C.Mohammed Yunus Vs. Syed Unissa &
Ors  INSC 48 (14 February 1961)
CITATION: 1961 AIR 808 1962 SCR (1) 67
CITATOR INFO :
R 1966 SC 470 (13) F 1974 SC 923 (49)
Muslim law-Religious endowment-Surplus income
to be distributed amongst the members of the family-Claim by femalesIf governed
by custom or personal law-Muslim Personal Law (Shariat) Application Act, 1937
(26 of 1937), as amended by Muslim Personal Law (Shariat) Application (Madras
Amendment) Act, 1949 (Mad. 18 of 1949), S. 2. Limitation-Declaratory suit with
consequential relief-If maintainable-Right to sue-Computation-Indian Limitation
Act, 1908 (IX of 1908), art. 120.
Under a scheme a Board of Trustees was
appointed for administration of the Durga and a Masjid for the maintenance of
which the Nawab of Carnatic had granted two villages in Inam. The income of the
institution after disbursing the expenses had since long been shared by the
descendants in four families in equal shares. The scheme also provided that the
surplus income was to be distributed amongst the members of the said four
families. One of the descendants died leaving him surviving his wife and two
daughters who were obstructed in the performance of the "Urs" by the
The said Muslim female members filed a suit
for declaration that they were entitled to enjoy the properties and to manage
the Durga, perform the "Urs" festival and receive all incomes,
endowments and perquisites thereof once in every eight years according to their
turn. The right to a share in the income was denied by the appellant contending
that by custom in the family, females were excluded from inheritance and that
the claim was barred by the law of limitation and that, in any event, the suit
for mere declaration was not maintainable.
Held, that a suit for declaration of rights
with a consequential relief for injunction was not a suit for declaration
simpliciter; it was a suit for declaration with further relief and was not
barred under art. 120 Of the Indian Limitation Act merely because the
contesting defendant did not recognise the right. The period of six years
prescribed by art. 120 is to be computed from the date when the right to sue
accrued and there could be no right to sue until there was an accrual of the
right asserted in the suit and its infringement or at least a clear and unequivocal
threat to infringe that right.
If under the law a person was entitled to any
legitimate right, the mere denial of the right will not set the period of
limitation running against the person entitled to such right.
68 Held, further, that on the enactment of
the Shariat Act 26 Of 1937, as amended by the' Madras Act r8 Of 1949, the
Muslim Personal Law applies in all cases relating to the matters specified
notwithstanding any customer usage to the contrary even at the stage of
appeals, if other conditions prescribed under the Act are fulfilled.
Kunj Behari Prasadji Purshottam Prasadji v.
Keshavld Hiralal. (1904) I.L.R. 28 Bom. 567, discussed.
Syed Roshan Ali v. Mt. Rehmat Bibi and
Others, A.I.R. 1943 Lah. 219, disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 512 of 1957.
Appeal by special leave from the judgment and
decree dated August 29' 1952, of the Madras High Court in Second Appeal No.
2349 of 1946.
Azizuddin and K. R. Choudhury , for the
Shaukat Hussain and P.C. Agarwala, for
respondents Nos. 1 and 2.
1961. February 14. The Judgment of the Court
was delivered by SHAH J.-There is in the village of Cavelong, District
Chiugleput in the State of Madras an ancient Durgah to which is appurtenant a
Masjid. The Nawab of Carnatic had granted two villages in inam for the
maintenance of the Durgah and the Masjid. Offerings from the devotees who visited
the Durgah and the Maajid were also received. The income of-the institution
after disbursing the expenses of "Sandal", and "Urs" and of
feeding the poor has since long been shared by descendants in four families in
equal shares. By 'Custom females and persons claiming through females were
excluded from receiving a share of the income and the income was distributed
amongst the males descended 'in the male fine.
In original suit No. 27 of 1940 of the file
of the Subordinate Judge, Chingleput, a scheme was framed for administration of
the Durgah and the Masjid and a Board of trustees was appointed for that
purpose. By the scheme, provision was. made for distribution of the surplus
income amongst the members of the four families.
69 Fakruddin, in the following genealogy,
belonged to one of the four families which received the income.
Sheik Mohammad Fakir Mohammad Sheik Miran
Giasuddin Nismat Ulla Khamruddin Nayeem Uddir Fakir Mohammad Fakruddin=SulaiNiama
Ulla Abdul Safi man Bi Wahid Ulla (2nd plaintiff) (1st deft.) Nayeemuddin (died
unmarried) Ramat Syed UnUnnissa (2nd nissa (Ist defendant) plaintiff) As a
descendant of Sheik Mohammad, Fakruddin received a 1/8th share of. the income.
He was also by arrangement with others entitled to perform the "Urs"
ceremony once in eight years. Fakruddin died in 1921 leaving him surviving his
wife Sulaiman Bi and two daughters Rahmat Unnissa and Syed Unnissa. Sulaiman Bi
is plaintiff No. 2 and Rahmat Unnissa and Syed Unnissa are respectively
defendant No. 2 and plaintiff No. 1 in suit No. 156 of 1937 out of which this
In the year 1926, it was the turn of
Fakruddin to perform the "Urs" and it is claimed by the plaintiffs
that it was performed on behalf of the widow and daughters of Fakruddin by
their deputies. The next turn was in the year 1934, but in the performance of
the "Urs", the plaintiffs and defendant No. 2 were obstructed by
Abdul Wahid son of Nayeem-Uddin belonging to the other branch in Sheik
Mohammad's family. Plaintiffs 1 and 2 then filed suit No. 156 of 70 1937 in the
court of the District Munsif at Chingleput .For a declaration that they were
entitled to enjoy the properties described in the schedule annexed to the
plaint and to manage the Durgah, perform the "Urs" festival and
receive all "incomes, endowments and perquisites thereof once in every
eight years" since 1934 according to their turn. They also claimed an
injunction restraining Abdul Wahib from interfering with their rights in that
Rahmat Unnissa the eldest daughter of
Fakruddin was impleaded as defendant No. 2. Abdul Wahid defendant No. 1 died
during the pendency of the suit and defendants 4 to 10 who were brought on
record on their own application as heirs and legal representatives to the
exclusion of the daughter of Abdul Wahid defended the suit. They denied the
right of the plaintiffs to a share in the income contending that lay custom in
the family, females were excluded from inheritance, that the office of
"Peshimam", "Khatib" and "Mujavar" could only be
held by males and that females were excluded from those offices, that the
plaintiffs' claim was barred by the law of limitation and that in any event the
suit for a mere declaration was not maintainable.
The Trial Judge held-and the appellate court
agreed with him that there was an immemorial custom governing the institutions
precluding the plaintiffs from performing services or sharing the income,
emoluments and perquisites and therefore the plaintiffs were not entitled to
perform those services and enjoy the surplus income, and accordingly they were
not entitled to the declaration of an injunction prayed for. In second appeal,
the High Court at Madras held that by virtue of the Shariat Act, 1937, the
income received from the institution had to be shared according to the personal
law of the parties and that the plaintiffs' claim was not barred by the law of
limitation nor was the suit open to the objection that it was as framed not
Against the decree passed by the High Court,
this appeal with special leave under Art. 136 of the Constitution is preferred.
In our view, the suit as framed was
maintainable. The management of the institution is vested in the 71 trustees.
The four families, it is true, are by tradition entitled to perform and
officiate at certain ceremonies and also to share in the income. A suit for
declaration with a consequential relief for injunction, is not a suit for
declaration simpliciter; it is a suit for declaration with further relief.
Whether the further relief claimed in a particular case as consequential upon
a,declaration is adequate must always depend upon the facts and circumstances
of each case.
In Kunj Behari Prasadji Purshottam Prasadji
v. Keshavlal Hiralal (1), it was held that s. 42 of the Specific Relief Act
does not empower the court to dismiss a suit for a declaration and injunction
and that an injunction is a further relief within the meaning of s. 42 of the
Specific Relief Act. In that case, the plaintiff had claimed that a certain
will was null and void and that being a close relative of the last holder of a
gadi, he was entitled to be the Acharya in the place of that last holder and
for an injunction restraining the defendants from offering any obstruction to
his occupation of the gadi. It was held that such a suit was maintainable.
The surplus income-.of the institution is
distributed by the trustees and the plaintiffs are seeking a declaration of the
right to receive the income and also an injunction restraining the defendants
from interfering with the exercise of their right. The High Court hold that
plaintiff No. 1 was at the date of the suit 19 years of age and was entitled to
file a suit for enforcement of her right even if the period of limitation had
expired during her minority within three years from the date on which she
attained majority by virtue of ss. 6 and 8 of the Indian Limitation Act. Apart
from this ground which saves the claim of the first plaintiff alone, a suit for
a declaration of a right and an injunction restraining the defendants from interfering
with the exercise of that right is governed by art. 120. of the Limitation Act
and in such a suit the right to sue arises when the cause of action accrues.
The plaintiffs claiming under Fakruddin sued to obtain a declaration of their
rights in the institution which (1) I.L.R. (1904) XXVIII Bom. 567.
72 was and is in the management of the
trustees. The trial judge hold that the plaintiffs were not "in enjoyment
of the share" of Fakruddin since 1921 and the suit filed by the plaintiffs
more than 12 years from the date of Fakruddin's death must be held barred, but
he did not refer to any specific article in the first schedule of the
Limitation Act which barred the suit. It is not shown that the trustees have
ever denied or are interested to deny the right of the plaintiffs and defendant
No. 2; and if the trustees do not deny their rights, in our view, the suit for
declaration of the rights of the heirs of Fakruddin will not be barred under
art. 120 of the Limitation Act merely because the contesting defendant did not
recognize that right. The period of six years prescribed by art. 120 has to be
computed from the date when the right to sue accrues and there could be no
right to sue until there is an accrual of the right asserted in the suit and
its infringement or at least a clear and unequivocal threat to infringe that
If the trustees were willing to give a share
and on the record of the case it must be assumed that they being trustees
appointed under a scheme would be willing to allow the plaintiffs their
legitimate rights including a share in the income if under the law they were
entitled thereto, mere denial by the defendants of the rights of the plaintiffs
and defendant No'. 2 will not set the period of limitation running against
The trial court as well as the first
appellate court held on an exhaustive review of the evidence that there was an
immemorial custom governing the institutions whereby the plaintiffs were not
entitled to perform service or share the income, emoluments and perquisites.
But since the enactment of the Shariat lot 26 of 1937, this custom must be
deemed inapplicable to the members of the family. By s. 2 of the Act, it was
enacted as follows:
"Notwitlwtanding any customs or usage to
the contrary in all questions (save questions relating to agricultural lands)
regarding intestate succession, ,special property of females, including
personal property inherited or obtained under contract or gift or 73 any other
provision of Personal Law, marriage, dissolution of marriage, including talaq,
ila, zihar, lian, khula and mubarrat, maintenance, dower, guardian. ship,
gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat)." Under the Shariat Act,, 1937, as framed, in questions
relating to charities and charitable institutions and charitable and religious
endowments, the custom or usage would prevail. But-the Act enacted by the
Central Legislature was amended by Madras Act 18 of 1949 and a. 2 as amended
"Notwithstanding any custom or usage to
the contrary, in all questions regarding intestate succession, special property
of females including personal property inherited or obtained under contract, or
gift or arty other provision of personal law, marriage, dissolution of
marriage, including Tallaq, ila, zihar, lian, Khula and Mubarrat, maintenance,
dower, guardianship, gifts, trusts and trust proper. ties and wakfs the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat)." Manifestly by this act' "the rule of decision"
in all questions relating to intestate succession and other specified matters
including wakfs where the parties to the dispute are Muslims is the Muslim
Personal Law. The, terms of the Act as amended are explicit. Normally statute
which takes away or impairs vested rights under existing laws is presumed not
to have retrospective operation. Where vested rights are affected and the
question is not one of procedure, there is a presumption that it was not the
intention of the legislature to alter vested rights. But the question is always
one of intention of the legislature to be gathered from the language used in
the statute. In construing an enactment, the court starts with a presumption
against retrospectivity if the enactment seeks to affect vested rights: but
such a presumption 74 may be deemed rebutted by the amplitude of the language used
by the Legislature. It is expressly enacted in the Shariat Act as amended that
in all questions relating to the matters specified, "the rule of
decision" in cases where the parties are Muslims shall be the Muslim
Personal Law. The injunction is one directed against the court: it is enjoined
to apply the Muslim Personal Law in all cases relating to the matters specified
notwithstanding any custom or usage to the contrary. The intention of the
legislature appears to be clear; the Act applies to all suits and proceedings
which were pending on the date when the Act came into operation as well as to
suits and proceedings filed after that date. It is true that suits and
proceedings which have been finally decided would not be affected by the
enactment of the Shariat Act, but if a suit or proceeding be pending even in
appeal on the date when the Act was brought into operation, the law applicable
for decision would be the Muslim Personal Law if the other conditions
prescribed by the Act are fulfilled. In our view, the High Court was right in
holding that it was bound to apply the provisions of the Shariat Act as amended
by Madras Act 18 of 1949 to the suit filed by the plaintiffs.
We are unable to agree with the view of the
Lahore High Court in Syed Roshan Ali-v. Mt. Behmat Bibi (1) that a right
acquired before 1937 (the date on which the Shariat Act was brought into
operation) to bring a suit for a declaration that the alienation by the widow
of the last holder who had by custom succeeded to the limited estate left by
her husband was not binding upon the reversioner, was not taken away by the
enactment of the Muslim Personal Law (Shariat) Application Act, 1937. It may be
observed that the court proceeded merely upon the general presumption against
retrospectivity and their attention, it appears, was not directed to the
phraseology used by the legislature to give s. 2 a retrospective operation.
The plea raised by counsel for. the
contesting defendants that even under the Muslim Personal Law, females are
excluded from performing the duties of (1) A.I.R. 1943 Lah. 219.
75 the offices of "Peshimam",
"Khatib" and "Mujavar" and that they cannot carry out the
duties of those offices even through deputies is one which was not raised
before the High Court. The trial court has found that the duties of those
offices could be performed through deputies. The first appellate court did not
express any opinion on that question and before the High Court, this question
was not mooted. We do not think that we would be justified in allowing the
contesting defendants to argue this question in this appeal.
In any event, if the income was being distributed
amongst the four families, the plaintiffs and defendant No. 2 claiming under
Fakruddin would, by virtue of the provisions of the Shariat Act, be entitled to
receive that income.
There is nothing on the record to suggest
that the right to receive the income is conditional upon the performance of the
duties of the offices of "Peshimam", "Khatib" and
In that view of the case, this appeal fails
and is dismissed with costs.