1946 (7) TMI 6 - Other - Indian Laws

Summary

Issues Involved:
1. Whether the office of Mutawalli of the Durgah Khawaja Sahib Ajmer is hereditary in the appellant's family.
2. The authenticity and effect of historical documents (Farmans and Sanads) relied upon by the appellant.
3. The impact of historical and governmental recognition of the office of Mutawalli.
4. The applicability of the principle of res judicata to previous judgments.
5. The interpretation of the Act of 1936 regarding the administration of the Durgah.

Detailed Analysis:

1. Hereditary Nature of the Office of Mutawalli:
The appellant claimed that the office of Mutawalli of the Durgah Khawaja Sahib Ajmer was hereditary in his family. However, the court found no justification for this claim based on custom or historical practice. The appellant's reliance on the hereditary nature of the office was not supported by historical evidence or legal recognition.

2. Authenticity and Effect of Historical Documents:
The appellant relied on several historical documents, including Farmans and Sanads, to establish the hereditary nature of the office. The court examined these documents critically:
- The Farman of Emperor Mohammad Shah (1759) was deemed suspicious and did not support the appellant's claim.
- The Sanad of Daulat Rao Sindia (1794) illustrated the ruling power's authority to appoint the Mutawalli but did not establish hereditary rights.
- The Sanad of 1813 was considered authentic but did not confer hereditary rights beyond the tenure of the ruling power at that time.

3. Historical and Governmental Recognition:
The court emphasized that any rights or claims to the office of Mutawalli must be recognized by the British Government following the cession of Ajmer in 1818. The British Government's consistent policy was to treat the office of Mutawalli as a government appointment, not a hereditary right. Historical events, such as the appointment and removal of Mutawallis by the British authorities and the Emperor's orders, reinforced this view.

4. Principle of Res Judicata:
The appellant argued that previous judgments, particularly the 1880 suit decided by Mr. Lasalle, established the hereditary nature of the office and should be considered res judicata. The court rejected this plea on two grounds:
- The issue of hereditary right was incidental and not the substance of the 1880 suit, which focused on the competence of the incumbent.
- The plaintiffs in the 1880 suit were not the Durgah Committee, and it was unclear if they represented the Committee's interests. Therefore, the Durgah Committee was not bound by that decision.

5. Interpretation of the Act of 1936:
The appellant contended that the Act of 1936, which provided for the administration of the Durgah, implicitly recognized the hereditary nature of the office. The court disagreed, stating that the Act did not contain any language supporting the appellant's claim. The Act was interpreted as consistent with the historical view that the appointment of the Mutawalli was a matter for the ruling authority or the Durgah Committee, not a hereditary right.

Conclusion:
The court concluded that the appellant's claim to the hereditary right to the office of Mutawalli was unfounded. The appeal was dismissed with costs, affirming that the office of Mutawalli was a government appointment and not hereditary in the appellant's family.