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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

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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. 68 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)

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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

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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

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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

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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.