SALIHUDDIN AHMAD Vs. MOHIUDDIN AHMAD

JUDGEMENT

(1.) These three miscellaneous appeals arise out of the same criers, and have been heard together. In Miscellaneous Appeals Nos. 269 of 1946 and 92 of 1947, the appellant is Shah Saliuddin, and in Miscellaneous Appeal No. 335 of 1946 the appellant is Shah Mohiuddin. They are brother and minor son respectively of one Shah Najiuddin, who was Sajjadanashin and Mutwalli of the well-known endowment of the Sasaram Khanqah, and died on 14.4-1946. The two appeals of Shah Saliuddin are directed against two orders of the learned Additional District Judge of Arrah, one dated 10-8-1946, directing the appointment of a receiver to take possession of the Khanqah properties and the other (fated 14-2-1947, by which one Ghulam Fakhruddin, a senior pleader of Arrah, has been appointed as such receiver. The appeal of Shah Mohiuddin, who is the principal respondent in the other two appeals, is also against the order of the learned Additional District Judge directing the appointment of a receiver. But Mr. Sarjoo Prasad, appearing for the appellant in Shah Mohiuddin's appeal, has not pressed his appeal; on the contrary, he has supported the order complained against, as respondent in Shah Saliuddin's appeals.

(2.) The point raised in Shah Saliuddin's appeals is a short one, viz., if the learned District 1 Judge had jurisdiction to appoint a receiver in a summary proceeding, when no suit under Section 92, Civil P.C. or under the provisions of the Religious Endowments Act had been instituted is before him and when the effect of the appointment of such a receiver was the removal of a Mutawalli, holding office de jure or de facto. Though the p&int is a short one and can be answered without much difficulty when presented in the form stated above, a long story has to be told in order to appreciate the point and the arguments raised round it,

(3.) The Sasaram Khanqah has been the subject of much litigation from time to time, which has often come up to this Court. The last litigation which came up to this Court resulted in the decision in Najihuddin Ahmad V/s. Amir Hasan Khan A.I.R. 1934 Pat. 443, where some of the history of the Khanqah is given. The endowment in question consists principally of two "Imperial grants, one of 1717 from the Emperor Farrukh Siyar, and the other of 1762 from the Emperor Shah Alam, the first for purely religious purposes and the second for charitable purposes of a secular character. The founder of the lihanqah was Shah Kabir Darvesh, who was the first Sajjadanashin Mutwalli. For our purpose, we may skip over the history till we come to 1926 in which year ten Muhammadan inhabitants of Sasaram instituted a title suit under Section 92, Civil P.C. for the removal of Shah Maliuddin, who was the 10 Sajjadanashin Mutwalli, on grounds of unfitness, misfeasance and malfeasiance, and also for the framing of a scheme for the management and administration of the Khanqah properties. This suit was decreed, and Shah Malihuddin was held to be unfit to hold the office, and a scheme was ordered to be prepared and a fit person appointed as Sajjadanashin Mutwalli. There was an appeal to this Court, reference to which has already been made. During the pendency of the appeal Shah Malihuddin died, and his eldest son Shah Najihuddin was substituted and continued the appeal, which except for slight modifications of the decree was substantially dismissed. A scheme of management was then prepared, and in pursuance of the directions given by this Court Shah Najihuddin was appointed Sajjadanashin and Mutwalli out of fourteen candidates for the office. I need not encumber this recital of past history by giving details of the scheme--material clauses of which I shall refer to in due course, nor need I go into the question of the custom or usage which governs the succession to the office of Sajjadanahsin and Mutwalli in this Khanqah, a question which does not really require decision at this stage. I need only state that the learned District Judge has rightly pointed out that the scheme does not contain any provision for the appointment of a Mutwalli Sajjadanaahin when the office falls vacant. Shah Najihuddin, appointed in 1937, died on 14-4-1946.