{"id":19582,"date":"1955-04-22T00:00:00","date_gmt":"1955-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/director-of-endowments-vs-akram-ali-on-22-april-1955"},"modified":"2016-09-06T16:14:13","modified_gmt":"2016-09-06T10:44:13","slug":"director-of-endowments-vs-akram-ali-on-22-april-1955","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/director-of-endowments-vs-akram-ali-on-22-april-1955","title":{"rendered":"Director Of Endowments &#8230; vs Akram Ali on 22 April, 1955"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Director Of Endowments &#8230; vs Akram Ali on 22 April, 1955<\/div>\n<div class=\"doc_author\">Author: Bose<\/div>\n<div class=\"doc_bench\">Bench: B.K. Mukherjee (Cj), V. Bose, B. Jagannadhadas, T.L.V. Aiyyar, S.J.<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  19 of 1955\n\nPETITIONER:\nDIRECTOR OF ENDOWMENTS GOVERNMENT OF HYDERABAD &amp; ORS.\n\nRESPONDENT:\nAKRAM ALI\n\nDATE OF JUDGMENT: 22\/04\/1955\n\nBENCH:\nB.K. MUKHERJEE (CJ) &amp; V. BOSE &amp; B. JAGANNADHADAS &amp; T.L.V. AIYYAR &amp; S.J.\nIMAM\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>AIR 1956 SC 60<\/p>\n<p>Bose, J.\n<\/p>\n<p>1. The respondent filed a petition under Article 226 of the Constitution in<br \/>\nthe High Court of Judicature at Hyderabad asking for a &#8216;mandamus&#8217; against<br \/>\nthe Director of Endowments of the Hyderabad Government. His prayer was that<br \/>\nthe Director be ordered to hand over the management and possession of a<br \/>\ncertain Dargah called the Dargah of Jehangir and Burhanud-din Piran and<br \/>\nalso the adjoining &#8220;hereditary lands&#8221; together with the income and profits,<br \/>\nto the respondent.\n<\/p>\n<p>2. The High Court granted the writ and the State of Hyderabad appeals.\n<\/p>\n<p>3. The respondent&#8217;s case is that the Dargah contains the tomb of one of his<br \/>\nancestors and that he and his ancestors have been the hereditary Sajjadas<br \/>\nand Mutawallis of the Dargah for generations. In the year 1914, when the<br \/>\nrespondent&#8217;s brother Syed Hussain was in possession, the Ecclesiastical<br \/>\nDepartment of the State stepped in and entrusted the supervision of the<br \/>\nDargah to one Azam Ali.\n<\/p>\n<p>He was removed in 1920 and the Ecclesiastical Department took over the<br \/>\nsupervision under a Firman of the Nizam which directed the Department to<br \/>\nsupervise the Dargah until the rights of the parties have been enquired<br \/>\ninto and decided. The respondent states that these rights were investigated<br \/>\nby the civil Courts. The matter went up to the High Court and the decision<br \/>\nall through was in his favour. Despite this he has not been given<br \/>\npossession and he seeks a &#8216;mandamus&#8217; against the Director and asks that the<br \/>\nDirector be ordered to hand over the management and possession to him.\n<\/p>\n<p>4. The High Court granted his prayer, Shripat Rao, J. held that the Firman<br \/>\nof the Nizam ceased to be valid after the Constitution, therefore, the<br \/>\npossession of Government after that date was unlawful. He also held that<br \/>\nthe Ecclesiastical Department took possession from the respondent and so it<br \/>\nwas bound to hand the Dargah back to him. The other learned Judge Mir<br \/>\nSiadat Ali Khan, J. held that the Firman had served its purpose, therefore,<br \/>\nas the Dargah was not wakf property, the supervision of the Department<br \/>\nshould be brought to an end.\n<\/p>\n<p>Consequently, as the respondent&#8217;s opponent was worsted in the civil<br \/>\nlitigation, and as the respondent had been out of possession for a<br \/>\ngeneration and so could be assumed to have learnt a lesson, he should be<br \/>\nplaced in possession,<\/p>\n<p>5. The learned Attorney-General, who appeared for the appellants challenged<br \/>\nthe accuracy of most of the facts on which the learned High Court Judges<br \/>\nfounded but we do not think it necessary to go into that. We were taken<br \/>\nthrough the documents in great detail by the respondent&#8217;s learned counsel<br \/>\nand he sought to establish from them his possession and that of his<br \/>\nancestors for generations, and also that the Ecclesiastical Department took<br \/>\nover possession from him.\n<\/p>\n<p>He also said that his descent from at least Syed Mir Saheb, his<br \/>\ngrandfather, was proved and that it was also established that Syed Mir<br \/>\nSaheb was a hereditary Sajjada of the Dargah. All this is, in our opinion,<br \/>\nbeside the point. The petition and the appeal can be disposed of very<br \/>\nshortly on another ground.\n<\/p>\n<p>6. We do not intend to say anything about the facts of title and possession<br \/>\nlest it prejudice future litigation, should there be any. We will assume,<br \/>\nwithout deciding, that all that the respondent says about his hereditary<br \/>\nrights and his possession is true. But whether he was in possession or not,<br \/>\nwhatever rights to possession he may have had were held in abeyance by the<br \/>\nFirman of 31-12-1920 and there is no subsequent order of the Civil Courts<br \/>\nremoving the bar.\n<\/p>\n<p>Therefore, as he has no &#8216;present&#8217; right to possession, no &#8216;mandamus&#8217; can be<br \/>\nissued. We do not mean to imply that a writ would be the appropriate remedy<br \/>\nif and when the respondent can establish a right to possession: that is a<br \/>\nquestion that does not arise because in fact he has no present right to<br \/>\npossession.\n<\/p>\n<p>7. The facts that led up to the passing of the Firman are as follows.<br \/>\nDisputes about the right to possession and supervision of the Dargah seem<br \/>\nto have started about the year 1914, for it is the respondent&#8217;s case, as<br \/>\nset out in his petition, that the supervision was handed over to Azam Ali<br \/>\nby the Ecclesiastical Department in or about the year 1914. Further trouble<br \/>\narose in 1918 and a complaint seems to have been made to the First Taluqdar<br \/>\nabout undue police interference.\n<\/p>\n<p>This occasioned a letter from the Director of the Ecclesiastical Department<br \/>\nto the Home Secretary on 8-9-1918 in which the Director suggested that the<br \/>\nDargah and its income should be kept under Government supervision till one<br \/>\nor other of the various claimants established his right.\n<\/p>\n<p>8. On 27-1-1920 the same Director delivered what has been called a<br \/>\njudgment. He set out the disputes between the various claimants and said<br \/>\nthat as the dispute was about title it would have to be decided by a Court<br \/>\nof law and not by the Ecclesiastical Department of the State. He,<br \/>\ntherefore, directed that whoever was out of possession should go to the<br \/>\nCourts to establish his rights.\n<\/p>\n<p>Then he proceeded to consider who were in possession and held that<br \/>\nMahbubali, Syed Hussain (the respondent&#8217;s brother) and Mohammed Jahangir,<br \/>\n&#8216;Mujawirs&#8217;, were in possession before they were dispossessed and so decided<br \/>\nthat these three persons should be given possession and that the person out<br \/>\nof possession should be directed to seek his remedy in a Court of law.\n<\/p>\n<p>9. The matter seems to have been sent up to the Nizam by the Ecclesiastical<br \/>\nDepartment because on 31-12-1920 he issued the following Firman in<br \/>\npursuance of a petition from that Department &#8212;\n<\/p>\n<p>&#8220;Pending enquiry of the case the said Maash need not be handed over to<br \/>\nanyone. Let it remain in the supervision of the Government. I should be<br \/>\ninformed of whatever the results of the enquiry establishes so that proper<br \/>\norders may be passed&#8221;.\n<\/p>\n<p>10. Now the Nizam was an absolute sovereign regarding all domestic matters<br \/>\nat that time and his word was law. It does not matter whether this be<br \/>\ncalled legislation or an executive act or a judicial determination because<br \/>\nthere is in fact no clear cut dividing line between the various functions<br \/>\nof an absolute ruler whose will is law. Whatever he proclaimed through his<br \/>\nFirmans had the combined effect of law and the decree of a court: see the<br \/>\njudgment of this Court in &#8211;&#8216;<a href=\"\/doc\/1097199\/\">Ameerunnissa Begum v. Mahboob Begum&#8217;,<br \/>\nAIR1955SC352<\/a> .\n<\/p>\n<p>Therefore, the effect of this Firman was to deprive the respondent and all<br \/>\nother claimants of all rights to possession &#8220;pending enquiry of the case&#8221;.<br \/>\nExactly what this means is not clear but, taken in conjunction with the<br \/>\nsurrounding circumstances and with the decision of the Director of the<br \/>\nEcclesiastical Department to which we have referred, it is fair to assume<br \/>\nthat it means, pending the enquiry by the civil Courts about which the<br \/>\nDirector had twice spoken, that is to say, if there was a right to<br \/>\npossession it was held in abeyance till established by the civil Courts.\n<\/p>\n<p>11. Now, as we have said, the Nizam was at that time an absolute ruler and<br \/>\ncould do what he pleased. His will, as expressed in his Firman, was the law<br \/>\nof the land. Therefore, even if it be assumed that the respondent was in<br \/>\npossession, his rights to immediate possession, whatever they may have<br \/>\nbeen, were taken away and held in abeyance till he could establish them in<br \/>\nthe civil Courts.\n<\/p>\n<p>The question now arises whether this enured after the Constitution and<br \/>\nwhether the respondent&#8217;s right to possession, assuming he had any, revived<br \/>\nwhen the Constitution came into being. We are clear that the Constitution<br \/>\neffected no change.\n<\/p>\n<p>12. It was conceded that the Nizam had power to confiscate the property and<br \/>\nto take it away from the respondent &#8216;in toto&#8217; and it was conceded that if<br \/>\nhe had done so the rights so destroyed would not have revived because the<br \/>\nConstitution only guarantees to a citizen such rights as he had at the date<br \/>\nit came into force; it does not alter them or add to them: all it<br \/>\nguarantees is that he shall not be deprived of such rights as he has except<br \/>\nin such ways as the Constitution allows. But if the Nizam could take away<br \/>\nevery vestige of right by a Firman he could equally take away a part of<br \/>\nthem and at the date of the passing of the Constitution the respondent<br \/>\nwould only have the balance of the rights left to him and not the whole,<br \/>\nfor what applies to the whole applies equally to the part.\n<\/p>\n<p>Therefore, even if we accept all the respondent&#8217;s facts, the position would<br \/>\nstill be that at the date the Constitution came into force he had no right<br \/>\nto immediate possession; the utmost he had was a right to be restored to<br \/>\npossession if and when he established his rights in a Court of law.\n<\/p>\n<p>13. The High Court has relied on a decision of this Court in &#8212;<br \/>\n&#8216;<a href=\"\/doc\/1097199\/\">Ameerunnissa Begum v. Mahboob Begum&#8217;,<\/a> : [1953]4SCR404 ,<br \/>\nand has held that the Firmans of the Nizam that conflict with the<br \/>\nConstitution are &#8216;ultra vires&#8217;. But the learned Judges have failed to<br \/>\nobserve that in that case the Firman was issued after the Constitution and<br \/>\nnot before. But it was argued that even if that decision does not apply<br \/>\nthere are others that do and they hold that a law which would have been bad<br \/>\nif it had been passed after the Constitution ceases to have effect after<br \/>\nthat date.\n<\/p>\n<p>The decisions referred to were considered in &#8212; &#8216;<a href=\"\/doc\/1063853\/\">Syed Qasim Razi v. State<br \/>\nof Hyderabad&#8217;,<\/a>  : 1953CriLJ862 and the law laid down by<br \/>\nthe majority was this (page 161).\n<\/p>\n<p>&#8220;The effect of Article 13(1) of the Constitution is not to obliterate the<br \/>\nentire operation of the inconsistent laws or to wipe them out altogether<br \/>\nfrom the statute book; for to do so will be to give them retrospective<br \/>\neffect which they do not possess. Such laws must be held to be valid for<br \/>\nall past transactions &#8216;and for enforcing rights and liabilities accrued<br \/>\nbefore the advent of the Constitution&#8217; &#8220;.\n<\/p>\n<p>That, in our opinion concludes the matter.\n<\/p>\n<p>14. The only question that remains is whether the respondent has obtained a<br \/>\ndecision in the civil Courts confirming his right to get possession of the<br \/>\nDargah plus whatever else the Ecclesiastical Department took over under the<br \/>\nFirman. As we have already indicated, the matter was agitated in the civil<br \/>\nCourts. We need not trace the history of this litigation nor need we<br \/>\nexamine its fortunes from stage to stage. All we are concerned with is the<br \/>\nfinal judgment which was given by the High Court.\n<\/p>\n<p>15. The suit was filed by Azam Ali who had been entrusted with the<br \/>\nsupervision of the Dargah by the Ecclesiastical Department in 1914 and who<br \/>\nwas removed in 1920. The present respondent Akram Ali was one of the<br \/>\ndefendants. When the matter reached the High Court the learned Judges found<br \/>\nas follows :\n<\/p>\n<p>&#8220;The fact of the plaintiff&#8221; (Azam Ali) &#8220;or his ancestors or any of the<br \/>\ndescendants of the saint of the Dargah being a Sajjada is not established<br \/>\nby the evidence. It is also not proved that there has been &#8216;any other<br \/>\nSajjada&#8217; in respect of this Dargah and that the office of Sajjadagi has<br \/>\nbeen founded or continued there&#8230;.in our opinion the Sajjadagi of none of<br \/>\nthe defendants is proved.\n<\/p>\n<p>In fact, for the very reasons as given by us above none of the defendants<br \/>\nis proved to be entitled to the office of Sajadagi. In the result, it is<br \/>\nnot proved that any one of the parties is entitled to the Sajjadagi. The<br \/>\nobjections to the evidence of the plaintiff apply equally to the evidence<br \/>\nof the defendants and when the very existence of Sajjadagi in the Dargah<br \/>\nSharif is not proved, no question remains as to who is the Sajjada<br \/>\n&#8230;&#8230;&#8230;.\n<\/p>\n<p>It cannot be gainsaid that the evidence of the plaintiff is stronger and<br \/>\nmore weighty than the evidence of the defendants&#8230;. &#8230;.If we were obliged<br \/>\nto hold any one of the parties as Sajjada on the evidence produced, our<br \/>\njudgment would have been in plaintiff&#8217;s favour&#8221;.\n<\/p>\n<p>The decisions of the lower Courts dismissing the plaintiff&#8217;s suit were<br \/>\naccordingly upheld.\n<\/p>\n<p>16. The learned counsel for the defendant-respondent argued that this<br \/>\njudgment does not come in the way of his client because, even if he is not<br \/>\nthe Sajjada, that would make no difference. He insists that his client was<br \/>\nin possession at all relevant times, that is to say, he equates the<br \/>\nbrother&#8217;s possession to that of his client and contends that now that the<br \/>\ncivil litigation has ended unfavourably to his opponent Azam Ali, the<br \/>\nrespondent must be restored to possession.\n<\/p>\n<p>But that is not what the Firman says. The respondent&#8217;s rights, if any, at<br \/>\nthe date of the Constitution, and now, are that he must establish his right<br \/>\nto possession in a civil Court before he can ask to be put in possession.<br \/>\nThere is no decision of a civil Court declaring the respondent&#8217;s right to<br \/>\npossession, therefore, on that short ground he cannot get the writ he<br \/>\nseeks.\n<\/p>\n<p>17. The appeal is allowed. The decision of the High Court is set aside and<br \/>\nthe respondent&#8217;s petition for a writ is dismissed.\n<\/p>\n<p>There will be no order about costs in any of the Courts.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Director Of Endowments &#8230; vs Akram Ali on 22 April, 1955 Author: Bose Bench: B.K. Mukherjee (Cj), V. Bose, B. Jagannadhadas, T.L.V. Aiyyar, S.J. CASE NO.: Appeal (civil) 19 of 1955 PETITIONER: DIRECTOR OF ENDOWMENTS GOVERNMENT OF HYDERABAD &amp; ORS. RESPONDENT: AKRAM ALI DATE OF JUDGMENT: 22\/04\/1955 BENCH: B.K. MUKHERJEE (CJ) [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-19582","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Director Of Endowments ... vs Akram Ali on 22 April, 1955 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/director-of-endowments-vs-akram-ali-on-22-april-1955\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Director Of Endowments ... vs Akram Ali on 22 April, 1955 - Free Judgements of Supreme Court &amp; 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