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Moonshi Shahed Baksh Vs. Golam Nabi Khondokar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.117
AppellantMoonshi Shahed Baksh
RespondentGolam Nabi Khondokar and ors.
Excerpt:
muhammadan law - religious office, transfer of, validity of--public policy. - .....for the suitable performance of the necessary ceremonies and observances that take place in the shrine, persons are required to be employed and their remunerations for the duties they perform are met by the persons who resort to the place, and apparently the way in which these various khadims or mutwallis are remunerated is by allowing them to appropriate the offerings received during a particular number of days. an office like this is not capable of being mortgaged, whether it is in the muhammadan religion, or in any other religion. for the performance of these public duties, the officers are remunerated by salaries or other suitable forms of remuneration and these offices are not capable of being mortgaged. in addition to this, in the present case, there is another difficulty, if.....
Judgment:

Fletcher, J.

1. These two appeals are preferred against the judgment of the learned Subordinate Judge of Burdwan, dated the 23rd December 1915, affirming the decision of the Munsif at Kalna, The two cases are these:--In the suit out of which Second Appeal No. 823 arises, the plaintiff sued for a declaration that a religious office along with the endowment that went therewith was not liable to be mortgaged by the person who had at the time been holding the office, and, in the other case, namely, the suit out of which Second Appeal No. 775 arises, the plaintiff sought to enforce a mortgage that had been granted by a former holder of the office. It appears that there is a Muhammadan shrine dedicated to a certain Peer to which the Muhammadans of the District are accustomed to resort for religious purposes; and, for the purposes of the upkeep of what is called the asthana and for the suitable performance of the necessary ceremonies and observances that take place in the shrine, persons are required to be employed and their remunerations for the duties they perform are met by the persons who resort to the place, and apparently the way in which these various khadims or mutwallis are remunerated is by allowing them to appropriate the offerings received during a particular number of days. An office like this is not capable of being mortgaged, whether it is in the Muhammadan religion, or in any other religion. For the performance of these public duties, the officers are remunerated by salaries or other suitable forms of remuneration and these offices are not capable of being mortgaged. In addition to this, in the present case, there is another difficulty, if the office can be sold or brought to sale either by voluntary deed of sale or upon bankruptcy or insolvency, the person who would take charge of this shrine might not belong to the Muhammadan religion and might be a person professing soma other religion altogether. That obviously is opposed not only to the Muhammadan religion but also to public policy. I think the learned Judge was quite right, when he came to the conclusion that this office was incapable of being transferred. The present appeals, therefore, fail and must be dismissed with costs.

Syed Shamsul Huka, J.

2. I agree.


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