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PETITIONER: SIRAJUL HAQ KHAN & OTHERS

       Vs.

RESPONDENT: THE SUNNI CENTRAL BOARD OF WAQF,U. P. & OTHERS

DATE OF JUDGMENT: 16/09/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K.

CITATION:  1959 AIR  198            1959 SCR  Supl. (1)1287  CITATOR INFO :  R          1974 SC 968  (49)  R          1979 SC 289  (35)  RF         1987 SC1161  (4)  RF         1991 SC2160  (18)

ACT: Waqf-Suit against Central Board -  Notice--Limitation-United Provinces Muslims Waqf Act (U.  P. XIII of 1936), ss. 5, 53- The Indian Limitation Act (IX of 1908), s. 15.

HEADNOTE: The respondent No. 1, a Central Board constituted under  the United  Provinces Muslims Waqf Act, 1936, by a  notification under s. 5(1) Of the Act dated February 26, 1944, took into’ management  the properties of a Darga Sharif and on  October 18,  1946, the appellants, three of the five members of  the Managing  Committee  of the said Darga Sharif,  brought  the suit,  out  of  which  the  present  appeal  arises,  for  a declaration  that the Darga properties did not constitute  a waqf  within the meaning of the Act and that the  respondent No. 1 had no lawful authority to, issue the notification and assume  management of the said properties.  It was urged  on behalf  of  respondent  No. 1 that the  suit  had  not  been brought within one year as prescribed by s. 5(2) of the Act, and  was as such barred by limitation; and, that  since  the notice  prescribed  by s. 53 Of the Act had  admittedly  not been served on the respondent, the suit was incompetent.  It was found that in an earlier suit, brought with the sanction of the Advocate General, against the Managing Committee  for their  removal and the framing of a fresh scheme,  a  decree had  been passed against the appellants on October 16  1941, and  it directed them not to interfere with the  affairs  of the  Darga  as members of the said Committee and  to  comply with the direction removing them from office.  On appeal the said  decree  was set aside by the Chief Court on  March  7, 1946.  It was contended on behalf of the appellants that  S. 5(2)  Of the Act had no application and even if it had,  the suit was within time by virtue of the provisions of s. 15 of the Limitation Act. Held,   that  the  contentions  raised  on  behalf  of   the appellants must be negatived.

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The  expression " any person interested in a waqf " used  in s. 5(2) Of the United Provinces Muslims Waqf Act, 1936, pro- perly   construed,   means  any  person  interested   in   a transaction  that is held to be waqf by the Commissioner  of Waqfs  appointed  under the Act and as such  the  appellants fell within that category. Where  a  literal  construction defeats the  object  of  the statute  and makes part of it meaningless, it is  legitimate to adopt a liberal construction that gives a meaning to  the entire provision and makes it effective. Chaturbhuj Mohanlal v. Bhicam Chand Choroyia & Sons,  (1948) 3 C.W.N. 410, Mathu Kutty v. Varoe Kutty, A.I.R. 1950 Mad. 4 and  Lal  Chand v. Messrs.  Basanta Mal Devi Dayal  &  Ors., 1947) 49 P.L.R. 246, referred to. Rules   of  limitation  are  arbitrary  in  nature  and   in construing  hem  it is not permissible to  import  equitable considerations,  and  effect must be given  to  tile  strict grammatical  meaning  of he words used.  Section 15  of  the Limitation  Act can be attracted only where a suit has  been stayed  by  an  injunction or order and the  test  would  be whether  its  institution would or would not be  an  act  in contempt of the court’s order. Nagendra  Nath Dey V. Suresh Chandra Dey, (1932) 34 Bom.  R. 1065,  Narayan Jivangouda v. Puttabai, (1944) 47 Bom.   L.R. Beti  Maharani v. The Collector of Etawah, (1894) I.L.R.  17 All.  198 and Sundaramma v. Abdul Khader, (1932)  I.L.R.  56 Mad. 490, relied on. Musammat Basso Kaur v. Lala Dhua Singh, (1888) 15 I.A.  211, held inapplicable. The  order of the court in the earlier suit was  neither  an injunction nor an order of the nature contemplated by s.  15 Of the Limitation Act and so that section was inapplicable. Offerings  made from time to time by the  devotees  visiting the Darga Sharif were by their very nature an income of  the Darga, and failure to mention them in the notification under s.   5(1)  Of  the  Act, did  not  render  the  notification defective. The  provision  as  to notice under S. 53  Of  the  Act  was applicable to suits in respect of acts of the Central  Board as well as suits for any relief in respect of the waqf.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 121 of 1955. Appeal  from  the  judgment  and  decree  dated  April   22, 1953/24th  February,  1954,  of  the  Allahabad  High  Court (Lucknow Bench) in F. C. Appeal No. 50 of 1947, arising  out of  the  judgment and decree dated April 15,  1947,  of  the Court  of the Civil Judge, Bahraich, in Regular Suit No.  25 of 1946. S.   K.  Dar,  Ch.  Akhtar Hussain and C. P.  Lal,  for  the appellants. Ch.  Niyamatullah, Onkar Nath Srivastava, J. B.  Dadachanji, S. N. Andley and Rameshwar Nath, for respondent No. 1. 1958.   September  16.   The  Judgment  of  the  Court   was delivered by 1289 GAJENDRAGADKAR  J.-The  suit from which this  appeal  arises relates  to  a shrine and tomb known as Darga  Hazarat  Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and  properties appurtenant to it.  The plaintiffs who  have preferred  this appeal are members of’ the  Waqf  Committee, Darga  Sharif,  Bharaich,  and, in  their  suit,  they  have claimed  a declaration that the properties in suit were  not

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covered  by the provisions of the United  Provinces  Muslims Waqfs  Act (U.  P. XIII of 1936) (hereinafter  described  as the Act).  The declaration, the consequential injunction and the  two  other  subsidiary reliefs  are  claimed  primarily against  respondent  1,  the Sunni Central  Board  of  Waqf, United Provinces of Agra and Oudh.  Two trustees who did not join the appellants in filing the suit are impleaded as  pro forma  defendants 2 and 3 and they are respondents 2  and  3 before  us. It appears that respondent 1 purported to  exer- cise  its  authority over the properties in suit  under  the provisions of the Act and that led to the present suit which was  filed  on  October  18, 1946 (No.  25  of  1946).   The appellants’ case is that the properties in suit are  outside the  operative provisions of the Act and not subject to  the jurisdiction  of  respondent 1, arid so,  according  to  the appellants,  respondent  1 has acted illegally  and  without jurisdiction  in assuming authority over the  management  of the  said  properties.   That is the basis  of  the  reliefs claimed by the appellants in their plaint. The  appellants’  claim  was resisted  by  respondent  I  on several grounds.  It was alleged that the properties in suit did  form a waqf as defined by the Act and were  covered  by its  operative provisions.  It was urged that  respondent  I was  a  duly  constituted Sunni Central  Board  and  it  was authorised  to exercise supervision over the  management  of the said waqf.  The case for respondent I also was that  the appellants’   suit   was  barred  by  limitation   and   was incompetent  inasmuch as before the filing of the  suit  the appellants had not given the statutory notice as required by s. 53 of the Act. On these pleadings several issues were framed by the 1290 learned  trial  judge; but the principal points  in  dispute were three : (1)  Are the properties in suit governed by the Act ? (2)  Is the suit in time ? and (3)  Is the suit maintainable without notice as required  by s. 53 of the Act ? The  learned  trial judge held that the properties  in  suit cannot  be  held to be waqf as defined by the Act.   In  his opinion it was not the village Singha Parasi but its profits free  from land revenue that had been granted in  trust  for the  shrine and its khadims; and since the usufruct  of  the profits was subject to the condition of resumption and since the  profits had not been vested in the Almighty, the  grant cannot  be  construed  to  be  a  waqf  as  contemplated  by Muhamniadan Law.  On the question of limitation the  learned judge  held  that s. 5(2) of the Act applied to the  suit  ; but, according to him, though the suit was filed beyond  the period  of one year prescribed by the said section,  it  was within time having regard to the provisions of s. 14 of  the Limitation Act.  The plea raised by respondent 1 under s. 53 of the Act was partly upheld by the learned trial judge;  he took the view that the first three relief,-, claimed by  the appellants  were  barred  but the fourth was  not.   In  the result the learned judge granted a declaration in favour  of the  appellants to the effect that " the shrine in  question together  with its attached buildings and the Chharawa  were not  waqf  properties within the meaning of the Act."  As  a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants and respondents 2 and 3 " not otherwise  than provided  for  under  s.  18 of the Act in  so  far  as  the management and supervision of those properties are concerned in respect of which the appellants were not being granted  a

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decree  for a declaration sought for by them in view of  the absence of the notice under s. 53 of the Act ". The rest  of the appellants’ claim was dismissed.  This decree was passed on April 15, 1947. 1291 Against this decree respondent I preferred an appeal in  the High  Court of Judicature at Allahabad (Lucknow  Bench)  and the  appellants filed cross objections.  The High Court  has reversed  the finding of the trial court on the question  as to  the character of the properties in suit.   According  to the  High  Court  the said properties  constituted  waqf  as defined  by the Act.  The High Court has also held that  the suit  filed by the appellants was barred by  limitation  and was  also  in-’  competent  in view of  the  fact  that  the statutory  notice required by s. 53 of the Act had not  been given  by  the appellants prior to its  institution.   As  a result of these findings the appeal preferred by  respondent I   was  allowed,  the  appellants’  cross-objections   were dismissed,  the  decree passed by the trial  court  was  set aside  and the appellants’ suit dismissed (April 22,  1953). The  appellants then applied for and obtained a  certificate from the High Court to prefer an appeal to this Court  under Art.  133 of the Constitution.  That is how this appeal  has come to this Court. Though  the  dispute between the parties raises  only  three principal  issues, the facts leading to the  litigation  are somewhat  complicated ; and it is necessary to mention  them in  order  to get a clear picture of the background  of  the present  dispute.   It is believed that Syed  Salar  Mahsood Ghazi  was a nephew of Muhammad Ghazni and he met his  death at  the hands of a local chieftain when he paid a  visit  to Bahraich.   On his death his remains were buried in  village Singha  Parasi by his followers and subsequently a tomb  was constructed.   In course of time this tomb became an  object of  pilgrimage and veneration.  Urs began to be held at  the shrine  every year and it was attended by a large number  of devotees who made offerings before the shrine.  It is partly from  the  income  of  these  offerings  that  the  tomb  is maintained.  Certain properties were endowed by the Emperors of Delhi in favour of this tomb and accretions were made  to the  said properties by the savings from the income  of  the endowed   properties  and  the  offerings  brought  by   the devotees. 164 1292 The tomb was managed by a body of persons known as  Khuddams of  the Darga.  This body had been looking after  the  Darga and the performance of ceremonies and other services at  the shrine.   Whilst the management of the Darga was being  thus carried  on,  Oudh  came  to be  annexed  in  1856  and  the proclamation issued by Lord Canning confiscated all  private properties  and  inams in the said  State.   The  properties attached to the Darga were no exception.  Fresh  settlements were,  however,  subsequently made by the  Government  as  a result  of  which previously existing  rights  were  revived usually  on  the  same terms as before.   This  happened  in regard to the properties appertaining to the Darga. It  would  appear  that in 1859 or 1860  a  Sanad  had  been granted  to  Fakirulla who was the head of  the  khadims  in respect  of rent-free tenure of the village  Singha  Parasi. The  grantee was given the right to collect the usufruct  of the  village  which  was  to  be  appropriated  towards  the maintenance of the Darga.  The grantee’s son Inayatulla  was apparently  not  satisfied with the limited  rights  granted under  the Sanad and so he brought an action, Suit No. 1  of

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1865,  claiming proprietary rights in the  said  properties. Inayatulla’s  suit was substantially dismissed  on  November 11,  1870, by the Settlement Officer.  It was held that  the proprietary  rights  of  the Government in  respect  of  the properties  had  been alienated for ever in  favour  of  the charity  and so the properties were declared to vest in  the endowment.  Inayatulla’s right to manage the said properties under the terms of the grant was, however, recognized.  Soon after  this  decision, it was brought to the notice  of  the Chief  Commissioner  in 1872 that the khadims at  the  Darga were  mismanaging the properties of the Darga and  were  not properly  maintaining the Darga itself.  On  receiving  this complaint a committee of mussalmans was appointed to examine the  affairs  of  the  Darga and  to  make  a  report.   The committee  submitted  its report on February 20,  1877,  and made  recommendations for the improvement of the  management of   the  Darga  and  its  properties.   According  to   the committee, it was necessary  to appoint a jury of five persons  including  two khadims  to manage the Darga and its properties.   Meanwhile some of the lands appurtenant to the Darga had been sold and offerings  made by the devotees as well as other  properties had  become  the  subject-matter  of  attachment.   In   the interest  of  the  Darga, Government then  decided  to  take possession  of  the  properties  under  the  provisions   of Pensions  Act,  (XXIII of 1873.) This decision  was  reached after  the Government had considered the report made by  the Deputy  Commissioner  on  August 31, 1878.   The  result  of declaring   that  the  properties  were  governed   by   the provisions  of the Pensions Act was to free  the  properties from  the mortgages created by the khadims.  The  management of the Darga and its properties by the Government  continued until 1902. During this period Inayatulla attempted to assert his rights once more by instituting a suit in the civil court in  1892. In  this suit Inayatullah and two others who had joined  him claimed possession of the Darga together with the  buildings appurtenant thereto and village Singha Parasi.  Their  claim was  decreed  by  the trial court; but on  appeal  the  said decree was set aside on July 20, 1897.  The appellate  court of the Judicial Commissioner held that Inayatulla’s  allega- tion that the proprietary interest in the properties  vested in  him  was not justified.  Even so,  the  appellate  court observed  that  it  was  not proper  or  competent  for  the Government  to interfere in the management of the  waqf  and its  properties;  the Darga was  a  religious  establishment within the meaning or Religious Endowments Act (XX of  1863) and  the assumption of the management of the Darga  and  its properties was unauthorised and improper. As a result of these observations the Legal Remembrancer  to the  Government  of the United Provinces of  Agra  and  Oudh filed a suit, No. 9 of 1902, under s. 539 (present s. 92) of the Code of Civil Procedure.  This suit ended in a decree on December 3, 1902.  By the decree the properties in suit were declared  "  to vest in the trustees when appointed  ".  The decree further provided for a scheme for the management of 1294 the  Darga and its properties.  The scheme thus framed  came into operation and the trustees appointed under it began  to manage the Darga and its properties.  The scheme appears  to have  worked  smoothly until 1934.  In 1934 Ashraf  Ali  and others clamed (Suit No. 1 of 1934) that an injunction should be issued restraining the defendants from taking part in the management of the affairs of the Darga.  The plaintiffs also prayed  that  the  defendants  should  be  prohibited   from

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spending   monies  belonging  to  the  waqf   on   frivolous litigations  due  to party feelings.  On May  7,  1934,  the learned  District Judge expressed his regret that  animosity and  party feelings should find their way in the  management of  a  trust  and issued an order  directing  the  defendant committee  that  no money out of the Darga funds  should  be spent either in the litigation pending before him, or in any other litigation, without the sanction of the court. For nearly six years after the date of this order the  Darga and  its  properties  appear  to have  been  free  from  any litigation.   This  peace was, however, again  disturbed  in 1940  when  a  suit  was filed (No.  1  of  1940)  with  the sanction of the Advocate-General by five plaintiffs  against the  managing committee and its trustees for  their  removal and for the framing of a fresh scheme.  On October 16, 1941, the  suit  was  decreed.  The  managing  committee  and  the trustees, however, challenged the said decree by  preferring an appeal to the Chief Court.  Their appeal succeeded and on March 7, 1946, the decree under appeal was set aside, though a  few minor amendments were made in the original scheme  of management. Whilst this litigation was pending between the parties,  the United  Provinces Muslim Waqfs Act (U.P. XIII of  1936)  was passed  in  1936 for better governance,  administration  and supervision  of  the  specified muslim waqfs  in  U.  P.  In pursuance  of  the provisions of the Act, respondent  I  was constituted  and, under s. 5(1), it issued the  notification on February 26, 1944, declaring the properties in suit to be a  Sunni  Waqf under the Act.  After this  notification  was issued, respondent 1 called upon the committee of management of 1295 the waqf to submit its annual budget for approval and to get its  accounts  audited by its auditors.  Respondent  I  also purported  to levy the usual contributions against the  waqf under  s.  54 of the Act.  The members of the  committee  of management  and  the  trustees with  the  exception  of  two persons held that the properties in suit did not  constitute a  waqf within the meaning of the Act and that respondent  1 had no authority or jurisdiction to supervise the management of the said properties.  That is how the appellants came  to institute  the  present suit on October  18,  1946,  against respondent  1.  That  in brief is the  back  ground  of  the present dispute. For  the appellants Mr. Dar has raised three  points  before us.  He contends that the High Court was in error in  coming to the conclusion that the properties in suit constituted  a waqf  over which respondent I can exercise its authority  or jurisdiction  and  he argues that it was erroneous  to  have held that the appellants’ suit was barred by s. 5(2) and was incompetent under s. 53 of the Act.  Mr. Dar has fairly con- ceded that if the finding of the High Court on the  question of limitation or on the question of the bar pleaded under s. 53  was  upheld,  it would be unnecessary  to  consider  the merits of his argument about the character of the properties in suit.  Since we have reached the conclusion that the High Court was right in holding that the suit was barred under s. 5(2) and was also incompetent under s. 53 of the Act, we  do not  propose  to  decide  the question  as  to  whether  the properties  in  dispute are waqf within the meaning  of  the Act.   The plea of limitation under s. 5(2) as well  as  the plea  of  the bar under s. 53 are in  substance  preliminary objections  to the maintanability or competence of the  suit and  we propose to deal with these objections on  the  basis that  the properties in dispute are outside the  purview  of

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the Act as alleged by the appellants. Before dealing with the question of limitation, it would  be useful  to refer to the relevant part of the scheme  of  the Act.  Section 4 of the Act provides for the survey of  waqfs to be made by the Commissioner of Waqfs appointed under sub-s. (1) of s. 4. Subsection  (3) requires  the Commissioner to ascertain and determine  inter alia  the  number of Shia and Sunni Waqfs in  the  district, their  nature, the gross income of the properties  comprised in them as well as the expenses incurred in the  realisation of   the  income  and  the  pay  of  the   mutawalli.    The Commissioner has also to ascertain and determine whether the waqf  in  question  is  one  of  those  exempted  from   the provisions of the Act under s. 2. The result of this enquiry has to be indicated by the Commissioner in his report to the State Government under subs. (5).  Section 6 deals with  the establishment  of two separate Boards to be called the  Shia Central Board and the Sunni Central Board of Waqfs.  Section 18  defines the functions of the Central Boards and  confers oil   them  general  powers  of  superintendence  over   the management of the waqfs under their jurisdiction.  After the Boards  are constituted a copy of the Commissioner’s  report received  by the State Government is forwarded to them  and, under  s. 5, sub-s. (1), each Central Board is  required  as soon as possible to notify in the official gazette the waqfs relating  to the particular sect to which, according to  the said  report, the provisions of the Act apply.  It is  after the  prescribed notification is issued by the Board that  it can proceed to exercise its powers under s. 18 in respect of the  waqfs thus notified.  It is the notification issued  by respondent under s. 5 (1) and the subsequent steps taken  by it in exercise of its authority that have led to the present suit. Mr.  Dar  contends that the provisions of s. 5  (2)  do  not apply to the present suit, and so the argument that the suit is  barred  by  limitation under  the  said  section  cannot succeed.   It is clear that the notification was  issued  on February  26, 1944, and the suit has been filed  on  October 18, 1946.  Thus there can be no doubt that if the one year’s limitation  prescribed  by s. 5 (2) applies to  the  present suit  it would be barred by time unless the  appellants  are able  to  invoke the assistance of s. 15 of  the  Limitation Act.  But, according to Mr. Dar, the present suit is outside s. 5 (2) 1297 altogether  and  so  there is no question  of  invoking  the shorter period of limitation prescribed by it. Let  us  then proceed to consider whether the  present  suit falls within the mischief of s. 5 (2) or not.  Section 5 (2) provides that: " The mutawalli of a waqf or any person interested in a waqf or  a  Central Board may bring a suit in a  civil  court  of competent   jurisdiction   for  a   declaration   that   any transaction  held by the Commissioner of waqfs to be a  waqf is not a waqf, or any transaction held or assumed by him not to  be  a  waqf is a waqf, or that a waqf  held  by  him  to pertain  to a particular sect does not belong to that  sect, or  that  any waqf reported by such  Commissioner  as  being subject  to  the provisions of this Act  is  exempted  under section 2, or that any waqf held by him to be so exempted is subject to this Act." The  proviso  to this section prescribes the period  of  one year’s  limitation  to  a suit by a mutawalli  or  a  person interested in the waqif.  Sub-section (4) of s. 5 lays  down that  the  Commissioner of the waqf’s shall not  be  made  a

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defendant to any suit under sub-s. (2) and no suit shall  be instituted  against  him for anything done by  him  in  good faith under colour of this Act. The  appellants’  argument is that before s. 5  (2)  can  be applied  to  their suit it must be shown that  the  suit  is filed  either  by  a  mutawalli of  a  waqf  or  any  person interested  in  the waqf.  The appellants  are  neither  the mutawallis  of the waqf nor are they persons  interested  in the waqf.  Their case is that the properties in suit do  not constitute  a  waqf under the Act but are held  by  them  as proprietors, and that the notification issued by  respondent I  and  the  authority purported to be exercised  by  it  in respect of the said properties are wholly void.  How can the appellants  who claim a declaration and  injunction  against respondent  I  on these allegations be said  to  be  persons interested in the waqf, asks Mr. Dar.  The word ’ waqf ’  as used  in this subsection must be given the meaning  attached to it by the definition in s. 3 (1) of the Act and since the appellants  totally deny the existence of such a  waqf  they cannot be said to be interested in the ’ waqf ’. The 1298 argument thus presented appears prima facie to be attractive and  plausible;  but on a close examination of s. 5  (2)  it would appear clear that the words " any person interested in a  waqf  "  cannot  be construed  in  their  strict  literal meaning.   If the said words are given their strict  literal meaning,  suits for a declaration that any transaction  held by the Commissioner to be a waqf is not a waqf can never  be filed  by a mutawalli of a waqf or a person interested in  a waqf.   The scheme of this sub-section is clear.   When  the Central Board assumes jurisdiction over any waqf tinder  the Act it proceeds to do so on the decision of three points  by the Commissioner of Waqfs.  It assumes that the property  is a  waqf, that it is either a Sunni or a Shia waqf, and  that it is not a waqf which falls within the exceptions mentioned in  s.  2. It is in respect of each one of  these  decisions that  a  suit is contemplated by s. 5, sub-s. (2).   If  the decision is that the property is not a waqf or that it is  a waqf  falling within the exceptions mentioned by s.  2,  the Central Board may have occasion to bring a suit.   Similarly if  the decision is that the waqf is Shia and not  Sunni,  a Sunni  Central Board may have occasion to bring a  suit  and vice  versa.  Likewise the decision that the property  is  a waqf  may  be  challenged  by  a  person  who  disputes  the correctness  of  the  said decision.  The  decision  that  a property does not fall within the exceptions mentioned by s. 2  may  also be challenged by a person who claims  that  the waqf attracts the provisions of s. 2. If that be the  nature of the scheme of suits contemplated by s. 5 (2) it would  be difficult  to  imagine how the mutawalli of a  waqf  or  any person  interested in a waqf can ever sue for a  declaration that  the transaction held by the Commissioner of the  waqfs to  be a waqf is not a waqf.  That is why we think that  the literal   construction  of  the  expression  "  any   person interested  in  a  waqf " would render a part  of  the  sub- section wholly meaningless and ineffective.  The legislature has  definitely  contemplated  that  the  decision  of   the Commissioner of the Waqfs that a particular transaction is a waqf  can  be challenged by persons who do  not  accept  the correctness  of the said decision, and it is, this class  of persons who -are 1299 obviously  intended to be covered by the words  "any  person interested  in  a  waqf  ".  It  is  well-settled  that   in construing the provisions of a statute courts should be slow

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to adopt a construction which tends to make any part of  the statute  meaningless or ineffective; an attempt must  always be  made  so  to reconcile the  relevant  provisions  as  to advance the remedy intended by the statute.  In our opinion, on  a reading of the provisions of the relevant  sub-section as  a whole there can be no doubt that the  expression  "any person  interested in a waqf " must mean "any person  inter- ested in what is held to be a waqf ". It is only persons who are  interested in a transaction which is held to be a  waqf who  would  sue for a declaration that the decision  of  the Commissioner of the Waqfs in that behalf is wrong, and  that the  transaction  in fact is not a waqf under the  Act.   We must accordingly hold that the relevant clause on which  Mr. Dar has placed his argument in repelling the application  of s.  5  (2)  to  the present suit must  not  be  strictly  or literally construed, and that it should be taken to mean any person  interested  in a transaction which is held to  be  a waqf.   On  this construction the appellants  are  obviously interested  in the suit properties which are notified to  be waqf by the notification issued by respondent 1, and so  the suit  instituted by them would be governed by s.  5,  sub-s. (2)  and  as such it would be barred by time  unless  it  is saved under s. 15 of the Limitation Act. In  this  connection,  it may be relevant to  refer  to  the provisions  of  s. 33 of the Indian Arbitration  Act  (X  of 1940).    This  section  provides  that  any  party  to   an arbitration agreement desiring to challenge the existence or validity  of  an arbitration agreement shall  apply  to  the court and the court shall decide the question on affidavits. It  would be noticed that the expression " any party  to  an arbitration agreement " used in the section poses a  similar problem of construction.  The party applying under s. 33 may dispute  the  very existence of the agreement  and  yet  the applicant is described by the section as a party to the 165 1300 agreement.  If the expression " any party to an  arbitration agreement " is literally construed it would be difficult  to conceive  of a case where the existence of an agreement  can be  impeached  by a proceeding under s.  33.   The  material clause must therefore be read liberally and not literally or strictly.  It must be taken to mean a person who is  alleged to  be a party to an arbitration agreement; in other  words, the  clause must be construed to cover cases of persons  who are  alleged to be a party to an arbitration  agreement  but who  do not admit the said allegation and want to  challenge the existence of the alleged agreement itself.  This liberal construction  has  been  put  upon  the  clause  in  several judicial  decisions:  Chaturbhuj Mohanlal  v.  Bhicam  Chand Chororia  & Sons Mathu Kutty v. Varoe Kutty (2) ; Lal  Chand V.  Messrs. Basanta Mal Devi Dayal & Ors. (3).  We may  also point  out incidentally that in dealing with an  application made  under  s. 34 of the Arbitration Act, it  is  incumbent upon  the  court to decide first of all whether there  is  a binding  agreement for arbitration between the  parties;  in other  words,  the allegation by one party  against  another that  there is a valid agreement of reference  between  them does  not  preclude  the latter  party  from  disputing  the existence  of the said agreement in proceedings taken  under s. 34.  These decisions illustrate the principle that  where the  literal  meaning  of  the words  use&  in  a  statutory provision  would  manifestly defeat its object by  making  a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction  so as to give meaning to all parts of the provision and to make

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the whole of it effective and operative. Before we part with this part of the appellants’  case it is necessary to point out that the argument urged by Mr. Dar on the construction of s. 5(2) is really inconsistent with  the appellants’   pleas  in  the  trial  court.   The   material allegations  in  the plaint clearly amount to  an  admission that  the Darga and its appurtenant properties constitute  a waqf Under the (1) (1948) 53 C.W.N. 410.       (2) A.I.R. 1950 Mad. 64.           (3) (1947) 49 P.L.R. 246. 1301 Act; but it is urged that they do not attract its provisions for  the reason that the waqf in question falls  within  the class  of exemptions enumerated in s. 2 (ii)(a) and  (c)  of the Act.  " The Darga waqf ", says the plaint in para.   11, ,is  of  such  a nature as makes it an  exception  from  the purview of the Act as provided by s. 2 of the Act ". Indeed, consistently  with this part of the appellants’  case,,  the plaint  expressly  admits that the cause of action  for  the suit accrued on February 26, 1944, and purports to bring the suit within time by relying on ss. 14, 15, 18 and 29 of  the Limitation   Act.   In  their  replication  filed   by   the plaintiffs   an  attempt  was  made  to  explain  away   the admissions  contained  in the plaint by alleging that  "  if ever in any paper or document the word I waqf had been  used as  a  routine  or  hurriedly then it is  vague  and  of  no specific  meaning  and its meaning or  connotation  is  only trust or amanat " ; and yet, in the statement of the case by the  appellants’ counsel, we find an express admission  that the subject-matter of the suit is covered by the  exemptions of s. 2, cls. (ii) (a) and (ii) (c).  Thus, on the pleadings there can be no doubt that the appellants’ case was that the Darga  and its properties no doubt constituted a waqf  under the Act, but they did not fall within the purview of the Act because  they  belong  to the category of  waqfs  which  are excepted by s. 2(ii) (a) and (c).  The argument based on the application of s. 2 has not been raised before us and so  on a consideration of the pleadings of the appellants it  would be  open to respondent 1 to contend that the appellants  are admittedly  interested  in  the waqf and  their  suit  falls within  the mischief of s. 5 even if the words " any  person interested in a waqf " are literally and strictly construed. The  next question which calls for our decision  is  whether the appellants’ suit is saved by virtue of the provisions of s. 15 of the Limitation Act.  That is the only provision  on which reliance was placed before us by Mr. Dar on behalf  of the appellants.  Section 15. provides for " the exclusion of time  during which proceedings are suspended " and  it  lays down that " in computing the period of limitation prescribed for any 1302 suit  or  application  for the execution of  a  decree,  the ,institution  or  execution of which has been staved  by  an injunction  or  order, the time of the  continuance  of  the injunction or order, the day on which it was issued or  made and the day on which it was withdrawn, shall be excluded  ". It is plain that, for excluding the time under this section, it  must  be  shown  that the institution  of  the  suit  in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction  which stays the institution of the suit.  And so in cases  falling under  s. 15, the party instituting the suit would  by  such institution be in contempt of court.  If an express order or injunction  is  produced by a party that clearly  meets  the requirements  of s. 15.  Whether the requirements of  s.  15

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would  be  satisfied  by  the  production  of  an  order  or injunction   which  by  necessary  implication   stays   the institution  of  the  suit is open  to  argument.   We  are, however,  prepared to assume in the present case that s.  15 would apply even to cases where the institution of a suit is stayed  by  necessary  implication of the  order  passed  or injunction  issued in the previous litigation.  But, in  our opinion,  there would be no justification for extending  the application  of s. 15 on the ground that the institution  of the subsequent suit would be inconsistent with the spirit or substance  of the order passed in the  previous  litigation. It  is  true  that rules of limitation are  to  some  extent arbitrary and may frequently lead to hardship; but there can be  no doubt that, in construing provisions  of  limitation, equitable  considerations are immaterial and irrelevant  and in  applying  them  effect  must  be  given  to  the  strict grammatical meaning of the words used by them: Nagendra Nath Dey v. Suresh Chandra Dey (1). In considering the effect of the provisions contained in  s. 15, it would be useful to refer to the decision of the Privy Council  in Narayan Jivangouda v. Puttabai (2).   This  case was  an  offshoot  of the well-known  case  of  Bhimabai  v. Gurunathgouda (3).  It is apparent that the dispute  between Narayan and Gurunathgouda (1) (1932) 34 Bom.  L.R. 1065.  (2) (1944) 47 Bom.  L. R. I. (3) (1932) 35 Bom.  L. R. 200 P.C. 1303 ran through a long and protracted course and it reached  the Privy Council twice.  The decision of the, Privy Council  in Bhimabai’s  case  (1) upholding the  validity  of  Narayan’s adoption  no doubt led to a radical change in  the  accepted and  current view about the Hindu widow’s power to adopt  in the  State  of  Bombay,  but  this  decision  was  of   poor consolation  to  Narayan because the judgment of  the  Privy Council  in  Narayan,  Jivangouda’s  case  (2)  shows   that Narayan’s  subsequent  suit  to recover  possession  of  the properties in his adoptive family was dismissed as barred by time.   The  dispute was between Narayan  and  his  adoptive mother  Bhimabai  on the one hand and Gurunathgouda  on  the other.   On  November  25,  1920,  Gurunathgouda  had   sued Bhimabai  and  Narayan  for a declaration  that  he  was  in possession  of  the  lands and for  a  permanent  injunction restraining   the  defendants  from  interfering  with   his possession.   On  the same day when the suit was  filed,  an interim injunction was issued against the defendants and  it was  confirmed  when  the  suit was  decreed  in  favour  of Gurunathgouda.   By  this  injunction  the  defendants  were ordered " not to take the crops from the fields in suit, not to interfere with the plaintiff’s wahiwat to the said lands, not to take rent notes from the tenants and not to  obstruct the  plaintiff from taking the crops raised by him  or  from taking monies from his tenants ". Two important issues which arose for decision in the suit were whether Narayan had been duly  adopted by Bhimabai in fact and whether  Bhimabai  was competent to make the adoption.  These issues were  answered against  Narayan by the trial court.  Bhimabai  and  Narayan appealed  to the Bombay High Court, but their appeal  failed and was dismissed: Bhimabai v. Gurunathgouda (3).  There was a  further appeal by the said parties to the Privy  Council. The  Privy  Council held that the adoption  of  Narayan  was valid and so the appeal was allowed and Gurunathgouda’s suit was  dismissed  with costs throughout.  In  the  result  the injunction  granted  by the courts below  was  dissolved  on November 4, 1932.  Oil (1) (1932) 35 Bo-.  L. R. 200 P. C.

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(2) (1944) 47 Bom.  L. H. I. (3) (1928) 30 Bom.  L. R. 859. 1304 November 25, 1932, Narayan and Bhimabai filed their suit  to recover  possession  of the properties  from  Gurunathgouda. They sought to bring the suit within time inter alia on  the ground that the time taken up  in litigating the former suit or  at  least  the  period  commencing  from  the  grant  of temporary  injunction  on February 25, 1920 to  November  4, 1932,  when  the  injunction  was  dissolved  by  the  Privy Council,  should be excluded under s. 15 of  the  Limitation Act.   This  plea  was rejected by the trial  court  and  on appeal  the  same view was taken by the Bombay  High  Court. Rangnekar   J.   who  delivered   the   principal   judgment exhaustively  considered  the  relevant  judicial  decisions bearing on the question about the construction of s. 15  and held that the injunction issued against Narayan and Bhimabai in  Gurunathgouda’s suit did not help to attract s.  15  -to the  suit  filed by them in 1932: Narayan  v.  Gurunathgouda (1).  The matter was then taken to the Privy Council by  the plaintiffs;  but the Privy Council confirmed the view  taken by  the  High  Court of Bombay  and  dismissed  the  appeal: Narayan v. Puttabai (2). In dealing with the appellants’ argument that the injunction in  the  prior  suit had been issued in wide  terms  and  in substance  it  precluded the plaintiffs  from  filing  their suit, their Lordships observed that there was nothing in the injunction or in the decree to support their case that  they were  prevented  from instituting a suit for  possession  in 1920  or  at  any time before the expiry of  the  period  of limitation.   It appears from the judgment that  Sir  Thomas Strangman  strongly contended before the Privy Council  that since  the title of the contending parties was  involved  in the  suit,  it would have been quite futile to  institute  a suit  for  possession.  This argument was  repelled  by  the Privy  Council with the observation that " we are unable  to appreciate  this  point, for the institution of a  suit  can never  be said to be futile if it would thereby prevent  the running of limitation ". There can be little doubt that, if, on  considerations of equity the application of s. 15  could be extended, this was pre- (1) (1938) 40 Bom.  L.R. 1134. (2) (1944) 47 Bom.  L. R. I. 1305 eminently  a cast for such extended application of the  said provision; and yet the Privy Council construed the  material words used in s. 15 in their strict grammatical meaning  and held  that no order or injunction as required by s.  15  had been issued in the earlier litigation.  We would like to add that,  in dealing with this point, their Lordships  did  not think  it  necessary  to consider  whether  the  prohibition required by s. 15 must be express or can even be implied. There  is  another decision of the Privy  Council  to  which reference may be made.  In Beti Maharani v. The Collector of Etawah  (1), their Lordships were dealing with a case  where attachment before judgment under s. 485 of the Code of Civil Procedure had been issued by the court at the instance of  a third party prohibiting the creditor from recovering and the debtor  from  paying the debt in question.   This  order  of attachment  was  held  not  to  be  an  order  staying   the institution of a subsequent suit by the creditor under s. 15 of Limitation Act of 1877.  " There would be no violation of it  "  (said  order), observed Lord Hobhouse,  "  until  the restrained  creditor  came  to receive  his  debt  from  the restrained debtor.  And the institution of a suit might  for

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more than one reason be a very proper proceeding on the part of the restrained creditor, as for example in this case,  to avoid  the bar by time, though it might also be  prudent  to let  the court which had issued the order know what  he  was about  ". In Sundaramma v. Abdul Khader (2) the Madras  High Court,  while dealing with s. 15 of the Limitation Act,  has held  that  no equitable grounds for the suspension  of  the cause of action can be added to the provisions of the Indian Limitation Act. It  is true that in Musammat Basso Kaur v. Lala  Dhua  Singh (3) their Lordships of the Privy Council have observed  that it  would  be an inconvenient state of the law  if  it  were found  necessary  for a man to institute  a  perfectly  vain litigation under peril of losing his property if he does not ; but this observation must be read in the context of  facts with which (1) (1894) I.L.R. 17 All. 198, 210, 211. (2) (1932) I.L.R.56 Mad. 490, (3) (1888) 15 I.A. 211. 1306 the Privy Council was dealing in this case.  The  respondent who  was  a  debtor of the appellant had  agreed  to  convey certain property to him setting off the debt against part of the price.  No money was paid by the respondent and disputes arose  as  to  the  other  terms  of  the  agreement.    The respondent  sued to enforce the terms of the said  agreement but  did not succeed.  Afterwards when he sued for the  debt he  was met with the plea of limitation.  The Privy  Council held  that the decree dismissing the respondent’s  suit  was the  starting point of limitation.  The said decree  imposed on the respondent a fresh obligation to pay his debts  under s.  65  of  the  Indian Contract  Act.   It  was  also  held alternatively  that  the  said decree  imported  within  the meaning  of Art. 97 of Limitation Act of 1877 a  failure  of the consideration which entitled him to retain it.  Thus  it is  clear  that  the  Privy Council  was  dealing  with  the appellants’  rights to sue which had accrued to him  on  the dismissal  of  his  action  to  enforce  the  terms  of  the agreement.  It is in reference to this right that the  Privy Council  made  the  observations to which  we  have  already referred.   These observations are clearly obiter  and  they cannot, in our opinion, be of any assistance in interpreting the words in s. 15. It  is  in  the light of this legal position  that  we  must examine  the  appellants’ case that the institution  of  the present  suit  had  been stayed by an  injunction  or  order issued  against them in the earlier litigation of 1940.   We have already noticed that Civil Suit No. 1 of 1940 had  been instituted  against the appellants with the sanction of  the Advocate-General for their removal and for the settlement of a  fresh scheme.  The appellants were ordered to be  removed by  the  learned  trial judge on October 16,  1941;  but  on appeal the decree of the trial court was set aside on  March 7,  1946.   It is the period between October 16,  1941,  and March  7,  1946,  that  is sought  to  be  excluded  by  the appellants  under  s.  15 of the Limitation  Act.   Mr.  Dar contends that the order passed by the trial judge on October 16, 1941, made it impossible for the appellants to file  the present suit until the final decision of the 1307 appeal.   By this order the appellants were told  that  they should  not  in any way interfere with the  affairs  of  the Darga  Sharif as members of the committee and should  comply with the decree of the court by which they were removed from the  office.   It  is  obvious that  this  order  cannot  be

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construed   as  an  order  or  an  injunction  staying   the institution  of the present suit.  In fact the present  suit is the result of the notification issued by respondent I  on February  26, 1944, and the subsequent steps taken by it  in the purported exercise of its authority under the Act.   The cause  of action for the suit has thus arisen subsequent  to the making of the order on which Mr. Dar relies; and on  the plain  construction  of the order it is impossible  to  hold that it is an order which can attract the application of  s. 15  of  the Limitation Act.  We have already held  that  the relevant  words  used in s. 15 must  be  strictly  construed without  any consideration of equity, and so  construed,  we have  no  doubt that the order on which Mr. Dar  has  placed reliance  before  us  is  wholly  out  side  s.  15  of  the Limitation  Act.  We would, however, like to add  that  this order  did  not  even in  substance  create  any  difficulty against the institution of the present suit.  The claim made by the appellants in the present suit that the properties in suit  do  not  constitute a waqf  and  the  declaration  and injunction  for which they have prayed do not  infringe  the earlier order even indirectly or remotely.  We must  accord- ingly hold that the High Court was right in taking the  view that s. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed  by s. 5(2) of the Act. That  takes us to the consideration of the next  preliminary objection against the competence of the suit under s. 53  of the  Act.   Section  53 provides that "  no  suit  shall  be instituted  against  a Central Board in respect of  any  act purporting to be done by such Central Board under colour  of this Act or for any relief in respect of any waqf until  the expiration  of two months next after notice in  writing  has been  delivered to the Secretary, or left at the  office  of such 166 1308 Central  Board,  stating  the cause  of  action,  the  name, description and place of residence of the plaintiff and ’the relief  which  he  claims; and the plaint  shall  contain  a statement that such notice has been so delivered or left  ". This  section  is similar to s. 80 of  the  Civil  Procedure Code.   It is conceded by Mr. Dar that if s. 53  applies  to the  present suit the decision of the High Court  cannot  be successfully  challenged ’because the notice required by  s. 53  has  not  been  given  by  the  appellants  before   the institution of the present suit.  His argument, however,  is that the notification issued by respondent I on February 26, 1944,  did not refer to the Darga and offerings made by  the devotees  before the Darga and he contends that the  present suit   in  respect  of  these  properties  is  outside   the provisions  Of s. 53 and cannot be held to be barred on  the ground  that the requisite notice had not been given by  the appellants.  We are not impressed by this argument.   Column 1  of the notification in question sets out the name of  the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar Mahsood Ghazi.  In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf.  The tomb of Syed Salar Mahsood  Ghazi which  is  the  object of charity in  the  present  case  is expressly mentioned in col. 1 and so it is futile to suggest that  the tomb or Darga had not been notified as a  waqf  by respondent  1 under s. 5(1).  In regard to the offerings  we do  not see bow offerings could have been mentioned  in  the notification.  They are made from time to time by the  devo- tees  who  visit  the Darga and by their  very  nature  they

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constitute  the income of the Darga.  It is unreasonable  to assume that offerings which would be made from year to  year by  the  devotees should be specified  in  the  notification issued  under  s.  5(1).  We  must,  therefore,  reject  the argument that any of the suit properties have riot been duly notified by respondent I under s. 5(1) of the Act.  If  that be  so, it was incumbent upon the appellants to  have  given the  requisite  notice under s. 53  before  instituting  the present suit.  The requirement as to notice applies to 1309 suits  against a Central Board in respect of their  acts  as well as to suits for any relief in respect of any waqf.   It is  not  denied  that the present  suit  would  attract  the provisions  of s. 53 if the argument that the Darga and  the offerings are not notified is rejected.  The result is  that the suit is not maintainable as a result of the  appellant’s failure to comply with the requirements of s. 53.  We  would accordingly  confirm the finding of the High Court that  the appellants’ suit is barred by time under s. 5(2) and is also not  maintainable  in view of the fact that  the  appellants have not given the requisite notice under s. 53 of the Act. The  result is that the appeal fails and is  dismissed  with costs. Appeal dismissed.