Holding

The Court held that the Sajadanashin office is hereditary, succession follows primogeniture, and the Durgah Committee’s power under sections 13 and 21 is limited to recognizing the legitimate heir, not to appointing anyone else, leading to dismissal of the appeal and SLPs.

Summary

The case concerned the succession to the hereditary office of Sajadanashin of the Durgah Khawaja Saheb, Ajmer. The plaintiff claimed he was the nearest male heir under the rule of primogeniture, while the Durgah Committee argued that sections 13 and 21 of the Durgah Khawaja Saheb Act, 1955 gave it power to appoint any suitable person, even from the public. The Supreme Court examined whether the office is indeed hereditary, whether the rule of primogeniture governs succession, and the scope of the Committee’s statutory powers. It held that the office is hereditary, that succession is governed by primogeniture, and that the Committee’s authority under the Act is limited to recognizing the legitimate heir, not to selecting a candidate arbitrarily. Consequently, the appeal and the two Special Leave Petitions were dismissed with costs.

Issues considered

The nature of the office of Sajadanashin and whether it is hereditary governed by primogeniture.
Whether the Durgah Committee, under sections 13 and 21 of the Durgah Khawaja Saheb Act, 1955, has the power to appoint a person as Sajadanashin beyond the legitimate heir.
Whether the plaintiff (Syed Ilmuddin) is the nearest male heir to the last holder of the office.
Whether the Durgah Committee is bound by the decision of the courts in the pending suit concerning the office.

Legislation cited

Ajmer Land Revenue Regulationss. 119
Durgah Khawja Saheb Act, 1955s. 13, s. 21

Subjects

Sajadanashinhereditary successionprimogenitureDurgah Khawja Saheb ActSection 13Section 21Durgah Committeereligious endowmentspecial leave petition

Judgment

A SYED SAULET HUSSAIN
v.
SYED ILMUDDIN & ORS.

SEPTEMBER 8, 1987
B
(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.
c
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
E imposed bys. 119 of th! Ajmer Land Revenue Regulations.

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.
F
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.
G
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.
H The trial court overruled the objection.

52
S.S. HUSSAIN v. S. ILMUDDIN 53
.
The suit was resisted by the appellant's father on the ground that A
:;..l
... the plaintiff had no legitimate right to succeed to the office as he was not
' 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
whatsoever. B

-t- The trial court non-suited the plaintiff on merits. The High Court,
in appeal, reversed the judgment and declared that the plaintiff was the
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.
-\ 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
approved his appointment as Sajadanashin by a Government Notifica· D
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·
-! nised as SajadaDashin, by the Government by a communication dated E
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
'
-\ 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
decision, but the Governor did not make a reference and took a firm
-f 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
no right to the said office. The Committee disagreed with the Gllv~rnot H
54 SUPREME COURT REPORTS [1988] I .S.C.R.

A and referred all the applications to the High Court for determination of K
rival claims of the candidates. After the disposal of the special appeal by
the Division Bench, the High Court, accepting the view taken in the
special appeal, rejected the reference as not maintainable. The Com-
mittee and one of the applicants filed two Special Leave Petitions before
this Court.
B
In the appeal before this Court, it was urged on behalf of the
appellant that the plaintiff could not be considered as the nearest male
heir to the last holder of the office and that there were two other
persons, i.e. PW 2 and PW 3 who were nearer to the last holder of the
office than the plaintiff.
c In the Special Leave Petitions, on behalf of the Committee it was
urged that the decision of the High Court as to the succession to the
office of Sajadanashin was based on the concession made by the parties
and was, therefore, not binding on the Committee, that in view of
sections 13 and 21 of the DKS Act, it had the power to appoint a proper
D person as Sajadanashin, that it was not bound to follow the customary
rules of succession to the office and that the selection of a suitable
person need not be made only among the heirs of the last office holder
and could be made from the public as well, to better serve the devotees.

Dismissing the appeal and Special Leave Petitions, this Court,
E
HELD: 1.1 The nature of the office of Sajadanashin and the rule
of succession to it always remained undisputed. It was occupied by a
hereditary descendant of the Saint. The Government of India had also
recognised that Sajadanashin has always been a descendant of the Saint
and that position should not be disturbed. [61C,E]
F
1.2 Section 21 of the Durgah Khawaja Saheb Act, 1955 was
intended to provide transitional arrangement to hold the office of
Sajadanashin. It enables the Sajadanashin who was holding the office
immediately before the commencement of the DKS Act to continue to
hold that office. His right, however, was made subject to other provi-
G sions of the Act aRd to the final decision of the suit relating to that
office. The suit referred to under section 21 must be the suit which was
pending on the date of coming into force of the DKS Act. [63E-F]

1.3 Section 13 of the Act does not confer unlimited or absolute
power to the Durgah Committee. The scope of section 13 is limited. The
H Durgah Committee is only entitled to accord recognition as Sajadana-
S.S. HUSSAIN v. S. ILMUDDIN (SHETIY, J.] 55

_;-; shin to the person legitimately entitled to succeed to the office. The A
Durgah Committee cannot enlarge the scope of this power to invite
applications from the public and select any person for appointment as
Sajadanashin. The power conferred under section 13 is only to locate
the legitimate heir to the office by the accepted rule of succession and
recognise him as-Sajadanashin and not beyond that. [64C]
\ B
1.4 It cannot be said that the plaintiff is not the legitimate person
to succeed as Sajadanashin. P.W. 2 did not consider himself nearest to
the last office holder and P. W. 3 was illiterate and did not want to
become Sajadanashin. Moreover, both of them have died during the
pendency of the suit leaving behind none to succeed. [64&G]

Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947 P.C. 1 and
c
The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.,
[1962] l SCR 383, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 779
of 1980 etc. D

From the Judgment and Order dated 7.3.1980 of the Rajasthan
High Court in D.B. Civil Sp!. Appln. No. 131of1974.

S.T. Desai, T.S. Krishnamurthi Iyer, F.S. Nariman, Mr. B.P.
Berl, S.S. Hussain, M.N. Tandon, Mrs. M. Qamaruddin, B.D. E
Sharma, Qamaruddin R.S. Yadav, H. S. Parihar, B. Kanta Rao,
Ms. Sarda Devi, Shakeel Ahmed Syed, Ali Ahmad, Tanweer Ahmad,
Mrs. Jayshree Ahmad and Mohan Pandey for the appearing parties.

The Judgment of the Court was delivered by
F
JAGANNATHA SHETTY, J. The appeal and two Special Leave
Petitions concern the right to succeed to the office of Sajadanashin to
"Durgah Khawaja Saheb Ajmer". It is venerable Shrine of universal
recognition. It is also called the Durgah Moinuddin Chisti Saheb.
Moinuddin Chisti was a Persian born Saint who later migrated to India.
He settled down at A jmer and died there at the age of 90 in the year G
1233 A.D. Eversince then, his tomb has had been the centre of attrac-
tion for the people of all faiths. For Muslims in particular, "It is admit-
ted to be one of the most famous, if not the most famous, Mohamme-
dan Shrine in India."

There are two important offices in the Shrine: (i) Sajadanashin- H
56 SUPREME COURT REPORTS [ 1988] l S.C.R.

A the spiritual head and (ii) Mutwalli-the secular head. The hereditary Y-..
descendants of the Saint often laid claim to these two offices. The
disputes as to the latter was taken even upto the Privy Council. In
Asrar Ahmed v. Durgah Committee, A.LR. 1947 P.C. 1 the Privy
Council said that the office of Mutwalli was not hereditary. We are not
concerned with the office of Mutwalli. We are conterned with two
B questions relating to the spiritual head of the Shrine. Who is entitled to
succeed to the office of Sajadanashin? And what is the right of Durgah
Committee in the matter? -.+..

The dispute relating to the office of Sajadanashin started in 1947,
when the last office holder-Syed Ali Rasool Khan migrated to ~
C Pakistan. Consequently, the need to appoint a new Sajadanashin
arose. On April 5, 1948, the Chief Commissioner of Ajmer appointed
Hakim Inayat Hussain as Sajadanashin. That appointment was chal· L
lenged by a person called Syed Ilamuddin. He claimed that the succes· ·
sion to the office of Sajadanashin is governed by the rule of primogeni·
ture. He was the rightful person entitled to hold the office. Hakim
D lnayat Hussain had no such right or title. With these and other allega-
tions, Syed Ilarnuddin instituted Civil Suit No. 211/1948 for declara·
tion of his right to succeed to the said office. The suit was instituted on
May 18, 1948.

Civil Appeal No. 779 of 1980 by certificate, arises out of the \-
E above said suit. The suit had a chequered carreer. It was first instituted
in the Court of Sub-Judge First Class, A jmer. Since then, it went up
and down from Court to Court. In fact it is coming for the second time
before this Court. The trial court dismissed the Suit on the preliminary
ground that it was not maintainable. The bar of Section 119 of the
Ajmer Land Revenue Regulations was the reason given. The
F plaintiff appealed to the District Judge who by judgment dated
August 20, 1952 held that the suit was maintainable. The defendant /-
challenged that decision in second appeal before the Judicial Commis·
sioner, Ajmer. The Judicial Commissioner took a different view. By
judgment dated November 17, 1953 he upheld the view taken by the
trial court and dismissed the suit. It was then the turn of plaintiff to
G appeal. He appealed to the Supreme Court. On March 7, 1961 the
Supreme Court allowed the appeal and remitted the case to the trial
court for disposal on the merits. Meanwhile, the Court of Sub-Judge
had been abolished and the Munsiff, Ajmer City acquired the territo· --t·
rial jurisdiction to try the suit.

Interrupting the narration, we have to refer to some other

\
S.S. HUSSAIN v. S. ILMUDDIN [SHETIY, J.] 57

intervening facts. There were allegations of mismanagement of the A
,A
affairs of the Durgah and its endowments. There was a clamour from
devotees all over for appointment of a Committee to review the
administration of the Durgah. On January 14, 1949 the Government of
India found the need to appoint a High Power Committee for the
purpose. The Committee was appointed with Justice Gulam Hussain,
B
Judge of the Allahabad High Court as Chairman. The Committee was
authorised to inquire into and report about the administration of
~ Durgah. The Committee was also authorised to recommend such mea-
sures as may be necessary to protect the interests of devotees. The
Committee after a detailed enquiry submitted a report of the Govern-

~
ment. Accepting the report, the Government of India brought forward
a legislation called the Durgah Khawaja Saheb Act, 1955 (Act No. 36 c
of 1955) which we may term it as the DKS Act. As required under that
Act the Durgah Committee was constituted for the administrative con-
trol and management of Durgah endowments. The said Committee
filed an application in the aforesaid suit to be impleaded as a party
thereto. On September 30, 1964, the trial court allowed that applica-
lion. The Durgah Committee was thus impleaded as party defendant D
in the suit.

The Durgah Committee resisted the suit, inter-alia, contending
that the suit had become infructuous and should be dismissed as such.
It would be the responsibility of the Durgah Committee to make
~ interim or permanent arrangement for the office of Sajadanashin. E
That power is derived under Section 13 and 21 of the OKS Act. The
Durgah Committee also said that after the death of Hakim Inayat
... Hussain, his son Syed Saulet Hussain was appointed as interim
Sajadanashin.

The trial court, overruled the objections raised by the Durgah F

·-\. Committee. Then followed the dispute as to valuation of the suit and
the court fees paid thereon. That dispute was taken upto the High
Court where by consent of parties the valuation was agreed upon. The
plaintiff amended the plaint revising the valuation to Rs.11,000. Conse-
quently, the suit was withdrawn from the Munsiff Court and brought
before the Court of Civil Judge, A jmer. G

The suit was resisted by Hakim lnayat Hussain on the ground
-+. among others that the plaintiff has no legitimate right to succeed to the
office of Sajadanashin. He was not the nearest male heir to Syed
Rasool Ali Khan. The right to appoint Sajadanashin by established
H
usage, custom and tradition vests exclusively in the local representa-
58 SUPREME COURT REPORTS [ 1988] lS.C.R.

A live of the Government JJf the day. The Court of Jaw has no power to
interfere with such appointment in any way whatsoever.

On December 14, 1970 the trial court non-suited the plaintiff on
the merits of the matter. The plaintiff took up the matter before the
High Court. The learned single judge of the High Court accepted the
B appeal and reversed the judgment of the trial court. He gave a declara-
tion to the plaintiff that he was the nearest male heir to the last office
holder, and, therefore, entitled to succeed as Sajadanashin. He, ~
however, observed that the plaintiff has failed to prove that he was
qualified to occupy the office of Sajadanashin. He left the question of
qualification for determination by tlie Governor of Ra jasthan who is
the competent authority under the DKS Act, to appoint Sajadanashin.
~
c The judgment of learned single judge was rendered on August 9, 1974.
Challenging that judgment, the defendant preferred Special Appeal
before a Division Bench of the High Court under Section 18 of the I
Rajasthan High Court Ordinance.

D Pursuant to the observations in the judgment of learned single
judge, the Governor of Rajasthan examined the qualifications of the
plaintiff. The Governor was apparently satisfied with his qualifications
and approved his appointment as Sajadanashin. The Government
notification dated July 7, 1975 was issued recognising the plaintiff as
such.
I-
E
On October 23, 1975, the plaintiff died. His son Syed Zainul
Abedin Ali Khan was brought on record in the pending Special Appeal
before the Division Bench of the High Court. On March 7, 1980 Divi-
sion Bench dismissed the Special Appeal affirming the judgment of
learned single judge. Following that judgment, the Government again
F issued a communication dated January 24, 1981 recognising Syed
Zainul Abedin Khan as Sajadanashin.

The litigation has thus descended on the second generation. The
t-
sons of the original parties to the suit continued the litigation. Syed
Saulat Hussain challenging the judgment of Division Bench of the
G High Court preferred Civil Appeal No. 779 of 1980 with which we are
now concerned.

SLP 8794/80 and SLP 292/ 1980: )__

These two petitions arise out of the order of the High Court in
H Civil Reference No. 2 of 1978. It was a reference made by the Durgah
S.S. HUSSAIN v. S. ILMUDDIN [SHETIY, J.J 59

Committee under Sub-Section (3) of Section 13 of the DKS Act. The A
~
events leading to the reference are these: We have earlier noticed that
the plaintiff, Syed Illamuddin died on October 23, 1975. Thereafter his
son, Syed Zainul Abedin Ali Khan appears to have approached the
Durgah Committee for recongnition as Sajadanashin. Durgah Com-
mittee did not accede to his request. It decided to invite applications
from persons who want to be appointed as Sajadanashin. A public B
notice was accordingly issued under Sub-Section ( 1) of Section 13 of
,.. . the OKS Act. In response to the said notice, as many as eleven appli-
cations were received by the Durgah Committee. Those applicants
were not related to the plaintiff, or to the last office holder. The
Durgah Committee, however, forwarded those applications to the
Governor for making a reference to the High Court for decision. But
c
t the Governor did not make a reference to the High Court. He took a
firm decision that Syed Zainul Abedin Ali Khan, being the son of the last
~. office holder (that is the plaintiff), was alone entitled to succeed to the
office of Sajadanashin and other applicants had no right to the said
office. So stating, the Governor conveyed his decision to Durgah Com-
mittee. The Durgah Committee, after much deliberations over the D
matter, preferred to disagree with the Governor. It referred all the
applications to the High Court for determination of rival claims of the
candidates.

The High Court took up the reference for disposal after the
dismissal of the aforesaid special appeal. The task of the High Court E
then became easier since there was little choice in the matter. Accept-
ing the view taken in the Special Appeal, the High Court rejected the
reference as not maintainable. The High Court made that order on
July 4, 1980. The Durgah Committee and one of the applicants for
the office have preferred the said two Special Leave Petitions for
appeal to this Court. F
~ We may first consider the contention urged by Mr. Krishna-
murthy Iyer, learned counsel for Durgah Committee. He urged that the
decision of the High Court as to succession to the office of Sajada-
nashin was based on the concession made by parties and is therefore
not binding on the Durgah Committee. Counsel next contended that in G
view of Sections 13 and 21 of the OKS Act, the Durgah Committee has
power to appoint a proper person as Sajadanashin. It is not bound to
.J-. follow the customary rules of succession to the office. The selection of
a suitable person need not be made only among the heirs of the last
office holder. The selection could be made from the public as well, to
better serve the devotees. H
60 SUPREME COURT REPORTS [1988] l S.C.R.

A We do not think that we could accept these contentions. The
Durgah Committee was a party to the suit. There the plaintiff and
defendant in the first place, admitted that the office of Sajadanashin is
a hereditary office. Secondly, they proceeded with a common conten-
tion that the succession to the office is governed by the rule of primo-
geniture. The counsel for the Durgah Committee did not dispute this
B aspect either in the trial court or before the High Court. Nor suggested
any other mode of succession to the office. This is what the learned
Single Judge of the High Court observed: · .../

"The counsel for the legal representatives of Hakim Inayat
Hussain admitted that the office of the Sajadanashin at-
tached to the Durgah is a hereditary office. The learned
c counsel for the Durgah Committee did not argue on this
point. Issue No. 1 was therefore decided in favour of the
plaintiff. Issue No. 3 was not pressed by the parties. Dealing
with issue Nos. 2 and 3, the learned Civil Judge observed
that it was admitted that succession to the office of the
D Sajadanashin was governed by the Rule of primogeniture."

xxx xxx xxx
xxx xxx xxx

I now turn to the merits of the case. It may be mentioned at
E the outset that it is not disputed before me that the office of
Sajadanashin or Dewan attached to the Durgah is a here-
ditary office and successor to that office is governed by the
rule of primogeniture. It is further not in dispute that the
last Sajadanashin Syed Aley Rasool Ali Khan was in the
line of Syed Abdul Fateh and the plaintiff is in the line of
F Syed Abdul Fateh's brother Hisammuddin."

Apart from that, it was never in dispute in the long history of the
shrine about the nature of the office and the rule of succession. Lord
Simonds while tracing the history of the shrine in Asrar Ahmed, case
(supra) said:
G
"It is not disputed that for many years from 1567 onwards
(that is from the Farman of Akbar the Great) with certain
intervals the hereditary descendant of the Saint, variously
called the Sajadanashin or later Dewan, combined in his
own person the two leading offices of the Shrine, that of
H Sa jadanashin or spiritual head and Muiwalli or secular
S.S. HUSSAIN v. S. ILMUDDIN [SHETI'Y, J.J 61

head and manager. These alternative expressions are used A
to convey as nearly as possible the meaning of the original
words. Nor is it disputed that in the reign of the Emperor
Shah Jehan ( 1627-1658) the post of Mutwalli was separated
from that of Sajadanashin and had become a Government
appointment whereas the Sajadanashin remained and con-
tinued to be a hereditary descendant of the Saint." B

These observations have been approved by _the Supreme Court in
The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.,
[ 1962] 1SCR383.

It is clear, therefore, that the nature of the office and the rule of C
succession to it always remained undisputed. It was occupied by a
hereditary descendant of the Saint. That was perhaps the reason, for
not asking the High Power Committee constituted by the Government
of India in 1948 to inquire into it. The said Committee was constituted
only to enquire into the mal-administration of the Durgah and suggest
remedies in the interests of devotees. The question of succession to the D
office of Sajadanashin was expressly kept outside its purview. It would
be evident if one peruses the terms of reference made to the High
Power Committee.

The Government of India had also recognised that Sajadanashin
has always been a descendant of the Saint and that position should not E
be disturbed. This has been reflected from the speech of the Home
Minister in the Parliament while piloting the Khawaja Saheb Bill
which later became the OKS Act. This is what the Home Minister
stated: Lok Sabha Debate Pt. II Vol. V 25th July-13 Aug, 1985,
p. 9391.
F
"So far as Sajadanashin is concerned he is a religious
office. He is the descendant of the Khawaja Sahib and there-
fore his position should be kept as it is and that position is
not affected at all. Because he deals with the rituals he deals
with the spiritual side of management and so far as that is
concerned, it is entirely left to him" G

Against this background, it was not illogical or improper for
parties to the suit to proceed on the basis that the hereditary office of
Sajadanashin is entitled to be claimed by descendants of the Saint by
the rule of primogeniture. They have stated the obvious which appears
to have been recognised over the generations. If there was no such rule ij
62 SUPREME COURT REPORTS [1988] I S.C.R.

A or principle, the Durgah Committee ought to have stated so. Or it
could have stated that it was not bound to follow the customary rule of
succession. It could have asserted its right to make a choice of its own.
It <lid not state anything of the kind in the Courts below. It maintained
a golden rule of silence. It is, therefore, now not open to the Durgah
Committee to contend before us that it is not bound by the decision of
B the Courts. The Durgah Committee is as much a party to the suit as
others. It is as much bound by the decision as others. It is immaterial
for our purpose whether the decision has been reached by concession
of parties or by determination of the dispute.

This takes us to the second contention urged by Shri Krishna·
C murthy Iyer. He urged that Sections 13 and 21 of the DKS Act confer
power on the Durgah Committee to appoint a suitable person as
Sajadanashin. We do not think that that there is anything in the said
sections to support the contention urged by the learned counsel. Sec·
tion 13 provides:

D
''Succession 13( 1) As soon as the office of the Sajadanashin falls vac-
ro the ant, the Committee shall, with the previous approval of the
office of Chief Commissioner, make such interim arrangements for
Sajadana-
the performance of the functions of the Sajadanashin as it
shin
may think fit, and immediately thereafter publish a notice
in such form and manner as may be determined by the
E
Committee, inviting applications within one month of such
publication from persons claiming to succeed to that office.

(2) Where only one person claims to succeed to the office
of the Sajadanashin and the Committee is satisfied as to his
right to succeed, it shall, with the previous approval of the
F
Chief Commissioner, pass an order in writing according
recognition as Sajadanashin to such person.

(3) Where more persons than one claim to succeed to the
office of the Sajadanashin the Committee shall, after con-
sultation with the Chief Commissioner, refer the dispute to
G
the Judicial Commissioner of Ajmer for a decision regard·
ing the claim to succeed to that office, and the Judicial
Commissioner after taking such evidence as he considers
necessary and after giving an opportunity to the claimants
to be heard in respect of their claims, shall communicate
H his decision to the Committee.
S.S. HUSSAIN v. S. TLMUDDIN [SHETIY, J.] 63

(4) The Committee, on the receipt of the decision, shall, A
with the previous approval of the Chief Commissioner,
pass an order in writing in accordance with such decision
declaring the person found entitled to succeed to the office
of the Sajadanashin and according recognition as Sajada-
nashin to such person.
B
(5) .An order passed by the Committee under sub-section
(2) or Sub-Section ( 4) shall be final and shall not be
questioned in any Court."

Section 21 reads:
c
"Transitional 21. The person holding the office of Sa jadanashin
provisions immediately before the commencement of his act shall, on
and from such commencement, continue to hold that office
subject to other provisions of this Act and to the final deci-
sion in the suit relating to that office which is pending on
such commencement and to which the said person is a D
party."

Section 21 was intended to provide transitional arrangement to
hold the office of Sajadanashin. It enables the Sajadanashin who was
holding the office immediately before the commencement of the.DKS
Act to continue to hold that office. His right, however, was made E
subject to other provisions of the Act and to the final decision of the
suit relating to that office. The suit referred to under Section 21 must
be the suit out of which the present appeal arises. It was pending on
the date of coming into force of the DKS Act. Hakim Inayat Hussain
who was then acting as Sajadanashin was the defendant in the suit. His
continuance or otherwise was expressly made subject to the decision in F
the suit. Durgah Committee being also a party is no Jess bound by the
decision therein. Section 13 of the DKS Act does not confer unlimited
or absolute power to Durgah Committee. Sub-Section (1) of Section
13 comes into operation when the office of Sajadanashin falls vacant.
It enables the Durgah Committee to make interim arrangement for the
performance of functions of Sajadanashin, pending recognising the G
legitimate successor to the office. It must, therefore, invite applica-
tions from persons claiming to succeed to that office. If there is only
one person to succeed to the office, the Committee shall with the
previous approval of the Governor recognise him as Sajadanashin.
That is the mandate of Sub-Section (2) of Section 13. If there are more
persons than one claiming to succeed to the office, the Durgah Com- H
64 SUPREME COURT REPORTS [1988] I S.C.R.

A mittee shall follow the procedure provided under Sub-Section (3) of
Section 13. The Committee after consultation with the Governor must
refer the applications to the High Court for decision. On receipt of the.
decision of the High Court and with the previous approval of the
Governor, the Durgah Committee under Sub-Section (4) shall accord
B recognition as Sajadanashin to the person found entitled to succeed to
the office.

The scope of provisions of Section 13 appears to be limited. The
Durgah Committee is only entitled to accord recognition as Sajada-
nashin to the person legitimately entitled to succeed to the office. The
Durgah Committee cannot enlarge the scope of this power to invite
C applications from the public and select any person for appointment as
Sajadanashin. The power conferred under Section 13 is only to locate
the legitimate heir to the office by the accepted rule of succession and
recognise him as Sajadanashin and not beyond that.

D This takes us to the contention urged by Shir S. T. Desai, learned
counsel for the appellant in C.A. No. 779 of 1980. He urged that
plaintiff cannot be considered as the nearest male heir to the last
holder of the office. According to the counsel, there are two other
persons Bashiruddin (P.W. 2) and Abdul Aziz (P.W. 3) who were
nearer to the last holder of the office than the plaintiff. Suffice it to
E state that it has not escaped the attention of the High Court. The claim
of these two persons were also examined. The High Court has
observed that Bashiruddin has himself stated that he did not consider
himself nearest to the last office holder. It was further stated that he
died issueless during the pendency of the suit.

So far as Abdul Aziz is concerned, the position is no better. He
F
was illiterate and did not want to become Sajadanashin. He appears to
have relinquished his right in favour of the plaintiff. It is said that he
also died during the pendency of the suit leaving behind none to suc-
ceed. In the circumstances, it cannot be said that the plaintiff is not the
legitimate person to succeed as Sajadanashin.
G In the result, the appeal and Special Leave Petitions fail and are
dismissed with costs.

N.P.V. Appeal and Petitions dismissed.