PETITIONER:
C.MOHAMMED YUNUS
Vs.
RESPONDENT:
SYED UNISSA AND OTHERS
DATE OF JUDGMENT:
14/02/1961
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
KAPUR, J.L.
HIDAYATULLAH, M.
CITATION:
1961 AIR 808 1962 SCR (1) 67
CITATOR INFO :
R 1966 SC 470 (13)
F 1974 SC 923 (49)
ACT:
Muslim law-Religious endowment-Surplus income to be dis-
tributed amongst the members of the family-Claim by females-
If governed by custom or personal law-Muslim Personal Law
(Shariat) Application Act, 1937 (26 of 1937), as amended by
Muslim Personal Law (Shariat) Application (Madras Amendment)
Act, 1949 (Mad. 18 of 1949), S. 2.
Limitation-Declaratory suit with consequential relief-If
maintainable-Right to sue-Computation-Indian Limitation Act,
1908 (IX of 1908), art. 120.
HEADNOTE:
Under a scheme a Board of Trustees was appointed for
administration of the Durga and a Masjid for the maintenance
of which the Nawab of Carnatic had granted two villages in
Inam. The income of the institution after disbursing the
expenses had since long been shared by the descendants in
four families in equal shares. The scheme also provided
that the surplus income was to be distributed amongst the
members of the said four families. One of the descendants
died leaving him surviving his wife and two daughters who
were obstructed in the performance of the "Urs" by the
appellant's father.
The said Muslim female members filed a suit for declaration
that they were entitled to enjoy the properties and to
manage the Durga, perform the "Urs" festival and receive all
incomes, endowments and perquisites thereof once in every
eight years according to their turn. The right to a share
in the income was denied by the appellant contending that by
custom in the family, females were excluded from inheritance
and that the claim was barred by the law of limitation and
that, in any event, the suit for mere declaration was not
maintainable.
Held, that a suit for declaration of rights with a
consequential relief for injunction was not a suit for
declaration simpliciter; it was a suit for declaration with
further relief and was not barred under art. 120 Of the
Indian Limitation Act merely because the contesting
defendant did not recognise the right. The period of six
years prescribed by art. 120 is to be computed from the date
when the right to sue accrued and there could be no right to
sue until there was an accrual of the right asserted in the
suit and its infringement or at least a clear and unequi-
vocal threat to infringe that right.
If under the law a person was entitled to any legitimate
right, the mere denial of the right will not set the period
of limitation running against the person entitled to such
right.
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Held, further, that on the enactment of the Shariat Act 26
Of 1937, as amended by the' Madras Act r8 Of 1949, the
Muslim Personal Law applies in all cases relating to the
matters specified notwithstanding any customer usage to the
contrary even at the stage of appeals, if other conditions
prescribed under the Act are fulfilled.
Kunj Behari Prasadji Purshottam Prasadji v. Keshavld
Hiralal. (1904) I.L.R. 28 Bom. 567, discussed.
Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.I.R. 1943
Lah. 219, disapproved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 512 of 1957.
Appeal by special leave from the judgment and decree dated
August 29' 1952, of the Madras High Court in Second Appeal
No. 2349 of 1946.
Azizuddin and K. R. Choudhury , for the appellant.
Shaukat Hussain and P.C. Agarwala, for respondents Nos. 1
and 2.
1961. February 14. The Judgment of the Court was delivered
by
SHAH J.-There is in the village of Cavelong, District
Chiugleput in the State of Madras an ancient Durgah to which
is appurtenant a Masjid. The Nawab of Carnatic had granted
two villages in inam for the maintenance of the Durgah and
the Masjid. Offerings from the devotees who visited the
Durgah and the Maajid were also received. The income of-the
institution after disbursing the expenses of "Sandal", and
"Urs" and of feeding the poor has since long been shared by
descendants in four families in equal shares. By 'Custom
females and persons claiming through females were excluded
from receiving a share of the income and the income was
distributed amongst the males descended 'in the male fine.
In original suit No. 27 of 1940 of the file of the Subordi-
nate Judge, Chingleput, a scheme was framed for
administration of the Durgah and the Masjid and a Board of
trustees was appointed for that purpose. By the scheme,
provision was. made for distribution of the surplus income
amongst the members of the four families.
69
Fakruddin, in the following genealogy, belonged to one of
the four families which received the income.
Sheik Mohammad
Fakir Mohammad Sheik Miran
Giasuddin Nismat Ulla
Khamruddin Nayeem Uddir
Fakir Mohammad
Fakruddin=Sulai- Niama Ulla Abdul Safi
man Bi Wahid Ulla
(2nd plaintiff) (1st deft.)
Nayeemuddin
(died unmarried)
Ramat Syed Un-
Unnissa (2nd nissa (Ist
defendant) plaintiff)
As a descendant of Sheik Mohammad, Fakruddin received a
1/8th share of. the income. He was also by arrangement with
others entitled to perform the "Urs" ceremony once in eight
years. Fakruddin died in 1921 leaving him surviving his
wife Sulaiman Bi and two daughters Rahmat Unnissa and Syed
Unnissa. Sulaiman Bi is plaintiff No. 2 and Rahmat Unnissa
and Syed Unnissa are respectively defendant No. 2 and
plaintiff No. 1 in suit No. 156 of 1937 out of which this
appeal arises.
In the year 1926, it was the turn of Fakruddin to perform
the "Urs" and it is claimed by the plaintiffs that it was
performed on behalf of the widow and daughters of Fakruddin
by their deputies. The next turn was in the year 1934, but
in the performance of the "Urs", the plaintiffs and
defendant No. 2 were obstructed by Abdul Wahid son of
Nayeem-Uddin belonging to the other branch in Sheik
Mohammad's family. Plaintiffs 1 and 2 then filed suit No.
156 of
70
1937 in the court of the District Munsif at Chingleput .For
a declaration that they were entitled to enjoy the
properties described in the schedule annexed to the plaint
and to manage the Durgah, perform the "Urs" festival and
receive all "incomes, endowments and perquisites thereof
once in every eight years" since 1934 according to their
turn. They also claimed an injunction restraining Abdul
Wahib from interfering with their rights in that behalf.
Rahmat Unnissa the eldest daughter of Fakruddin was
impleaded as defendant No. 2. Abdul Wahid defendant No. 1
died during the pendency of the suit and defendants 4 to 10
who were brought on record on their own application as heirs
and legal representatives to the exclusion of the daughter
of Abdul Wahid defended the suit. They denied the right of
the plaintiffs to a share in the income contending that lay
custom in the family, females were excluded from
inheritance, that the office of "Peshimam", "Khatib" and
"Mujavar" could only be held by males and that females were
excluded from those offices, that the plaintiffs' claim was
barred by the law of limitation and that in any event the
suit for a mere declaration was not maintainable.
The Trial Judge held-and the appellate court agreed with him
that there was an immemorial custom governing the
institutions precluding the plaintiffs from performing
services or sharing the income, emoluments and perquisites
and therefore the plaintiffs were not entitled to perform
those services and enjoy the surplus income, and accordingly
they were not entitled to the declaration of an injunction
prayed for. In second appeal, the High Court at Madras held
that by virtue of the Shariat Act, 1937, the income received
from the institution had to be shared according to the per-
sonal law of the parties and that the plaintiffs' claim was
not barred by the law of limitation nor was the suit open to
the objection that it was as framed not maintainable.
Against the decree passed by the High Court, this appeal
with special leave under Art. 136 of the Constitution is
preferred.
In our view, the suit as framed was maintainable. The
management of the institution is vested in the
71
trustees. The four families, it is true, are by tradition
entitled to perform and officiate at certain ceremonies and
also to share in the income. A suit for declaration with a
consequential relief for injunction, is not a suit for
declaration simpliciter; it is a suit for declaration with
further relief. Whether the further relief claimed in a
particular case as consequential upon a,declaration is
adequate must always depend upon the facts and circumstances
of each case.
In Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal
Hiralal (1), it was held that s. 42 of the Specific Relief
Act does not empower the court to dismiss a suit for a
declaration and injunction and that an injunction is a
further relief within the meaning of s. 42 of the Specific
Relief Act. In that case, the plaintiff had claimed that a
certain will was null and void and that being a close
relative of the last holder of a gadi, he was entitled to be
the Acharya in the place of that last holder and for an
injunction restraining the defendants from offering any
obstruction to his occupation of the gadi. It was held that
such a suit was maintainable.
The surplus income-.of the institution is distributed by the
trustees and the plaintiffs are seeking a declaration of the
right to receive the income and also an injunction
restraining the defendants from interfering with the
exercise of their right. The High Court hold that plaintiff
No. 1 was at the date of the suit 19 years of age and was
entitled to file a suit for enforcement of her right even if
the period of limitation had expired during her minority
within three years from the date on which she attained
majority by virtue of ss. 6 and 8 of the Indian Limitation
Act. Apart from this ground which saves the claim of the
first plaintiff alone, a suit for a declaration of a right
and an injunction restraining the defendants from
interfering with the exercise of that right is governed by
art. 120. of the Limitation Act and in such a suit the right
to sue arises when the cause of action accrues. The
plaintiffs claiming under Fakruddin sued to obtain a
declaration of their rights in the institution which
(1) I.L.R. (1904) XXVIII Bom. 567.
72
was and is in the management of the trustees. The trial
judge hold that the plaintiffs were not "in enjoyment of the
share" of Fakruddin since 1921 and the suit filed by the
plaintiffs more than 12 years from the date of Fakruddin's
death must be held barred, but he did not refer to any
specific article in the first schedule of the Limitation Act
which barred the suit. It is not shown that the trustees
have ever denied or are interested to deny the right of the
plaintiffs and defendant No. 2; and if the trustees do not
deny their rights, in our view, the suit for declaration of
the rights of the heirs of Fakruddin will not be barred
under art. 120 of the Limitation Act merely because the
contesting defendant did not recognize that right. The
period of six years prescribed by art. 120 has to be
computed from the date when the right to sue accrues and
there could be no right to sue until there is an accrual of
the right asserted in the suit and its infringement or at
least a clear and unequivocal threat to infringe that right.
If the trustees were willing to give a share and on the
record of the case it must be assumed that they being
trustees appointed under a scheme would be willing to allow
the plaintiffs their legitimate rights including a share in
the income if under the law they were entitled thereto, mere
denial by the defendants of the rights of the plaintiffs and
defendant No'. 2 will not set the period of limitation
running against them.
The trial court as well as the first appellate court held on
an exhaustive review of the evidence that there was an
immemorial custom governing the institutions whereby the
plaintiffs were not entitled to perform service or share the
income, emoluments and perquisites. But since the enactment
of the Shariat lot 26 of 1937, this custom must be deemed
inapplicable to the members of the family. By s. 2 of the
Act, it was enacted as follows:
"Notwitlwtanding any customs or usage to the
contrary in all questions (save questions
relating to agricultural lands) regarding
intestate succession, ,special property of
females, including personal property inherited
or obtained under contract or gift or
73
any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila,
zihar, lian, khula and mubarrat, maintenance,
dower, guardian. ship, gifts, trusts and trust
properties, and wakfs (other than charities
and charitable institutions and charitable and
religious endowments) the rule of decision in
cases where the parties are Muslims shall be
the Muslim Personal Law (Shariat)."
Under the Shariat Act,, 1937, as framed, in questions
relating to charities and charitable institutions and
charitable and religious endowments, the custom or usage
would prevail. But-the Act enacted by the Central
Legislature was amended by Madras Act 18 of 1949 and a. 2 as
amended provides:
"Notwithstanding any custom or usage to the
contrary, in all questions regarding intestate
succession, special property of females
including personal property inherited or
obtained under contract, or gift or arty other
provision of personal law, marriage,
dissolution of marriage, including Tallaq,
ila, zihar, lian, Khula and Mubarrat,
maintenance, dower, guardianship, gifts,
trusts and trust proper. ties and wakfs the
rule of decision in cases where the parties
are Muslims shall be the Muslim Personal Law
(Shariat)."
Manifestly by this act' "the rule of decision" in all
questions relating to intestate succession and other
specified matters including wakfs where the parties to the
dispute are Muslims is the Muslim Personal Law. The, terms
of the Act as amended are explicit. Normally statute which
takes away or impairs vested rights under existing laws is
presumed not to have retrospective operation. Where vested
rights are affected and the question is not one of
procedure, there is a presumption that it was not the
intention of the legislature to alter vested rights. But
the question is always one of intention of the legislature
to be gathered from the language used in the statute. In
construing an enactment, the court starts with a presumption
against retrospectivity if the enactment seeks to affect
vested rights: but such a presumption
74
may be deemed rebutted by the amplitude of the language used
by the Legislature. It is expressly enacted in the Shariat
Act as amended that in all questions relating to the matters
specified, "the rule of decision" in cases where the parties
are Muslims shall be the Muslim Personal Law. The
injunction is one directed against the court: it is enjoined
to apply the Muslim Personal Law in all cases relating to
the matters specified notwithstanding any custom or usage to
the contrary. The intention of the legislature appears to
be clear; the Act applies to all suits and proceedings which
were pending on the date when the Act came into operation as
well as to suits and proceedings filed after that date. It
is true that suits and proceedings which have been finally
decided would not be affected by the enactment of the
Shariat Act, but if a suit or proceeding be pending even in
appeal on the date when the Act was brought into operation,
the law applicable for decision would be the Muslim Personal
Law if the other conditions prescribed by the Act are
fulfilled. In our view, the High Court was right in holding
that it was bound to apply the provisions of the Shariat Act
as amended by Madras Act 18 of 1949 to the suit filed by the
plaintiffs.
We are unable to agree with the view of the Lahore High
Court in Syed Roshan Ali-v. Mt. Behmat Bibi (1) that a
right acquired before 1937 (the date on which the Shariat
Act was brought into operation) to bring a suit for a
declaration that the alienation by the widow of the last
holder who had by custom succeeded to the limited estate
left by her husband was not binding upon the reversioner,
was not taken away by the enactment of the Muslim Personal
Law (Shariat) Application Act, 1937. It may be observed
that the court proceeded merely upon the general presumption
against retrospectivity and their attention, it appears, was
not directed to the phraseology used by the legislature to
give s. 2 a retrospective operation.
The plea raised by counsel for. the contesting defendants
that even under the Muslim Personal Law, females are
excluded from performing the duties of
(1) A.I.R. 1943 Lah. 219.
75
the offices of "Peshimam", "Khatib" and "Mujavar" and that
they cannot carry out the duties of those offices even
through deputies is one which was not raised before the High
Court. The trial court has found that the duties of those
offices could be performed through deputies. The first
appellate court did not express any opinion on that question
and before the High Court, this question was not mooted. We
do not think that we would be justified in allowing the
contesting defendants to argue this question in this appeal.
In any event, if the income was being distributed amongst
the four families, the plaintiffs and defendant No. 2
claiming under Fakruddin would, by virtue of the provisions
of the Shariat Act, be entitled to receive that income.
There is nothing on the record to suggest that the right to
receive the income is conditional upon the performance of
the duties of the offices of "Peshimam", "Khatib" and
"Mujavar".
In that view of the case, this appeal fails and is dismissed
with costs.
Appeal dismissed.
