Hakim Khan alias Sikkandar Khan Sahib and Others vs A. Sahibjan Sahib and Others

Curgenven, J.—This second appeal relates to a durga or Mahomedan shrine known as the Sultan Sikkandar Badhusha Oulia durga at

Tirupparankundram in the Madura district. The parties belong to a family to which the village Thanakkankulam was granted by the Nawabs of the

Carnatic for meeting the expenses of the services and ceremonies in the durga and for their own support as ministrants. This family has also been

entitled to receive the offerings at the shrine both in the ordinary course and on special festival occasions. In 1875 the family was represented by

five brothers, each standing at the head of a family group, and these brothers entered into an agreement, Ex. I, which provided that the collections

from the village of Thanakkankulam should be -divided between these five persons in certain shares and that the duties in the durga should be

performed by each group in succession for one year in five. The senior member of each group was to be a Mahomaidar and had the right to be

registered by the Collector as the representative of the group and to distribute the group''s share of the income to the other members. In this case

we are concerned with group No. 3. In 1913 it consisted of four brothers with their descendants, and these four brothers made an arrangement,

Ex. VII, for the distribution of the year''s duties between them and of the income to be derived from the shrine. Each brother was to: perform the

duties for periods aggregating one quarter of the year and during those periods was to have the ordinary receipts, while special receipts from

festivals were to be pooled and divided equally between the four. The eldest of those brothers was Ghulam Ali, and he was to be Mahomaidar. In

1919 Ghulam Ali executed a settlement deed, Ex. D in favour of Sahibjan Sahib, son of his brother Ameer, and died in February 1921. Under this

document he conveyed all his share in the rights and duties in relation to the shrine, to be divided between Sahibjan Sahib and Ghulam Ali''s own

three daughters. Although this document was executed some time before his death, Ghulam Ali continued in possession of his office and the

emoluments during his lifetime. The suit was-filed by Sahibjan Sahib to enforce the terms of this settlement deed and obtained a declaration that all

Ghulam Ali''s rights and duties had passed to the plaintiff. It was resisted on the ground that those rights and duties could not be made the subject

of such a conveyance.

It will be seen that Ghulam Ali occupied two distinct capacities; in the first place, as senior member of his group, he was its Mahomaidar. This

office under Ex. I fell necessarily to the senior member of the group and it has not been contended before us that Ghulam Ali could validly convey it

to-Sahibjan Sahib. On Ghulam Ali''s death it had to pass to the next senior member. The other capacity consisted in the right or duty to perform

services, as arranged under Ex. VII, and to receive the emoluments, and the question is whether Ghulam Ali could settle these upon his nephew.

The learned District Munsif answered this question in the negative, holding"" that the settlement deed was not valid. The learned Subordinate Judge,

while holding that Ghulam Ali could not transfer his spiritual office, considered that he had a temporal right to participate in the offerings, which he

could convey to Sahibjan Sahib and his own daughters, and gave a decree accordingly. To divorce emoluments from duties in this manner certainly

does not appear to us a very defensible arrangement. Considering first the duties it is no doubt true as a general proposition that spiritual offices

cannot be made the subject of transfer, but it is doubtful whether the considerations of public policy which have given rise to that rule will apply to

the internal arrangements which a family of worshippers may make to provide for the distribution of religious worship among its members. The

question of the validity of the settlement deed is, we think, dependent upon more specific considerations in this case. It seems to us in the first place

very doubtful whether the arrangement made under Ex. VII, which is merely an arrangement of turns between the members of the group, confers

any transmissible right upon those members. There is nothing to show that it was intended to be permanent and irrevocable and the natural

conclusion seems to be that the members of the family had power to revise it, when change of circumstances so required. Indeed it seems essential

for the proper discharge of the duties that this should be so. Even if Ghulam Ali could have assigned his duties to some other member of the family

for the term of his life, it is doubtful therefore whether he had anything to leave after his death. Assuming that his share in the duties and the

emoluments survived him, were they at his disposition? No doubt, under Muhammadan law, the ordinary rule is that a Muthavalli may nominate his

successor, but to import that principle into the internal arrangements of a family like this is to make rather a large assumption. Here again we think

that the question can be answered on the special circumstances of the case. The statement recorded from the inamdars at the time of the inam

enquiry shows that the rights were being enjoyed hereditarily by the members of the family doing service in the durga and the plaintiff''s own claim

includes the share of his deceased father on the footing of inheritance. If the hereditary principle is to be observed, it follows that there is no room

left for disposing of those rights and duties by assignments and settlements, even among the members of the same group, and we do not think that

any distinction can be drawn, as the lower appellate Court had drawn it, between the duties to be discharged at the durga and the emoluments

received, either from the Durga or from the village, though it would of course be open to the members of the group as a whole to effect a

redistribution of them.

We must accordingly allow the second appeal, set aside the decree of the lower appellate Court and restore that of the District Munsif with

costs of the contesting defendants throughout.