Mookerjee, A.C.J:— The subject-matter of the litigation which has led up to this appeal is a dargah (mausoleum or shrine of a Moslem saint) situated in Clive Street in this city. The case for the plaintiff is that she was in possession as mutawalli for many years, till the defendant, her son-in-law, after the death of his wife, wrongfully interfered with the performance of her duties on or about 18th May 1918. She accordingly instituted the present suit on 30th May 1918, for declaration that the defendant was in wrongful possession of the dargah, for recovery of possession from him, and for incidental reliefs. The defendant resisted the claim on the allegations that the plaintiff had renounced the mutawalliship in favour of her husband who had been installed as the sajjadanashin, and had performed his duties as such till his death in 1911, that thereafter the defendant had been installed as sajjadanashin, and that he was lawfully in possession of the dargah at the date of the institution of the suit. Greaves, J., has decreed the suit on the ground that the plaintiff was lawfully in possession as mutawalli and that the defendant, even if selected sajjadanashin, by the fakirs, could not successfully resist her claim to recover possession as mutawalli. The defendant has appealed against this decree. Before we deal with the questions raised before us, it is necessary to set out the history of this endowment so far as it can be gathered from the materials on the record.
2. In 1834 the property was in the possession of one Jutty Shah who described himself as the khadim and mutawalli of the holy shrine of Hazrat Joomma Shah. On 19th October 1834, he executed a testamentary instrument which recites that his ancestors had, from generation to generation, acted as mutawallis of the shrine and that he himself had for a period of about sixty years performed the duties of the office, “according to the former rules and long-established usages.” By this document, Jutty Shah appointed his infant son, Sheikh Mehtur, to succeed him as mutawalli after his death, and nominated several Moslem gentlemen to perform the duties appertaining to the holy shrine till his son should attain years of discretion; a set of detailed rules for the management of the endowment was appended to the instrument. On the death of Jutty Shah, his son (called Mehtur or Nadir) held the office of mutawalli till his death in 1858. The mutawalliship thereupon passed to Ahmed Shah (said to be a nephew of Jutty Shah), but under what exact circumstances this happened cannot be ascertained at this distance of time. Ahmed Shah held possession as mutawalli till his death, which took place on 12th May 1873. We find that on the very next day, 13th May 1873, Korban Shah, the son of Ahmed Shah, executed a deed in favour of his son, Vilayet Hossain, whom he appointed as mutawalli and trustee of the will of Jutty Shah. The reasons for this appointment cannot be discovered, but it appears from the document that Korban had lost his wife and the deed enjoined Volayet Hossain to perform ceremonies, according to orthodox Moslem customs and usages, at the grave of his mother Amina Bibi. Vilayet Hossain continued to hold the office of mutawalli till his death, which happened on 16th August 1880. During his term of office as mutawalli, Vilayet Hossain instituted a suit in 1875, on the original side of this Court, against one Choonee Bibi who was in possession of a portion of the trust properties on the strength of a purchase from the previous mutawalli, Ahmed Shah, in 1867. The result was that the purchaser defendant disputed the title of Vilayet Hossain to hold the office of mutawalli. Phear, J., found that Ahmad Shah had succeeded Nadir Shah as mutawalli, and held that, as he had exercised undisturbed the right of mutawalli for nearly fifteen years, he might be presumed to have been lawfully appointed. As regards Vilayet however Phear, J., held that as admittedly he had no title by actual appointment, he could not maintain the suit as framed in his character as mutawalli; nor had he a right to enjoy the property as secular property by right of inheritance. The plaintiff was, in these circumstances, given leave, to amend the plaint, but what followed does not appear from the record.
3. The fact remains however that although the effort of Vilayet Hossain to restore to the endowment, property alienated by his predecessor thus proved ineffectual, he continued to hold the office of mutawalli, and, previous to his death, he made a testamentary disposition on 4th September 1879. At the time of his death, he left him surviving his widow Imamunnessa (daughter of one Mahomed Musa) and his own daughter by her, Hazra Bibi (who is plaintiff in the present litigation). Vilayet Hossain, by his will, appointed his daughter Hazra Bibee as mutawalli of what he described as “Jutty Shah's imambara and dargah in Clive Street” and all properties moveable and immovable appurtenant thereto. During the minority of his daughter however the management was vested in his widow Imamunnessa. The will further provided that the widow would cease to hold the appointment if she took a second husband or lost her virtue; in either of these events, Mahommed Musa, the father-in-law of the testator, would discharge the duties of mutawalli during the minority of Hazra Bibi. Disputes broke out shortly after the death of Vilayet Hossain, and we find that two suits were instituted in 1881 and 1882 by Mahommed Musa for proof of his will in solemn form, for its construction, and for ascertainment of the rights of the parties thereunder. On 28th August 1883, Norris, J., appointed a receiver of the estate in the suits mentioned and directed the payment of Rs. 170 a month to Imamunnessa as also the expenses of the religious ceremonies. Imamunnessa died in 1896, before the termination of the suits. On 16th January 1902, Sale, J., made a consent decree on the basis of terms of settlement which were ordered to be carried out. The premises now in dispute were declared to be trust properties incapable of partition and division at the same time. Hazra Bibi was appointed mutawalli of the trust properties and was authorized to conduct and carry out the religious trust according to an approved scheme.
4. The decree thus made in 1902 terminated the dispute as to the succession, to the office of mutawalli, and Hazra Bibi, who had been married to one Jalil Shah, continued peacefully to perform her duties till the defendant appeared on the scene. Hazra Bibi had a daughter, Chahaty Bibi, who was given in marriage to the defendant Kassim Hossain. There can be little doubt that the defendant was first allowed to take up his residence at the Imambara as the son-in-law of the mutawalli Hazra Bibi, and the evidence shows unmistakably that he lived there amicably for five or six years after his marriage, which took place in 1911 or 1912. Ohahaty Bibi however unluckily for all parties concerned, died towards the end of the year 1917, and, as might be anticipated, her death affected a considerable change in the possession of the defendant. Feelings gradually became strained, and the defendant ultimately set up a title to the disputed properties on the allegation that he had been elected sajjadanashin by the fakirs and other worshippers who congregate in the dargah. Such, in outline, was the position of the parties when the controversy between them was brought into Court for determination. The questions which emerge for consideration from the arguments addressed to us may be formulated under two heads as follows, namely, first had the plaintiff title to the office of mutawalli, of the disputed properties at the date of the institution of the suit? and, secondly, was the defendant appointed as sajjadanashin? If so, did such appointment affect the title of the plaintiff as mutawalli?
5. As regards the first question, namely, whether the plaintiff had a valid title to the office of muttawali atthedate of commencement of this litigation, we must not overlook two outstanding features of this case. In the first place, it is plain that the office of muttawali has been held successively by members of the same family. The testament of Jutty Shah executed in 1834 recites that he had been in possession as muttawali for sixty years in succession to his ancestors, who had successively held the office and discharged its duties from generation to generation. After Jutty Shah, the office was held successively by his son Nadir and his nephew Ahmed, and, thereafter, by Korban (the son of Ahmed), by Vilayet (the son of Korban), and by Hazra (the daughter of Vilayet). In the second place, each incumbent has taken, it upon himself to nominate his successor in the office of muttawali. It is not for us to determine now, whether such appointments could or could not have been validly made; but, notwithstanding the general rule enunciated in the cases of Atimannessa Bibi v. Abdul Sobhan (1) and Phatmabi v. Abdulla Musa Sait (2), that no right of inheritance attaches to the office of muttawali, the question may well arise whether the? uniformity which characterises the successive appointments for nearly a century may not improbably indicate that the practice had a lawful origin in the directions given by the original founder, though they can no longer be traced with certainty from the lapse of time.
6. Apart from this, what is of vital importance to the case of the plaintiff is that her great grandfather, Ahmed Shah, held the office of mutatwali for fifteen years from 1858 to 1873 and that thereafter, by virtue of the deed executed by her grandfather Korban Shah in favour of her father Vilayet Hossain, the latter held the office for seven years from 1873 to 1880. Thereafter, the plaintiff herself has held the office, without interruption, as we shall presently see, from 1880 to 1916. The testament of Vilayet Hossain vested the office of muttawali in his daughter from the time of his death, subject to the reservation that during her minority the management would be carried out by his widow Imamunnessa, or, in certain events, by his father-in-law Mahomed Musa. Such possession of the office of muttawali whether by Imamunnessa or by Mahomed Musa, would plainly be on behalf and for the benefit, of Hazra Bibi. We are not unmindful that by the decree of Norris, J., made on 28th August 1883, the properties were placed in the hands of a receiver; but in view of subsequent events, this did not operate to interrupt the possession of the office of muttawali by Hazra Bibi. It is significant that the order for appointment of receiver included a direction for the payment of a fixed sum to Imamunnessa on whom was cast the duty of management of the wakf estate by the will of her husband during the minority of her daughter. Besides this, the decree ultimately made by Sale J., on 16th January 1902, confirmed the appointment of Hazra Bibi as mutawalli of the trust properties. In our opinion, it is indisputable that the office of mutawalli has been vested in Hazra Bibi by the will of her father and has been held by her without interruption from the time of his death in 1880 till 1902 when her appointment was confirmed by an order of this Court. It is equally plain on the evidence that after 1902, Hazra Bibi held the office of mutawalli, till her title was questioned and her possession was disturbed by the defendant, immediately before the suit.
7. We are in agreement with Greaves J., when we hold, that we cannot possibly accept as well founded the assertion of the defendant in his written statement that Hazra Bibi renounced the office of mutawalli so as to allow her husband to instal himself as the sajjadanashin. In our opinion, it is fully established by satisfactory evidence that Hazra Bibi has held the office of mutawalli from 1880 and has been in possession thereof by performance of the duties attached thereto, either herself or through her deputies, for a period of not less than thirty-six years. What, then, is the legal effect of such possession of the office, even if we assume for a moment that her nomination to the office of mutawalli was not validly made or was not confirmed by a kazi or by a judicial officer of equivalent status? The obvious answer is, that the plaintiff has acquired a good title to the office of muttawali by reason of her possession thereof for the statutory period. The principles applicable in such circumstances were explained in the case of Salimulla v. Abdul Khayer Mohammad Mustafa, (3).
8. It is indisputable that a claim to office and to property appurtenant thereto may be barred by limitation. The decisions in Balwant Rao v. Puran Mal (4), Jagan Nath Das v. Birbhadra Das (5), Kidambi Ragava Chariar v. Tirumalai Asari Nallur Raghavachariar (6) show that if the office is not hereditary, Article 120 of the Schedule to the Limitation Act is applicable. If on the other hand, the office is hereditary, Article 124, governs the matter; Nilakandan v. Padmanabha (7), Alagirisami Naickar v. Sundareswara Ayyar (8), Gnanasambanda Pandara Sannadhi v. Velu Pandaram (9), Annasami Pillai v. Ramakrishna Mudaliar (10), Ramanathan Chetty v. Murugappa Chetty (11) affirmed on appeal to the Judicial Committee: Ramanathan Chetti v. Murugappa Chetti (12) and Lilabati Misrain v. Bishun Chobey (13). The substance of these decisions is that a trusteeship with power to appoint a successor is well known to and recognized by law and may be prescribed for; in the case before us, it is immaterial whether Article 120 or Article 124 or Article 144 is held applicable. When title has been so acquired by statutory operation it is plain that the title of the true owner is not revived by reentry, in other words, even if the lawful owner should re-acquire possession, he is not thereby remitted to his original title. This view is supported by the decisions in Brindaban Chunder Chowdhury v. Tarachand Bindopadhya (14), Dalip Rai v. Deoki Rai (15), Vasudeva Padhi v. Maguni Devan (16), Lilabati Misrain v. Bishun Chobey which accord with the rule recognized in Brassington v. Llewellyn (17), Bryan v. Chowdal (18), Jolly, In re, Gothercole v. Norfolk (19), Dawkins v. Penrhyn (Lord) (20), Beamish v. Whitney (21) and Beamish v. Whitney (22). The validity of these principles has not been questioned, but the argument has been put forward that the plaintiff was disqualified, by reason of her sex, from appointment to the office of mutawalli and could not, consequently, be deemed to have acquired title to such office by prescription, on the analogy of the rule recognized by the Judicial Committee in Bhaiaji Thahur v. Jharula Das (23) which reversed the decision of this Court in Jharula Das v. Jalandhar Thahur (24). This contention is fallacious, as it is based on the erroneous assumption that a woman is incompetent, under the Mahomedan law, to hold the office of mutawalli. The true rule on the subject was enunciated by Abdur Eahim, J., and Seshagiri Aiyar, J., in Munnavaru Begam v. Mir Mahapalli (25).
9. A religious office can be held 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 the exclusion. The decision of the Judicial Committee in Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem (26) takes the same view and shows that if the religious duties connected with a religious office are such that a woman cannot properly discharge in person or by deputy, then she cannot be appointed to that office. This doctrine is based on the fundamental distinction between the temporal affairs of a mosque and the spiritual functions connected with it; Imam Bee v. Molla Khasim Sahib (29). A similar distinction has been recognized also in the case of Hindu endowments; Dhuncooverbai v. Advocate-General (30), Mohan Lalaji v. Madhusudan (31). We cannot consequently accept the contention of the defendant that the plaintiff is incompetent to hold the office of mutawalli. It has next been argued that the plaintiff should not be allowed to succeed on the basis of prescriptive title to the office of mutawalli when such a case was not expressly made in the plaint. There is clearly no substance in this contention.
10. The relevant facts were fully set out in the plaint and the plaintiff asked for a declaration, not that she was mutawalli by appointment or by hereditary succession, but that on the facts stated the defendant was in wrongful possession and should; consequently, be ordered to deliver up quiet and peaceful possession to her. There is no room for suggestion that the defendant has been taken by surprise and he has thus no foundation for a grievance. As ruled by this Court in Sundari Dasee v. Mudhoo Chunder Sircar (32), a plaintiff may be allowed to succeed on a title by adverse possession, pleaded even for the first time in the Court of Appeal, provided such a case arises on the facts stated in the plaint and the defendant is not taken by surprise. It was pointed out in the case of Ram Chandra Sil v. Ramanmani Dasi (33) that this view is supported by a dictum of Lord Davey in Vasudeva Padhi v. Maguni Devan , though the contrary opinion has sometimes been maintained. The same rule was adopted in the cases of Nepen Bala Debi v. Siti Kanta Banerjee (34) and Lilabati Misrain v. Bishim Chobey . We hold accordingly that at the time of institution of this suit, the office of mutawalli was legally vested in the plaintiff and on that basis she was entitled to possession of the trust estate. As regards the second question, we have to determine whether the defendant was appointed a sajjadanashin, and, if so, what was the effect of such appointment upon the title of the plaintiff as mutawalli. It may be conceded that there is some evidence to show that the defendant got himself elected as sajjadanashin; but this is not sufficient to enable him to resist the claim of the plaintiff for there is no satisfactory evidence of a custom for the appointment of a sajjadanashin in this religious endowment in addition to a mutawalli. Even if we accept as reliable the evidence adduced by the defendant to make out the alleged election of his father-in-law and of himself as sajjadanashin in 1904 and 1912, respectively, that does not establish the existence of a custom for the appointment of a sajjadanashin. The undoubted fact remains that although, according to the recital in the will of Jutty Shah, the endowment has been in existence for at least a century and a half, there is no trace of a sajjadanashin before the alleged election of Jalil Shah in 1904. The true position and functions of a sajjadanashin will be found explained in the judgment of Amir Ali, J., in Piran v. Abdool Karim (35), which was followed in Mahiuddin v. Sayiduddin (36):
“The sajjadanashin has certain spiritual functions to perform. He is not only a muttawali, but also a spiritual preceptor. He is the curator of the dargah where his ancestor is buried, and in him is supposed to continue the spiritual line (silsilla). As is well-known, these dargahs are the tombs of celebrated dervishes, who in their lifetime were regarded as saints. Some of these men had established khankahs where they lived and their disciples congregated. Many of them never rose to the importance of a khankah, and when they died their mausolea became shrines dr dargahs. These dervishes professed esoteric doctrines and distinct systems of initiation. They were either sufis or the disciples of Mian Boushan Bayezid, who flourished about the time of Akbar, and who had founded an independent esoteric brotherhood, in which the chief occupied a peculiarly distinctive position. They called themselves fakirs, on the hypothesis that they had abjured the world, and were humble servitors of God: by their followers they were honoured with the title of Shah or King. Herklot (Qanoon-e-Islam, 1832, Ch. 28) gives a detailed account of the different brotherhoods and the rules of initiation in force among them. The preceptor is called the pir, the disciple the murid. On the death of the pir his successor assumes the privilege of initiating the disciples into the mysteries of dervishism or sufism. This privilege of initiation, of making murids of imparting to them spiritual knowledge, is one of the functions which the sajjadanashin performs or is supposed to perform: Piran v. Abdool Karim .”
“So long as he lived the founder himself was the sajjadanashin, “the one seated on the prayer mat;” in other words the chief or superior. After his death some one among his heirs, indicated by him as qualified to initiate the murids into the mysteries of the tarikat or holy path, succeeds him in his office of sajjadanashin. He is not only a muttawali but also a spiritual preceptor, and in him is supposed to continue the spiritual line (silsilla). There are abundant indications on this record that this is exactly the case with the khankah of sasseram, Shah Kabir was as his title shows, a dervish and from the evidence of the defendant it is clear that the doctrines supposed to be inculcated by these men are as he calls it of tassawuf or sufism. We have dwelt so far on the character of the institution, in order to show how materially it is connected with the personality of the sajjadanashin or superior. He is an integral part or the institution and the central figure, so to speak, therein. Its existence depends on his personality. This is evident from the very terms of the grant in question. The grant no doubt is to the khankah but the enjoyment is given to the dervish and his descendants, generation after generation. The works they have to perform, and the disciples they have to maintain, are all part and parcel of their own selves. The urs the fatehas, etc., are of their deceased ancestors; Mohiuddin v. Sayiduddin see also Secy. of State v. Mahiuddin Ahmad (37).”
11. The substance then is that the sajjadanashin maintains unbroken the spiritual line from the original preceptor. In the case before us however there never was a sajjadanashin, before 1904; there is no room for a theory that the original founder expressly directed that a sajjadanashin should be appointed from time to time. There is also no custom indicative of his wishes in the matter. There has not been a line of I spiritual preceptor, an apostolic succession of spiritual curators. In such circumstances it is impossible to hold that a person in the position of the defendant, can by the device of an election by fakirs and other worshippers force himself on the institution as sajjadanashin. The essence of the matter is that there is no office of sajjadanashin in this institution to which the defendant could have been lawfully elected; for such an office could exist only by virtue of the direction of the spiritual founder or by a valid custom. It is consequently plain that the defendant has acquired no legal status which can possibly enable him to defeat the claim of the plaintiff as muttawali. The result is that the decree made by Greaves, J., is confirmed and this appeal dismissed with costs.
Fletcher, J.:— I agree.
V.B/R.K
12. Appeal dismissed.