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imam Bee and ors. Vs. Molla Khasim Sahib and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.889
Appellantimam Bee and ors.
RespondentMolla Khasim Sahib and ors.
Cases ReferredHussain Beebee v. Hussain Sherif
Excerpt:
muhammadan law - mujawar, eligibility of women for office of-right to emoluments--burden of proofs--custom. - - on the other hand, it has frequently been held that a woman can be a mutawalli, or trustee, who has charge of the secular affairs of an endowment and sometimes has religious duties as well, and that there is no legal prohibition against a woman holding a mutawatti-ship where there is nothing to the contrary in the rules made by the founder or in the usage governing the particular institution. 623. is closely examined, it is seen that that was a first appeal and the learned judges found on the evidence that it bad not been proved that the plaintiff, who was a woman, had ever participated in. 7. but in the case before us we have evidence, which both the lower courts have..........munsif held that women were entitled to share in the profits of the mam lands attached to the office of mujawar of the suit mosque, as the evidence adduced in the case did not prove that women were prohibited from getting the duties of the office performed by deputies. the district judge considered that the duties to be performed by the muawar were of such a religious and spiritual character that the office could not be held by a woman, and, therefore, that women and persons deriving their title from them could not have any rights to the lands. both courts rightly placed the onus on those who sought to exclude women, of proving that they were disqualified [vide tanqirala chiranjivi v. rata manikya rao 25 ind. cas. 283 and both found that a custom whereby women were excluded in this.....
Judgment:

1. The District Munsif held that women were entitled to share in the profits of the mam lands attached to the office of mujawar of the suit mosque, as the evidence adduced in the case did not prove that women were prohibited from getting the duties of the office performed by deputies. The District Judge considered that the duties to be performed by the muawar were of such a religious and spiritual character that the office could not be held by a woman, and, therefore, that women and persons deriving their title from them could not have any rights to the lands. Both Courts rightly placed the onus on those who sought to exclude women, of proving that they were disqualified [vide Tanqirala Chiranjivi v. Rata Manikya Rao 25 Ind. Cas. 283 and both found that a custom whereby women were excluded in this institution had not been proved.

2. On the facts, therefore, the finding is in the appellants' favour. On the question of law whether women should be excluded from the succession, a number of decisions have been cited on either side. Without enumerating them, it maybe briefly stated that there is a considerable volume of judicial decisions to the effect that the duties of saijadanasheen, or as it is sometimes called gdd enasheen, the superior of an endowment and religious preceptor, cannot be discharged by a woman or by a deputy, as the trust involves certain special spiritual duties. On the other hand, it has frequently been held that a woman can be a mutawalli, or trustee, who has charge of the secular affairs of an endowment and sometimes has religious duties as well, and that there is no legal prohibition against a woman holding a mutawatti-ship where there is nothing to the contrary in the rules made by the founder or in the usage governing the particular institution.

3. As stated in the note at the foot of page 343 of Macnaghten's Principles and Precedents, 'the office of trustee may be held by a woman, and the duties may be discharged by proxy, whereas the office of superior requires personal qualification: Vide App. Tit. End. 28, 31'.

4. Now when we come to the office of mujawar we find two Madras decisions, Hussain Beebee v. Hussain Sherif 4 M. H. C. R. 23. and Mujavar Ibrambibi v. Mujavar Hussain Sheriff 3 M.s 95. In both of these decisions it was held in respect of the same endowment that a woman was not competent to perform the duties of mujawar. In accordance with these decisions, it is stated by Mr. Ganapathi Aiyar in his book on Hindu and Muham-madar. Religious Endowments that the office of mujawar is a subordinate office which entails on the holders the performance of religious duties and cannot, therefore, be held by a female.

5. If these two cases can be said to lay down the proposition enunciated by Mr. Ganapathi Aiyar, it seems to us that they go too far, as being opposed to the dictum of the Privy Council in Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem 34 C. s 118 : 9 Bom. L.R. 85: 2 M.L.T. 49 which lays down that an office can be held by a woman unless there are duties of a religious nature which she cannot perform in person or by deputy : but we do not think that they do lay down any such broad proposition.

6. When the case of Mujavar Ibrambibi v. Mujavar Hussain Sheriff 5 Ind. Jur. 190 : 1 Ind. Dec. 623. is closely examined, it is seen that that was a first appeal and the learned Judges found on the evidence that it bad not been proved that the plaintiff, who was a woman, had ever participated in. the profits or performed the duties either in person or by proxy and that there was no evidence that the office of mujawar in this particular institution had ever been held by a woman. Reliance was also placed by the Judges on the previous decision to the same effect in Hussain Beebee v. Hussain Sherif 4 M. H. C. R. 23. The earlier decision proceeded upon a comparison of the office of mujawar with that of gaddinasheen and upon the admission of Mr. Mayne, who appeared for the appellants, that he was unable to find any authority in Muhammadan Law for saying that a woman was competent to hold any religious office in connection with a mosque.

7. But in the case before us we have evidence, which both the lower Courts have accepted, that there is a usage in this institution of getting the duties of mujawar done by proxy, and in one instance a woman has enjoyed a share in the profits and has had the duties performed by a man who lived in her house. Even the 1st plaintiff now deputes somebody to read for him, as he cannot himself read.

8. From the description of the duties of the office, which include lighting and cleaning the mosque, spreading mats and feeding travellers, they appear to be more on a level with the secular duties of mutawalli than with the religious duties of sajjadanasheen. It is true that the witnesses speak of certain members of their family also preaching and calling to prayers, but this they; may have done because they were imams or muazzins and not by reason of their holding the office of mujawar. In fact, plaintiff's witness No. 3 says that his father acted as imam on behalf of Ismail Sahib and. read the khutba and the faliha during his period of delegation.

9. Where the duties of the office are not very distinctly defined, the safest course to follow is to be guided by the custom of the institution. This being in the present case in favour of deputies being appointed, we see no obstacle to women sharing in the endowments of this office and getting their duties performed by proxy.

10. Accordingly, allowing the appeal, we set aside the decree of the District Judge and restore that of the District Munsif with costs of the appellants in this and the lower Appellate Court.


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