IMAM BEE Vs. MOLLA KHASIM SAHIB

JUDGEMENT

(1.) The District Munsif held that women were entitled to share in the profits of the mam lands attached to the office of mujawar of the suit mosque, as the evidence adduced in the case did not prove that women were prohibited from getting the duties of the office performed by deputies. The District Judge considered that the duties to be performed by the muawar were of such a religious and spiritual character that the office could not be held by a woman, and, therefore, that women and persons deriving their title from them could not have any rights to the lands. Both Courts rightly placed the onus on those who sought to exclude women, of proving that they were disqualified [vide Tanqirala Chiranjivi v. Rata Manikya Rao 25 Ind. Cas. 283 : 27 M. L.J. 179] and both found that a custom whereby women were excluded in this institution had not been proved.

(2.) On the facts, therefore, the finding is in the appellants favour. On the question of law whether women should be excluded from the succession, a number of decisions have been cited on either side. Without enumerating them, it maybe briefly stated that there is a considerable volume of judicial decisions to the effect that the duties of saijadanasheen, or as it is sometimes called gdd enasheen, the superior of an endowment and religious preceptor, cannot be discharged by a woman or by a deputy, as the trust involves certain special spiritual duties. On the other hand, it has frequently been held that a woman can be a mutawalli, or trustee, who has charge of the secular affairs of an endowment and sometimes has religious duties as well, and that there is no legal prohibition against a woman holding a mutawatti-ship where there is nothing to the contrary in the rules made by the founder or in the usage governing the particular institution.

(3.) As stated in the note at the foot of page 343 of Macnaghten s Principles and Precedents, the office of trustee may be held by a woman, and the duties may be discharged by proxy, whereas the office of superior requires personal qualification: Vide App. Tit. End. 28, 31".