REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3643            OF 2008 [Arising out of  SLP (Civil) No. 20565 of 2006]

Faqruddin (Dead) Through L.Rs. …Appellant

Versus

Tajuddin (Dead) through L.Rs. …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Defendants-Appellants are before us, aggrieved by and dissatisfied

with a judgment and order dated 3.11.2006 passed by a learned Single

Judge of the High Court of Judicature of Rajasthan in S.B. Civil First

Appeal No. 144 of 1981 allowing the appeal of the respondent from a

judgment and order dated 31.01.1981 passed by the Additional District

Judge,  No. 1,  Jaipur  City in  Civil  Suit  No.  67  of  1977,  whereby and

whereunder a suit filed by the respondent herein for declaration of his

title, permanent injunction and possession was dismissed.

3. At the outset, we may notice the genealogical tree of the parties,

which is as under:  

4. One Hajrat Ziauddin Sahib (1730-1810) was a great Sufi Saint.  He

belonged to Sunni Sect of Islam.  In view of his spiritual attainments, 7

bighas of land at Moti Katla, Jaipur was given to him by the then Ruler

of the State of Jaipur for the purpose of maintenance of a garden.  He,

however, acquired lands out of his own funds.  It comprised of Khasra

Nos. 497 to 503 admeasuring 8 bighas 2 biswas.  Indisputably, on the

said land, there are prayer rooms, Dargah, Mosque, garden, graveyard,

shops,  houses,  lodge,  etc.   On  the  demise  of  Hajrat  Ziauddin  Sahib,

which took place in the year 1810, his Mazar (tomb) was treated as a

sacred place.  It attained the status of a Dargah.  One Gulam Rasul Sahib

was the first Sajjadanashin and Mutawalli of the Dargah.  He was son of

his sister.  In the year 1860, Sayed Immauddin Sahib succeeded to the

said office followed by Syed Mohiuddin Sahib.   

A matmi proceeding was initiated for 12 bighas and 12 biswas of

land.  It was found that late Ziauddin Sahib was not in possession of 7

bighas  of  land.   The  land  upon  which  Dargah,  Kabristan,  etc.  were

2

Maulana Ziauddin  Sahib

Gulam Rasool Sahib

Syed Kamaluddin  Sahib

Syed Sarfuddin SahibSyed Mahiuddin Sahib

Moinuddin Badruddin Faridduin

Syed  Aminuddin

Syed  Saiduddin

Syed  Fakruddin

Syed Tajuddin Mahemuda  Begum

Syed Gulam  Ziauddin

Syed  Moinuddin

Syed Zenuel  Abedin

Syed  Allauddin

Syed  Rahisnddi

Syed Agigudia

Syed Imamuddin Sahib

situated were not the subject matter of the State grant and, therefore, not

subject to matmi.

5. Syed Mohiuddin Sahib was convicted by a criminal court.   The

‘Sajjadagi’ was tied on the head of Kamaluddin, the younger brother of

Mohiuddin as he was considered fit for holding the said post.

6. Matmi was sanctioned in favour of Kamaluddin.  He died on or

about 29.05.1938.  He purported to have executed a Will and nominated

Aminuddin, his eldest son, as Sajjadanashin and Faqruddin, another son,

as Mutawalli.  Allegedly, there existed a custom that on the Soum, i.e.,

the third day of the funeral, a congregation makes the nomination.  It is

notified by the congregation.  Dastarbandi ceremony took place in terms

whereof turbans were tied.  The said customary formalities were said to

have been complied with.

7. Moinuddin son of Mohiuddin (the convicted Sajjadanashin) filed a

suit against Kamaluddin claiming inheritance in the year 1939.  He also

filed  a  suit  against  Aminuddin  claiming  election  to  the  post  of

Sajjadanashin  by  Muslim  public.   Both  the  suits  were  dismissed  by

judgments  dated  11.05.1920  and  5.09.1939  respectively.   Appeals

preferred thereagainst were also dismissed.  During pendency of the said

proceedings, Aminuddin died on 12.07.1944.  In his place, Tajuddin was

3

substituted.  In the said suit, Wakf in question was held to be Wakf Al

Aulad.   

8. Tajuddin filed another suit, on or about 7.09.1953 for a declaration

that  he  was  the  rightful  Sajjadanashin  of  the  Dargah  in  question.   A

prayer was made for removal of Faqruddin, the deceased predeceased-in-

interest of the appellants, from the office of Mutawalli.  A large number

of issues were framed.   

Issues Nos. 1, 4 and 5 read as under:

“1. Whether the plaintiff is the Sajjada of the Dargah of Maulana Ziauddin Sahib?

4. (a) Whether  on  proof  of  issue  No.  1  the plaintiff  is  entitled  as  Sajjadanashin  to  the savings left  after  mooting the expenses of the Dargah?

(b) Whether  the  plaintiff  is  entitled  to recover  Rs.  100/-  as  the  savings  of  the  two years?

(c) To  how  much  amount  the  plaintiff entitled for  the period of the pendancy of the suit?

5. Whether the plaintiff is bound to indicate the nature of the trust so that the question may be decided in the court?”

4

9. It was found that the purported election which had been held did

not  meet  the  requirements  of  law.   It  was  furthermore  held  that  the

plaintiff was not entitled to be a ‘Sajjadanashin’ as it was a private land.

The appeal  preferred thereagainst,  which  was marked as Civil  Appeal

Case No. 23 of 1954, was dismissed on 20.11.1958.  The said proceeding

attained finality.   

10. Allegedly, on the death of Syed Saidduddin Sahib,  who became

Sajjadanashin  on  the  demise  of  Aminuddin,  Faqruddin  became

Sajjadanashin according to custom.  He continued to hold the office of

Mutawalli also.  A notification was issued under Section 5 of the Wakf

Act, 1954 on 9.12.1965 declaring the properties to be Wakf Properties.   

11. Another suit was filed by Tajuddin on 3.12.1966 against the State

Government claiming himself to be the Sajjadanashin.  He also claimed

some amount on account of expenses for ‘Chirag Bati’ and also the value

of 42 Gold Mohars.  Faqruddin was impleaded as a party.  The said suit

was withdrawn by Tajuddin.   

12. Another round of litigation started in the year 1974.  A ‘matmi’

proceeding was initiated in terms of the provisions of the  Jaipur Matmi

Rules (for  short  “Matmi Rules”).   Plaintiff’s name was directed to be

5

mutated  by the Board  of  Revenue by an  order  dated  1.02.1974.   The

Board of Revenue, however, observed:

“…The  only  son  of  Aminuddin  named Tajuddin  is  alive  and  he  has  some how (sic) been deprived of the office of Sajjadanashin so far,  but  as  indicated  above,  the  Board  if  not concerned  with  the  appointment  of  the Sajjadanashin  for  Dargah  Mirza  Zaiuddin which is civil matter…”

It was furthermore observed:

“11.  In  exercise  of  the  powers  conferred  by Section 10(d) of the Rajasthan Jagir Decisions and  Proceedings  (Validation)  Act,  1955,  we, therefore, sanction succession of the last holder Kamaluddin son of Immamuddin in the name of this eldest real grandson namely Tajuddin son of  Aminuddin  in  respect  of  7  bighas  ‘Kham’ State  grant  given  for  the  maintenance  of  a garden  by  former  Jaipur  State  Patta  dated Shrawan Budi 4, Samwat 1856 whose Khasra numbers  have  since  been  delineated  in  the Judgment  of  Deewani  of  former  Jaipur  State dated  19/2/1938  and  confirmed  by  the  Full Council  of  State  Jaipur  under  rule  13  of  the Jaipur Matmi Rules 1945.”

13. Relying on or on the basis of the said entry, the respondent filed a

fresh  suit.    According  to  him,  he,  having  been  declared  to  be  the

Matmidar became the holder of land.  As a holder of land, he became the

6

Mutawalli  and  Sajjadanashin  and,  thus,  entitled  to  possess  the  same

exclusively.   

The issues which inter alia were framed are:

“1. Whether plaintiff is the Sajjadanashi and Mutawalli  of Dargah Hajrat Maulana Jiauddin sahib as per decision of Revenue Board dated 1.2.74?

*** *** ***

4. Whether suit is barred with res-judicata?

5. Whether suit is barred with limitation?”

14. By an order dated 31.01.1981, the learned Trial Judge held that the

suit was barred under the principles of res judicata.  The learned Trial

Judge also noticed the admission made by the plaintiff in the following

terms:

“…In  1958,  after  the  death  of  the  then Sajjadanashin  Saikuddin,  defendant  No.  1 became  the  Sajjadanashin  also  besides Mutawalli and since then defendant No. 1 has been working as Sajjadanashin also.   Plaintiff has not  given any reply to  this  submission of defendant in his replication.  Thereafter, in his statements again and again, defendant No. 1 has stated  that  he  had  become  the  Mutawalli  in 1938  and  Sajjadanashin  from  1958  and  it  is very  clear  from  the  cross-examination  of defendant No. 1 that plaintiff has also accepted this  submission  of  defendant  No.  1  in  silent

7

manner.   However,  plaintiff  has  clearly admitted in his statements that defendant No. 1 has been looking after  the work of Mutawalli since  1938.   The  relevant  portion  of  the statement of plaintiff is as under:

“After  Kamaluddin,  Fakhru  Miyan,  defendant No. 1 became the Mutwalli.   My father never objected  on  Fakhrumiya’s  working  as Mutawalli.   My  father  expired  in  1944, Fakhrumiya is Mutawalli till date”

“After the death of Kamaluddin, Fakhrumiya is performing the work of Mutawalli  since 1938 but  with  the  written  permission  of  Matmidar. Tehrir  has  been  made  by  Miya  Kamaluddin Matmidar.  Kamaluddin sahib had executed the Will, which is available in the file.”

In this manner, plaintiff himself has admitted in his cross-examination that on the basis of Will of  Late  Kamluddin,  defendant  No.  1  had become the Mutawalli.”

Issue No. 1 was determined as under:

“As  per  above  discussion,  I  reach  on  the conclusion  that  defendant  No.  1  (one)  has successfully proved that he is the Mutawalli of Dargah  Hajrat  Maulana  Jiauddin  since  1938 and Sajjadanashin since 1958.  Therefore, this issue is decided in favour of defendant No. 1.”

The issue of res judicata was also determined against the plaintiff.

The suit was held to be not maintainable.

8

15. It is stated that pending appeal another suit was filed by Tajuddin.

However, we are not concerned therewith.   

16. A First  Appeal  was  preferred  thereagainst.   Faqruddin  died  on

25.03.1981.  Appellants herein were substituted in his place.  According

to  the  appellants,  Syed  Zainul  Abdeen  was  declared  as  Mutawalli.

Tajuddin  died  in  the  year  1987.   Whether  the  date  of  his  death  is

26.03.1987 or 26.04.1987 is not clear, but the same is not very material

for  our  purpose.   Admittedly,  he  died  issueless.   Respondent  Abdul

Rashid  was  substituted  as  legal  representative  in  place  of  Tajuddin

claiming his right on the basis of an alleged Will.  The other respondents

were also added as parties by an order dated 1.02.1994 as they claimed

the right under another Will.  It is, however, of some interest to note that

in the said order dated 1.02.1994, it was stated:

“Whether or not the appellant had executed the wills  dated  22nd March  1987  and  dated  26th March,  1987  is  not  a  subject-matter  of  the dispute before this Court and it is not disputed that in this appeal, the Court has to decide as to whether  the  appellant  could  be  said  to  have become the ‘Sajjadanashin’ of the ‘Dargah’ in question  by  virtue  of  the  fact  that  he  was recognized as a ‘Matmidar’  after  the death of the  earlier  ‘Sajjadanashin’  and  ‘Matmidar’ Kamaluddin.  In this view of the matter, if the applicants  are  impleaded  as  parties  in  this appeal, they would only be assisting the Court to come to the right conclusion on the above-

9

said  point  and  it  is  made  clear  that  by  their being impleaded as parties in this appeal, their rights under the will are not being decided.  It is further  made clear  that  simply because Abdul Rasheed  has  been  brought  on  record  as  the legal  representative  of  the  deceased  the decision  of  the  appeal  being  confined  to  the rights of Tajuddin, would not confer any right on Abdul Rasheed, as  he as well  as the other members  of  the  committee  have  to  establish their wills.”

17. The  appeal  preferred  by  Tajuddin  (since  deceased)  has  been

allowed by reason of the impugned judgment.

18. Mr. K.V. Vishwanathan,  learned counsel  appearing on behalf of

the appellants, in support of the appeal, would, inter alia, submit:

(i) On the death of Tajuddin, the suit itself has abated as the cause

of  action  did  not  survive  on  the  principle  action  personalis

moritur cum persona.

(ii) No order for impleadment of the respondents could have been

passed as the suit itself has abated.

(iii) In any event, no declaration as prayed for in the suit could be

granted.

(iv) By the judgment and decree dated 7.09.1953, the Civil Suit No.

7  of  1946  having  been  dismissed,  Tajuddin  could  not  have

10

started  another  round  of  litigation  on  the  plea  that  he  had

become Sajjadanashin, which was barred under the principle of

res judicata.

(v) Any observation  made  by the  Board  of  Revenue  would  not

confer  a  jurisdiction  upon  the  Civil  Court,  if  the  same  was

otherwise barred.

(vi) By  reason  of  the  order  passed  by  the  Board  of  Revenue

conferring the status of matmidar on the respondent, he did not

derive any title as a ‘matmidar’ cannot become a Sajjadanashin

or Mutawalli, the office being not heritable ones.

(vii) As a State grant, in any event, is inheritable, the purported rule

of primogeniture contemplated in terms of the Matmi Rules has

no application, particularly, in view of the fact that under the

Mohammedan Law, the rule of primogeniture cannot regulate

succession  and  the  office  of  Sajjadanashin  involves  personal

qualification.

19. Mr.  R.N.  Mathur,  learned  counsel  appearing  on  behalf  of  the

respondent No. 1, on the other hand, would submit :

11

(a) 7 bighas of land being the subject matter of State grant, the Board

of Revenue had the requisite  jurisdiction to order declaration of

the original plaintiff as a ‘matmidar’.   

(b) Even if the claim of the respondent as Sajjadanashin or Mutawalli

is  excluded,  he  would  be  entitled  to  exclusive  possession  of  7

bighas of land as his right to hold the same stands recognized as a

‘Khatedar’.   

(c) Being a holder of land,  he is entitled to exclusive possession as

rent has to be paid by him.   

(d) His claim as Sajjadanashin is not only based on a Will, but also

upon  a  custom prevailing,  viz.,  Sajjadanashin  can  nominate  his

successor.   

(e) As Faqruddin was not a valid nominee, the holder of the office of

‘Sajjadanashin’ could nominate the respondent.   

(f) Appellants having submitted themselves to the jurisdiction of the

Board  of  Revenue and having failed  in  their  attempt  to  get  the

order dated 1.02.1974 set  aside in a writ  petition filed by them,

they are estopped and precluded from contending that the Board

had no jurisdiction to pass the impugned judgment.   

12

(g) In any event, the questions raised herein having not  been raised

before  the  High  Court,  this  Court  should  not  exercise  its

discretionary jurisdiction under Article 136 of the Constitution of

India.

20. The State of Jaipur was a princely State.  The Matmi Rules were

framed during the said regime.  The legislature of Rajasthan enacted the

Jaipur Laws (Validating) Act, 1952.  A Validating Act being the Jaipur

Matmi Rules (Validation) Act, 1961 was also enacted; Section 2 whereof

reads as under :

“2.  Validation  of  Jaipur  Matmi  Rules  – Notwithstanding  contained  in  the  Jaipur General Clauses Act, 1944, or any other law or in any rule of interpretation or in any judgment, decision,  decree  or  order  of  any  court  and notwithstanding any omission or defect of form or procedure or want of any competent sanction or approval, it is hereby declared that the Jaipur Matmi  Rules,  1945,  published  in  the  Jaipur Gazette,  Extra-ordinary,  dated  the  8th December,  1945  under  Revenue  Branch Notification  No.  15941/Rev.  dated  the  24th November,  1945,  shall  have,  and  shall  be deemed always  to  have had,  the force of  law and shall be treated as being and as having been an ‘existing Jagir  law’ within  the  meaning of clause (d)  of section 2 of  the Rajasthan Land Reforms and  Resumption  of  Jagirs  Act,  1952 (Rajasthan Act 6 of 1952) for the purposes of that  Act  as  well  as  of  the  Rajasthan  Jagir Decisions  and  Proceedings  (Validation)  Act,

13

1955, (Raj. Act 18 of 1955) and any other law relating to jagirs or jagirdars.”

21. The  said  Rules,  however,  have  a  prospective  effect.   It  merely

declares the Rules to have always the force of law.  The effect thereof,

however, must be considered having regard to the other laws in force.

We, would, therefore, proceed on the basis that the Matmi Rules had the

force of law.   

It, however, applies only to ‘State grant’.  ‘State grant’ has been

defined in Sub-rule (1) of Rule 4 to mean “a grant of an interest in land

made or recognized by the Ruler of the Jaipur State and includes a jagir,

muamla, suba, istimrar, chakoti, badh, bhom, inam, tankha, udak, milak,

aloofa, khangi, bhog or other charitable or religious grant, a site granted

free of premium for a residence or a garden, or other grant of a similar

nature”.  The term “Matmi” has been defined in Sub-rule (3) thereof to

mean “mutation of the name of the successor to a State grant on the death

of the last holder”.  Sub-rule (4) of Rule 5, however, makes an exception

in regard to the applicability of the Matmi Rules in respect of land free of

premium as ‘waqf’ for a religious building, etc.; the State grant, however,

relates to vacant land.  We would assume that the said exception has no

application to this case.

14

22. Sajjadanashin  is  a  spiritual  office.   Mutawalli  is  a  manager  of

secular properties.  Both of them are connected with a Dargah or a Wakf.

Matmi,  however,  is  a  process  of  mutation  carried  out  in  the  revenue

register in terms of the Matmi Rules.   

23. Rules 6 to 11 of the Matmi Rules provide for the mode and manner

in  which  applications  are  required  to  be  filed,  entertained  and

determined.  It casts a duty to bring the death to the notice of the State

within the time specified therein, failing which a penalty may be levied.   

Rules 11, 13 and 14 of the Matmi Rules read as under :

“11.  The  person  claiming  succession  shall, within one month from the date of death of the last  holder,  submit  an  application  in  the prescribed  form (Appendix  A)  to  the  revenue officer indicated in rule 22.

Note (1) The application for matmi shall not be returned or rejected on the ground that the applicant has failed to furnish any of the prescribed particulars;

(2)The  application  under  this  rule  shall  be  made  even though a report has been made under Rule 6.

13. The eldest real son of the last holder or if such son is dead, such son’s eldest real son or eldest  real  grandson  is  entitled  to  succeed, unless in the opinion of the Ruler he is unfitted to  succeed  by  reason  of  serious  mental  or physical defect or disloyalty;  

15

Provided  firstly,  that  in  the  case  of   the panchpana  sardars  of  Shikhawati  and  the bhomias  of  Udaipurwati,  the  grant  shall devolve on all the surviving real sons and the real sons or grandsons of predeceased sons of the last holder in accordance with local custom unless in any particular case His Highness the Maharaja  Sahib  Bahadur  has  recognized  that the ordinary rule of succession by male lineal primogeniture shall apply.

Provided, secondly, that in the case of a nihang grantee,  a  chela whose  nomination  has  been approved  by Government  shall  be  entitled  to succeed; and

Provided,  thirdly, that  in the case of a tankha grant  of  which  the  holder  dies  after  the  25th October,  1943,  his  eldest  real  son  shall  be entitled to succeed only to one-half of the grant and  such  son’s  eldest  real  son  to  only  one- fourth  of  the  original  grant.   In  the  fourth generation of the holder in possession on 25th October, 1943, the remainder of the grant shall be resumed.

Example : (1) A,  a  tankhadar,  in  whose  name matmi of a tan of Rs.2,000/-  on six months qarar was sanctioned prior  to  the  25th October,  1943, dies  in  January,  1943  leving three sons, B, C and D.  B being the  eldest  son,  matmi  will  be sanctioned  in  B’s  favour  in respect of a tan of Rs.1,000/- on six  months  qarar  and  the remaining  tan  of  Rs.1,000/-  be resumed.

               (2) X,  a  tankhadar,  in  whose  name matmi of a tan of Rs.1,000/-  on six months’ qarar was sanctioned prior  to  the  25th October,  1943,

16

dies  in  March,  1943,  leaving  Y and  Z  sons  of  his  only  son  Q, who predeceased X.  Matmi will be  sanctioned  in  Y’s  name  in respect of a tan of Rs.250/- only and the remaining tan of Rs.750/- will be resumed.

14.  (1)  Subject  to  the  provisions  of  rule  13, succession in the absence of a direct male lineal decendant of the last holder shall be restricted to  the lineal  male  descendants  of  the original grantee,  preference  being  given  to  the  senior member of the senior line :

Provided, firstly, that in the case of a grant for the maintenance of a temple, mosque or other religious place, other than a Jain temple, it shall be  within  the  discretion  of  Government  to select as successor any one of the male lineal descendants  of  the  original  grantee,  with  due regard to his suitability for the performance of worship; and

Provided,  secondly,  that  in  the  case  of  a Jain temple succession shall be sanctioned in favour of a manager nominated by the Panch Jains.

(2) No adoption shall  be recognized for the purpose of succession to a State grant unless a holder has obtained the previous sanction of the Government  to  adopt,  such  sanction  being given  only  in  favour  of  a  direct  male  lineal descendant of the original grantee :

Provided,  firstly,  that  a  person  adopted  in another family shall not be allowed to revert to his original family; and

Provided,  secondly,  that  a  Raja  (Lalji),  a khawaswal,  a  tankhadar,  an  employee  of  the Bera  Khawas  Chelan,  an  employee  of  the

17

Karkhanejat and a mina chowkidar shall not be permitted to adopt.”

24. The High Court,  in  its  judgment,  with  regard to the plea of  res

judicata,  held:

“…It is correct that plaintiff Tajuddin had filed a suit in the court of District Judge, Jaipur, to declare him as Sajjadanashin and the same was dismissed  vide  judgment  dated  7.9.1953 (Exhibit  A-2)  and  the  appeal  against  that judgment was also dismissed by the High Court vide judgment 20.11.1958 (Exhibit A-3).  But, after  the  judgment  of  the  District  Judge,  the case of Matmi or successor of Kamaluddin was decided  by the  Statutory Authority  exercising power under Section 4(1)(b) read with Section 10 of the Act of 1955 and as mentioned above the  Revenue  Board,  vide  its  judgment  dated 1.2.1974  (Exhibit  –  1),  sanctioned  succession of the last  holder  Kamaluddin in the name of the  plaintiff  Tajuddin.   The  judgment  of  the Revenue  Board  dated  1.2.1974  (Exhibit  –  1) was challenged by defendant Badruddin before this  Court  in  S.B.  Civil  Writ  Petition  No. 2225/1974  and  the  said  writ  petition  was dismissed on 21.11.1983, therefore, order dated 1.2.1974 has attained finality.  Certified copies of the Writ Petition No. 2225/1974, the reply to the writ petition on behalf of the respondent no. 3 in the writ petition, namely, Tajuddin, and the order  dated  21.11.1983,  dismissing  the  writ petition of the defendant Badruddin against the order  of  the  Revenue  Board  dated  1.2.1974 have been placed on the record along with the application under Order 41 Rule 27 of the CPC on  19.11.1997,  which  was  allowed  by  this Court  vide order  dated 20.2.1998.   The  order

18

dated 1.2.1974 passed by the Revenue Board is a  statutory  order  by  the  statutory  authority under the statute and this was the separate and fresh  cause  of  action  for  filing  the  present suit…”

25. The High Court, on the premise that there exists a codified law for

declaration of succession for the last holder, opined:

“…Even if there is any custom for appointment on  the  post  of  Sajjadanashin  then  the  same cannot  be  contrary  to  prevailing  statute  and codified law will prevail over the custom.  The gifted property by the ruler has to be managed by successor according to law.  There cannot be two  different  persons,  one  as  successor  and another  as  Sajjadanashin.   Otherwise  property in  dispute  cannot  be managed properly.   Any person  who  is  declared  as  successor  and  in whose  favour  Matmi  is  sanctioned  by competent authority under the statute is entitled to  hold  the  posts  of  Sajjadanashin  as  well  as Mutawalli also.”

26. The law of inheritance amongst the Mohammedans is governed by

their personal laws.  If the properties are wakf properties, the offices of

Sajjadanashin and Mutawalli are to be filled up in accordance with the

law or  the custom.  If  the properties  are  heritable,  those  who are  the

‘Quranic Heirs’ would be entitled to hold the said posts.  Indisputably,

19

the law of primogeniture has no application amongst the Mohammedans

vis-à-vis their law of inheritance.

27. ‘Wakf’ would mean taking out something out of one’s ownership

and passing it on to God’s ownership dedicating its usufruct – without

regard to indigence or affluence, perpetually and with the intention of

obtaining  Divine  pleasure  –  for  persons  and  individuals,  or  for

institutions or mosques and graveyards, or for other charitable purposes.  

28. It is beyond any doubt or dispute that a Mutawalli is the temporal

head.   He  is  the  manager  of  the  property.   Office  of  Sajjadanashin,

however, is a spiritual office.  It has to be held by a wise person.  He

must be fit for holding the office.

29. The Rules, indisputably, are statutory in nature.  His Highness of

Maharaj  used  to  exercise  both  executive  and  legislative  policy.   The

Rules having been validated have a statutory force.   

In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and

Ors. [AIR 1963 SC 1638], this Court opined :

“In appreciating the effect of this Firman, it is first necessary to decide whether the Firman is a law or not.  It is matter of common knowledge that  at  the  relevant  time  the  Maharana  of

20

Udaipur  was  an  absolute  monarch  in  whom vested all the legislative, judicial and executive powers of the State.  In the case of an absolute Ruler  like  the  Maharana  of  Udaipur,  it  is difficult  to  make  any  distinction  between  an executive order issued by him or a legislative command issued by him.  Any order issued by such  a  Ruler  has  the  force  of  law  and  did govern the rights of the parties affected thereby. This  position  is  covered  by  decisions  of  this Court  and it  has not  been disputed before us, vide  Madhaorao  Phalke v.  State  of  Madhya Bharat,  1961-1  SCR  :  (AIR  1961  SC  298). Ameer-un-Nissa  Begum.  v.  Mahboob  Begum AIR  1955  SC  352  and   Director  of Endowments,  Government  of  Hyderabad v. Akram Ali, (S) AIR 1956 SC 60.”

30. As  regards  the  Matmi  Rules,  apart  from  having  the  statutory

sanction under the Jaipur Matmi Rules (Validation Act), 1961, it seems

to have Presidential sanction.  This had been recognized by this Court in

Thakore  Sobhag  Singh v.  Thakur  Jai  Singh  and  Ors. [AIR  1968  SC

1328].

But this Court did not decide the question with regard to the effect

of the said Rules.   

31. “Matmi”,  however,  in  terms  of  the  Matmi  Rules,  as  noticed

hereinbefore, would mean mutation of  the name of the  successor to  a

State grant on the death of the last holder.  The question is as to whether

21

Tajuddin (since deceased) and his predecessor and successor-in-interest

had in fact been appointed as Sajjadanashin or Mutawalli.   

We may, however, notice a decision of the Patna High Court in

Shah Najihuddin Ahmad v.  Amir Hasan Khan & Ors. [AIR 1934 Patna

443], (which makes an interesting reading) wherein it was held :

“The  learned  advocate  points  out  that succession  to  the  office  has  not  been  strictly hereditary in the past and that Mahomedan law is  strongly  against  attaching  any  right  of inheritance  to  a  public  endowment  or  office. The office  of  a  Sajjadanashin  however  stands on a special footing:

“He is not only a Muttawali but also a spiritual preceptor,  and in him is supposed to continue the spiritual line (silsilal).”

This  supposed  continuity  of  the  spiritual tradition must obviously be taken into account and, speaking generally, is much more likely to be  secured  by  the  selection  of  a  properly qualified  descendant  of  the  founder  than of  a stranger of the family.  The same consideration applies  to  the  preference  given  by  the  lower court  to  “nearness  in  propinquity”  to  the  last holder.  The observation of the lower Court that under the Firmans, as well as according to the long  established  usage  prevailing  in  the Khanqah,  it  is  clear  that  a stranger  cannot  be appointed to the  office  has  not  been assailed; but  the  learned  advocate  for  the  respondents has laid stress on the wide power of the Court, in  dealing  with  public,  religious  or  charitable trusts, to depart even from the intentions of the founder  on  questions  of  management,  which must be governed by circumstances and varied

22

if  necessary  in  the  best  interest  of  the institution.   It  appeared  during  the arguments that what the plaintiffs really desire is that the appointment  should  be  thrown  open  to  all Muslims without  much regard to the  question whether  they  have  any  connexion  with  this institution.  In our opinion there is no warrant for doing so in the circumstances of this case. It is at the same time clear that the appointment should be open to a stranger if it be found that no suitable descendant of Shah Kabir Darvesh is  available,  and  that  if  this  be  added  to  the scheme,  it  might  possibly  save  a  suit  under S.92.  Preference ought however to be given to descendants of the founder and among them to those  “nearest  in  propinquity”  to  the  last incumbent, provided that such persons are duly qualified.

It has been contended on behalf of the appellant that the learned Subordinate Judge has adopted an  unnecessarily  high  standard  of  Puritanism and education  for  the office  of Sajjadanashin. The  decree  mentions  no  standard;  but  the learned  Subordinate  Judge  was  apparently (judging  from  his  observations  regarding  the fitness  of  Shah  Malihuddin,  inclined  to  hold that  a  properly  qualified  Sajjadanashin  must have  a  working  knowledge  of  Arabic  or Persian, these being the languages in which are generally  written  books  on  Suffism,  the philosophy  the  traditions  of  which  form  the raison d’etre  of  a Darvesh’s  Khanqah.   There was in our opinion no error in this.  Tottenham and Ameer Ali, JJ.,  in 1893 observed that the first plaintiff in that suit was disqualified on the ground among others that admittedly he had no knowledge  of  Arabic.   As  to  Puritanism  of living, it is true that religions are in one sense matters of indifference to the Sufi; but he does regard them as serving to lead to realities and considers Islam as among those which are more

23

advantageous for this purpose than others (see Hughes’  Dictionary  of  Islam,  1885,  sub nominee Sufi).  The institution with which we are  dealing  is  moreover  in  the  main  a  Sunni institution,  and  there  is  no  reason  why  the Sajjadanashin of such an institution should be at  liberty  to  give  offence  to  the  Sunni community  by  attending  nauch  parties  (and worse) of flouting prayers and refraining from spiritual  exercises  as  the late Sajjadanashin  is found to have done.”

32. It  is  also  of  some  significance  to  notice  that  in  a  book  titled

‘Muslim Law as administered in India & Pakistan’ by Shri K.P. Saksena,

it is stated as under:

“…A  sajjadanashin  maintains  unbroken  the spiritual  line  from  the  original  preceptor,  by virtue  of  his  directions  or  by a valid  custom. When the previous sajjadanashins were usually eldest sons, the law of primogeniture cannot be presumed  to  govern  the  succession  from this circumstance, as it is contrary to Muslim Law, and  specially  as  this  office  involves  personal qualifications.   The  mere  fact  of  owning  an ancestral tomb and earning one’s livelihood by piri  muridi  and  offerings  at  the  tomb,  cannot make any one a sajjadanashin…”

In  view  of  the  decision  of  the  Patna  High  Court  as  also  the

comments made by Shri Saksena, an holder of office of  Sajjadanashin

24

must have special qualification.  He has to be a man of learning.  He must

be wise.  

33. We have noticed hereinbefore, the admission of the plaintiff in his

deposition.

34. The jurisdiction of the Board of Revenue being limited,  no title

could  have  conferred  upon the plaintiff.   Title  in  or  over  a  land  will

depend upon the statutory provisions.  A title does not remain in vacuum.

It has to be determined keeping in view the law operating in the field,

viz., religious law or statutory law or customary law, etc.   

Revenue  authorities  of  the  State  are  concerned  with  revenue.

Mutation takes place only for certain purposes.  The statutory rules must

be held to be operating in a limited sense.  The provisions of Rule 13 of

the  Matmi  Rules  laying  down  a  rule  of  primogeniture  will  have  no

application  in  relation  to  the  offices  of  Sajjadanashin  and  Mutawalli,

which  are  officers  of  different  nature.   They  are  stricto  sensu  not

hereditary in nature.  It is well-settled that an entry in the revenue records

is not a document of title.  Revenue authorities cannot decide a question

of title.   

25

Inheritance or  succession  to  a property is  governed by statutory

law.  In heritance of an office may not be governed by law of inheritance;

but,  the  office  of  Sajjadnashin  is  not  ordinary office.   A person must

possess the requisite qualifications to hold the said office.

In  Suraj Bhan and Others v.  Financial Commissioner and Others

[(2007) 6 SCC 186], this Court held:

“…It is well settled that an entry in revenue records does not confer title on a person whose name appears  in  record-of-rights.  It  is  settled law  that  entries  in  the  revenue  records  or jamabandi have  only  “fiscal  purpose”  i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide  Jattu Ram v. Hakam Singh)…”

[See also Narain Prasad Aggarwal (D) By LRs. v. State of M.P. 2007

(8) SCALE 250]

35. Only  because  an  observation  has  been  made  by  the  Board  of

Revenue, the same by itself did not confer any jurisdiction upon the civil

court,  if  it  was  otherwise  barred.   If  the  suit  was  barred  under  the

principles of res judicata, Section 12 of the Code of Civil Procedure bars

filing of another suit.  [See  Dadu Dayalu Mahasabha, Jaipur (Trust) v.

26

Mahant Ram Niwas and another, Civil Appeal No. 3495 of 2008, decided

on 12.05.2008]

36. The  High  Court  might  have  been  correct  had  the  plaintiff  –

respondent would have obtained title by reason of a separate transaction.

The entry of the revenue records did  not give rise to a fresh cause of

action so as to take away the effect of principles of res judicata.  [See

Anwar  Khan  Mehboob  Co. v.  State  of  Madhya  Pradesh  and  Others

(1966) 2 SCR 40].  If the order of the Board of Revenue is taken to its

logical  conclusion,  as  has  been  contended  by  Mr.  Mathur,  the  same

would be rendered wholly illegal and without jurisdiction.  It would be a

nullity.

37. Submission of Mr. Mathur that the respondents are estopped and

precluded from questioning the jurisdiction of the Board of Revenue is

equally without any merit.  If the Board of Revenue had no jurisdiction to

decide the question of title, its decision being without jurisdiction would

be a nullity.  [See Chief Justice of Andhra Pradesh and Another v. L.V.A.

Dikshitulu and Others - AIR 1979 SC 193, MD Army Welfare Housing

Organisation  v.  Sumangal  Services  (P)  Ltd.  (2004)  8  SCC  619  and

Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. (2007) 2 SCC

355]

27

38. A jurisdictional fact would not attract the principles of estoppel as

there can be no estoppel against statute.   

39. Respondents themselves claimed their rights only under the Matmi

Rules.  The Matmi Rules do not recognize any transfer of property.  If

they do not  recognize any transfer of property, by getting their names

entered as a Mutawalli in terms of the Rules, they cannot claim exclusive

possession.   

The genuineness or otherwise of validity of either of the Wills, vis-

à-vis,  the  nature  of  the  grant  as  also  the  nature  of  the  properties  in

question must be determined by an appropriate court of  law. Whereas

respondent  No.1  claims  his  right,  title  and  interest  under  one  Will

purported to have been executed by Tajuddin; respondent Nos. 2 and 3

claimed  their  right  by  virtue  of  another  Will.   The  inter  se  disputes

between the parties are said to be pending in some other proceedings.

That is how the suit must be held to have abated.  The recognition of

right in favour of Tajuddin was personal in nature.  If he has died, name

of  another  person  as  Mutawalli  must  be  entered  in  the  register  of

revenue.  We may, however, hasten to add that by saying so we are not

suggesting that the entry made in the revenue records is final in nature.

28

What would be the effect thereof is one question but the very fact that

entire case of the respondent based on Wills which is prohibited in terms

of  the  Matmi  Rules  is  another.   So  long  their  right  vis-à-vis  the

bequeathment by Tajuddin is not determined, no decree for possession

can be granted in their favour.  It is furthermore evident that although the

learned District Judge, in his judgment dated 7.9.1953 purported to have

proceeded on the basis that Tajuddin was not validly elected or selected

for technical reasons, the fact remains that the suit of the plaintiff was

dismissed. If a suit was dismissed, he could not have claimed his right as

Sajjadanashin or Mutawalli.  It is true that in the said suit, the right of the

appellant  as  a  validly  elected  Sajjadanashin and  Mutawalli  was  not

determined.  The learned Trial Judge stated in his judgment that there

was a valid declaration in favour of Faqruddin.

40. It  may further  be true  that  the land in  question  were  not  Wakf

lands but ‘Wakf Aulad’.  Indisputably, however, both Wakf land as also

the land in question are under the management of Mutawalli.  He, apart

from the Wakf land, holds the land in suit on behalf of the beneficiaries.

The present appellants are also beneficiaries of the Wakf.  If the right to

recover possession must vest in a Mutawalli and if by reason of his status

of ‘Matmi’, Tajuddin did not become a Mutawalli, which declaration in

his favour must be held to have been legally made by the High Court, the

29

respondents relying on or on the basis of the purported Wills executed in

their favour cannot claim independent right to recover possession.   

41. In  K.P.  Saksena’s  Muslim  Law  as  administered  in  India  &

Pakistan, at page 572, it is stated :

“A worshipper can enforce his individual right in connection with a mosque, but he cannot sue for the recovery of an unauthorized alienation of waqf property; the Mutawalli alone can have the right to institute a suit for its recovery.  A mutawalli  can maintain a suit  for  recovery of possession  of  the  waqf  property  against  a trespasser, although it does not vest in him.  A representative  suit  by  two  worshippers  to  set aside  an  alienation  by  the  Mutawalli  is, however,  maintainable  even  without  the sanction  under  Section  92  of  the  Civil Procedure Code, or Section 14 of the Religious Endowments Act.  The waqf property may, like other  trust  properties,  be recovered from third persons under circumstances referred to in the Indian Trusts  Act,  Section  63.   In case  of  an unlawful  alienation  or  a  mortgage  of  the mosque  property  by  its  manager,  any  person interested may seek remedy in a civil court and restore the property to the trust, and the same is true  also  in  cases  where  waqf  property  is auctioned in execution of a decree not binding on the trust.  Twelve years’ limitation will run from the confirmation of the auction sale.  An order of the District Judge appointing a person to  perform  the  duties  of  the  ‘mutawalli’  of certain properties during the minority of a ward would not operate as bar to a suit for possession by a person claiming to be trustee.”

30

42. The  question  came  up  for  consideration  in  Gnanasambanda

Pandara Sannadhi v. Velu Pandaram & Anr. [XXVII (1899-1900) Indian

Appeals 69] wherein the judicial committee held as under :

“Their Lordships are of opinion that there is no distinction between the office and the property of the endowment.”

43. The said principle was applied in a case of  Debendra Nath Mitra

Majumdar v. Sheik Safatulla [AIR 1927 Calcutta 130, at 136], stating :

“That  the  right  of  the  plaintiff  to  hold  the properties of the wakf is a right appurtenant to his office as the Mutwalli cannot be disputed : Gnanasambandha  Pandara  Sannadhi v.  Velu Pandara [(1899) 23 Mad.271].

44. For the aforementioned reasons, the impugned judgment cannot be

sustained.  It is set aside accordingly.  The appeal is allowed.  However,

in the facts and circumstances of the case, there shall be no order as to

costs.

………………………….J. [S.B. Sinha]

..…………………………J. [Lokeshwar Singh Panta]

31

New Delhi; May 16, 2008

32