BIYAMMA KASHIMSAHEB INAMDAR Vs. AHMADSAHEB MOHADDINSAHEB MULLA

JUDGEMENT

(1.) The only question of any importance in this appeal is whether a female is entitled to inherit what are called mullanki or mullagiri lands, that is lands assigned for the remuneration of a village Mulla. The appellant, plaintiff in the suit giving rise to this appeal, is the sister of the last holder. Part of the claim related to lands which are not mullanki lands, and we are not now concerned with them. The trial Judge allowed her claim to succeed to the mullanki lands, and not only to her own share in them but also to that of her sister, defendant No. 2, who has made no claim to them on her own behalf. The District Judge in appeal refused to allow plaintiff to recover her sister's share and also refused her any share in the mullanki lands. The plaintiff now comes in second appeal. Dealing with the plaintiff's contention that she is entitled to succeed to the lands and get the duties of Mulla performed by a proxy, the learned District Judge says that he conceives it to be "contrary both to the general principle of distributive justice and also to the particular intentions of the grantor of this sanad." There are four plots of mullanki lands in dispute. A sanad granted by the British Government has been produced in respect of two of them. This was apparently in confirmation of an ancient grant in favour of the family of the parties in pre-British times. The sanad is in these terms :- It is hereby declared that the said land shall be continued, so long as the village community may require the services, as the service emolument appertaining to the office of Mulla on the following conditions, that is to say, that the holders thereof shall perform the usual service to the community and shall continue faithful subjects of the British Government. As this watan is held for the performance of service it cannot be transferred, and in consequence no nazarana will be levied.

(2.) By the "principle of distributive justice" I presume the learned District Judge means equity, but I do not think there is any place here for equitable considerations. Nor does it appear to me that there is anything in the terms of the sanad which is really inconsistent with the plaintiff's claim to perform the services by deputy. I think the question whether she is entitled to inherit the lands must be determined by the personal law of the parties with respect to the rights of females to inherit in cases of this kind. But I agree with the learned District Judge that according to the Muhammadan law, which is the personal law of the parties, plaintiff is not entitled to inherit.

(3.) The learned advocate for the appellant relied in the first place on a recent decision of this Court relating to mullagiri land in Muktumsab V/s. Dadabhai . It was held there that mullagiri land is governed as to inheritance by the personal law of the holders and is subject to partition. In my opinion this decision does not really assist us in the present case. It is true that partibility of mullagiri land and the right of a female to succeed to it would equally depend on the application of the personal law. But there are special rules as to the disqualification of females to succeed to a religious office or the emoluments thereof which the Court had not to consider in Muktumsab V/s. Dadabhai. It is also worth noting, I think, that in the latter case there was no sanad and there was nothing to show how the land originally came to be assigned. Mr. Justice Murphy says at p. 1102 after referring to this fact :- If it is an assignment by Government for the greater comfort of the Muhammadan community, it would not be a wakf or endowment,but on exactly the same basis as any other of these assignments, such as the ones to Joshis or to carpenters and several other classes of village servants who enjoy them, and this it seems to me is its real character. In such cases the holders have to perform the duties of the office, either by themselves or by a deputy-and if they fail, Government enforces its object by levying full assessment and paying the amount so obtained to an officiator.