AMAR AHMED Vs. DURGAH COMMITTEE, AJMER

JUDGEMENT

(1.) This appeal concerns a question of great importance to sections of the Muslim community in India and has been anxiously considered by their Lordships. In the year 1941 the appellant, Syed Asrar Ahmed, instituted a suit in the Court of the District Judge, Ajmer-Merwara, against the respondents, the Durgah Committee Ajmer, whose status will be explained, claiming a declaration that the office of Mutawalli of the Durgah Khawaja Sahib Ajmer was hereditary in his family and that the respondents were not competent to question his status as a hereditary Mutawalli in succession to the last holder of that office. The District Judge on 31-7-1912, made a decree in his favour but upon appeal to the Court of the Judicial Commissioner, Ajmer, Merwara, this decree was on 23-2-1944, reversed. Hence this appeal.

(2.) The background of historical fact can be conveniently taken from the careful judgment of the Judicial Commissioner. From this it appears that the Durgah Khawaja Sahib Ajmer, sometimes called the Durgah Moinuddin Chisti, is universally admitted to be one of the most famous, if not the most famous Mahommedan shrine in India. The foundation is not only very ancient, but the shrine is also of considerable historical interest owing to its close association with several of the famous Moghul Emperors. The Saint Moinuddin Chisti died in the year 1233 A. D. He was born in Persia in 1143 and migrated later with his father to Nisharpur near Meshad where Omar Khayyam is buried. He went to Ajmer about the end of the 12 century and died there at the age of 90. His family remained in Ajmer, with a short interval during which they were driven out, until in 1567 the tomb was rebuilt and re-endowed by the Emperor Akbar the Great who reigned from 1556-1605. The first Farman of Akbar in connection with the shrine is dated 1567 and throughout their history the Moghuls were closely connected with it, the Emperor Jehangir (1605-1627) once spending three consecutive years at Ajmer. The endowment consists of a considerable number of villages, the income of which is set apart in order to defray the expenses of the various objects of the foundation. Aurangzeb, the last of the great Moghul Emperors, died in 1707, and thereafter there was a slow but steady break up of their Empire. Only 12 years after his death the Rajputs began their incursions into Moghul territory and in the year 1719 the Rathors, the head of which family now rules in Jodhpur, seized Ajmer and held it till 1721. In that year the Moghuls again asserted their rights: they recaptured the city and remained there until 1743. Then once more the Rajputs took Ajmer and held it till 1756 when the Maratha Scindias of Gwalior came on the scene and, capturing Ajmer, remained as rulers until 1787. In that year the Rajput Rathors again seized the city and remained there till 1791 when they were once more ejected by the Scindias, who in their turn ruled until in 1818 Ajmer was ceded to the British Government.

(3.) Through this stormy history of the state it is now necessary to trace the history of the shrine. It is not disputed that for many years from 1567 onwards (that is from the Farman of Akbar the Great) with certain intervals the hereditary descendant of the Saint, variously called the Sajadanashin or later Dewan, combined in his own person the two leading offices of the shrine, that of Sajadanashin or spiritual head and Mutawalli or secular head and manager. These alternative expressions are used to convey as nearly as possible the meaning of the original words. Nor is it disputed that in the reign of the Emperor Shah Jehan (1627-1658) the post of Mutawalli was separated from that of Sajadanashin and had become a Government appointment, whereas the Sajadanashin remained and continued to be a hereditary descendant of the Saint. This is illustrated by a Farman of Shah Jehan in 1629 which ordered that "Daroga Balghour Khana," i. e., "the Mutawalli appointed by the State", was to sit on the left of the Sajadanashin at the Mahfils. So also in 1667 the Emperor Aurangzeb issued Farman regarding the order of sitting at the Mahfils laying down that "Daroga Balgorkhana i. e., Mutawalli of the Durgah or anyone who is appointed by the State" should sit on the left of the Sajadanashin. It may be noted that Daroga Balgorkhana was a Hindu. It has not been alleged by the appellant that up to this time the office of Mutawalli had become hereditary in his family or indeed that any of his ancestors had held that office. But he claims that thereafter in course of time by virtue of certain Farmans and Sanads, if not also by custom, the office became hereditary in his family. Their Lordships have failed to find any justification for the suggestion that the office can have become hereditary by custom. It is upon the Farmans and Sanads that the appellant must rely.