Sirajul Haq Khan & Ors Vs. The
Sunni Central Board of Waqf, U. P. & Ors  INSC 77 (16 September 1958)
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)
Waqf-Suit against Central Board Notice--Limitation-United
Provinces Muslims Waqf Act (U. P. XIII of 1936), ss. 5, 53The Indian Limitation
Act (IX of 1908), s. 15.
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.
The expression " any person interested
in a waqf " used in s. 5(2) Of the United Provinces Muslims Waqf Act,
1936, properly 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.
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 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 exercise 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 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 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 forever 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 allegation
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 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 conceded 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 maintainability 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 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)
" 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 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
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 subsection 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 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 interested
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 the whole of it effective and
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 staged 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
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 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.
(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
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 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
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.
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 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 outsides. 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 accordingly 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 devotees who visit the Darga and by their very nature they
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.