SYED SAULET HUSSAIN versus SYED ILMUDDIN & ORS.

Citation: [1988] 1 S.C.R. 52 · Decided: 08-09-1987 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Dismissed

Judgment (excerpt)

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SYED SAULET HUSSAIN 
v. 
SYED ILMUDDIN & ORS. 
SEPTEMBER 8, 1987 
(0. CHINNAPPA REDDY AND 
K. JAGANNATHA SHETTY, JJ.) 
Durgah Khwaja Saheb Act, 1955: Sections 13 and 21-
Succession to office of Sajadanashin-Power of Durgah Committee-
What is. 
In the Durgah Khawaja Saheb, Ajmer, there were two impor· 
tant oftices-Sajadanashin and Mutwalli. Consequent upon the migration 
of the last ol!ice bolder of the office of Sajadanashin to Pakistan in 1947, 
D the Chief Commissioner of Ajmer appointed the appellant's father as 
Sajadanashin in April, 1948. This was challenged by the respondent-
plaintiff, in a suit, claiming that succession to the office was governed 
by the rule of primogeniture, that he was the rightful person to hold it 
and that the appellant's father bad no such right or title. The suit was 
dismissed by the trial court as not maintainable in view of the bar 
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imposed bys. 119 of th! Ajmer Land Revenue Regulations. 
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On appeal, the District Judge held that the suit was maintainable. 
In second appeal by the defendant, the Judicial Commissioner upheld 
the view taken by the trial court and dismissed the suit. The Supreme 
Court allowed the appeal of the plaintiff-respondent, and remitted the 
case to the trial court for disposal on merits. 
Meanwhile, the Government of India brought forward a legisla-
tion called the Durgab Khawaja Saheb Act, 1955 and the Durgah 
Committee, as required under the Act, was constituted for the 
administrative control and management ofDurgab endowment. 
The aforesaid Committee, got itself impleaded as a party to the 
suit and resisted it, contending that the suit had become infructuous as, 
under ss. 13 and 21 of the DKS Act, the Committee was responsible to 
make interim or permanent arrangement for the office of Sajadanashin 
and that the appellant bad been appointed as interim Sajadanasbin. 
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The trial court overruled the objection. 
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S.S. HUSSAIN v. S. ILMUDDIN 
53 
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The suit was resisted by the appellant's father on the ground that 
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the plaintiff had no legitimate right to succeed to the office as he was not 
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the nearest male heir to the last holder of the office, that the right to 
appoint Sajadanashin by established usage, custom and tradition vested 
exclusively iu the local representative of the Government, and that the 
Court had no power to interfere with such appointment in any way 
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whatsoever. 
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The trial court non-suited the plaintiff on merits. The High Court, 
in appeal, reversed the judgment and declared that the plaintiff was the 
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nearest male heir to the last office holder and, therefore, entitled to 
succeed as Sajadanashin. It, however, observed that the plaintiff had 
failed to prove that he was qualified to occupy the office and, therefore, c 
left the question open for determination by the Governor, who was the 
competent Authority under the DKS Act to appoint the Sajadanashin. 
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The judgment of the Single Judge was challenged before the Division 
Bench under s. 18 of the Rajasthan High Court Ordinance. Meanwhile, 
the Governor on being satisfied with the qualifications of the plaintiff 
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approved his appointment as Sajadanashin by a Government Notifica· 
tion dated July 7, 1975. 
On the death of the plaintiff on October 23, 1975 his son was 
brought on record, and following the dismissal of the Special Appeal by 
the Division Bench of the High Court on March 7, 1980, he was recog· 
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nised as SajadaDashin, by the Government by a communication dated 
January 24, 1981. 
Against the decision of the High Court an appeal was filed before 
this Court. 
While the special appeal was pending before the High Court, and F 
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on plaintiff's death on October 23, 1975, his son approached the 
Durgah Committee for recognition as Sajadanashin, but it did not 
accede to his request and decided to invite applications from persons 
who wanted to be appointed as Sajadanashin. In response to the public 
notice under sub-section (1) of section 13 of the DKS Act, 11 applications 
were received by the Committee and none of these were related to the G 
plaintiff or the last office holder. The Committee forwarded the appli-
cations to the Governor for making a reference to the High Court for 
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decision, but the Governor did not make a reference and took a firm 
decision that plaintiff's soli was alone entitled to succeed to the office, 
beiiig the illln of the last office holder and that the other applicants had 

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