P L D 1949 Lahore 470 (PLP)

In accordance with the desire of Hazrat Allah Dad, custom regarding the appointment of Sajjadanashins and religious commands we successors of Hazrat Allah Dad and Murids of this gaddi, unanimously appoint Pir Ahmad Yar, son of Pir Wali Muhammad, as Gaddinashin of the Dargah of Hazrat Allah Dad, caste Sahu, situate at Sheikh Fazal. To‑day before the assembly of hundreds of men i.e., descendants of Hazrat Allah Dad and Murids of the Dargah of Hazrat Allah Dad, in the Dargah, the dastarbandi ceremony of Pir Ahmad Yar, aforesaid, has been performed. The aforesaid Pir Ahmad Yar is quite fit for imparting religious instructions to the Murids (disciples) of the Dargah not only because of relati6nship but also by reason of his being a practical learned and abstinent man. The gaddi at Sheikh Fazal is of the grandfather of Pir Ahmad Yar, son of Pit Wali Muhammad, deceased, i.e. Hazrat Allah Dad, deceased. The pedigree table is given below. Previously, Pir Nur Muhammad took up the management of the gaddi into his own hands against the consent of Pir Ahmad Yar and his brothers. After his death, Pir Saadullah also acted as Gaddinashin against the consent of Pir Ahmad Yar and others. As a matter of fact, Pir Ahmad Yar or his brothers had a right to act as Gaddinashins. Mian Saadullah died a natural death three days back. Hence, according to the Islamic religion Pir Ahmad Yar was considered a worthy man and his Dastarbandi ceremony was got performed. Dated the 5th February 1941, corresponding to the 8th of Muharram‑ul‑Haram, 1360 A.H". In my opinion the contents of this document, instead of helping the plaintiff, completely destroy the case set up by him. In the concluding, portion of the document it is stated that Pir Nur Muhammad had taken up the management of the gaddi in his on hands against the consent of Pit Ahmad Yar and his brothers. After his death Pir Saadullah also acted as Gaddinashin against the consent of Pir Ahmad Yar and others, As a matter of fact, Pir Ahmad Yar or his brothers had a right to act as Gaddinashins. It is obvious, that according to this document Pir Nur. Muhammad and Pir Saadullah, the two previous Gaddinashins, were usurpers and they had taken possession of the Khanqah against the wishes of Pir Ahmad Yar and his brothers. The inference is therefore irresistible that at the time of the installation of Pir Nur Muhammad and Pit Saadullah no election took place and the members of the family of Mian Hadayat or the Murids of this institution never assembled in a meeting to nominate the successor of Hazrat Allah Dad in one case and the successor of Pir Nur Muhammad in the other. Hazrat Allah Dad was the original incumbent of the gaddi. There have been only three successions namely that of Pir Nur Muhammad, of Pir Saadullah and the succession that is now in dispute. There is no evidence at all on the present record that any election took place at the time when Pir Nur Muhammad became the Sajjadaiiashin in the year 1930. As regards the succession of Pir Saadullah, there is the solitary statement of Malik Allah Yar, P. W. 15, to the effect that Pir Saadullah was chosen as the Sajjadanashin by the members of the family of Mian Hadayat. This evidence is only corroborated by the statement of the plaintiff. Malik Allah Yar is one of the signatories of Exh. P. A. His attention was drawn to the passage occurring in the concluding portion of Exh. P. A. and he stated that he had no knowledge about the contents of this document. It is clear that his oral testimony is contradicted in all important particulars by the concluding portion of Exh. P. A. I can, therefore, place no reliance on the evidence of this witness when he states that Pir Saadullah was selected as a Sajjadanashin by the family of Mian Hadayat. The statement of the plaintiff is clearly interested and does not carry conviction to my mind. The facts stated above show that on no occasion was a Sajjadanshin selected or elected by the members of Mian Hayadat's family. As the plaintiff relies on the custom or usage relating to this institution and as he has failed to produce any evidence of the custom or usage which he says had been followed on the two or three occasions when succession opened out in respect of the post of Sajjadanashin, his suit is liable to dismissal on this score alone. This institution belongs to the Chishtia sect and is subordinate to the'Taunsa gaddi. If there were no instances of election in respect of the appointment of Sajjadanashins of this gaddi, it was open to the plaintiff to prove that successions in Chishtia institutions at Taunsa, at Mohar Sharif or at Pakpattan were governed by the rule of election. This might have been of some assistance to him in establishing the custom that he seeks to establish in the present institution. There are a large number of descendants of Mian Hadayat, who have come into the witness‑box. Seven of them support the case of the plaintiff, one of them is the plaintiff and two of them are his real brothers. There are four other persons, namely, P. Ws. 6, 8, 9 and

12. It has, however, been brought out in their cross‑examination that they are inimical to the defendant and had been supporting the plaintiff in the previous litigation that had ensued between the parties. Eleven persons out of this family have appeared as witnesses for the defendant. They have stated in unequivocal terms that the rule of succession to the office of Sajjadanashin in this institution is that the last incumbent nominates his successor and that later on this successor is installed in office by the Sajjadanashin of Taunsa Sharif. In addition to the members of the family of Mian Hadayat, the defendant has produced a large number of other respectable witnesses who state that Pir Saadullah was nominated by Pir Nur Muhammad and that Ghulam Nabi defendant was nominated as a Sajjadanashin by Pir Saadullah about a fortnight prior to his death. On the 19th of January 1941 Pir Saadullah made a will. In this will it was stated that his step brothers had for a number of years been his bitter enemies and that they had tried to murder him and Ghulam Nabi defendant. It was further stated that as the testator was sonless and as he had brought up Ghulam Nabi his brother's son, as his own son he wanted to make him his successor after his death. In the end he nominated Ghulam Nabi as his representative in respect of the squares of land owned by him and the rights of Sajjadanashinship in this institution. This will was written by Munshi Hamid, D. W.

46. It was attested by Thakar Das and Muhammad, both of whom have appeared in Court. A half-hearted attempt was made by Dr. Shuja‑ud‑Din, the learned counsel for the appellant, to challenge the genuineness of this will. I, however, see no reason to disbelieve the testimony of the scribe and the attesting witnesses. The contents of the will have been proved to be correct so far as the enmity between the two branches of the family is concerned, by a large number of judgments of Civil and Criminal Courts. In these circumstances the will was a natural will. Pir Saadullah would naturally want to exclude his step‑brothers and their descendants. He, therefore, appointed his real brother's son as his heir both in respect of his private property and the rights of succession to the gaddi. There is not a single reported case, out of the many that were cited at the Bar, laying down that succession to the office of Sajjadanashin is determined by election by the members of the family of the founder and the Murids of the institution. In the case of Piran v. Abdool Karim (1) Mr. Justice Ameer Ali discussed the respective duties of Sajjadanashins and Mutawallis and some observations were made regarding the mode of appointment of Sajjadanashins. The following observations may be reproduced in extenso :‑ There is no doubt that under the Muhammadan Law, in the absence of any provision in the trust deed or of any evidence of usage, the last incumbent (Sajjadanashin) can, on his deathbed, nominate his successor, and that such nomination would be valid without any judicial order. But in order that the nomination may be effective, it is necessary that the person so appointed should be adult and possessed of understanding. It is stated in other passages that the Sajjadanashin is generally called the Pir and the disciples are called the Murids. On the death of the Pit his successor assumes the privilege of initiating the disciples into the mysteries of dervishism or sufism. This privilege of initiation, of making murids, or imparting to them spiritual knowledge, is one of the functions which the Sajjadanashin performs or is supposed to perform. The relationship which exists between a Pir and his Murids is a spiritual and personal one. It is for these reasons that the Sajjadanashin for the time being is generally given the power to nominate his successor. The mysteries of sufism belonging to a certain sect are only known to the Sajjadanashin for the time being, and it is for him to initiate his disciples into these mysteries. If Sajjadanashins are generally elected, this object is liable to be defeated. This judgment was delivered by Mr. Justice Ameer Ali in 1892. In the case of Vidya Varuthi v. Balusami Ayyar (2) Mr. Justice Ameer Ali delivered another important judgment as a member of the Judicial Committee of the Privy Council‑in which he again repeated the observations made by him in his judgment in Pit‑an v Abdool Karim (1). The following observations may be reproduced in extenso :‑ "The appointment of the Sajjadanashin is regulated by usage and practice . . . . . Upon the death of the last incumbent generally on the day of what is called the sium or teja ceremony (performed on the third day after his deceased), the fakirs and murids of the Dargah, assisted by the heads of the neighbouring Dargahs; instal a competent person on the gaddi ; generally the person chosen is the son of the deceased or somebody nominated by him, for his nomination is supposed to carry the guarantee that the nominee knows the precepts which he is to communicate to the disciples. In some instances the nomination takes the shape of a formal installation by the electoral body, so to speak, during the lifetime of the incumbent." It is clear that the opinion expressed by Mr. Justice Ameer Ali in Piran v. Abdool Karim (ILR 19 Cal. 203) was affirmed by him as a member of the Judicial Committee of the Privy Council in Vidya Varuthi v. Balusami Ayyar (I L R 44 Mad. 831) in 1921. A case relating to an institution called Hazrat Ehsan situated near the city of Lahore was decided by a Division Bench of this Court in 1933 in Ghulam Muhammad v. Abdul Rashid (I L R 14 lah. 558). In this case it was held that the succession to the office of Mutwalli or Sajjadanashin of the mauso leum known as Hazrat Ehsan is governed by custom and not by Muhammadan Law and by that custom the existing Sajjadanashin nomi nates his successor in his lifetime and, on his death, the Murids and worshippers of the shrine assemble and formally recognise the new Mutawalli and duly install him into the office in accordance with the wishes of the last Sajjadanshin. The usage is in accordance with the doctrine of sufism, the nomination by the Sajjadanashin being supposed to carry the guarantee that the nominee knows the precepts which he is to communicate to the disciples. Mr. Justice Agha Haider, who deliver ed the principal judgment, relied strongly on the judgments in the cases of Piran v. Abdool Karim (1) and Vidya Varuthi v. Balusami Ayyar (2). Some of the remarks of Mr. Justice Ameer Ali were quoted in extenso. The following observations of Mr. Justice Agha Haider are of impor tances :‑ "In determining the usage regarding the succession to the office of a Sajjadanashin, one should approach the subject from the point of view of sufism, its doctrines and its teachings and should not allow himself to be influenced by practices of certain modern institutions, the head of which is appointed by election and counting of votes. Sufism may be generally described as the process of purifying the human mind, by curing it of its baser passions, under the guidance of a spiritual preceptor. It is a process of self‑discipline and self control which leads a man 'to the right path' (tarikat). And, while dealing with the office of Sajjadanashin, one should remember that sufism, as we see it to‑day, is a relic of a bygone age, the age of faith when those who yearned for 'higher things' be took themselves to a cloistered life of asceticism and meditation and set at the feet of a holy man who initiated them into the mysteries of 'cleansing', i.e., self‑purification, and guided them along the 'true path". The learned judge stated that it is more likely that a custom of nomina tion by the last successor should be observed and followed by the believers in sufisns. According to him, there may be some institutions in which the last incumbent has no voice as regards the appointment of his successor or that his wishes are ignored and the successor is appointed by the general body of Murids and worshippers only ; but he had not in actual experience come across any such custom. Such a custom, if it existed at all, would be contrary to the very spirit of sufism and its teachings. Reference may also be made with advantage to the case of Ghulam Rasul v. Ghulam Qutdb‑ud‑Din (A I R 1942 Lah. 142). In this case it was held that the question of succession to the office of Sajjadanashin of the shrine of Hazrat Baba Farid at Pakpattan, District Montgomery, (which is founded on the principles of sufism) is regulated by custom and usage. According to the custom of this shrine a Sajjadanashin has the power to nominate a successor provided he is a Murid and of agnatic descent from the founder Hazrat Baba Farid. There is no bar to the nomination of a minor. The custom that the descendants of Shah Ala‑ud‑Din Maui Darya have the right to reject the nomination or to select a candidate themselves was not established. A death‑bed nomination is a strong piece of evidence in favour of the nominees even according to Muhammadan Law which does under certain circumstances, recognise a validity of the appointment of a minor to the mutawalliship of a mosque or shrine. The shrine at Pakpattan to which the above case related is situated in the Tehsil of Pakpattan and so is the shrine of Hazrat Allah Dad at Sheikh Fazal. Both institutions observe the doctrines of the Chishtia sect of sufism. When it was pointed out to the learned counsel for the appellant that there was not a single reported case wherein it had been laid down that succession to the office of a Sajjadanashin is determined by election, he referred to the case of Sain Miule Shah v. Ghane Shah (A I R1938 PC 202). He urged that in this case the office of Sajjadanashin was filled by election. In my opinion the head‑note of the case goes much further than the judgment. In this case the last Sajjadanishin had died without nominat ing a successor. The shrine belonged to the order of Madari fakirs. These fakirs approached Syed Nazir Ahmad, the head of the shrine at Makanpur. On that day a document was submitted to him by the fakirs assembled at Ludhiana requesting him to appoint a successor to the previous Sajjadanashin. The document was signed not only by a large number of fakirs and the heads of the Madari shrines of the neighbour hood but also by the parties. The signatories declared that the office of the Sajjadanashin had been vacant since the demise of Jhandu Shah, and unanimously requested Syed Nazir Ahmad to confer the office on anyone he deemed fit for the office of the Sajjadanashin of the takia. In compliance with this request Syed Nazir Ahmad granted a sanad selecting Maule Shah, a disciple of Jhandu Shah, for the office of the Sajjadanashin of shrine. This sanad also was signed by representatives of various shrines and other Madari fakirs. Nomination by Syed Nazir Ahmad in this case was practically in the nature of an award, and the office of Sajjadanashin was really not filled by means of an election. I have not dealt at length with the oral evidence produced by the parties. It is established beyond a shadow of doubt that the three sons of Pir Wali Muhammad by one wife and the five sons by the other wife were at daggers drawn with each other and that both parties wielded a considerable influence in Sheikh Fazal. In these circumstances both parties were able to produce a large number of witnesses to support their respective contentions. Unfortunately in this country the Pits can command their Murids to give any evidence that they desire. Both the branches of the family have their Murids, and the Murids of the respective parties have supported the case of their Pirs. The evidence of Hafiz Ghul‑am Sadid‑ud‑Din, however, deserves careful consideration. He is the Sajjadanashin of the Dargah of Khawaja Shah Suleman at Taunsa Sharif. The Dargah of Hazrat Allah Dad is a subordinate institution to the institution at Taunsa. The testimony of the Sajjada nashin of the parent institution must, therefore, be of the greatest impor tance. He states that the custom regarding the appointment of Sajjadanashin of the Khankah of Hazrat Allah Dad is that the Sajjadanashin himself nominates his successor. Thereafter the ; Sajjadanashin thus nominated informs the Sajjadanashin of Hazrat Shah Suleman regarding his appointment. The dastarbandi of the person so nominated is then performed by the Sajjadanashin in office at Taunsa Sharif. No other person than a Sajjadanashin of Hazrat Shah Suleman has any right to perform dastarbandi. The descendants of Mian Hadayat have no right to appoint a Sajjadanashin because they are not superior bodies, and this is a spiritual matter. Up to now nobody has ever been appointed a Sajjadanashin by the members of the brotherhood. Mian Saadullah had told him in his lifetime that he had appointed Mian Ghulam Nabi defendant as his successor and that he should look after him as he was his child. This witness was cross‑examined at length, but nothing was elicited which may destroy the value of his testimony. It istrue that Khawaja Nizam ud‑Din had set up a rival gaddi at Taunsa and he claimed to be the Sajjadanashin of the gaddi of his father Khawaja Mahmud. It is, however, admitted that Hafiz Ghulam Sadid‑ud‑Din is the Sajjadanashin of the gaddi of Shah Suleman of Taunsa Sharif. After a consideration of the entire evidence on the record I have reached the conclusion that there is no reliable evidence showing that Pir Saadullah, and Pir Nur Muhammad, the previous Sajjadanashins of this institution, were selected by the brotherhood and the Murids of the Dargah. In these circumstances it must be held that the plaintiff had failed to establish that by custom or usage the descendants of Mian Hadayat were entitled to select him as the Sajjadanashin of the institu tion in succession to Pir Saadullah. On these findings the plaintiff's case fails. I would therefore, affirm the decision of the Court below and dismiss this appeal with costs. Cornelius, J.‑

I agree. K. M. A. Appeal dismissed.