PATALI BEGUM Vs. YESHWANT THITE

JUDGEMENT

(1.) The suit out of which this appeal arises was filed by the plaintiff to challenge an order passed by the District Deputy Collector of Satara on December 17, 1923. The plaintiff alleged that the suit land was the service inam land of the defendant Kazi family ; that the defendant's ancestors granted the land by way of gift to his ancestor free of any assessment; that the District Deputy Collector, Satara, levied full assessment on the plaint land by his order dated December 17, 1923, at the instance of the defendant's father and that the order was ultra vires.

(2.) The District Deputy Collector in passing the order of December 17, 1923, purported to act under the Watan Act, and the only question that really arises in this appeal is whether the Watan Act applied to the lands held by the defendant's ancestors as Kazis. Mr. S.G. Patwardhan for the appellants has contended that the office of a Kazi is a hereditary office and that the lands given to the Kazis as service inam lands are watan lands within the meaning of the Watan Act. Now watan property is defined under Section 4 of the Watan Act, and that section provides that "watan property" means the moveable or immoveable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office. "Hereditary Office" is also defined as every office held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. As far back as 1877 it was held by Sir M.R. Westropp, Chief Justice, and Mr. Justice Melvill in Jamal walad Ahmed V/s. Jamal walad Jallal (1877) I.L.R. 1 Bom. 633 that the office of a Kazi was not hereditary and they held that the appointment of a Kazi Should be made by the Sovereign with the greatest circumspection with regard to the fitness of the individual appointed; and though the State might have full power to make the watan attached to the office of Kazi hereditary, yet under the Mahomedan law it had no power to make the office itself so. They took the view that there might be a local custom which would have to be established whereby the office of a Kazi might become hereditary. In Baba Kakaji Shet Shimpi V/s. Nassaruddin valad Aminuddin Kazi (1893) I.L.R. 18 Bom. 103, an appellate bench of this Court consisting of Sir Charles Sargent, Chief Justice, and Mr. Justice Bayley held that the office of Kazi was not hereditary, and they specifically held that the property attached to the office of a Kazi was not watan property within the meaning of the Watan Act. Mr. Justice Fawcett and Mr. Justice Madgavkar in Kasamkhan V/s. Kaji Abdulla (1925) 28 Bom. L.R. 49 went a little further than, what was decided in Jamal walad Ahmed V/s. Jamal walad Jallal. In the case before them the plaintiff sued for a declaration that as a hereditary Kazi he was entitled to exclusively officiate at marriage contracts, funeral rites and other religious functions amongst the Mahomedan communities of Pawas and he complained that the defendant, who was not a Kazi, had officiated at certain marriages. Mr. Justice Fawcett in delivering the main judgment of the Court took the view that a custom by which certain Kazi families hereditarily officiate as the Kazis of a village was invalid as being opposed to Mahomedan Law, so far as any claim to hereditary and exclusive right to officiate as Kazi at marriage contracts, divorces and religious ceremonies was concerned, and he points out that the Mahomedan Law does not regard the office of Kazi as hereditary, that is to say, no person can claim to be a proper Kazi merely because he is the son or other descendant of a previous Kazi.

(3.) The only authority on which Mr. Patwardhan can rely is a decision in Sattappa v . Mahomedsaheb (1935) 38 Bom. L.R. 221. In that case the question really under the Watan Act did not arise at all. The Court was merely construing a sanad issued to the Kazi by which the inam lands given to him were made inalienable. Mr. Justice Tyabji, who heard the second appeal, has gone very carefully through the whole history of the office of the Kazi and the various texts in Mahomedan Law. From his judgment there was a Letters Patent Appeal to Mr. Justice Broomfield and Mr. Justice Macklin, and Mr. Justice Broomfield in his judgment at p. 241 points out that a Kazi now does not hold any judicial office but merely discharges the functions of a religious officiant, and he expresses the opinion that the position in law that the office of a Kazi is not hereditary may not be now incontrovertible. With great respect to the learned Judge it is not upon the fact that the office of a Kazi is a judicial office that the principle of Mahomedan Law is based, namely, that that office should not be hereditary ; it is the right of every Mahomedan to select such person as he likes for discharging certain religious duties in connection with marriages, divorces or funeral ceremonies; and I entirely agree with the view taken by Mr. Justice Fawcett in Kasamkhan V/s. Kaji Abdulla that it is contrary to the fundamental principles of Mahomedan Law to suggest that the office of a Kazi can be hereditary. I, therefore, hold that the office of a Kazi is not a hereditary office and therefore it does not fall within the meaning of the Watan Act.