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Amirannessa Bibi v. Hatemali Khan

Calcutta High Court

Jan 10, 1933

Judgment

Subsequent
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Structured Summary of the Legal Opinion

Factual and Procedural Background

The plaintiff sued for a declaration of his title as khadem of certain properties dedicated to a shrine and for recovery of possession. He asserted that, on the death of the last khadem who died childless, the villagers elected him as the next khadem and the zamindar of the area (referred to as the Delduar Zamindar) sanctioned the election. The plaintiff alleged that the defendants had dispossessed him.

Among several defendants, defendants 3 and 6 (daughters of the last khadem) contested the plaintiff's claim. They maintained that, since their father's death, they had acted as khadems through their husbands, contending khademship was hereditary in their family, and challenged the plaintiff's authority to act as khadem.

Procedurally, the trial Court (the Munsif) dismissed the plaintiff's suit. The Subordinate Judge reversed that decision and granted relief to the plaintiff. Defendants 3, 6 and 7 then preferred the present appeal against the Subordinate Judge's decision.

Legal Issues Presented

Whether the usage or practice relied upon by the plaintiff (election by the villagers followed by sanction of the zamindar) was established sufficiently to support the plaintiff's claim to khademship.
If such a usage is accepted, whether an appointment lacking an express, formal sanction by the zamindar (or muttawali) is nevertheless valid — particularly where a receiver of the estate took steps that were treated as a confirmation.
Whether the question of whether female defendants (daughters of the last khadem) could hold the office of khadem is a pure question of law (excluding women as a matter of law) or requires a fact-sensitive inquiry into the nature of the office and the duties attached to it; and who bears the onus of proving exclusion of females from the office.

Arguments of the Parties

Appellants' Arguments (Defendants 3, 6 and 7)

First, that the Subordinate Judge's findings on the alleged usage were inconsistent and insufficient to prove the plaintiff's title to khademship — one proved instance (the appointment of Shah Mahmud) does not establish a continuing practice.
Second, even if the usage were established, the plaintiff's election did not confer a valid title because the Delduar Zamindar, who was muttawali of the wakf estate, had not given the necessary sanction for the appointment.
Third, that the Subordinate Judge treated the question of whether female defendants (daughters of Musa Sheikh) are khadems as a pure question of law, adopting the view supported by certain texts that females cannot be appointed to that office; appellants criticized this as incorrect.

Plaintiff's Case (as presented in the record)

The plaintiff asserted that, after the last khadem died childless, he was elected by the villagers in accordance with the established usage of the shrine, and this election was sanctioned by the Delduar Zamindar.
The plaintiff alleged dispossession by the defendants and sought declaration of title and recovery of possession based on his asserted khademship.
It was argued or shown at trial (and accepted to some extent by the Subordinate Judge) that the election of Shah Mahmud, in the past, occurred by village election followed by zamindar confirmation and that this incident indicated the relevant practice at the shrine.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shahar Banoo v. Aga Mahomed, 1907 34 Cal 118	Authority respecting whether a woman can hold a religious office under Mahomedan law (supporting the proposition that women may hold a religious office unless duties preclude personal or deputed performance).	The Court referenced this decision among others to support the general proposition that female exclusion from a religious office is not automatic under Mahomedan law; instead, exclusion depends on whether duties attached to the office are such that a woman cannot perform them — and that the burden of proving exclusion rests on those who assert it.
Munna Varu v. Mir Mahapalli, AIR 1919 Mad 202	Same general proposition as above concerning female capacity to hold religious office under Mahomedan law.	The Court relied on this authority (cited by the judgment) to reinforce the view that whether a woman can hold a religious office depends on the nature of duties and is not a blanket exclusion; the decision supports the allocation of onus to those pleading exclusion.
Kassim Hassan v. Hazra Begam, AIR 1920 Cal 800	Same general principle regarding female eligibility for religious office under Mahomedan law.	The Court cited this case among authoritative decisions to show established judicial recognition that females are not automatically precluded from religious offices — thus a factual enquiry is required into duties of the office and proof of exclusion.

Court's Reasoning and Analysis

The Court proceeded to analyse the three main contentions advanced on appeal in sequence.

1. On the sufficiency and character of the evidence of usage:

The Subordinate Judge had found proof of only a single prior instance where an election by villagers, followed by confirmation by the Zamindar, resulted in appointment (the appointment of Shah Mahmud).
The learned Judge (Subordinate Judge) observed that one instance alone may not ordinarily establish a continuous practice, but he went on to consider other facts and circumstances and concluded that the conduct surrounding Shah Mahmud's appointment (recognized and assented to by the villagers) was indicative of the actual practice at that shrine.
The present Court rejected the appellants' contention that the Subordinate Judge's findings were inconsistent or that he had concluded the usage was not proved. Instead, the Court held the Subordinate Judge's approach consistent: acknowledging limited direct evidence but inferring, from surrounding facts and the Shah Mahmud instance, that the practice did obtain and that a similarly-made appointment would be valid.
Accordingly, the Court found the first ground of appeal (insufficiency/inconsistency regarding usage) not sustainable.

2. On the necessity of formal zamindar sanction and the effect of the receiver's acts:

The Court analysed what the pleaded usage meant: appointment by election of Mahomedan residents, with the appointment receiving sanction from the zamindar.
To render the usage reasonable, the Court interpreted it so that an elected candidate would be regarded as duly elected until the zamindar affirmatively refused sanction — otherwise elections would be pointless.
The plaintiff proved election by the Mahomedan residents, and there was no evidence that the zamindar or muttawali had refused to accept the plaintiff as khadem.
Moreover, in fact the receiver in charge of the estate had made orders treated as the requisite confirmation. The Court held that the absence of an express, formal sanction by the zamindar did not necessarily invalidate the appointment where, in practice, the receiver's confirmation was treated as the sanction and the zamindar had not repudiated the appointment.
Thus, lack of a formal zamindar signature did not defeat the plaintiff's title in these circumstances.

3. On whether females (defendants 3 and 6) could be khadems — law versus mixed question of law and fact:

The appellants argued the Subordinate Judge treated the question as one of pure law and adopted textbook authority excluding women from the office. The present Court found that the Subordinate Judge indeed treated the matter improperly as a pure legal question.
The Court explained that under Mahomedan law, a female is not necessarily excluded from holding a religious office; the proper test is whether duties attached to the office are of such a religious nature that a woman cannot perform them personally or by deputy. That requires an enquiry into the nature of the office and the factual circumstances.
The Court quoted the established proposition (from authorities) that a religious office can be held by a woman unless there are duties she cannot perform, and that the burden of establishing exclusion rests on those who plead it.
The Court observed there was no finding by either court below on the key factual question whether the daughters' claim to possession and exercise of office was true and whether they could hold such possession against the plaintiff by virtue of office obtained lawfully. The Court concluded there was no proper investigation of this issue at trial.
The Court noted mitigating considerations: no distinct issue had been framed on the question, and, at the Munsif level, parties apparently proceeded on the assumed premise that females could not discharge khadem functions — so the omission to investigate cannot be blamed solely on the plaintiff.

Holding and Implications

Core Ruling: The Court directed that the appeal be allowed conditionally and that the Subordinate Judge's judgment be set aside and the case remitted for further enquiry into the factual question of whether the female defendants can hold the office of khadem.

More precisely, the Court ordered as follows:

The appeal is to be allowed and the decision of the Subordinate Judge set aside, provided the appellants pay the costs specified below within three months.
The matter is remitted to the Court of the Subordinate Judge so that both plaintiff and defendants may be given an opportunity to adduce evidence specifically regarding whether the daughters (defendants 3 and 6) hold the office of khadem by virtue of inheritance, and whether, as females, they are excluded from the office by reason of the duties attached to it.
The enquiry is to be conducted bearing in mind that the onus of proving exclusion of females from the office rests on the party pleading exclusion (i.e., those asserting females cannot be khadems must prove the circumstances that exclude them).
Condition of allowance: the appellants must, within three months from the date of the judgment, pay to the respondents the costs of this Court and the costs in the Court of appeal below. If this condition is complied with, the appeal will be allowed and the case remitted as above. If the condition is not complied with, the appeal will stand dismissed with costs.

Implications: The direct effect is procedural — a remand for factual investigation and a conditional allowance of the appeal. The Court affirmed legal principles from existing authorities (that female exclusion from religious office is not automatic and depends on duties attached) but did not purport to lay down a novel legal precedent beyond applying those authorities to the facts and ordering further factual enquiry.

K.S

Order accordingly.

Show all summary ...

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 Bake 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 been appointed as khadem by the Dalduar 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 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 been established or not.

3. 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 shrine. 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 wards:

“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 be difficult to prove but it might have been otherwise when Shah Mahmud came to the post.”

4. 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 practica 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.

5. The next contention urged is that even 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.

6. 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 were 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.

7. The third ground that has been 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 it 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 religions 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 exclusion.”

8. 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 into the facts bub 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.

9. 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 khadem, 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 be 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.

K.S

10. Order accordingly.