PEER GULAM JILANI versus PEER GULAM NASEER AND ORS. on 24 July 2019

1. These appeals have been filed against the judgment datedD05.07.2012 of the High Court of Rajasthan at Jaipur Bench dismissingthree Second Appeals filed by the appellant by confirming the judgmentand order of the First Appellate Court as well as of the trial court.

2. Brief facts of the case giving rise to civil suit between theparties and these appeals need to be noted are:

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2.1 In the year 1838 Khwaja Haji Muhammed Najmuddeen Sahibfounded the Dargah in Fatehpur, District Sikar, Rajasthan.During his lifetime,he nominated his son MaulanaNaseeruddeen Sahib as his successor to the office of SajjadahNashin and Mutawalli of the Dargah. Maulana NaseeruddeenSahib during his lifetime nominated Gulam Najmuddeen Sahib,who was aged 3 years at that time as Sajjadah Nashin andMutawalli after him. Gulam Najmuddeen Sahib after attainingmajority nominated Gulam Sarwar Sahib as his successor tothe seat of Sajjadah Nashin and Mutawalli of the Dargah.Gulam Sarwar Sahib became the third Sajjadah Nashin andMutawalli of the Dargah. Gulam Sarwar Sahib whilefunctioning as Sajjadah Nashin and Mutawalli framed aConstitution (Zabta) in the year 1932 of the Dargah by layingdown Rules for nomination of Sajjadah Nashin and Mutawalli, F

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for management of Dargah and other Rules and Principlesfor Dargah. Original Zabta was in Urdu which has been filedas Ex.2 along with translated copy in English and Hindi in thesuit. Gulam Sarwar Sahib, the third Sajjadah Nashin andMutawalli nominated Nurul Hasan as the 4[th]SajjadahNashinand Mutawalli during his lifetime by a Will dated 02.12.1951.

2.2 Nurul Hasan, the 4[th]Sajjadah Nashin and Mutawalli gotregistered the Dargah in the Muslim Wakf Board of Rajasthan,copy of Zabta was also submitted at the time of registrationof the Deed. The Zabta before being submitted in the WakfBoard for registration was acknowledged by 4[th]SajjadahNashin and Mutawalli, petitioner and other members of theKhandan. Fourth Sajjadah Nashin and Mutawalli, Nurul Hasanmade declaration executing Will on 12.09.1979 nominatinghis grandson (daughter’s son) - Gulam Naseer, the respondentNo.1 to these appeals, as Sajjadah Nashin and Mutawalli.The Will was also got registered on 16.11.1979 at Sub-Registrar, Ajmer. On 03.08.1982, 4[th]Sajjadah Nashin andMutawalli passed away. Before his death, he also madedeclaration and confirmation of nomination in favour ofrespondent No.1.

2.3 After the death of 4[th]Sajjadah Nashin and Mutawalli whencertain disturbance in the management of Dargah wascreated by the appellant and some other persons, a Suit No.96of 1982 (Peer Gulam Naseer vs. Shri Abrar Ahmad and 10others) was filed by the respondent through his guardian andfather Maujam Ali. The suit was filed for the permanentinjunction. A temporary injunction was granted in the suit.Interim injunction granted by the trial court although was setaside by the Appellate Court but ultimately was restored bythe High Court on 28.10.1988 in Civil Revision Petition No.657 of 1986. Against the judgment of the High Court,SLP(C)No.14030 of 1989 was filed, which was dismissed.Review Petition also came to be dismissed. Another Suit No.12 of 1989(Peer Gulam Jilani vs. Gulam Naseer and 05 others)was filed by the appellant praying for permanent injunctionagainst the respondent.

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A2.4 Another Suit No.59 of 1986 (Gulam Naseer vs. Gulam Jilaniand 23 others) was filed by the respondent. Suit No.96 of1982 filed by the respondent No.1 was registered as Suit No.13of 1989 in the Court of District Judge.

2.5 The trial court decided all the three suits by a common judgmentBdated 17.04.2003. Suit No.96 of 1982 filed by the respondentNo.1 was decreed and defendants of the suit were restrainedby way of permanent injunction. Suit No.96 of 1995 filed bythe appellant for permanent injunction against the respondentwas dismissed whereas Suit No.59 of 1986 filed by therespondent was decreed. The trial court upheld the nominationCof the respondent by 4[th]Sajjadah Nashin and Mutawalli bydeclaration and Will dated 12.09.1979, declaration was heldproved by the trial court.The trial court also held that therespondent No.1 was fully eligible to be nominated as SajjadahNashin and Mutawalli.

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2.6 Aggrieved against the judgment of trial court dated 17.04.2003,the appellant filed three appeals under Section 96 of the CPC,which appeals were heard and dismissed by the First AppellateCourt vide its judgment dated 04.09.2004. Aggrieved againstthe judgment of the First Appellate Court dated 04.09.2004Ethree second appeals were filed by the appellant, which weredismissed by the High Court by the impugned judgment dated05.07.2012. The appellant aggrieved against the judgment ofthe High Court dismissing the three second appeals has comeup in these appeals.

F3. We have heard Shri V.K. Shukla, learned senior counselappearing for the appellant. Smt. Aishwarya Bhati, learned senior counsel,has appeared for the respondent.

4. Learned counsel for the appellant submits that affairs of Dargahare to be managed by the Constitution (Zabta), English translation ofGwhich is filed as Annexure-P1 in these appeals. He submits that as perRules 1 and 2 of the Zabta, Sajjadah Nashin and Mutawalli has to befrom the family. The respondent No.1 does not belong to the family ofthe founder of the Wakf and he being daughter’s son of 4[th] SajjadahNashin& Mutawalli, Nurul Hasan cannot be treated to be from the family and could not have been appointed. It is submitted that the appellantbeing brother of Nurul Hasan Sahib, 4[th]Sajjadah Nashin and Mutawalli,he is from the family of the founder and was accepted asSajjadah Nashinand Mutawalliby Murids. He submits that the use of words “Sagir Sinn”in Rule 2,which means minor son fully re-enforces the submission of theappellant that it is only male descendant in the family, who can benominated as Sajjadah Nashin and Mutawalli. It is submitted that therespondent No.1 was not being eligible for the appointment SajjadahNashin and Mutawalli, all the courts below committed error in notappointing the appellant as Sajjadah Nashin and Mutawalli, and in holdingthat the respondent No.1 was eligible for appointment as Sajjadah Nashinand Mutawalli.

5. Learned counsel for the respondent refuting the submissions ofthe learned counsel for the appellant submits that all the three Courtshave correctly interpreted the Zabta. It is submitted that the appellant isincorrectly interpreting the word ‘Khandan’ used in Zabta. The word‘Khandan’ is an expansive word, which shall clearly include therespondent No.1 in the ‘Khandan’. It is submitted that the word ‘Khandan’used in Zabta refers to a spiritual Sect ‘Silsila’ and all those who wereincluded in the spiritual Sect are eligible for appointment as SajjadahNashin and Mutawalli. It is further submitted that the respondent bothby being daughter’s son as well as from lineage of Shahabuddeen Sahibgreat grandfather of the respondent No.1, who was real brother ofKhwaja Haji Najamuddeen, the founder of Dargah is included in‘Khandan’. The restricted meaning of ‘Khandan’ as sought to be givenby the appellant is incorrect. It is, further, submitted that the interpretationof word ‘Sagir Sinn’ as occurring in Rule 2 of Zabta is again incorrect. Itis submitted that the word ‘Sagir Sinn’ occurring in Zabta has beenwrongly translated in English as minor son. The word ‘Sinn’ is a Persianword which means ‘age, year’ and does not mean son as sought to beinterpreted by the appellant. He submits that Rule 2 meantthat SajjadahNashin and Mutawalli can declare on his internal spiritual light any personof minor age as his successor. The word ‘Sagir Sinn’ never meant asminor son. It is submitted that all the Courts below have rightly interpretedthe Zabta and there is no merit in the submission of the appellant.

6. We have heard learned counsel for the parties and perused therecords.

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A7. The only argument which has been raised before us forconsideration by the appellant is alleged mis-interpretation of Zabta byCourts below. Learned counsel for the appellant interpreting Rules ofZabta contends that person to be nominated as Sajjadah Nashin andMutawalli has to be from family of founder and further he has to be alineal descendant from founder. The ineligibility of the respondent isBcanvassed on the ground that he was daughter’s son of 4[th]Sajjadah Nashinand Mutawalli, who nominated him and he is not a son as linealdescendant. The submission isthat he does not belong to ‘Khandan’ offounder. The trial court has framed several issues in suits which weredecided by it. The Issue No.7 which relates to the submission raisedCbefore us is as follows:

“7) Whether Nurul Hasan has no authority to nominate hissuccessor, who is a stranger to the family ?”

8. The pedigree of founder of Dargah was on the record. GulamNaseer’s father, Maujam Ali traced his lineage from Shahabuddeen, theDreal brother of Khwaja Haji Najamuddeen, founder of the Dargah. Thetrial court while considering the Issue No.7, after considering theevidence on record including the oral evidence returned the followingfindings in paragraph Nos. 89, 93 and 98:

“89…………It is not mentioned in the Japta that the successionEto the office of Sajjadah Nashin and Mutawalli should be from thedescendants or Haji Najmuddin Saheb or Maulana NaseerudinSaheb rather it is mentioned in the Japta that a trained person ofthis “Khandan” should be appointed to this post. The further,reference of the words “Muntkhib”, “Bait” and “Khilafat” in theFJapta clarifies the position that the word “Khandan” does not referstrictly to the family, as it is used for the blood relations. But the“Khandan” means “sect”. No other conclusion can follow fromthe interpretation of the worse “Muntkhib”, “Bhait” and “Khilafat”.I can not accept the interpretation of the word “Khandan” to bethe family succession, as it has been disclosed by Gulam JilaniGDW1. If the intention of the maker of the Japta was that thesuccession to this office shall be hereditable, no one preventedhim from making a clear provision in this regard.

93. The use of the words “Sulemani Sect” and “Silsila” in theJapta points out that its maker never intended to make succession H

to this office hereditable. However, it does not mean that thedescendants of Hazi Najmuddin or Maulana Naseerudin havebeen totally excluded for being chosen as the Sajjadah Nashinand Mutawalli. Their descendant may also be nominated to thisoffice. In nutshell, the proposed Sajadah-Nashin and Mutawallimay be a stranger or he may be a descendant from the founder ofthe Wakf in question. The condition is that he should confirm tothe standards mentioned in the Regulations discussed in the Japtaand the outgoing Sajjadah Nashin and Mutawalli should conferKhilafat on him by doing the Bait on the hand and he should alsonominate/declare him as his successor after his death because itis supposed to continue the spiritual line, commonly known as“SILSILA”.

98. Let us now proceed on another assumption that only adescendant from Khawaja Najmuddin or Maulana Nasiruddin canbe appointed to this post and this stranger has no role to play inGulam Naseer PW2 has stated that his father is the descendantof Shahabuddin, who was the real brother of Khwaja Najmuddin,Maujam Ali PW1 has also confirmed his testimony. In thisconnection two Sajras Ex.101 and 102 have been placed on record.In this connection Gulam Jilani DW1 has stated that:

“Ahmad baksh saheb ke pote hone ke nate vadi unke putranajimuddin saheb va unke pote maulana Nasruddin saheb ke bhipote lagte hai”

Gulam Jilani DW1 has also stated that the property rights of thedescendants from one grandfather are different but thedescendants constitute one “Khandan”. The above admissionfrom the mouth of defendant clearly show that the plaintiff alsobelongs to the “Khandan” of Najmuddin Saheb and MaulanaNaseeruddin Saheb.”

9. We may extract the relevant portion of Rules 1 and 2 of Zabtaon which much emphasis was given by the learned counsel for theappellant. Relevant part of Rule 1 is as follows:

“The Sajjadah Nashin and Mutawalli of this abode (Dargah) ofexalted highness ought to be a trained person from the line of thisfamily and formally entered into Bai-at(murid) in this veryspiritual Sect (silsila) and should be enlightened with the knowledge A

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Aand sanctity and also well acquainted with and acting upon themystic path as propagated by the Sulemani Najmi family so thathe may accordingly educate to those who are descrous to searchthe truth and believes himself to be a trustee of the poor and theinnocent. In case of any negligence he shall be answerable toGod.”B10. Relevant portion of Rule 2 on which learned counsel for theappellant has given emphasis is to the following effect:

“If the Sajjadah Nashin by virtue of revealing his internal spirituallight declares any minor son as his successor, in that case tillCattaining majority and knowledge,”

11. Rule 1 of the Zabta cannot be read in a manner as suggestedby the counsel for the appellant. Had the Zabta intended to lay down lineof succession through lineal descendants, it would have been clearlyprovided. The succession to the Sajjadah Nashin and Mutawalli is notDhereditary succession but it is selection by Sajjadah Nashin and Mutawalli.Following portion of Rule 1 makes it clear:

“It shall be obligatory upon the Sajjadah Nashin and Mutawalli toselect his successor during his life time keeping in view theconditions prescribed in the aforesaid lines so that no faction orEdispute arises thereafter. If the Sahib-e-Sajjadah expires beforesuch a selection, it would then be the duty of the main membersof this venerable family and virtuous murids to select such aperson who is gifted with the aforesaid high qualities and therebyto entrust him with all the affairs of the Dargah, and the rights ofsuch a Sajjadah Nashin would be the same as those of hisFpredecessor-Sajjadah Nashin and in case there are several suchqualified persons the decision will be taken in accordance withthe customs and traditions prevailing in this Dargah since the verybeginning.”

12. The Zabta of Dargah refers to spiritual Sect “Silsila” and theGword family (Khandan)had not been used in the limited sense as soughtto be contended by the appellant.

13. Rule 1 of the Zabta cannot be read as laying down anyhereditary succession to the office of Sajjadah Nashin and Mutawallinor Rule 1 can be read to lay down succession to lineal descendants as H

sought to contend. The respondent who was daughter’s son of4[th] Sajjadah Nashin and Mutawalli and who has also traced his lineagefrom Shahabuddin real brother of founder of Dargah, cannot be said tobe person not belonging to ‘Khandan’. All the three Courts below haverightly held him to be fully eligible. Furthermore, Sajjadah Nashin whohas been given right to select his successor, his selection and nominationhas also to be given weight. There is no dispute between the parties thateven a person of minor age can be selected as Sajjadah Nashin andMutawalli.

14. Coming to the second submission of the learned counsel forthe appellant that use of word ‘Sagir Sinn’ in Rule 2 means ‘minor son’.There are two reasons due to which this submission cannot be accepted.Firstly, in the Courts below appellant never raised an issue or contentionthat word ‘Sagir Sinn’ used in Rule 2 means ‘minor son’. When no suchissue or submission was raised, appellant cannot be allowed to raise thissubmission in this Court for the first time.

15. Secondly, to satisfy ourselves, we have also looked into theHindi translation, which is actual translation of Urdu words in the Zabta.In the counter-affidavit, the respondent has brought on the record Hinditranslation which is in Devnagri translation of actual Urdu words. Theword used is “Sagir Sinn”. The word “Sagir Sinn” is a combination oftwo words ‘Sagir Sinn’. Word ‘Sinn’ is a Persian word. In EnglishPersian Dictionary by A.N. Wollaston, word age has been mentioned as‘Sinn’. Following is stated in the Dictionary:

16. In another Persian-English Dictionary by S. Steingass one ofthe meanings to the Persian word ‘sinn’ is year, age, period of life.Various combination of other different words using word ‘sinn’ has alsobeen defined like ‘sinni balugh, sinni tamiz, sinni shaikhukhiyat to thefollowing effect:

“...sinn, A tooth; nib of a pen; an indentation; a horn; year,age, period of life; a wild bull; greedy eating; name of amountain near Madinah; also of a place sinnibalugh(balughat, taklif), Age of puberty, mature age;- sinni A

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Atamiz(tamyiz, shu’ur), The age of discretion;- sinni shabab,Youth;-sinni shaikhukhiyat, Mature age; old age;-sinn u sal,Age, (many) years.”

17. The word ‘Sagir Sinn’ also gives the meaning of “minor age”.In no manner the word “Sagir Sinn”can be read as minor son asBcontended by the appellant.

18. All the three Courts have not committed any error in readingthe Zabta and coming to the conclusion that respondent was eligible tobe nominated as Sajjadah Nashin and Mutawalli. We do not find anymerit in these appeals which are accordingly dismissed.

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Nidhi Jain

Appeals dismissed.

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