Shah Mohammad Shabbir Ata vs District Judge, Lucknow & Others

R.C. Deo Sharma, J.—Through this petition under Article 226 of the constitution the petitioner prays that orders dated 10.7.1981 and 4.2.1982 passed by the learned Civil Judge and the District Judge, Lucknow, respectively and contained in Annexures Nos. 7 and 8 be quashed and they be directed to treat original Suit No. 31 of 1966 to have abated on the death of the original plaintiff Mohd. Hussain Jafri.

The facts giving rise to this petition may, briefly, be stated thus: In the town of Salon, in district Rae Bareli, there exists ah old �Khangah� known as �KhanqaheKarimia�. Regular Suit No. 31 of 1966 was brought by Mohd. Hussain Jafri in the court of Civil Judge, Lucknow, against Shah Mohd. Shabbir Ata and another, for a declaration and injunction. The declaration claimed was that the said plaintiff be declared to be the legally constituted Sajjadanashin'' of the said �Khangah� and, as such, entitled to perform all the duties an functions, without interference and disturbance by the defendants. The permanent injunction sought was to restrain the said defendants from proclaiming themselves as �Sajjadanashin� of the said ''Khangah'' and from functioning as such or obstructing the plaintiff in the performance of his duties as �Sajjadanashin� of the �Khangah�. It was contended in the plaint that there was a custom about the nomination of the successor �Sajjadanashin� by a sitting �Sajjadanashin� and that the plaintiff was duly nominated �Sajjadanashin� whereas: the defendants were, without right, interfering in the plaintiff''s performance of his duties and were themselves claiming to beholders of the office o �Sajjadanashin�, The claim was resisted by the defendants one of however, died during the pendency of the suit. The plaintiff Mohd. Hussain Jafri also died during the pendency of the suit and consequently an application was made by Ahmad Hussain Jafri who is oppositeparty No. 3 in this petition and he claimed that he was the duly nominated �SajjadanPhin� and, as such, entitled to be brought on record as legal representative and continue the proceedings against the contesting defendants. He also sought to implead as proforma defendants all the sons, daughters and widow of the deceased ''�Sajjadanashin� and asserted that they were being made proforma parties as the right to succeed to the office of �Sajjadanashin� was by nomination and not by inheritance according to Mohammadan law. The surviving defendant Shah Shabbn Ata who is he present petitioner, contested the claim of Ahmad Hussain Jafri to be brought on record. He denied the right of the original plaintiff to work as �Sajjadanashin'' and denied nomination in favour of Ahmad Hussain Jafri, oppositeparty No. 3. He rather himself claimed to be nominee of the former �Sajjdanashin�.

When the matter came up for hearing before the learned Civil Judge, a point was raised to the effect that the right to the office of the �Sajjadanashin�, being a personal right, did not survive in favour of the oppositeparty No. 3 and consequently the suit should abate. Some evidence was recorded and documents brought on record were also taken info consideration and the plea of the objector was negatived. Amendment was, accordingly, allowed and Ahmad Hussain Jafri, oppositeparty No. 3, was permitted to be brought on record and continue the proceedings which had reached almost the final stage of arguments. A revision was preferred against the aforesaid order which came up for hearing before the learned District Judge, Lucknow who, agreeing with the trial court, dismissed the revision and directed further proceedings to be taken for the disposal of the suit. Feeling aggrieved, the defendant No. 1 in the aforesaid suit has preferred this writ petition praying that the aforesaid two orders passed by the courts below be set aside and the suit be ordered to abate. Oppositeparties Nos. 4 to 12 are formal parties and they have been made opposite parties since they were impleaded in the suit, being the heirs in personal law of the deceased plaintiff. The matter has, however, been contested by the oppositeparty No. 3 alone, who filed a counter affidavit raising almost the same pleas as set up in the trial court and the revisional court.

It has not been challenged that succession to the office of Sajjadanashin'', in the instant case, is governed by nomination to be made by the sitting ''Sajjadanashin� although there was difference� between the parties on the point whether nomination should be restricted to the male line of descent or could extend to the heirs connected through a female or to outsiders. For the purposes of these proceedings, however, it is not material as the oppositeparty No. 3 is the son of the last ''Sajjadanashin'' and is not connected through a female. The dispute, however, relates to his being validly nominated by the sitting ''Sajjadanashin'' and furtner, whether the said sitting ''Sajjadanashin'', who was plaintiff in the suit, was himself a properly nominated ''Sajjadanashin'' entitled to hold that office and nominate the oppositeparty No. 3.

Learned counsel for the petitioner has laid stress on the point that the right to the office of ''Sajjadanashin'' was a personal right and it died with the dearth of the holder of the office and, consequently, the suit should abate. Reliance has been placed on a Division Bench decision in Gukar Shah and others v. Sardar Ali Shah and others (AIR 1930 Lah. 703 (2)). In that case, however, the office of Mahant was to be held by a person who was duly elected by a specific body called the ''Bhek''. The office was neither hereditary nor was to goto the ''Chela'' of the former Mahant. On the death of the person claiming to be a Mahant an application was made for substitution by another person claiming himself to be ''Chela'' of the deceased. It was held that the office was, by its Very nature, a personal one dependent upon election and, consequently, the applicant could not be substituted as a legal representative merely on the ground that he was the chela of the previous Mahant, as his right to hold the office would depend on his election, by the body called ''Bhek'', Substitution was, accordingly, refused. In the instant case it has not been denied that succession to the office goes by nomination by the sitting ''Sajjadanashin'' and the present oppositeparty No. 3 claimed to be so nominated. Similarly, the present petitioner also claimed to be nominated, though, by a still previous'' ''Sajjadanashin''. The trial court, on a consideration of the evidence, found as a fact, atleast for the purposes� of proceedings relating to substitution, that the oppositeparty No. 3 was duly nominated by the immediately preceding ''Sajjadanashin'' and left the question open for decision in that suit as to whether the immediately preceding ''Sajjadanashin'' was himself a validly appointed ''Sajjadanashin'' who could nominate the oppositeparty No. 3 claiming to be substituted as legal representative. The Lahore case has, accordingly, no application to the instant case and both the below, before whom also this case was cited, have rightly held it is to be inapplicable.

The next case relied upon was also a Division Bench decision in Ram Sarup Das and others v. Rameshwar Das (AIR 1960 Patna 184). There also, the plaintiff''s right to hold the office of Mahant and Shebak was in dispute. The said Mahant Rameshwar Das, who was plaintiff and whose claim was being contested, succeeded in the trial court but during pendency of the appeal he died and one Mahant Parmeshwar Das, claiming to be the ''Chela'' of the deceased, applied to be substituted in his place. A plea was raised that the suit, in the circumstances, abates. On a reference to several decisions on the point, the learned Judges held that the office of Mahant and Shebait was a personal office and with the death of its holder the right also died and could not be succeeded by a person claiming to be a ''Chela''. In that case, it may be observed, the right to hold office depended on a custom according to which the holder was to be appointed by election or selection by persons of the locality and also, probably, by Sadhus and Mahants of the neighbouring institutions. However, succession was not governed merely by one''s being a chela. The court held that by allowing the applicant to be substituted in place of the deceased, several new issues would arise which were not there in the original suit and, consequently, it was Beyond the scope of Order XXII CPC, to permit new issues to be opened or a new cause of action to be substituted. The substitution application was in the circumstances, rejected and the suit ordered to abate. It is not necessary to consider this position in greater details because in a subsequent.decision of the Supreme Court reported in Krishna Singh v. Mathura Ahir and others (AIR 1980 SC 707 (Paras 84 to 88) the correctness of the Patna decision was doubted and it was rather overruled. There is no doubt that the facts in that case and also in the Patna case were different on one material point and it was this. The plaintiff who claimed'' the right to hold office of''Shebait'' or Mahant'' was successful in the trial court, in both these decisions, but had died during the pendency of the appeal. While, therefore, allowing substitution in such cases. the Hon''ble Supreme Court was also influenced by the fact that the original plaintiff had been adjudged by a judgment, to be the holder of the office and, therefore, if substitution was refused to his successorinoffice it would entail multiplicity of proceedings and prolongation of litigation. Although in the instant case the plaintiff died during the pendency of the suit in the trial court itself and, consequently, he had not been adjudged to be holder of the office nor the defendants had been adjudged to be trespassed with relation to the waqf property but that fact alone should not make such a material difference as to negative the importance of the contentions regarding multiplicity of proceedings and prolongation of litigation. It was observed by the Hon''ble Supreme Court that a religious institution such as a math was treated as a juristic, entity capable of holding and acquiring property and, consequently, a suit instituted by the mahant cannot abate on the death of the mahant pending decision of the suit or appeal, as the real holder of the property in suit is the institution. From the very nature, a math or an idol could act and assert its rights only through a human agency known as mahant, shebait or the like. The correctness of the Patna decision, as indicated earlier, was found to be open.to question. The observation relating to the religious institution being treated as a juristic entity and its acting through a human agency like a mahant or shebait, were matters which were relevant in the context of a suit and an appeal both. It was also held that the definition of legal representative as contained in section 2 (11) of the CPC, not only meant the person who, in law, represented the estate of the deceased but also included any person who intermeddled with the estate of the deceased and where the party sued in a representative character, it also included a person on whom estate devolved on the death of the person concerned. In any case, therefore, the oppositeparty No. 3 was an intermeddler to the estate even if his right to succeed to the office of ''Sajjadanashin'' was disputed by the petitioner. The same, was the case with the petitioner visavis the pleas raised by the oppositeparty No. 3 and the original plaintiff. There is no doubt that reliance was placed on a Full Bench decision of this Court contained in Mohd. Hussain v. Khusalo (1887 ILR 9) AH, 131 (FB) where it was held that an action would not abate if final judgment had been obtained; before the death of the plaintiff as is the case where the plaintiff dies during the pendency of the appeal, but in principle there should be no difference in a case like the instant one where, on admitted facts, succession is governed by nomination and, as a matter of fact, it has been found by both the courts below, atleast for the purposes of substitution proceedings, that the oppositeparty No. 3 duly nominated by the original plaintiff before his death. The question.to whether the original plaintiff was himself a, validly nominated nashin'' and had accordingly a right to nominate a successor has left open to be decided when the main suit itself is decided.

There is another aspect of the matter also which requires consideration. In the original suit the plaintiff had claimed a declaration that he was the holder of the office of ''Sajjadaiiashin'' This was, undoubtedly, a personal right, and if that alone.had been the question, the suit could abate on his death. There was, however, another prayer regarding a injunction restraining the defendants from proclaiming themselves a Sajjadanashin''. If, therefore, the oppositeparty No. 3 has been held to have been nominated by the plaintiff before death, there is no reason why he should not be allowed to step into his shoes for challenging the right of the defendants who claimed themselves to be the Sajjadanashin''. Moreover, the real controversy as to whether the original plaintiff was a validly appointed ''Sajjadanashin'' or not, is still an open matter, as declared by the courts below and, consequently, the real controversy between the parties can be settled ic these very proceedings without raising any further substantial issue. The question whether the oppositeparty No. 3 is a validly nominated ''Sajjadanashin'' has been, prima facie, held established on the basis of the evidence brought on record, which was not rebutted on behalf of the defendantpetitioner and it may also come up for decision at the time of the disposal.of the main suit. It would be pertinent to observe in this connection that the petitioner does not claim to have been nominated by the original plaintiff. He, rather, claimed to have been nominated by the predecessorinoffice of the original plaintiff, as would appear from his written statement in the suit a copy whereof is Annexure No. 2 to this: petition. What is, therefore, the real controversy between the parties is the fact as to whether the original plaintiff was a validly nominated ''Sajjadanashin'' of the ''Khanqah'' or it was the defendantpetitioner who was nominated to this office in 1964 by Hazrat Shah Nairn Ata, the VIIIth ''Sajjadanashin''. The original plaintiff claimed to be the Vlllth ''Sajjadanashin''. This controversy can still be decided effectively between the parties without multiplicity of proceedings or prolongation of the litigation. That being so, the petition deserves to be dismissed.

The petition is, accordingly, dismissed. In the circumstances, however, there shall be no order as to costs.

(Petition dismissed)