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 Division Bench dismissed the Special Appeal affirming the judgment of learned single judge. Following that judgment, the Government again issued a communication dated January 24, 1981 recognising Syed Zainul Abedin Khan as Sajadanashin.
It is clear, therefore, that the nature of the office and the rule of 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 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 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 DKS Act. This is what the Home Minister stated: Lok Sabha Debate Pt. II Vol. V 25th July-13 Aug, 1985, p. 9391.
“So far as Sajadanashin is concerned he is a religious office. He is the descendant of the Khawaja Sahib and therefore 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”
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 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 did 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 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.
PEERZADA GHULAM NAJMI FAROOQI CHISHTY
GOVT. ADVOCATE AND ADDITIONAL PUBLIC PROCECUTAR