SAIN MAULE SHAH Vs. GHANE SHAH

JUDGEMENT

(1.) The question raised by this appeal relates to the appointment of a sajjadanashin of a Moslem shrine situate at Ludhiana in the Province of the Punjab. The shrine is known as takia Shah Shuhada, and belongs to a sept of ascetics called Madari fakirs. The sajjadanashin of the shrine was one Sain Jhandu Shah, who died on 25 October 1922. The matter in controversy between the parties is whether the appellant Maule Shah was validly appointed to succeed Sain Jhandu Shah in the office of the sajjadanashin of this institution. A takia is a place where a fakir or dervish (a person who abjures the world and becomes an humble servitor of God) resides before his pious life and teachings attract public notice, and before disciples gather round him, and a place is constructed for their lodgement: Mohiuddin V/s. Sayiduddin, (1893) 20 Cal 810 at p. 822. A takia is recognized by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose. The sajjadanashin (literally meaning a person who sits on the sajjada or prayer mat) is the spiritual preceptor of a religious institution. He has the privilege of imparting to his disciples spiritual knowledge. He has charge of the spiritual affairs of a religious institution, while the mutwalli has charge of its temporal affairs. In some cases the office of sajjadanashin and the office of the mutwalli are combined in one and the same person. The succession to the office of the sajjadanashin depends on the rules, if any, made by the founder. But there are no such rules applicable to the shrine in question, and the succession is regulated by the usage which governs the institution. Now, there is ample evidence, and, indeed, the parties are agreed, that election by the bhek or religious fraternity is the rule followed for appointing the sajjadanashin of the takia in question. Whether, in addition to election, there should be a nomination, or confirmation by the head of a superior shrine, is a matter upon which the parties are not unanimous.

(2.) The shrine in question belongs, as already stated, to Madari fakirs, an order of fakirs which was founded by Zinda Shah Madhaar of Syria, whose shrine is situate at Mukrampur or Makanpur, about 30 miles from Cawnpore in India. It appears that, on 8 April 1925, the appellant Maule Shah, accompanied by two other fakirs, approached Sayed Nazir Ahmad, the head of the shrine at Makanpur, and asked him to attend an assembly of Madari fakirs and other persons at Ludhiana. Sayad Nazir Ahmad acceded to his request, and arrived at Ludhiana on or before 18 July 1925. On that day a document or agreement in writing was submitted to him by the fakirs assembled at Ludhiana, requesting him to appoint a successor to Jhandu Shah. It is to be observed that this document was signed, not only by a large number of fakirs and the heads of Madari shrines of the neighbourhood, but also by the respondent Sardar Ali Shah. The signatories declared that the office of the gaddinashin (sajjadanashin) had been vacant since the demise of Jhandu Shah, and unanimously requested Sayad Nazir Ahmad to confer the office on "anyone who is fit and whom he deems fit" for the office of the sajjadanashin of the takia. In compliance with this request, Sayad Nazir Ahmad granted, on that day, a sanad selecting Maule Shah, a "disciple of Jhandu Shah" for the office of the sajjadanashin of the shrine. This sanad also was signed by the representatives of various shrines and other Madari fakirs.

(3.) There is evidence to show that Sayad Nazir Ahmad himself tied a turban on the head of Maule Shah in the presence of the assemblage, and other persons, who attended the gathering, offered turbans and presents in cash to him in token of accepting him to be the head of the shrine. Their names are mentioned in a list, with the presents made by them. Maule Shah, on his part, entertained all of them at a feast which cost him about Rs. 3000. The trial Judge holds that the evidence, both oral and documentary, produced by the plaintiff in support of his claim, proves that he had complied with the usage regulating the succession to the office of the sajjadanashin, and the learned Judge has accordingly granted a decree to him. From this decree Ghane Shah, who claimed to be the mutwalli of the shrine appointed by Sardar Ali Shah, brought an appeal to the High Court. The appeal was accepted by that Court on the ground that the proceedings taken by Maule Shah for his election cannot be regarded as an election "in which the electors exercised a free and independent choice of a successor to the deceased sajjadanashin."