JUDGEMENT
R. C. Deo Sharma, J. -
(1.)THROUGH this petition under Article 226 of the Constitution the petitioner prays that orders dated 10-7-1981 and 4-2-1982 passed by the learned Civil Judge and the District Judge, Lucknow, respectively and contained in Annexures Nos. 7 and 8 be quashed and they be directed to treat original suit No. 31 of 1966 to have abated on the death of the original plaintiff Mohd Hussain Jafri.
(2.)THE facts giving rise to this petition may briefly be stated thus : In the town of Salon in district Rae Bareli there exists an old "Khanqah" known as " Khanqah-e-Karimia Regular Suit No. 31 of 1966 was brought by Mohd. Hussain Jafri in the court of Civil Judge, Lucknow, against Shah Mohd. Shabbir Ata and another for a declaration and injunction. THE declaration claimed was that the said plaintiff be declared to be the legally constituted 'Sajjadanashin' of the said " Khanqah " and as such entitled to perform all the duties and functions without interference and disturbance by the defendants. THE permanent injunction sought was to restrain the said defendants from proclaiming themselves as " Sajjadanashin " of the said 'Khanqah' and from functioning as such or obstructing the plaintiff in the performance of his duties as 'Sajjadanashin' of the 'Khanqah'. It was contended in the plaint that there was a custom about the nomination of the successor ' Sajjadanashin ' by a sitting 'Sajjadanashin' and that the plaintiff was duly nominated 'Sajjadanashin' whereas the defendants were without right interfering in the plaintiff's performance of his duties and were themselves claiming to be holders of the office of ' Sajjadanashin '. THE claim was resisted by the defendants one of whom, however, died during the pendency of the suit. THE plaintiff Mohd. Hussain Jafri also died during the pendency of the suit and consequently an application was made by Ahmad Hussain Jafri who is opposite-party No. 3 in this petition and he claimed that he was the duly nominated " Sajjadanashin " and as such entitled to be brought on record as legal representative and continue the proceedings against the contesting defendants. He also sought to implead as proforma defendants all the sons, daughters and widow of the deceased 'Sajjadanashin' and asserted that they were being made proforma parties as the right to succeed to the office of 'Sajjadanashin' was by nomination and not by inheritance according to Mohammedan Law. THE surviving defendant Shah Shabbir Ata who is the present petitioner contested the claim of Ahmad Hussain Jafri to be brought on record. He denied the right of the original plaintiff to work as 'Sajjadanashin' and denied nomination in favour of Ahmad Hussain Jafri oppsite-party No. 3. He rather himself claimed to be a nominee of the former 'Sajjadanashin'.
When the matter came up for hearing before the learned Civil Judge a point was raised to the effect that the right to the office of the 'Sajjadanashin' being a personal right did not survive in favour of the opposite-party No. 3 and consequently the suit should abate. Some evidence was recorded and documents brought on record were also taken into consideration and the plea of the objector was negatived. Amendment was accordingly allowed and Ahmad Hussain Jafri, opposite-party No. 3, was permitted to be brought on record and continue the proceedings which had reached almost the final stage of arguments. A revision was preferred against the aforesaid order which came up for hearing before the learned District Judge, Lucknow, who agreeing with the trial court dismissed the revision and directed further proceedings to be taken for the disposal of the suit. Feeling aggrieved, the defendant No. 1 in the aforesaid suit has preferred this writ petition praying that the aforesaid two orders passed by the courts below be set aside and the suit ordered to abate. Opposite-parties Nos. 4 to 12 are formal parties and they have been made opposite-parties since they were impleaded in the suit being the heirs in personal law of the deceased plaintiff. The matter has however been contested by the opposite-party No. 3 alone who filed a counter affidavit raising almost the same pleas as set up in the trial court and the revisional court.
It has not been challenged that succession to the office of 'Sajjadanashin' in the instant case is governed by nomination to be made by the sitting 'Sajjadanashin' although there was difference between the parties on the point whether nomination should be restricted to the male line of descent or could extend to the heirs connected through a female or to outsiders. For the purposes of these proceedings, however, it is not material as the opposite-party No. 3 is the son of the last 'Sajjadanashin' and is not connected through a female. The dispute, however, relates to his being validly nominated by the sitting 'Sajjadanashin' and further whether the said sitting 'Sajjadanashin' who was plaintiff in the suit was himself a properly nominated 'Sajjadanashin' entitled to hold that office and nominate the opposite-party No. 3.
(3.)LEARNED counsel for the petitioner has laid stress on the point that the right to the office of 'Sajjadanashin' was a personal right and it died with the death of the holder of the office and consequently the suit should abate. Reliance has been placed on a Division Bench decision in Gulzar Shah v. Sardar Ali Shah, AIR 1930 Lah 703 (2). In that case, however, the office of Mahant was to be held by a person who was duly elected by a specific body called 'Bhek'. The office was neither hereditary nor was to go to the 'Chela' of the former Mahant. On the death of the person claiming to be a Mahant an application was made for substitution by another person claiming himself to be 'Chela' of the deceased. It was held that the office was by its very nature a personal one dependent upon election and consequently the applicant could not be substituted as a legal representative merely on the ground that he was the Chela of the previous Mahant as his right to hold the office would depend on his election by the body called 'Bhek'. Substitution was accordingly refused. In the instant case it has not been denied that succession to the office goes by nomination by the sitting 'Sajjadanashin' and the present opposite-party No. 3 claimed to be so nominated. Similarly the present petitioner also claimed to be nominated though by a still previous 'Sajjadanashin'. The trial court on a consideration of the evidence found as a fact, atleast for the purposes of proceedings relating to substituion, that the opposite-party No. z was duly nominated by the immediately preceding 'Sajjadanashin' and left the question open for decision in that suit as to whether the immediately preceding 'Sajjadanashin' was himself a validly appointed 'Sajjadanashin' who could nominate the opposite-party No 3 claiming to be substituted as legal representative. The Lahore case has accordingly no application to the instant case and both the courts below before whom also this case was cited have rightly held it to be inapplicable.
The next case relied upon was also a Division Bench decision in Ram Sarup Das v. Rameshwar Das, AIR 1960 Patna 184. There also the plaintiff's right to hold the office of Mahant and Shebait was in dispute. The said Mahant Rameshwar Das who was plaintiff and whose claim was being contested succeeded in the trial court but during pendency of the appeal he died and one Mahant Parmdshwar Das claiming to be the 'Chela' of the deceased applied to be substituted in his place. A plea was raised that the suit in the circumstances abates. On a reference to several decisions on the point the learned Judge held that the office of Mahant and Shebait was a personal office and with the death of its holder the right also died and could not be succeeded by a person claiming to be a 'Chela'. In that case it may be observed, the right to hold office depended of a custom according to which the holder was to be appointed by election or selection by persons of the locality and also probably by Sadhus and Mahants of the neighbouring institutions. However, succession was not governed merely by one's being a chela. The court held that by allowing the applicant to be substituted in places of the deceased several new issues would arise which were not there in the original suit and consequently it was beyond the scope of Order XXII "CPC, to permit new issues to be opened on a new cause of action to be substituted. The substitution application was in the circumstances rejected and the suit ordered to abate. It is not necessary to consider this position in greater details because in a subsequent decision of the Supreme Court reported in Krishan Singh v. Mathura Ahir, AIR 1980 SC 707 (Paras 84 to 88). the correctness of the Patna decision was doubted and it was rather overruled. There is no doubt that the facts in that case and also in the Patna case were different on one material point and it was this. The plaintiff who claimed the right to hold office of 'Shebait' or 'mahant' was successful in the trial court in both these decisions but had died during the pendency of the appeal. While, therefore, allowing substitution in such cases the Hon'ble Supreme Court was also influenced by the fact that the original plaintiff had been adjudged by a judgment to be the holder of the office and, therefore, if substitution was refused to his successor-in-office it would entail multiplicity of proceedings and prolongation of litigation. Although in the instant case the plaintiff died during the pendency of the suit in the trial court itself and consequently he had not been adjudged to be holder of the office nor the defendants had been adjudged to be trespassed with relation to the waqf property but that fact alone should not make such a material difference as to negative the importance of the contentions regarding multiplicity of proceedings and prolongation of litigation. It was observed by the Hon'ble Supreme Court that a religious institution such as a math was treated as a juristic entity capable of holding and acquiring property and consequently a suit instituted by the mahant cannot abate on the death of the mahant pending decision of the suit or appeal as the real holder of the property in suit is the institution. From the very nature a math or an idol could act and assert its' rights only through a human agency known as mahant, Shebait or the like. The correctness of the Patna decision as indicated earlier was found to be open to question. The observation relating to the religious institution being treated as juristic entity and its acting through a human agency like a mahant or Shebait were matters which were relevant in the context of a suit and an appeal both. It was also held that the definition of legal representative as contained in section 2 (11) of the CPC, not only meant the person who in law represented the estate of the deceased but also included any person who intermeddled with the estate of the deceased and where the party sued in a representative character, if also included a person on whom the estate devolved on the death of the person concerned. In any case, thereof, the opposite party No. 3 was an intermeddler to the estate even if his right to succeed to the office of 'Sajjadanashin' was disputed by the petitioner. The same was the case with the petitioner vis-a-vis the pleas raised by the opposite party No. 3 and the original plaintiff. There is no doubt that reliance was placed on a Full Bench decision of this Court contained in Mohd. Hassain v. Khusalo, 1887 ILR 9 All. 131 (FB) where it was held that an action would not abate if final judgment had been obtained before the death of the plaintiff as is the case where the plaintiff dies during the pendency of the appeal but in principle there should be no difference in a case like the instant one where on admitted facts succession is governed by nomination and as a matter of fact it has been found by both the courts below, atleast for the purposes of substitution proceedings, that the opposite party No. 3 was duly nominated by the original plaintiff before his death. The question as to whether the original plaintiff was himself a validly nominated 'Sajjadanashin' and had accordingly a right to nominate a successor has been left open to be decided when the main suit itself is decided.
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