Holding

The offices of Sajjadanashin and Mutawalli are non‑hereditary, the primogeniture rule in the Matmi Rules does not apply, the Board of Revenue lacks jurisdiction to confer title, and the suit is barred by res judicata.

Summary

The case concerned a dispute over the succession to the offices of Sajjadanashin (spiritual head) and Mutawalli (manager of secular property) of a Dargah originally granted by the ruler of Jaipur. The plaintiff, Faqruddin (deceased), claimed that he became the rightful Sajjadanashin and Mutawalli after being declared a "matmidar" by the Board of Revenue under the Jaipur Matmi Rules, 1945. The Supreme Court held that Sajjadanashin is a spiritual office requiring personal qualifications and Mutawalli is a managerial role; neither office is hereditary and the rule of primogeniture in Rule 13 of the Matmi Rules does not apply. The Board of Revenue, whose jurisdiction is limited to fiscal matters, cannot confer title to such offices, and an entry in revenue records does not create a title. The suit was barred by the doctrine of res judicata, and the earlier judgments dismissing the plaintiff’s claim were affirmed. Consequently, the appeal was allowed and the impugned judgment set aside.

Issues considered

Whether the plaintiff is entitled to be Sajjadanashin and Mutawalli of the Dargah.
Whether the rule of primogeniture under Rule 13 of the Jaipur Matmi Rules applies to the offices of Sajjadanashin and Mutawalli.
Whether the Board of Revenue can confer title to the offices of Sajjadanashin and Mutawalli by a matmi order.
Whether the suit is barred by the doctrine of res judicata.
Whether the offices are hereditary in nature under Muslim personal law.
Whether an entry in revenue records constitutes a title in respect of the Dargah property.

Legislation cited

Code of Civil Procedure, 1908s. Section 12
Rajasthan Land Reforms and Resumption of Jagirs Act, 1952
Wakf Act, 1954s. Section 5

Subjects

Muslim personal lawSajjadanashinMutawalliWakfMatmi RulesPrimogenitureRes judicataRevenue jurisdictionReligious endowmentStatutory interpretation

Judgment

[2008] 9 S.C.R. 377

.. + FAQRUDDIN (DEAD) THROUGH L.RS. A
v.
TAJUDDIN (DEAD) THROUGH L.RS.
(Civil Appeal No. 3643 of 2008)
MAY 16, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ]
Mohammedan Law:
Jaipur Matmi Rules, 1945 - Rule 13 - Sajjadanashin or
Mutawalli, office of - Inheritance to - Held: Rule of primogeni- c
ture is not applicable to office$ of Sajjadanashin and Mutawalli
- Sajjadanashin is a spiritual office and Mutawalli is a man-
ager of secular properties - Both offices are of different nature
- Inheritance of office may not be governed by law of inherit-
ance - Office of Sajjadnashin involves requisite qualifications
D
- In such cases, jurisdiction of Revenue Authorities is limited
- It cannot decide a question of title - Title depends upon
religious law or statutory law or customary law - Entry in rev-
enue records is not a document of title - On facts, with regard
to appointment of plaintiff (since deceased) and his prede-
cessor and successor-in-interest as Sajjadanashin or E
Mutawal/i, when he was recognized as 'Matmidar' after the
death of earlier 'Sajjadanashin' and 'Matmidar' K, the Board
could not have conferred title upon plaintiff - Its decision be-
... ing without jurisdiction would be nullity- Jurisdictional fact would
not attract principles of estoppel - Also entry of the revenue F
).

records did not give rise to fresh cause of action so as to take
away the effect of principles of res judicata - Wakf was held to
be Wakf Al Au/ad - More so, on death of plaintiff, who died
issueless, suit abated - Recognition of right in his favour was
persona/ in nature - No decree for possession could be granted G
in favour of plaintiff's legal representative, until their right vis-
""' i a-vis bequeathment by plaintiff was not determined - There
was valid declaration in favour of appellant as Mutawalli of
Dargah since 1938 and 'Sajjadanashin' since 1958 - Thus,
377 H
378 SUPREME COURT REPORTS (2008] 9 S.C.R.

+ ~

A plaintiff having not derived any title as 'matmidar' cannot be-
come a 'Sajjadanas/Jin' or Mutawalli.

HZS was a great Sufi Saint. In view of his spiritual
attainments, the Ruler of State of Jaipur gave him 7 bighas
of land. However, he acquired 8 bighas 2 biswas lands
B out of his own funds. On his demise, his tomb was treated
as a sacred place and it attained the status of a Dargah.
GRS, HZS's sisters son was the first Sajjadanashin and
Mutawalli of Dargah. In 1860, SIS succeeded to the said
office followed by SMS. SMS was convicted by a criminal
c court. Matmi was sanctioned in favour of K, younger
brother of SMS. K died in 29.05.1938. He allegedly ex-
ecuted a Will and nominated his eldest son-A, as
Sajjadanashin and another son, F as Mutawalli. In 1939,
M, son of SMS filed a suit against K claiming inheritance
D and also against 'A' claiming election to the post of
Sajjadanashin which were dismissed. Appeals were also
dismissed. During pendency of the proceedings, A died
and in his place, his son T was substituted. The Wakf was
held to be Wakf Al Aulad. In 1953, T filed another suit, for a
E declaration that he was the rightful Sajjadanashin of
Dargah and F, the deceased predeceased-in-interest of
the appellants be removed from the office of Mutawalli. It
was held that the plaintiff was not entitled to be
'Sajjadanashin' as it was a private land. Appeal was also ,...

F dismissed and the said proceeding attained finality. It is "
alleged that on the demise of A, the second brother-SS
became Sajjadanashin. On demise of SS, the younger
brother, F became Sajjadanashin according to custom.
He continued to hold the office of Mutawalli also. In 1966,
T, A's son filed another suit claiming himself to be the
G
Sajjadanashin and later on withdrew the suit. In 1974,
'matmi' proceeding was initiated and plaintiff's name-T . ~

was directed to be mutated by the Board of Revenue.
Plaintiff filed a fresh suit that having been declared as a
holder of land, he became Mutawalli and Sajjadanashin,
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 379
-~
(DEAD) THROUGH L.RS.
~

thus, entitled to possess the same exclusively. The trial A
court held that the suit was barred under the principles of
res judicata. During pendency of appeal, T filed another
suit. First Appeal was also filed. F died in 1981 and appel-
lants were substituted in his place. According to appel-
lants, SZA was declared as Mutawalli. In 1987, T died is- B
sueless. Respondent AR was substituted as legal repre-
~ sentative in place of T claiming his right on the basis of
an alleged Will. Other respondents also claimed the right
' under another Will. Appeal filed by Twas allowed. Hence
the present appeal. c
Allowing the appeal, the Court
HELD: 1.1 Sajjadanashin is a spiritual office. It has
to be held by a wise person. He must be fit for holding the
office. Mutawalli is a manager of secular properties. He is
D
the temporal head. Both of them are connected with a
Dargah or a Wakf. The term "Matmi" has been defined in
Sub-rule (3) of Rule 4 of the Jaipur Matmi Rules, 1945 to
mean "mutation of the name of the successor to a State
grant on the death of the last holder". Matmi, however, is
a process of mutation carried out in the revenue register E
in terms of the Matmi Rules. [Paras 21, 22 and 28] [393-
C,E, 397-F]
,.. 1.2 The law of inheritance amongst the Mohammed-
).
ans is governed by their personal laws. If the properties F
are wakf properties, the offices. of Sajjadanashin and
Mutawalli are to be filled up in accordance with the law or
the custom. If the properties are heritable, those who are
the 'Quranic Heirs' would be entitled to hold the said posts.
Indisputably, the law of primogeniture has no application
G
_,., ., amongst the Mohammedans vis-a-vis their law of inherit-
ance. [Para 26] [397-C,D]
. 1.3 'Wakf' would mean taking out something out of
one's ownership and passing it on to God's ownership
dedicating its usufruct - without regard to indigence or H
380 SUPREME COURT REPORTS [2008] 9 S.C.R.

~ ~

A affluence, perpetually and with the intention of obtaining
Divine pleasure-for persons and individuals, or for insti-
tutions or mosques and graveyards, or for other chari-
table purposes. [Para 27] [397-E,F]
1.4 The Matmi Rules are statutory in nature. His High-
B ness of Maharaj used to exercise both executive and leg-
islative policy. The Rules having been validated have a statu-
tory force. Apart from having the statutory sanction under »-
the Jaipur Matmi Rules (Validation Act), 1961, it s,eems to •
have Presidential sanction. [Para 29 and 30] [397-G, 398-E]
c
Tilkayat Shri Govindlalji Maharaj v. The State of
Rajasthan and Ors. AIR 1963 SC 1638; Thakore Sobhag
Singh v. Thakur Jai Singh and Ors. AIR 1968 SC 1328; Shah
Najihuddin Ahmad v. Amir Hasan Khan & Ors. AIR 1934 Patna
443 - referred to.
D
'Muslim Law as administered in India & Pakistan' by Shri
K.P Saksena - referred to.
1.5 The jurisdiction of the Board of Revenue being
limited, no title could have conferred upon the plaintiff.
E Title in or over a land will depend upon the statutory pro-
visions. A title does not remain in vacuum. It has to be
determined keeping in view the law operating in the field,
viz., religious law or statutory law or customary law, etc.
Revenue authorities of the State are concerned with rev- ....
F enue. Mutation takes place only for certain purposes. The
statutory rules must be held to be operating in a limited
sense. The provisions of Rule 13 of the Matmi Rules lay-
ing down a rule of primogeniture will have no application
in relation to the offices of Sajjadanashin and Mutawalli,
G which are offices of different nature. They are stricto sensu
not hereditary in nature. An entry in the revenue records ,..
r
is not a document of title. Revenue authorities cannot
decide a question of title. Inheritance or succession to a
'>,
property is governed by statutory law. Inheritance of an
H office may not be governed by law of inheritance; but,
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 381
(DEAD) THROUGH L.RS.
. ~
the office of Sajjadnashin is not ordinary office. A person A
must possess the requisite qualifications to hold the said
office. [Para 34] [401-D-H]
Suraj Bhan and Others v. Financial Commissioner and
Others (2007) 6 SCC 186; Narain Prasad Aggarwal (D) By
LRs. v. State of M.P 2007 (8) SCALE 250 - referred to. B

1.6 Only because an observation has been made by
the Board of Revenue, the same by itself did not confer
any jurisdiction upon the civil court, if it was otherwise
barred. If the suit was barred under the principles of res c
judicata, Section 12 of the CPC bars filing of another suit.
[Para 35] [402-D]
Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram
Niwas and another Civil Appeal No. 3495 of 2008, decided
by S.C. on 12.05.2008 - referred to. D
1.7 High Court might have been correct had plaintiff
would have obtained title by reason of a separate trans-
action. The entry of the revenue records did not give rise
to a fresh cause of action so as to take away the effect of
principles of res judicata. If the order of the Board of Rev- E
enue is taken to its logical conclusion, the same would
be rendered wholly illegal and without jurisdiction. It
. . would be a nullity. The submission that respondents are
estopped and precluded from questioning the jurisdic-
tion of the Board of Revenue is without any merit. [Paras F
36 and 37] [402-E-H]
Anwar Khan Mehboob Co. v. State of Madhya Pradesh
and Others (1966) 2 SCR 40; Chief Justice of Andhra Pradesh
' and Another v. L. \I.A. Dikshitulu and Others AIR 1979 SC 193;
G
MD Army Welfare Housing Organisation v. Sumangal Ser-
-I vices (P) Ltd. (2004) 8 SCC 619; Hasham Abbas $ayyad v.
Usman Abbas Sayyad and Ors. (2007) 2 SCC 355 - referred
to.
1.9 Ajurisdictional fact would not attract the principles H
382 SUPREME COURT REPORTS [200819 S.C.R.

;. .
A of estoppel as there can be no estoppel against statute.
[Para 38] [403-B]
1.10 Respondents themselves claimed their rights
only under the Matmi Rules. The Matmi Rules do not rec-
ognize any transfer of property. If they do not recognize
B any transfer of property, by getting their names entered
as a Mutawalli in terms of the Rules, they cannot claim
exclusive possession. [Para 39] [403-~]
1.11 The genuineness or otherwise of validity of ei-
c ther of the Wills, vis-a-vis, the nature of the grant as also
the nature of the properties in question must be deter-
mined by an appropriate court of law. Whereas respon-
dent No.1 claims his right, title and interest under one Will
purported to have been executed by T; respondent Nos.
2 and 3 claimed their right by virtue of another Will. The
D
inter se disputes between the parties are said to be pend- .,.
ing in some other proceedings. That is how the suit must
be held to have abated. The recognition of right in favour
of T was personal in nature. If he has died, name of an-
other person as Mutawalli must be entered in the register
E of revenue. By saying so it is not suggesting that the en-
try made in the revenue records is final in nature. What
would be the effect thereof is one question but the very
fact that entire case of the respondent based on Wills
which is prohibited in terms of the Matmi Rules is another.
,...
F •
So long their right vis-a-vis the bequeathment by T is not
determined, no decree for possession can be granted in
their favour. Although the District Judge, in his judgment
dated 7.9.1953 purported to have proceeded on the basis
that Twas not validly elected or selected for technical rea-
G sons, the fact remains that the suit of the plaintiff was dis-
missed. If a suit was dismissed, he could not have claimed ~ '
his right as Sajjadanashin or Mutawalli. It is true that in
the said suit, the right of the appellant as a validly elected
Sajjadanashin and Mutawalli was not determined. The trial
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 383
(DEAD) THROUGH L.RS .
. ~
judge stated in his judgment that there was a valid decla- A
ration in favour of Faqruddin. [Para 39] [403-D-H]
1.12 The land in question were not Wakf lands but
'Wakf Aulad'. Indisputably, however, both Wakf land as
also the land in question are under the management of
Mutawalli. He, apart from the Wakf land, holds the land in B
suit on behalf of the beneficiaries., The present appellants
are also beneficiaries of the Wakf. If the right to recover
possession must vest in a Mutawalli and if by reason of
his status of 'Matmi', T did not become a Mutawalli, which
declaration in his favour must be held to have been le- c
gaily made by the High Court, the respondents relying on
or on the basis of the purported Wills executed in their
favour cannot claim independent right to recover posses-
sion. [Para 40] [404-8,C,D]
D
Gnanasambanda Pandara Sannadhi v. Velu Pandaram
& Anr. XXVll (1899-1900) Indian Appeals 69; Debendra Nath
Mitra Majumdar v. Sheik Safatulla AIR 1927 Calcutta 130 -
referred to
K.P Saksena's Muslim Law as administered in India & E
Pakistan p 572 - referred to.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3643
of 2008
... ,, From the Order dated 3 ..11.2006 of the High Co_urt of Ju- F
dicature for Rajasthan, Bench at Jaipur in S.B. Civil Appeal No.
144/1981
K.V. Vishwanathan, Gagan Gupta, M. Shoaib Alam and
Parmanand Gaur for the Appellants.
G
R.N. Mathur, V.S. Badhwar, S. Janani, Deepak Goel,
... ., Neeraj Shekhar, Jitender Singh Tanwar, Rajesh Kumar, Mohan
Pandey, Shobha, Harish Sharma, R.K. Panigrahi and R.P.
Prasad for the Respondents.
The Judgment of the Court was delivered by H
384 SUPREME COURT REPORTS [2008] 9 S.C.R.
. .
A S.B. SINHA, J : 1. Leave granted.
2. Defendants-Appellants are before us, aggrieved by and
dissatisfied with a judgment and order dated 3.11.2006 passed
by a learned Single Judge of the High Court of Judicature of
Rajasthan in S.8. Civil First Appeal No. 144·of 1981 allowing
B the appeal of the respondent from a judgment and order dated
31.01.1981 passed by the Additional District Judge, No. 1,
Jaipur City in Civil Suit No. 67of1977, whereby and whereun-
der a suit filed by the respondent herein for declaration of his
title, permanent injunction and possession was dismissed.
c
3. At the outset, we may notice the genealogical tree of
.•
the parties, which is as under:

Maulana Ziauddin
Sahib
D

E
Syed Sarfuddin
Sahib

"
... '
F
Syed
Saiduddin

G
. >

Syed
Rahisnddi

H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 385
. ~
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]

4. One Hajrat Ziauddin Sahib (1730-1810) was a great A
Sufi Saint. He belonged to Sunni Sect of Islam. In view of his
spiritual attainments, 7 bighas of land at Moti Katia, Jaipur was
given to him by the then Ruler of the State of Jaipur for the pur-
pose of maintenance of a garden. He, however, acquired lands
out of his own funds. It comprised of Khasra Nos. 497 to 503 B
admeasuring 8 big has 2 biswas. Indisputably, on the said land,
there are prayer rooms, Dargah, Mosque, garden, graveyard,
shops, houses, lodge, etc. On the demise of Hajrat Ziauddin
Sahib, which took place in the year 1810, his Mazar (tomb) was
treated as a sacred place. It attained the status of a Dargah. c
One Gulam Rasul Sahib was the first Sajjadanashin and
Mutawalli of the Dargah. He was son of his sister. In the year
1860, Sayed lmmauddin Sahib succeeded to the said office
followed by Syed Mohiuddin Sahib.
A matmi proceeding was initiated for 12 bighas and 12 D
biswas of land. It was found that late Ziauddin Sahib was not in
possession of 7 bighas of land. The land upon which Dargah,
Kabristan, etc. were situated were not the subject matter of the
State grant and, therefore, not subject to matmi.
5. Syed Mohiuddin Sahib was convicted by a criminal E
cciurt. The 'Sajjadagi' was tied on the head of Kamaluddin, the
younger brother of Mohiuddin as he was considered fit for hold-
ing the said post.
6. Matmi was sanctioned in favour of Kamaluddin. He died F
on or about 29.05.1938. He purported to have executed a Will
and nominated Aminuddin, his eldest son, as Sajjadanashin and
Faqruddin, another son, as Mutawalli. Allegedly, there existed a
custom that on the Soum, i.e., the third day of the funeral, a con-
gregation makes the nomination. It is notified by the congrega-

- ..
tion. Dastarbandi ceremony took place in terms whereof tur-
bans were tied. The said customary formalities were said to
have been complied with.
G

7. Moinuddin son of Mohiuddin (the convicted Sajjadanashin)
filed a suit against Kamaluddin claiming inheritance in the year H
386 SUPREME COURT REPORTS [2008] 9 S.C.R.

~
.
A 1939. He also filed a suit against Aminuddin claiming election
to the post of Sajjadanashin by Muslim public. Both the suits
were dismissed by judgments dated 11.05.1920 and 5.09.1939
respectively. Appeals preferred thereagainst were also dis-
missed. During pendency of the said proceedings, Aminuddin
B died on 12.07.1944. In his place, Tajuddin was substituted. In
the said suit, Wakf in question was held to be Wakf Al Aulad.
8. Tajuddin filed another suit, on or about 7.09.1953 for a
declaration that he was the rightful Sajjadanashin of the Dargah
in question. A prayer was made for removal of Faqruddin, the
c deceased predeceased-in-interest of the appellants, from the
office of Mutawalli. A large number of issues were framed.
Issues Nos. 1, 4 and 5 read as under:
"1. Whether the plaintiff is the Sajjada of the Dargah of
D Maulana Ziauddin Sahib?
4. (a) Whether on proof of issue No. 1 the plaintiff is entitled
as Sajjadanashin to the savings left after mooting the
expenses of the Dargah?

E (b) Whether the plaintiff is entitled to recover Rs. 100/- as
the savings of the two years?
(c) To how much amount the plaintiff entitled for the period
of the pendancy of the suit?

F 5. Whether the plaintiff is bound to indicate the nature of "
the trust so that the question may be decided in the court?"
9. It was found that the purported election which had been
held did not meet the requirements of law. It was furthermore
held that the plaintiff was not entitled to be a 'Sajjadanashin' as
G it was a private land. The appeal preferred thereagainst, which
was marked as Civil Appeal Case No. 23 of 1954, was dis- ).
,.
missed on 20.11.1958. The said proceeding attained finality.
1O. Allegedly, on the death of Syed Saidduddin Sahib, who
became Sajjadanashin on the demise of Aminuddin, Faqruddin
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 387
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]

became Sajjadanashin according to custom. He continued to A
hold the office of Mutawalli also. A notification was issued un-
der Section 5 of the Wakf Act, 1954 on 9.12.1965 declaring the
properties to be Wakf Properties.

11. Another suit was filed byTajuddin on 3.12.1966 against
the State Government claiming himself to be the Sajjadanashin. B
He also claimed some amount on account of expenses for
'Chirag Bati' and also the value of 42 Gold Mohars. Faqruddin
was impleaded as a party. The said suit was withdrawn by
Tajuddin.
c
12. Another round of litigation started in the year 1974. A
'matmi' proceeding was initiated in terms of the provisions of
the Jaipur Matmi Rules (for short "Matmi Rules"). Plaintiff's name
was directed to be mutated by the Board of Revenue by an
order dated 1.02.1974. The Board of Revenue, however, ob- D
served:
" ... The only son of Aminuddin named Tajuddin is alive and
he has some how (sic) been deprived of the office of
Sajjadanashin so far, but as indicated above, the Board
if not concerned with the appointment of the Sajjadanashin E
for Dargah Mirza Zaiuddin which is civil matter ... "

It was furthermore observed:

"11. In exercise of the powers conferred by Section 1O(d)
of the Rajasthan Jagir Decisions and Proceedings F
(Validation) Act, 1955, we, therefore, sanction succession
of the last holder Kamaluddin son of lmmamuddin in the
name of this eldest real grandson namely Tajuddin son of
Aminuddin in respect of 7 bighas 'Kham' State grant given
for the maintenance of a garden by former Jaipur State G
Patta dated Shrawan Budi 4, Samwat 1856 whose Khasra
numbers have since been delineated in the Judgment of
Deewani of former Jaipur State dated 19/2/1938 and
confirmed by the Full Council of State Jaipur under rule 13
of the Jaipur Matmi Rules 1945.n
H
388 SUPREME COURT REPORTS [2008] 9 S.C.R

A 13. Relying on or on the basis of the said entry, the re-
spondent filed a fresh suit. According to him, he, having been
declared to be the Matmidar became the holder of land. As a
holder of land, he became the Mutawalli and Sajjadanashin and,
thus, entitled to possess the same exclusively.
B The issues which inter alia were framed are:

"1. Whether plaintiff is the Sajjadanashi and Mutawalli of
Dargah Hajrat Maulana Jiauddin sahib as per decision of
Revenue Board dated 1.2.74?
c *** *** ***

4. Whether suit is b.arred with res-judicata?
5. Whether suit is barred with limitation?"
14. By an order dated 31.01.1981, the learned Trial Judge
0
held that the suit was barred under the principles of res judi-
cata. The learned Trial Judge also noticed the admission made
by the plaintiff in the following terms:
"... In 1958, after the death of the then Sajjadanashin
E Saikuddin, defendant No. 1 became the Sajjadanashin
also besides Mutawalli and since then defendant No. 1
has been working as Sajjadanashin also. Plaintiff has not
given any reply to this submission of defendant in his
replication. Thereafter, in his statements again and again,
F defendant No. 1 has stated that he had become the
Mutawalli in 1938 and Sajjadanashin from 1958 and it is
very clear from the cross-examination of defendant No. 1
that plaintiff has also accepted this submission of
defendant No. 1 in silent manner. However, plaintiff has
G clearly admitted in his statements that defendant No. 1
has been looking after the work of Mutawalli since 1938.
The relevant portion of the statement of plaintiff is as under:
"After Kamaluddin, Fakhru Miyan, defendant No. 1 became
the Mutwalli. My father never objected on Fakhrumiya's
H working as Mutawalli. My father expired in 1944,
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 389
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]
,
..\
Fakhrumiya is Mutawalli till date" A
"After the death of Kamaluddin, Fakhrumiya is performing
the work of Mutawalli since 1938 but with the written
permission of Matmidar. Tehrir has been made by Miya
Kamaluddin Matmidar. Kamaluddin sahib had executed
the Will, which is available in the file." B

In this manner, plaintiff himself has admitted in his cross-
examination that on the basis of Will of Late Kamluddin,
defendant No. 1 had become the Mutawalli."

Issue No. 1 was determined as under: c
"As per above discussion, I reach on the conclusion that
defendant No. 1 (one) has successfully proved that he is
the Mutawalli of Dargah Hajrat Maulana Jiauddin since
1938 and Sajjadanashin since 1958. Therefore, this issue
D
is decided in favour of defendant No. 1."
The issue of res judicata was also determined against the
plaintiff. The suit was held to be not maintainable.
15. It is stated that pending appeal another suit was filed
E
by Tajuddin. However, we are not concerned therewith.

16. A First Appeal was preferred thereagainst. Faqruddin
died on 25.03.1981. Appellants herein were substituted in his
place. According to the appellants, Syed Zainul Abdeen was
" declared as Mutawalli. Tajuddin died in the year 1987. Whether F
the date of his death is 26.03.1987 or 26.04.1987 is not clear,
but the same is not very material for our purpose. Admittedly, he
died issueless. Respondent Abdul Rashid was substituted as
legal representative in place of Tajuddin claiming his right on
the basis of an alleged Will. The other respondents were also G
added as parties by an order dated 1.02.1994 as they claimed
a _, the right under another Will. It is, however, of some interest to
note that in the said order dated 1.02.1994, it was stated:
"Whether or not the appellant had executed the wills dated
22nd March 1987 and dated 25th March, 1987 is not a H
390 SUPREME COURT REPORTS [2008] 9 S.C.R.

A subject-matter of the dispute before this Court and it is not
disputed that in this appeal, the Court has to decide as to
whether the appellant could be said to have become the
'Sajjadanashin' of the 'Dargah' in question by virtue of the
fact that he was recognized as a 'Matmidar' after the death
B of the earlier 'Sajjadanashin' and 'Matmidar' Kamaluddin.
In this view of the matter, if the applicants are impleaded
as parties in this appeal, they would only be assisting the ;.
Court to come to the right conclusion on the above-said
point and it is made clear that by their being impleaded as
c parties in this appeal, their rights under the will are not
being decided. It is further made clear that simply because
Abdul Rasheed has been brought on record as the legal
representative of the deceased the decision of the appeal
being confined to the rights ofTajuddin, would not confer
any right on Abdul Rasheed, as he as well as the other
D
members of the committee have to establish their wills."
17. The appeal preferred by Tajuddin (since deceased)
has been allowed by reason of the impugned judgment.
18. Mr. K.V. Vishwanathan, learned counsel appearing on
E behalf of the appellants, in support of the appeal, would, inter
alia, submit:
(i) On the death of Tajuddin, the suit itself has abated as
the cause of action did not survive on the principle
F action persona/is moritur cum persona. •

(ii) No order for impleadment of the respondents could
have been passed as the suit itself has abated.
(iii) In any event, no declaration as prayed for in the suit
could be granted.
G
(iv) By the judgment and decree dated 7.09.1953, the
Civil Suit No. 7 of 1946 having been dismissed,
Tajuddin could not have started another round of
litigation on the plea that he had become
H Sajjadanashin, which was barred under the principle
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 391
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]
. ~

of res judicata. A
(v) Any observation made by the Board of Revenue
would not confer a jurisdiction upon the Civil Court,
if the same was otherwise barred.
(vi) By reason of the order passed by the Board of B
Revenue conferring the status of matmidar on the
respondent, he did not derive any title as a 'matmidar'
cannot become a Sajjadanashin or Mutawalli,, the
office being not heritable ones.

(vii) As a State grant, in any event, is inheritable, the c
purported rule of primogeniture contemplated in
terms of the Matmi Rules has no application,
particularly, in view of the fact that under the
Mohammedan Law, the rule of primogeniture cannot
regulate succession and the office of Sajjadanashin D
involves personal qualification.
19. Mr. R.N. Mathur, learned counsel appearing on behalf
of the respondent No. 1., on the other hand, would submit:
(a) 7 bighas of land being the subject matter of State E
grant, the Board of Revenue had the requisite
jurisdiction to order declaration of the original plaintiff
as a 'matmidar'.
(b) Even if the claim of the respondent as Sajjadanashin
" or Mutawalli is excluded, he would be entitled to F
exclusive possession of 7 bighas of land as his right
to hold the same stands recognized as a 'Khatedar'.
(c) Being a holder of land, he is entitled to exclusive
possession as rent has to be paid by him. G
. ~
(d) His claim as Sajjadanashin is not only based on a
Will, but also upon a custom prevailing, viz.,
Sajjadanashin can nominate his successor.
(e) As Faqruddin was not a valid nominee, the holder of
H
392 SUPREME COURT REPORTS (2008) 9 S.C.R.

A the office of 'Sajjadanashin' could nominate the • '

respondent.
(f) Appellants having submitted themselves to the
jurisdiction of the Board of Revenue and having failed
in their attempt to get the order dated 1.02.1974 set
B aside in a writ petition filed by them, they are estopped
and precluded from contending that the Board had
no jurisdiction to pass the impugned judgment. >
(g) In any event, the questions raised herein having not
c been raised before the High Court, this Court should
not exercise its discretionary jurisdiction under Article
136 of the Constitution of India.
20. The State of Jaipur was a princely State. The Matmi
Rules were framed during the said regime. The legislature of
D Rajasthan enacted the Jaipur Laws (Validating) Act, 1952. A
Validating Act being the Jaipur Matmi Rules (Validation) Act,
1961 was also enacted; Section 2 whereof reads as under:
"2. Validation of Jaipur Matmi Rules - Notwithstanding
contained in the Jaipur General Clauses Act, 1944, or any
E
other law or in any rule of interpretation or in any judgment,
decision, decree or order of any court and notwithstanding
any omission or defect of form or procedure or want of
any competent sanction or approval, it is hereby declared
that the Jaipur Matmi Rules, 1945, published in the Jaipur
F Gazette, Extra-ordinary, dated the 81h December, 1945
under Revenue Branch Notification No. 15941fRev. dated
the 24th November, 1945, shall have, and shall be deemed
always to have had, the force of law and shall be treated
as being and as having been an 'existing Jagir law' within
G the meaning of clause (d) of section 2 of the Rajasthan
Land Reforms and Resumption of Jagirs Act, 1952
(Rajasthan Act 6 of 1952) for the purposes of that Act as ,. ~

well as of the Rajasthan Jagir Decisions and Proceedings
(Validation) Act, 1955, (Raj. Act 18 of 1955) and any other
H law relating to jagirs or jagirdars."
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 393
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]
~

21. The said Rules, however, have a prospective effect. It A
merely declares the Rules to have always the force of law. The
effect thereof, however, must be considered having regard to
.. the other laws in force. We, WC?Uld, therefore, proceed on the
basis that the Matmi Rules had 1~he force of law.

It, however, applies only to 'State grant'. 'State grant' has B
been defined in Sub-rule (1) of Rule 4 to mean "a grant of an
interest in land made or recognized by the Ruler of the Jaipur
State and includes ajagir, muamla, suba, istimrar, chakoti, badh,
bhom, inam, tankha, udak, milak, aloofa, khangi, bhog or other
charitable or religious grant, a site granted free of premium for c
a residence or a garden, or other grant of a similar nature". The
term "Matmi" has been defined in Sub-rule (3) thereof to mean
"mutation of the name of the successor to a State grant on the
death of the last holder". Sub-rule (4) of Rule 5, however, makes
an exception in regard to the applicability of the Matmi Rules in D
respect of land free of premium as 'waqf' for a religious build-
ing, etc.; the State grant, however, relates to vacant land. We
would assume that the said exception has no application to this
case.
22. Sajjadanashin is a spiritual office. Mutawalli is a man- E
ager of secular properties. Both of them are connected with a
Dargah or a Wakf. Matmi, however, is a process of mutation
carried out in the revenue register in terms of the Matmi Rules.
23. Rules 6 to 11 of the Matmi Rules provide for the mode F
and manner in which applications are required to be filed, en-
tertained and determined. It casts a duty to bring the death to
the notice of the State within the time specified therein, failing
which a penalty may be levied.

-
Rules 11, 13 and 14 of the Matmi Rules read as under : G

~ "11. The person claiming succession shall, within one
month from the date of death of the last holder, submit an
application in the prescribed form (Appendix A) to the
revenue officer indicated in rule 22.
H
:~

394 SUPREME COURT REPORTS [2008] 9 S.C.R.

A Note(1) The application for matmi shall not be returned or
rejected on the ground that the applicant has failed
to furnish any of the prescribed particulars;

(2) The application under this rule shall be made even
though a report has been made under Rule 6.
" B
13. The eldest real son of the last holder or if such son is
dead, such son's eldest real son or eldest real grandson
is entitled to succeed, unless in the opinion of the Ruler he
is unfitted to succeed by reason of serious mental or
c physical defect or disloyalty;

Provided firstly, that in the case of the panchpana sardars
of Shikhawati and the bhomias of Udaipurwati, the grant
shall devolve on all the surviving real sons and the real
sons or grandsons of predeceased sons of the last holder
D in accordance with local custom unless in any particular
case His Highness the Maharaja Sahib Bahadur has
recognized that the ordinary rule of succession by male
lineal primogeniture shall apply.

Provided, secondly, that in the case of a nihang grantee,
E
a chela whose nomination has been approved by
Government shall be entitled to succeed; and

Provided, thirdly, that in the case of a tankha grant of which
the holder dies after the 25th October, 1943, his eldest
F real son shall be entitled to succeed only to one-half of the
grant and such son's eldest real son to only one-fourth of
the original grant. In the fourth generation of the holder in
possession on 25th October, 1943, the remainder of the
grant shall be resumed.
G Example : (1) A, a tankhadar, in whose name matmi of a tan
of Rs.2,000/- on six months qarar was ,. ....
sanctioned prior to the 25th October, 1943, dies
in January, 1943 leving three sons, B, C and D.
B being the eldest son, matmi will be sanctioned
H in B's favour in respect of a tan of Rs.1,000/- on
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 395
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]

six months qarar and the remaining tan of A
Rs.1,000/- be resumed.
(2) X, a tankhadar, in whose name matmi of a tan
of Rs.1,000/- on six months' qarar was
sanctioned prior to the 25th October, 1943, dies
in March, 1943, leaving Y and Z sons of his only 8
son Q, who predeceased X. Matmi will be
sanctioned in Y's name in respect of a tan of
Rs.250/- only and the remaining tan of Rs. 750/
- will be resumed.
c
14. (1) Subject to the provisions of rule 13, succession in
the absence of a direct male lineal decendant of the last
holder shall be restricted to the lineal male descendants
of the original grantee, preference being given to the senior
member of the senior line :
D
Provided, firstly, that in the case of a grant for the
maintenance of a temple, mosque or other religious place,
other than a Jain temple, it shall be within the discretion of
Government to select as successor any one of the male
lineal descendants of the original grantee, with due regard E
to his suitability for the performance of worship; and

Provided, secondly, that in the case of a Jain temple
succession shall be sanctioned in favour of a manager
nominated by the Panch Jains.
F
(2) No adoption shall be recognized for the purpose of
succession to a State grant unless a holder has obtained
the previous sanction of the Government to adopt, such
sanction being given only in favour of a direct male lineal
descendant of the original grantee :
G
Provided, firstly, that a person adopted in another family
shall not be allowed to revert to his original family; and
Provided, secondly, that a Raja (Lalji), a khawaswal, a
tankhadar, an employee of the Bera Khawas Chelan, an H
396 SUPREME COURT REPORTS [2008] 9 S.C.R.

A employee of the Karkhanejat and a mina chowkidar shall
not be permitted to adopt."

24. The High Court, in its judgment, with regard to the plea
of res judicata, held:

8 "... It is correct that plaintiff Tajuddin had filed a suit in the
court of District Judge, Jaipur, to declare him as
Sajjadanashin and the same was dismissed vide judgment
dated 7.9.1953 (Exhibit A-2) and the appeal against that
judgment was also dismissed by the High Court vide
c judgment 20.11.1958 (ExhibitA-3). But, after the judgment
of the District Judge, the case of Matmi or successor of
Kamaluddin was decided by the Statutory Authority
exercising power under Section 4(1 )(b) read with Section
10 of the Act of 1955 and as mentioned above the Revenue
Board, vide its judgment dated 1.2.1974 (Exhibit - 1),
D
sanctioned succession of the last holder Kamaluddin in
the name of the plaintiff Tajuddin. The judgment of the
Revenue Board dated 1.2.1974 (Exhibit - 1) was
challenged by defendant Badruddin before this Court in
S.8. Civil Writ Petition No. 2225/1974 and the said writ
E petition was dismissed on 21.11.1983, therefore, order
dated 1.2.1974 has attained finality. Certified copies of
the Writ Petition No. 2225/1974, the reply to the writ petition
on behalf of the respondent no. 3 in the writ petition, namely,
Tajuddin, and the order dated 21.11.1983, dismissing the
F writ petition of the defendant Badruddin against the order
of the Revenue Board dated 1.2.1974 have been placed
on the record along with the application under Order 41
Rule 27 of the CPC on 19.11.1997, which was allowed by
this Court vide order dated 20.2.1998. The order dated
G 1.2.1974 passed by the Revenue Board is a statutory
order by the statutory authority under the statute and this
was the separate and fresh cause of action for filing the
present suit. .. "
25. The High Court, on the premise that there exists a codi-
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 397
(DEAD) THROUGH L.RS. [S.S. SINHA, J]

fied law for declaration of succession for the last holder, opined: A
" ... Even if there is any custom for appointment on the post
of Sajjadanashin then the same cannot be contrary to
prevailing statute and codified law will prevail over the
custom. The gifted property by the ruler has to be managed
by successor according to law. There cannot be two 8
different persons, one as successor and another as
Sajjadanashin. Otherwise property in dispute cannot be
managed properly. Any person who is declared as
successor and in whose favour Matmi is sanctioned by
competent authority under the statute is entitled to hold C
the posts of Sajjadanashin as well as Mutawalli also."

26. The law of inheritance amongst the Mohammedans is
governed by their personal laws. If the properties are wakf prop-
erties, the offices of Sajjadanashin and Mutawalli are to be filled D
up in accordance with the law or the custom. If the properties
are heritable, those who are the 'Quranic Heirs' would be en-
titled to hold the said posts. Indisputably, the law of primogeni-
ture has no application amongst the Mohammedans vis-a-vis
their law of inheritance.
E
27. 'Wakf' would mean taking out something out of one's
ownership and passing it on to God's ownership dedicating its
usufruct - without regard to indigence or affluence, perpetually
and with the intention of obtaining Divine pleasure - for per-
sons and individuals, or for institutions or mosques and grave- F
yards, or for other charitable purposes.
28. It is beyond any doubt or dispute tbat a r,1utawalli is the
temporal head. He is the manager of the property. Office of
Sajjadanashin, however, is a spiritual office. It has to be held by
a wise person. He must be fit for holding the office. · G
29. The Rules, indisputably, are statutory in nature. His
Highness of Maharaj used to exercise both ·executive and leg-
islative policy. The Rules having been validated have a statu-
tory force.
H
398 SUPREME COURT REPORTS [2008] 9 S.C.R.

A In Tilkayat Shri Govindlalji Maharaj v. The State of
Rajasthan and Ors. [AIR 1963 SC 1638], this Court opined:
"In appreciating the effect of this Firman, it is first necessary
to decide whether the Firman is a law or not. It is matter
of common knowledge that at the relevant time the
B Maharana of Udaipur was an absolute monarch in whom
vested all the legislative, judicial and executive powers of
the State. In the case of an absolute Ruler like the Maharana
of Udaipur, it is difficult to make any distinction between
an executive order issued by him or a legislative command
c issued by him. Any order issued by such a Ruler has the
force of law and did govern the rights of the parties affected
thereby. This position is covered by decisions of this Court
and it has not been disputed before us, vide Madhaorao
Phalke v. State of Madhya Bharat, 1961-1 SCR : (AIR
D 1961 SC 298). Ameer-un-Nissa Begum. v. Mahboob
Begum AIR 1955 SC 352 and Director of Endowments,
Government of Hyderabad v. Akram Ali, (S) AIR 1956
SC 60."

30. As regards the Matmi Rules, apart from having the
E statutory sanction under the Jaipur Matmi Rules (Validation Act),
1961, it seems to have Presidential sanction. This had been
recognized by this Court in Thakore Sobhag Singh v. Thakur
Jai Singh and Ors. [AIR 1968 SC 1328].
F But this Court did not decide the question with regard to
the effect of the said Rules.
31. "Matmi", however, in terms of the Matmi Rules, as no-
ticed hereinbefore, would mean mutation of the name of th£
successor to a State grant on the death of the last holder. The
G question is as to whether Tajuddin (since deceased) and his
predecessor and successor-in-interest had in fact been ap-
pointed as Sajjadanashin or Mutawalli.
.....
We may, however, notice a decision of the Patna High

H
1:";.
?;
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 399
~·
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]
...
Court in Shah Najihuddin Ahmad v. Amir Hasan Khan & Ors. A
[AIR 1934 Patna 443], (which makes an interesting reading) ~1;•
.,
wherein it was held : " ..~:

"The learned advocate points out that succession to the
office has not been strictly hereditary in the past and that
Mahomedan law is strongly against attaching any right of B
k
inheritance to a public endowment or office. The office of ..
a Sajjadanashin however stands on a special footing:

"He is not only a Muttawali but also a spiritual preceptor,
and in him is supposed to continue the spiritual line (silsilal)." c - ~'[
'-·
This supposed continuity of the spiritual tradition must
obviously be taken into account and, speaking generally,
is much more likely to be secured by the selection of a
properly qualified descendant of the founder than of a
stranger of the family. The same consideration applies to D . .,:..
the preference given by the lower court to "nearness in
propinquity" to the last holder. The observation of the lower
Court that under the Firmans, as well as according to the
long established usage prevailing in the Khanqah, it is ..~
clear that a stranger cannot be appointed to the office has E
not been assailed; but the learned advocate for the
respondents has laid stress on the wide power of the
Court, in dealing with public, religious or charitable trusts,
to depart even from the intentions of the founder on
questions of management, which must be governed by F
circumstances and varied if necessary in the best interest
of the institution. It appeared during the arguments that
what the plaintiffs really desire is that the appointment
should be thrown open to all Muslims without much regard "

to the question whether they have any connexion with this
G
institittion. In our opinion there is no warrant for doing so
-i in the circumstances of this case. It is at the same time
clear that the appointment should be open to a stranger if
it be found that no suitable descendant of Shah Kabir
Darvesh is available, and that if this be added to the
.. H
400 SUPREME COURT REPORTS r2oosJ 9s.c.R.-

A scheme, it might possibly save a suit under S.92.
Preference ought however to be given to descendants of
the founder and among them to those "nearest in
propinquity" to the last incumbent, provided that such
persons are duly qualified.
B It has been contended on behalf of the appellant that the
learned Subordinate Judge has adopted an unnecessarily
high standard of Puritanism and education for the office of
Sajjadanashin. The decree mentions no standard; but the
learned Subordinate Judge was apparently Uudging from
c his observations regarding the fitness of Shah Malihuddin,
inclined to hold that a properly qualified Sajjadanashin
must have a working knowledge of Arabic or Persian,
these being the languages in which are generally written
books on Suffism, the philosophy the traditions of which
D form the raison d'etre of a Darvesh's Khanqah. There was
in our opinion no error in this. Tottenham and Ameer Ali,
JJ_, in 1893 observed that the first plaintiff in that suit was
disqualified on the ground among others that admittedly
he had no knowledge of Arabic. As to Puritanism of living,
E it is true that religions are in one sense matters of
indifference to the Sufi; but he does regard them as serving
to lead to realities and considers Islam as among those
which are more advantageous for this purpose than others
(see Hughes' Dictionary of Islam, 1885, sub nominee Sufi).
F The institution with which we are dealing is moreover in
the main a Sunni institution, and there is no reason why
the Sajjadanashin of such an institution should be at liberty
to give offence to the Sunni community by attending nauch
parties (and worse) offlouting prayers and refraining from
spiritual exercises as the late Sajjadanashin is found to
G
have done."
32. It is also of some significance to notice that in a book
titled 'Muslim Law as administered in India & Pakistan' by Shri
K.P. Saksena, it is stated as under:
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 401
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]

"... A sajjadanashin maintains unbroken the spiritual line A
from the original preceptor, by virtue of his directions or by
a valid custom. When the previous sajjadanashins were
usually eldest sons, the law of primogeniture cannot be
presumed to govern the succession from this circumstance,
as it is contrary to Muslim Law, and specially as this office B
involves personal qualifications. The mere fact of owning
an ancestral tomb and earning one's livelihood by piri
muridi and offerings at the tomb, cannot make any one a
sajjadanashin ... "

In view of the decision of the Patna High Court as also the c
comments made by Shri Saksena, an holder of office of
Sajjadanashin must have special qualification. He has to be a
man of learning. He must be wise.
33. We have noticed hereinbefore, the admission of the
D
plaintiff in his deposition.
34. The jurisdiction of the Board of Revenue being Jim-
ited, no title could have conferred upon the plaintiff. Title in or
over a land will depend upon the statutory provisions. A title does
not remain in vacuum. It has to be determined keeping in view E
the law operating in the field, viz., religious law or statutory law
or customary law, etc.
Revenue authorities of the State are concerned with rev-
enue. Mutation takes place only for certain purposes. The statu-
tory rules must be held to be operating in a limited sense. The F
provisions of Rule 13 of the Matmi Rules laying down a rule of
primogeniture will have no application in relation to the offices
of Sajjadanashin and Mutawalli, which are officers of different
nature. They are stricto sensu not hereditary in nature. It is well-
settled that an entry in the revenue records. is not a document of G
... title. Revenue authorities cannot decide a question of title .
Inheritance or succession to a property is governed by
statutory law. In heritance of an office may not be governed by
law of inheritance; but, the office of Sajjadnashin is not ordinary
H
402 SUPREME COURT REPORTS [2008] 9 S.C.R

A office. A person must possess the requisite qualifications to hold
the said office.

In Sura} Bhan and Others v. Financial Commissioner
and Others [(2007) 6 SCC 186], this Court held:

B " ... It is well settled that an entry in revenue records does
not confer title on a person whose name appears in record-
of-rights. It is settled law that entries in the revenue records
or iamabandi have only "fiscal purpose" i.e. payment of
land revenue, and no ownership is conferred on the basis
c of such entries. So far as title to the property is concerned,
it can only be decided by a competent civil court (vide
,,
Jattu Ram v. Hakam Singh) ...
[See also Narain Prasad Aggarwal (DJ By LRs. v. State
of M.P 2007 (8) SCALE 250]
D
35.0nly because an observation has been made by the
Board of Revenue, the same by itself did not confer any juris-
diction upon the civil court, if it was otherwise barred. If the suit
was barred under the principles of res judicata, Section 12 of
the Code of Civil Procedure bars filing of another suit. [See
E Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram
Niwas and another, Civil Appeal No. 34~5 of 2008, decided ?n
12.05.2008]
36. The High Court might have been correct had the plain-
F tiff- respondent would have obtained title by reason of a sepa-
rate transaction. The entry of the revenue records did not give
rise to a fresh cause of action so as to take away the effect of
principles of res judicata. [See Anwar Khan Mehboob Co. v.
State of Madhya Pradesh and Others (1966) 2 SCR 40]. If the
order of the Board of Revenue is taken to its logical conclusion,
G
as has been contended by Mr. Mathur, the same would be ren-
dered wholly illegal and without jurisdiction. It would be a nullity. 't

37. Submission of Mr. Mathur that the respondents are
estopped and precluded from questioning the jurisdiction of the
H Board of Revenue is equally without any merit. If the Board of
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 403
(DEAD) THROUGH L.RS. [S.B. SINHA, J ]

Revenue had no jurisdiction to decide the question of title, its A
decision being without jurisdiction would be a nullity. [See Chief
Justice of Andhra Pradesh and Another v. L. VA. Dikshitulu
and Others - AIR 1979 SC 193, MD Army Welfare Housing
Organisation v Sumangal Services (P) Ltd. (2004) 8 SCC 619
and Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. B
(2007) 2 sec 355]

-4 38. A jurisdictional fact would not attract the principles of
estoppel as there can be no estoppel against statute.

39. Respondents themselves claimed their rights only un- c
der the Matmi Rules. The Matmi Rules do not recognize any
transfer of property. If they do not recognize any transfer of prop-
erty, by getting their names entered as a Mutawalli in terms of
the Rules, they cannot claim exclusive possession.

The genuineness or otherwise of validity of either of the D
~ Wills, vis-a-vis, the nature of the grant as also the nature of the
properties in question must be determined by an appropriate
court of law. Whereas respondent No.1 claims his right, title and
interest under one Will purported to have been executed by
Tajuddin; respondent Nos. 2 and 3 claimed their right by virtue E
of another Will. The inter se disputes between the parties are
said to be pending in some other proceedings. That is how the
suit must be held to have abated. The recognition of right in
favour ofTajuddin was personal in nature. If he has died, name
of another person as Mutawalli must be entered in the register F
of revenue. We may, however, hasten to add that by saying so
we are not suggesting that the entry made in the revenue records
is final in nature. What would be the effect thereof is one ques-
lion but the very fact that 'entire case of the respondent based
on Wills which is prohibited in terms of the Matmi Rules is an-
G
other. So long their right vis-a-vis the bequeath men! by Tajuddin
is not determined, no decree for possession can be granted in
their favour. It is furthermore evident that although the learned
District Judge, in his judgment dated 7 .9.1953 purported to have
proceeded on the basis that Tajuddin was not validly elected or
H
404 SUPREME COLJ.qT REPORTS [2008] 9 S.C.R.

..
A selected for technical reasons, the fact remains that the suit of
the plaintiff was dismissed. If a suit was dismissed, he could
not have claimed his right as Sajjadanashin or Mutawalli. It is
true that in the said suit, the right of the appellant as a validly
elected Sajjadanashin and Mutawalli was not determined. The
B learned Trial Judge stated in his judgment that there was a valid
declaration in favour of Faqruddin.
40. It may further be true that the land in question were not ~

Wakf lands but 'Wakf Au lad'. Indisputably, however, both Wakf
land as also the land in question are under the management of
c Mutawalli. He, apart from the Wakf land, holds the land in suit on
behalf of the beneficiaries. The present appellants are also
beneficiaries of the Wakf. If the right to recover possession must
vest in a Mutawalli and if by reason of his status of 'Matmi',
Tajuddin did not become a Mutawalli, which declaration in his
D favour must be held to have been legally made by the High Court,
the respondents relying on or on the basis of the purported Wills >
executed in their favour cannot claim independent right to re-
cover possession.
41. In K.P. Saksena's Muslim Law as administered in In-
E dia & Pakistan, at page 572, it is stated :

"A worshipper can enforce his individual right in connection
with a mosque, but he cannot sue for the recovery of an
unauthorized alienation of waqf property; the Mutawalli
F alone can have the right to institute a suit for its recovery.
A mutawalli can maintain a suit for recovery of possession
of the waqf property against a trespasser, although it does
not vest in him. A representative suit by two worshippers
to set aside an alienation by the Mutawalli is, however,
maintainable even without the sanction under Section 92
G
of the Civil Procedure Code, or Section 14 of the Religious
Endowments Act. The waqf property may, like other trust 'r
properties, be recovered from third persons under
circumstances referred to in the Indian Trusts Act, Section
63. In case of an unlawful alienation or a mortgage of the
H
FAQRUDDIN (DEAD) THROUGH L.RS. v. TAJUDDIN 405
(DEAD) THROUGH L.RS. [S.S. SINHA, J ]

mosque property by its manager, any person interested A
may seek remedy in a civil court and restore the property
to the trust, and the same is true also in cases where waqf
property is auctioned in execution of a decree not binding
on the trust. Twelve years' limitation will run from the
confirmation of the auction sale. An order of the District B
Judge appointing a person to perform the duties of the
'mutawalli' of certain properties during the minority of a
ward would not operate as bar to a suit for possession by
a person claiming to be trustee."

42. The question came up for consideration in C
Gnanasambanda Pandara Sannadhi v. Ve/u Pandaram & Anr.
[XXVll (1899-1900) Indian Appeals 69] wherein the judicial com-
mittee held as under :

"Their Lordships are of opinion that there is no distinction
0
between the office and the property of the endowment."
43. The said principle was applied in a case of Debendra
Nath Mitra Majumdar v. Sheik Safatul/a [AIR 1927 Calcutta
130, at 136], stating :
"That the right of the plaintiff to hold the properties of the E
wakf is a right appurtenant to his office as the Mutwalli
cannot be disputed : Gnanasambandha Pandara
Sannadhi v. Velu Pandara [(1899) 23 Mad.271 ].
44. For the aforementioned reasons, the impugned judg- F
ment cannot be sustained. It is set aside accordingly. The ap-
peal is allowed. However, in the facts and circumstances of the
case, there shall be no order as to costs.
N.J. Appeal allowed.