Kaniz Zohra vs Syed Muztaba Husain and another

Dawson Miller, C.J.—This is an appeal on behalf of the Plaintiff from a decision of the District Judge of Bhagalpur affirming a decision of the Subordinate Judge dismissing the suit.

Bibi Kaniz Zohra, the Plaintiff in the suit, is the daughter of the late Saiyed Ijteba Husain who died in the year 1913 leaving as his heirs his widow and the Plaintiff and a younger daughter. During his life-time the Plaintiff''s father and uncle were the joint mutwallis of certain wakf property dedicated to the maintenance of a mosque and Imambara and a durgah or shrine of a saint, situated in the town of Bhagalpur. At the time of her father''s death the Plaintiff was about eight years old. She claims that she succeeded by inheritance to a half share in the management of the wakf property or, in the alternative, that she is entitled to share jointly in the management with her uncle Saiyed Muztaba Husain, the first Defendant in the suit. She further claimed that if she did not succeed by inheritance she was in fact appointed by her relations and the assembled congregation after her father''s death. She instituted the present suit in the year 1919 whilst still a minor suing through her mother as next friend to establish her right to a share in the mutwalliship of the endowed property. The defendants in the suit are her uncle and her younger sister. The former alone filed a written statement and contested the Plaintiff''s claim.

The endowment is an old one. It is proved to have been in existence at the beginning of the last century and its origin is probably of much earlier date: There was at one time a khunkah or monastery attached to it and it is found by both the trial Court and the first Appellate Court that there has all along been attached to the institution a sajjadanashin and that this office still exists. It is further found that the management or mutwalliship of the trust property goes with the office of sajjadanashin. The qualifications of the two offices are different. The sajjadanashin is a priestly office involving the performance of spiritual and religious duties which it is admitted cannot, according to Muhammadan law, be performed by a woman. The functions of a mutwalli are purely secular involving the management of the trust property and a woman is not disqualified by reason of her sex from performing the duties of a mutwalli as such. The devolution of the office of mutwalli depends in the first instance upon the provisions of the wakfnama, or trust-deed, but in the present case the wakfnama has not been produced in evidence and probably no longer exists. In its absence the order of succession must be determined according to the usage proved to have prevailed with regard to the endowment in question. It is found that the usual course for appointing the mutwalli was that after the death of an incumbent a relation of the late mutwalli was chosen by the other relations and the well-wishers of the wakf after consultation with respectable neighbours and gentlemen of neighbourhood and also if, necessary, by the advice of sajjadanashins or mutwallis of other wakf properties and that in any particular case either the whole of this procedure or a part of it only might have been carried out; that these were the usual guiding principles in choosing the successor. It would appear therefore that the devolution was not strictly according to the rules of heredity but was by election out of a limited class and the office could only be held by one qualified to act as sajjadanashin. The Plaintiff claimed to have been elected by the relations after consultation in the manner described above.

The Subordinate Judge before whom the case came for trial was of opinion that the plaintiff had failed to make out that she had been elected.

The District Judge on appeal took a different view upon this part of the case. He was of opinion that the Plaintiff had sufficiently made out her case that she was in fact elected as co-mutwalli with her uncle Muztaba Husain, but that as she was not qualified to perform the office of sajjadanashin her election was not valid. It was the Plaintiff''s case that in the institution with which we are concerned the office of sajjadanashin had become extinct and had ceased to exist many years ago before the time of her grandfather who was the mutwalli of the wakf property, and the main, contention in both the lower Courts centred round this issue. The Judge of the trial Court in his judgment says: "There is no dispute that the Plaintiff cannot be a sajjadanashin, but her case is that this office has become extinct sinoe the time of Irtiza Husain and he with his successors has been in possession in the capacity of a mutwalli only." The learned District Judge on appeal also expressed the matter, thus: "It is a common ground of both Appellant and Respondents that as Kaniz Zohra is a woman she cannot exercise the functions of a sajjadanashin. If therefore the sajjadanashin ship has not become extinct, then the Appellant admittedly has no case. I will therefore deal first with this point and my finding upon it will decide the appeal." Both Courts found that in fact the office of sajjadanashin had not become extinct and as a woman was admittedly disqualified from performing the functions of that office the Plaintiff''s suit must fail.

In appeal before us it was argued that the real issue had not been properly understood by the learned District Judge and that although the office of sajjadanashin had not become entirely extinct the spiritual duties, as distinct from the performance of religious ceremonies, no longer existed and that the learned District Judge had not dealt with this aspect of the case. It was argued that the spiritual duties of a sajjadanashin were the only office which the mutwalli as such was not competent to perform and that the mutwalli or indeed any Muhammadan might perform the religious duties, that is to say leading the prayers, reading from the Koran and performing the urs and fateha and carrying out the other duties required by the Muhammadan ritual. The learned Counsel for the Appellant referred to the evidence of the Defendant himself in which he admitted that there was no system of pirimuridi in the family. The pir is the spiritual instructor and the murid is the disciple or pupil and the system referred to is that of giving spiritual instruction to the disciples. He contended that the origin of the rule that no woman could act as sajjadanashin was based upon the fact that by Muhammadan law a woman may not allow her skin to be touched by a man outside the circle of her immediate blood relations whereas the spirital instruction known as pirimurdi required that the pupils or disciples should on some occasions kiss the hand of the sajjadanashin. No authority for this limited disqualification was cited but a passage in Macnaghten''s Principles and Precedents of Muhammadan Law, 2nd Ed., was quoted. The passage is contained in a note at p. 343 and reads thus:-

The meaning of the term sajjadanashin, which is synonymous with Guddee Nisheen is thus given by Meninski: Considens in tapete sacras preces peracturus aliisque proeiturus antistes. This officer is frequently confounded with the mutwalli, that is, the trustee or superintendent of the endowment, although they are quite distinct; the one having charge of the spiritual, the other of the temporal affairs of the endowment. The office of trustee may be held by a woman, and the duties may be discharged by proxy; whereas the office of Superior requires peculiar personal qualifications.

There is a further passage on p. 332 of the same volume which was also relied upon. It is as follows:-

Females are not competent to as sume the office of superior of an endowment; and such an act is at variance with the usage of the country, because it is the duty of the superior to instruct and guide his disciples, to teach his scholars, and to keep their company continually, in private and in public, and this cannot be done with propriety by a woman, whose duty it is to live retired and secluded.

The learned Counsel argues from this that the only obstacle in the way of a woman acting as sajjadanashin is that the duties of the office require the incumbent to keep company in private and in public with his disciples and that as there were no disciples in the present case the disqualification did not exist. A passage was also relied upon from the judgment of Abdur Rahim, J., in the case of Sujjada Shah v. Shaw Habit [1919] M.W.N. 662: 58 I.C. 677 in which the question was whether the Court had power to remove a saj jadanashin and appoint some one else in the office. In that case the learned Judge speaking of the duties which were actually performed by the incumbent in the particular case before him says at p. 680 of the report: "In short the duties ordinarily attached to the office of a sajjadanashin did not appertain to the position which the defendant and his ancestors have been occupying. All that they had to do was to conduct the annual urs and to offer fatehas at tombs, and none of these could be said to be functions incapable of being performed by other Mahomedans. As regards maintenance of the daily service at the mosque or of the special service. in the mosque on Fridays or on the occasion of the Ramzan, the EedulFatar and the Bakrid, the work was capable of being attended to by any mutwalli of a mosque." It cannot be supposed, however, that in delivering this opinion the learned Judge had in mind the question of whether a woman could perform the duties to which he was referring. That the duties referred could be performed by a mutwalli not especially qualified as sajjadanashin may be conceded, but the opinion of Abdur Rahim, J., above quoted does not touch upon the question of sex disqualification. No doubt the origin of the rule that a woman was not qualified to perform the functions of a sajjadanashin is based upon the consideration that it is unseemly for a Muhammadan lady to perform duties which bring her in close and intimate association with the general public of the opposite sex but there seems to be no reason why the disqualification should be confined only to those cases in which the office requires that spiritual instruction should be given by a teacher to his disciples. Whatever may have been the exact nature of the objections upon which the disqualification Of a woman to act as sajjadanashin Was originally based it would appear to have become a settled rule at the present day that no woman is qualified to become a sajjadanashin whose office involves the performance of religious and spiritual duties, not only those of pirimuridi but those of reading the fateha and offering prayers and incense in a place of public worship. In Mujavar Ibrambibi v. Mujavar Hussain Sheriff [1880] 3 Mad. 95 it was held that a woman is not competent to perform the duties of mujavar of a durga which are not of a secular nature. In that case the lands had been dedicated for the reading of the fateha, for the supply of water, lights, flowers, and other things requisite for the servioe to be performed at a durga and for the support of those by whom the services should be performed. In that case the learned Judges stated:-

It appears from the evidence that the office of mujavar entails the discharge of duties of a spiritual character, such as reading the fateha, offering prayers and incense, ect., which could not conveniently be performed by a woman. There is no satisfactory evidence that the office has ever been held by a woman, except in one instance, and that was at a different place, and it that case it is admitted there were in the family in which the office was hereditary, no male members by whom its functions could be discharged.

The question as to the competency of a female to hold the office was in reference to the same endowment considered and determined by this Court in the negative in Hussain Beebee v. Hussain Sheriff [1868] 4 Mad. H.C.R. 23, where a claim was advanced by the widow of a deceased in her turn to the duties of the office and to obtain possession of a share of the endowed property That decision notices the distinction which exists between a trusteeship for secular purposes, which can be held by a woman, and an office entailing religious duties, for which a woman is not eligible and rests on the authority of Macnaghten (Muhammadan Law, 343, Note, and the cases cited in the appendix to that work).

On referring to Mr. Macnaghten''s Note already quoted it will be found that he makes no difference between spiritual and religious duties, the antithesis being between spiritual and temporal duties, the latter being capable of performance by woman and the former not. The authority of other text-writers also seems opposed to the view that a woman can perform the duties of a sajjadanashin. Mr. Syed Ameer Ali, a text-writer of repute, states the matter thus: "The office of mutwalli is an office of personal trust, and a person who cannot discharge the duties of the trust personally nor be responsible for their due discharge, cannot appoint a deputy. But where the mutwalli has to perform religious duties or spiritual functions in connection with the wakf, which, as regards men, can only be performed by a man, a woman cannot be appointed to the office. For example, if the mutwalli is also the superior of a religious establishment, and as such, has to officiate on occasions of religious festivals, a woman; is precluded by her sex from holding the towliat ". In support of this opinion he relies amongst other authorities upon the case, already referred to, of Mujavar Ibrambibi v. Mujavar Hussain Sheriff [1880] 3 Mad. 95. (Muharamadan Law, 4th Ed., Vol. I, 443). Sir Roland Wilson in his treatise on Anglo-Muhammadan Law, 5th Ed., p. 357, para. 331, states the law thus:- "A female may be the Mutwalli of an endowment and so may a non-Muhammadan; but if the endowment be for the purpose of divine worship, neither females nor non-Muhammadans are competent to hold the office of sajjadanashin or spiritual superior. "Mr. P.R. Ganapathi Ayer, in his book on Hindu and Muhammadan Endowments, 2nd. Ed. p. 435, after pointing out that the office of sajjadanashin and mutwalli are separate and distinct says: "The sajjadanashin has charge of the spiritual affairs of the endowment, but the mutwalli has charge of its temporal affairs. One consequence of this is that a woman may be a mutwalli but cannot be a sajjadanashin. According to the Muhammadan law, the duties of mutwalli who has not to perform religious duties or spiritual functions may be discharged by proxy. But the office of sajjadanashin requires peculiar personal qualifications and the duties attached to that office cannot be discharged by proxy, A woman, therefore, cannot be appointed to such office............It may happen that in some cases the officer of mutwalli and sajjada are combined in the same person. Then also a foman cannot be appointed."

It is found in the present case that the mutwalliship appertains to the office of sajjadanashin and as that office requires certain personal qualifications which cannot be performed by proxy the question does not arise in the present case whether a female could be appointed mutwalli delegating the performance of religions offices to a proxy. This question was considered in the case of Munnavaru Begam Sahiba v. Mir Mahapalli Sahib [1918] 41 Mad. 1033: 51 I.C. 489 where it was held that a religious office can be held by a woman under the Muhammadan law unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy. In that case Abdur Rahim, J., remarked: "The rule prohibiting women from being appointed to such offices is not confined to the office of sajjadanashin but there may be other offices which she may not be able to perform, for instance, that of an Imam in a mosque where she would have to lead the congregation." The learned Judge was of opinion that the prohibition did not arise from any absolute injunction of Muhammadan religion or law but from local usages and customs. In the present case no local usage or custom has been proved which would entitle a woman to act as sajjadanashin nor was any instance given in which a woman had occupied that office in the mosque in question. In my opinion the Plaintiff is disqualified by reason of her sex from the right to act as mutwalli of the property in suit by reason of the fact that the office involves the performance of the duties of a sajjadanashin.

Moreover, there is, I think, another fatal objection to the Plaintiff''s claim. Although a minor might succeed by inheritance to the office of mutwalli, a substitute being appointed to carry out the duties during his minority, it seems to be settled law that where the succession is not by inheritance but by appointment or selection a minor cannot be appointed. Mr. Syed Ammir Ali, Muhammadan Law, Vol. I. p. 445, says:-

In the absence of any provision in the trust-deed as to the mode of succession, or of any evidence of usage, the mutwalli may, on his deathbed, nominate his successor, and such nomination will be valid without any judicial order. But in order that the nomination may be effective it is necessary that the person so appointed should be adult and possessed of understanding. All the authorities are agreed that a minor cannot lawfully be appointed a mutwalli. The Fatawai Alamgiri lays down the principle thus:-

And it is a condition to the validity (of the appointment of a mutwalli) that he should be adult and possessed of understanding-and thus it is stated in the Bharur-Raik.

So also in the Radd-ul-Muhtax. The conditions necessary to the validity (of the appointment) are puberty (bulugh) and understanding (aakl).

The learned author further points out that where the office of mutwalli devolves upon a minor by virtue of the provisions of a trust-deed, in such a case the appointment will remain in abeyance until majority is attained.

So also when the towliat is hereditary in a family and a minor succeeds, the Kazi shall not remove him but shall appoint another to discharge the duties of the office during his minority. Mr. Tyabji''s Principles of Muhammadan Law, p. 410, also states clearly: "Where an infant or person of unsound mind is purported to be appointed as a ''mutwalli'' his appointment is void. Where the office of ''mutwalli'' devolves upon a person who is a minor, the Court may appoint another ''mutwalli'' to act in his place during his minority" In the present case the Plaintiff''s right is based not upon succession but upon appointment and her minority appears to be fatal to the claim. In my opinion this appeal should be dismissed with costs.

Kulwant Sahay, J.

I agree.