1. This appeal has arisen out of a suit which was instituted by the plaintiff for declaration of his title as khadem in respect of certain properties dedicated to a shrine and for recovery of possession thereof. Shortly put, the plaintiff's case was that on the death of the last khadem who had died childless he was, in accordance with a usage which appertained to this shrine, was elected as the next khadem by the villagers with the sanction of the zamindar of the place, who for the sake of brevity will be called the Delduar Zamindar. His case was that the defendants had dispossessed him from the suit land. Amongst the defendants there were two, namely, defendants 3 and 6, the daughters of the last khadem, who contested the plaintiff's claim. Their case mainly was that since their father's death they had been acting as khadems through their husbands and that khademship was hereditary in their family. They further challenged the validity of the title which the plaintiff set up, alleging that the plaintiff, even if she had bean appointed as khadem by the Delduar Zamindar, had no authority to act as such.
2. The trial Court dismissed the suit. The Subordinate Judge has reversed that decision. Defendants 3, 6 and 7 have then preferred the present appeal. Three points have been urged in support of the appeal. The first point taken relates to the findings of the Subordinate Judge on the question of the usage which the plaintiff set up. It is said that the findings of the learned Judge on this question are inconsistent, and that in any event, they are not sufficient for the purpose of holding that the plaintiff has proved his title to the khademship. The learned Judge appears to have referred to certain texts and to have laid down as the proposition to be applied to the case that the appointment of sajjaddanashin of any darga must, to a large extent, be regulated by the practice followed in that particular darga. With this proposition in mind the learned Judge proceeded to consider whether it has been proved that a usage of the nature set up on behalf of the plaintiff had bean established or not. He found that there was evidence of only one single instance when a practice of the nature alleged on behalf the plaintiff, namely, an election by the villagers and then confirmation of the election by the Zamindar of Delduar was proved. That incident was in connexion with the appointment of one Shah Mahmud to the office of khadem in respect of this very shrino. The learned Judge agreed with the Munsif holding that it was proved that Shah Mahmud got the khademship in this way. He then proceeded to make a remark which runs in these words:
This one instance however cannot establish a practice or usage. I agree with the learned Munsif so far but it might have been the correct procedure and I will now examine this point. The practice may now bo difficult to prove but it might have been otherwise when Shah Mahmud came to the post.
3. This remark of the learned Judge has been relied upon by the learned advocate, who has appeared on behalf of the appellants, as suggesting that the learned Judge came to the conclusion that the usage set up on behalf of the plaintiff has not been proved. I am not able to agree in this contention. All that the learned Judge says in the passage quoted above is the fact that there was one single instance proved and that single instance by itself would not be sufficient to prove a usage, But then he expressly said that it may be that it is not possible for the plaintiff to prove at this distance of time a usage which he set up and it may yet also be that is the correct practice to follow in the case of a vacancy occurring by the death of the khadem without leaving any child. In point of fact also the learned Judge proceeded to consider the other facts and circumstances of the case and eventually he found that the election of Shah Mahmud in this way was recognized and assented to by the villagers and from that fact he came to the conclusion that was really the practice which obtained in this particular shrine. In my opinion there is no inconsistency in the conclusion which the learned Judge has recorded and that eventually the learned Judge has come to the conclusion upon all the facts and circumstances of the case that although there was no direct evidence sufficient for the purpose of holding that the usage referred to on behalf of the plaintiff was established yet the practice that obtained at the time of the election of Shah Mahmud was a practice which really appertained to this shrine and that if the plaintiff was appointed under a similar practice the plaintiff's appointment also must be held to be good. The first point taken in my opinion cannot succeed.
4. The next contention urged is that oven accepting that the usage which the plaintiff set up was established, still, so far as the plaintiff's election is concerned, that did not confer on him any good title because in this particular case the Zamindar of Delduar who was the muttawali in respect of wakf estate had not given his sanction, which was necessary for the purpose of this appointment.
5. Now to deal with this contention it is necessary to find out what exactly is the usage or practice that has been set up. It is this: the appointment is to be made by an election amongst the Mahomedan residents of the locality; that confers the appointment upon the candidate and the appointment receives sanction from the zamindar. The only way in which this usage can be regarded as a reasonable one is that if any election is to take place the man who is elected is to be regarded as duly elected until the zamindar refuses to give his sanction. There is nothing to show what would happen if the Zamindar refuses to give his sanction, and if in that event the election is to fall through, there would be no point in having an election at all. The interpretation I have just given to the usage seems to me therefore to be the only interpretation which will put the usage on a reasonable basis. The fact that the plaintiff was duly elected by the Mahomedan residents of the locality is a fact which has been proved. The fact that the zamindar or the muttawali has not up to this time refused to accept him as khadem is a fact also which cannot be denied. In these circumstances even though there has been no formal sanction granted by the muttawali or the zamindar to the appointment of the plaintiff, that cannot, in my opinion, be said to have made the appointment invalid. What has happened in this case is that there is no express sanction by the Zamindar but in point of fact the receiver in charge of the estate made certain orders which wore treated as the sanction requisite for the purpose. I am of opinion therefore that the mere fact that it was the receiver who confirmed the appointment and the zamindar did not take any part in this matter would not stand in the way of the claim which the plaintiff put forward.
6. The third ground that has bean urged raises a question of considerable importance. It has been argued on behalf of the appellants that the learned Judge has regarded the question as to whether defendants 3 and 6, the two daughters of Musa Sheikh, are in possession of the estate are khadems as a pure question of law and has expressed the view, which is supported by certain text-books, that no females can be appointed to that office. The learned Judge really seems to have done so and in that respect(Sic) seems to me that he was not right. The question whether the said defendants could claim to have inherited the office from their father is a question which is to be determined not merely as a question of law but also with reference to the particular facts of the present case. The Mahomedan law as I understand it does not necessarily exclude a female from the office of a khadem. But it must depend upon the nature of the office and the rights and duties appertaining to it as to whether the female can be validly appointed to it. As has been pointed out in numerous authoritative decisions:
A religious office can bo hold by a woman under the Mahomedan law, unless there are duties of a religious nature attached to the office, 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 exclusion.
7. This proposition has been laid down in several decisions amongst which reference may be made to the cases of Shahar Banoo v. Aga, Mahomed (1907) 34 Cal 118; Munna Varu v. Mir Mahapalli AIR 1919 Mad 202 and Kassim Hassan v. Hazra Begam AIR 1920 Cal 800. Having regard to the pleadings of the contesting defendants in their written statement it was necessary for the learned Judge, before giving the plaintiff a decree in the present suit, to have held an investigation into the question as to whether the allegation which the said defendants made as to their being in possession of the properties by virtue of their office as khadem was a true allegation or not and also as to whether they could hold such possession as against the plaintiff on the strength of that office having obtained that office duly and in accordance with law. The learned Judge has not gone in to the facts but has only disposed of the question as a pure question of law. In this the learned Judge was not right. It is obvious also from these authorities that it was the duty of the plaintiff to prove the circumstances which would be necessary for the purpose of holding that the said defendants by reason of the fact that they are females are to be excluded from khademship. I do not find that there is any such evidence on the record nor is there any finding of any of the Courts below on this point and it seems to me therefore that there has been no proper investigation of this question. But I must concede that having regard to the fact that no distinct issue was framed with regard to this question and that, on the other hand, as appears from the judgment of the Munsif, it was not disputed by the parties before him that females cannot under the Mahomedan law discharge the functions of khadem there is no justification for laying the blame on the plaintiff in this respect. At the same time it is a question which, in my opinion, certainly requires investigation in order to do justice between the parties.
8. The proper order to make in this case, in my judgment is to allow the appeal and to set aside the decision complained of and to direct the case to be sent back to the Court of the Subordinate Judge in order that the plaintiff as well as the defendants may be given an opportunity to adduce evidence with regard to this particular point and on that being done the case should be decided in accordance with law and bearing in mind that with reference to the question of exclusion the onus is on the plaintiff. Having regard to what I have said as regards the omission on the part of the defendants to raise a clear issue on this question and the fact that they proceeded in the trial Court on the footing that females cannot as a matter of law discharge the functions of khadam, I think the order that I now propose to make should be made conditional on the appellants paying to the respondents, within three months from today, the costs of this Court and also the costs in the Court of appeal below. If this condition is complied with, the appeal will be allowed, and the judgment of the Subordinate Judge being set aside, the case will be sent back to the Court of the Subordinate Judge so that it may he dealt with in the light of the observations made above. If on the other hand this condition is not complied with, the appeal will stand dismissed with costs.