Peer Gulam Jilani vs Peer Gulam Naseer

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.10770-10772 OF 2013

PEER GULAM JILANI ...APPELLANT(S)

VERSUS

PEER GULAM NASEER AND ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

These appeals have been filed against the judgment

dated 05.07.2012 of the High Court of Rajasthan at

Jaipur Bench dismissing three Second Appeals filed by

the appellant by confirming the judgment and 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 the parties and these appeals need to be noted

are:

2.1 In the year 1838 Khwaja Haji Muhammed

Najmuddeen Sahib founded the Dargah in Signature Not Verified

Fatehpur, District Sikar, Rajasthan. During Digitally signed by SANJAY KUMAR Date: 2019.07.25 10:25:53 IST Reason:

his lifetime, he nominated his son Maulana 2

Naseeruddeen Sahib as his successor to the

office of Sajjadah Nashin and Mutawalli of the

Dargah. Maulana Naseeruddeen Sahib during his

lifetime nominated Gulam Najmuddeen Sahib, who

was aged 3 years at that time as Sajjadah

Nashin and Mutawalli after him. Gulam

Najmuddeen Sahib after attaining majority

nominated Gulam Sarwar Sahib as his successor

to the seat of Sajjadah Nashin and Mutawalli

of the Dargah. Gulam Sarwar Sahib became the

third Sajjadah Nashin and Mutawalli of the

Dargah. Gulam Sarwar Sahib while functioning

as Sajjadah Nashin and Mutawalli framed a

Constitution (Zabta) in the year 1932 of the

Dargah by laying down Rules for nomination of

Sajjadah Nashin and Mutawalli, for management

of Dargah and other Rules and Principles for

Dargah. Original Zabta was in Urdu which has

been filed as Ex.2 along with translated copy

in English and Hindi in the suit. Gulam Sarwar

Sahib, the third Sajjadah Nashin and Mutawalli

nominated Nurul Hasan as the 4th Sajjadah 3

Nashin and Mutawalli during his lifetime by a

Will dated 02.12.1951.

2.2 Nurul Hasan, the 4th Sajjadah Nashin and

Mutawalli got registered the Dargah in the

Muslim Wakf Board of Rajasthan, copy of Zabta

was also submitted at the time of registration

of the Deed. The Zabta before being submitted

in the Wakf Board for registration was

acknowledged by 4th Sajjadah Nashin and

Mutawalli, petitioner and other members of the

Khandan. Fourth Sajjadah Nashin and Mutawalli,

Nurul Hasan made declaration executing Will on

12.09.1979 nominating his grandson (daughter’s

son) - Gulam Naseer, the respondent No.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, 4th Sajjadah Nashin and Mutawalli

passed away. Before his death, he also made

declaration and confirmation of nomination in

favour of respondent No.1.

4

2.3 After the death of 4th Sajjadah Nashin and

Mutawalli when certain disturbance in the

management of Dargah was created by the

appellant and some other persons, a Suit No.96

of 1982 (Peer Gulam Naseer vs. Shri Abrar Ahmad

and 10 others) was filed by the respondent

through his guardian and father Maujam Ali.

The suit was filed for the permanent

injunction. A temporary injunction was granted

in the suit. Interim injunction granted by the

trial court although was set aside by the

Appellate Court but ultimately was restored by

the 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 injunction against the

respondent.

5

2.4 Another Suit No.59 of 1986 (Gulam Naseer vs.

Gulam Jilani and 23 others) was filed by the

respondent. Suit No.96 of 1982 filed by the

respondent No.1 was registered as Suit No.13

of 1989 in the Court of District Judge.

2.5 The trial court decided all the three suits by

a common judgment dated 17.04.2003. Suit No.96

of 1982 filed by the respondent No.1 was

decreed and defendants of the suit were

restrained by way of permanent injunction.

Suit No.96 of 1995 filed by the appellant for

permanent injunction against the respondent

was dismissed whereas Suit No.59 of 1986 filed

by the respondent was decreed. The trial court

upheld the nomination of the respondent by 4th

Sajjadah Nashin and Mutawalli by declaration

and Will dated 12.09.1979, declaration was

held proved by the trial court. The trial court

also held that the respondent No.1 was fully

eligible to be nominated as Sajjadah Nashin

and Mutawalli.

6

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

Appellate Court vide its judgment dated

04.09.2004. Aggrieved against the judgment of

the First Appellate Court dated 04.09.2004

three second appeals were filed by the

appellant, which were dismissed by the High

Court by the impugned judgment dated

05.07.2012. The appellant aggrieved against

the judgment of the High Court dismissing the

three second appeals has come up in these

appeals.

3. We have heard Shri V.K. Shukla, learned senior

counsel appearing for the appellant. Smt. Aishwarya

Bhati, learned senior counsel, has appeared for the

respondent.

4. Learned counsel for the appellant submits that

affairs of Dargah are to be managed by the Constitution 7

(Zabta), English translation of which is filed as

Annexure-P1 in these appeals. He submits that as per

Rules 1 and 2 of the Zabta, Sajjadah Nashin and

Mutawalli has to be from the family. The respondent

No.1 does not belong to the family of the founder of

the Wakf and he being daughter’s son of 4th Sajjadah

Nashin & Mutawalli, Nurul Hasan cannot be treated to

be from the family and could not have been appointed.

It is submitted that the appellant being brother of

Nurul Hasan Sahib, 4th Sajjadah Nashin and Mutawalli,

he is from the family of the founder and was accepted

as Sajjadah Nashin and Mutawalli by Murids. He submits

that the use of words “Sagir Sinn” in Rule 2, which

means minor son fully re-enforces the submission of the

appellant that it is only male descendant in the

family, who can be nominated as Sajjadah Nashin and

Mutawalli. It is submitted that the respondent No.1 was

not being eligible for the appointment Sajjadah Nashin

and Mutawalli, all the courts below committed error in

not appointing the appellant as Sajjadah Nashin and

Mutawalli, and in holding that the respondent No.1 was

eligible for appointment as Sajjadah Nashin and 8

Mutawalli.

5. Learned counsel for the respondent refuting the

submissions of the learned counsel for the appellant

submits that all the three Courts have correctly

interpreted the Zabta. It is submitted that the

appellant is incorrectly interpreting the word

‘Khandan’ used in Zabta. The word ‘Khandan’ is an

expansive word, which shall clearly include the

respondent 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 were included in the

spiritual Sect are eligible for appointment as Sajjadah

Nashin and Mutawalli. It is further submitted that the

respondent both by being daughter’s son as well as from

lineage of Shahabuddeen Sahib great grandfather of the

respondent No.1, who was real brother of Khwaja Haji

Najamuddeen, the founder of Dargah is included in

‘Khandan’. The restricted meaning of ‘Khandan’ as

sought to be given by the appellant is incorrect. It

is, further, submitted that the interpretation of word

‘Sagir Sinn’ as occurring in Rule 2 of Zabta is again 9

incorrect. It is submitted that the word ‘Sagir Sinn’

occurring in Zabta has been wrongly translated in

English as minor son. The word ‘Sinn’ is a Persian word

which means ‘age, year’ and does not mean son as sought

to be interpreted by the appellant. He submits that

Rule 2 meant that Sajjadah Nashin and Mutawalli can

declare on his internal spiritual light any person of

minor age as his successor. The word ‘Sagir Sinn’ never

meant as minor son. It is submitted that all the Courts

below have rightly interpreted the Zabta and there is

no merit in the submission of the appellant.

6. We have heard learned counsel for the parties and

perused the records.

7. The only argument which has been raised before us

for consideration by the appellant is alleged mis-

interpretation of Zabta by Courts below. Learned

counsel for the appellant interpreting Rules of Zabta

contends that person to be nominated as Sajjadah Nashin

and Mutawalli has to be from family of founder and

further he has to be a lineal descendant from founder. 10

The ineligibility of the respondent is canvassed on the

ground that he was daughter’s son of 4th Sajjadah Nashin

and Mutawalli, who nominated him and he is not a son

as lineal descendant. The submission is that he does

not belong to ‘Khandan’ of founder. The trial court

has framed several issues in suits which were decided

by it. The Issue No.7 which relates to the submission

raised before us is as follows:

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

8. The pedigree of founder of Dargah was on the

record. Gulam Naseer’s father, Maujam Ali traced his

lineage from Shahabuddeen, the real brother of Khwaja

Haji Najamuddeen, founder of the Dargah. The trial

court while considering the Issue No.7, after

considering the evidence on record including the oral

evidence returned the following findings in paragraph

Nos. 89, 93 and 98:

“89…………It is not mentioned in the Japta that the succession to the office of Sajjadah Nashin and Mutawalli should be from the descendants or Haji Najmuddin Saheb or Maulana Naseerudin Saheb rather it is mentioned in the Japta that a trained person 11

of this “Khandan” should be appointed to this post. The further, reference of the words “Muntkhib”, “Bait” and “Khilafat” in the Japta clarifies the position that the word “Khandan” does not refer strictly to the family, as it is used for the blood relations. But the “Khandan” means “sect”. No other conclusion can follow from the interpretation of the worse “Muntkhib”, “Bhait” and “Khilafat”. I can not accept the interpretation of the word “Khandan” to be the family succession, as it has been disclosed by Gulam Jilani DW1. If the intention of the maker of the Japta was that the succession to this office shall be hereditable, no one prevented him from making a clear provision in this regard.

93. The use of the words “Sulemani Sect” and “Silsila” in the Japta points out that its maker never intended to make succession to this office hereditable. However, it does not mean that the descendants of Hazi Najmuddin or Maulana Naseerudin have been totally excluded for being chosen as the Sajjadah Nashin and Mutawalli. Their descendant may also be nominated to this office. In nutshell, the proposed Sajadah-Nashin and Mutawalli may be a stranger or he may be a descendant from the founder of the Wakf in question. The condition is that he should confirm to the standards mentioned in the Regulations discussed in the Japta and the outgoing Sajjadah Nashin and Mutawalli should confer Khilafat on him by doing the Bait on the hand and he should also nominate/declare him as his successor after his death because it is supposed to continue the spiritual line, commonly known as “SILSILA”.

98. Let us now proceed on another assumption 12

that only a descendant from Khawaja Najmuddin or Maulana Nasiruddin can be appointed to this post and this stranger has no role to play in Gulam Naseer PW2 has stated that his father is the descendant of Shahabuddin, who was the real brother of Khwaja Najmuddin, Maujam Ali PW1 has also confirmed his testimony. In this connection 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 putra najimuddin saheb va unke pote maulana Nasruddin saheb ke bhi pote lagte hai”

Gulam Jilani DW1 has also stated that the property rights of the descendants from one grandfather are different but the descendants constitute one “Khandan”. The above admission from the mouth of defendant clearly show that the plaintiff also belongs to the “Khandan” of Najmuddin Saheb and Maulana Naseeruddin Saheb.”

9. We may extract the relevant portion of Rules 1 and

2 of Zabta on which much emphasis was given by the

learned counsel for the appellant. Relevant part of

Rule 1 is as follows:

“The Sajjadah Nashin and Mutawalli of this abode (Dargah) of exalted highness ought to be a trained person from the line of this family and formally entered into Bai- at(murid) in this very spiritual Sect (silsila) and should be enlightened with the knowledge and sanctity and also well 13

acquainted with and acting upon the mystic path as propagated by the Sulemani Najmi family so that he may accordingly educate to those who are descrous to search the truth and believes himself to be a trustee of the poor and the innocent. In case of any negligence he shall be answerable to God.”

10. Relevant portion of Rule 2 on which learned counsel

for the appellant has given emphasis is to the following

effect:

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

11. Rule 1 of the Zabta cannot be read in a manner as

suggested by the counsel for the appellant. Had the

Zabta intended to lay down line of succession through

lineal descendants, it would have been clearly

provided. The succession to the Sajjadah Nashin and

Mutawalli is not hereditary 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 to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines 14

so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning.”

12. The Zabta of Dargah refers to spiritual Sect

“Silsila” and the word family (Khandan)had not been

used in the limited sense as sought to be contended by

the appellant.

13. Rule 1 of the Zabta cannot be read as laying down

any hereditary succession to the office of Sajjadah

Nashin and Mutawalli nor Rule 1 can be read to lay down

succession to lineal descendants as sought to contend.

The respondent who was daughter’s son of 4th Sajjadah

Nashin and Mutawalli and who has also traced his lineage

from Shahabuddin real brother of founder of Dargah,

cannot be said to be person not belonging to ‘Khandan’. 15

All the three Courts below have rightly held him to be

fully eligible. Furthermore, Sajjadah Nashin who has

been given right to select his successor, his selection

and nomination has also to be given weight. There is no

dispute between the parties that even a person of minor

age can be selected as Sajjadah Nashin and Mutawalli.

14. Coming to the second submission of the learned

counsel for the 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

contention that word ‘Sagir Sinn’ used in Rule 2 means

‘minor son’. When no such issue or submission was

raised, appellant cannot be allowed to raise this

submission in this Court for the first time.

15. Secondly, to satisfy ourselves, we have also looked

into the Hindi translation, which is actual translation

of Urdu words in the Zabta. In the counter-affidavit,

the respondent has brought on the record Hindi

translation which is in Devnagri translation of actual 16

Urdu words. The word used is “Sagir Sinn”. The word

“Sagir Sinn” is a combination of two words ‘Sagir Sinn’.

Word ‘Sinn’ is a Persian word. In English Persian

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 of the meanings to the Persian word

‘sinn’ is year, age, period of life. Various

combination of other different words using word ‘sinn’

has also been defined like ‘sinni balugh, sinni tamiz,

sinni shaikhukhiyat to the following effect:

“...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(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 17

read as minor son as contended by the appellant.

18. All the three Courts have not committed any error

in reading the Zabta and coming to the conclusion that

respondent was eligible to be nominated as Sajjadah

Nashin and Mutawalli. We do not find any merit in these

appeals which are accordingly dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( NAVIN SINHA ) New Delhi, July 24, 2019.