descendants of Mir Ali Akbar and his brother, is admittedly entitled to certain allowance by way of maintenance, and she does not dispute that the defendants are also entitled to similar Allowance. The dispute is solely about the office of Head Mujavar in virtue of which she claims to be entitled to possession of the property in dispute, that is, the lands of the institution concerned. As Head Mujavar she would also be entitled to an additional share of the income. The Subordinate Judge, in my opinion, was entirely wrong in holding that the compromise was in violation of the terms of the sanad and therefore could not be given effect to. He had also gone wrong in thinking that the appellant is disqualified to hold the office she claims. The evidence clearly shows that this was never the consciousness of the parties, in fact the consciousness of the parties themselves, was just the other way. Before the appellant her mother held the office and the written statement never raised any doubt as to the competency of the appellant to hold the office on the ground of sex, if she was not precluded from holding it, as alleged, by the terms of the sanad. I reverse the decree of the Subordinate Judge and there will be a decree in favour of the third plaintiff giving her possession of the property in dispute. The Subordinate Judge will enquire into the mesne profits she is entitled to from the date of suit; to the date when she obtains possession under the decree. The respondents will pay the third plaintiff's costs in this and the lower Court and they will also pay the Court fee payable to Government.

Seshagiri Ayyar, J

9. I entirely agree. In a very recent reference to the Full Bench which I made in conjunction with Napier, J., I went fully into the question of the capacity of a Hindu female to succeed to religions offices and to discharge the duties of those offices. I am glad to find that my learned brother's exposition of the Muhammadan Law is in complete accordance with my views with regard to the position of Hindu women. Except in cases of grants given for the express purpose of performing religious duties which are dependent on personal or sex capacity, I fail to see why a female, whether Hindu or Muhammadan, should be disentitled to perform those duties. In the language of the Judicial Committee in Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem I.L.R. (1907) Cal 118, a woman holding an office of a religious trust which by its nature involves no spiritual duties such as a woman could never properly discharge in person or by deputy, is competent to hold such an office. Or it may be as in the case in Mohan Lalji v. Madhsudan Lala I.L.R. (1910) All. 461 that the peculiar doctrines of a sect may preclude women married into a different sect from performing the duties of the temple or religious institution, belonging to the former sect. Except in these two classes of cases, in my opinion, there is no warrant for holding that women are incompetent to inherit a religious office connected with a religions institution. It has always been held that, in the case of secular duties pertaining to a religious trust, women are competent to perform them. For example, as my learned brother has pointed out, the Muttawalliship in a Muhammadan mosque can be held by women. So also it has been held in the Dhancooverboi v. Advocate General (1899) 1 Bom. L.R 748 that a Mohuntship can be held by a female. Wherever there are profits which are payable to an heir in the discharge of duties appertaining to a religious office, it must be taken as a general rule, subject to some exceptions, that women are competent to inherit those offices and to perform the duties pertaining to them.

10. In the present case, the course of devolution and the way in which the parties have been enjoying show that women have been held competent to discharge the duties pertaining to this particular Astana. As my learned brother has pointed out, the original grant confers an absolute right in the property. I am inclined to think that its dedication as a waqf must have been by the successors of the original grantee. Any way there can be no doubt that the duties connected with the Astana were mostly secular. As has just been pointed out, the way in which Hindus and Muhammadans have been initiated into Fakirship during the Muharram shows that there are really no religious duties to be performed by the Head Mujavar. And further in my opinion the parties are bound by the compromise as the matter had been litigated in a competent Court and the parties agreed that the first plaintiff and her descendants are entitled from generation to generation to the Head Mujavarship. The Subordinate Judge seems to think that this compromise is not consistent with the original sanad. I fail to see how there is any inconsistency between the sanad and the compromise. Even if there were any inconsistencies, I am not prepared to say that the compromise is not binding upon the parties and upon those who claim under the parties to the compromise.

11. And lastly, I would say that the fact that in the written statement no objection is taken to the third plaintiff succeeding to the Head Mujavarship on the ground of her being a female is clear evidence that in the opinion of the litigants and of their co-religionists women are not incompetent to perform the duties of Head Mujavarship. For these reasons, I entirely, agree with the conclusion arrived at by my learned brother.


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