Female heirs of Fakruddin sued for declaration and injunction claiming their share in the income and turn to perform the Urs of a Durgah, against a customary exclusion of females. The Supreme Court held the suit maintainable, not barred by limitation, and that the amended Shariat Act displaced the custom even in pending appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
67
1 S.C.R. SUPREME COURT REPORTS
.o1.
C. MOHAMMED YUNUS
v.
February I.f-.
SYED UNISSA AND OTHERS
(J. L. KAPUR, M. HIDAYATULLAH and
J. c. SHAH, JJ.)
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Muslim law-Religious endowment-Surplus income to be distributed amongst the members of the family-Claim by fem.ales-If governed by custom or personal law-Muslim Personal Law (Shariat) Application Act, I937 (26 of I937), as amended by Muslim Personal Law (Shariat) Application (Madras Amendment) Act, I949 (Mad. r8 of I949), s. 2.
Limitation-Declaratory suit with consequential relief-If maintainable-Right to sue-Computation-Indian Limitation Act, I908 (IX of I908), art. I20.
Under a scheme a Board of Trustees was appointed for administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had granted two villages in Inam. The income of the institution after disbursing the expenses had since long been shared by the descendants in four families in equal shares. The scheme also provided that the surplus income was to be distributed amongst the members of the said four families. One of the descendants died leaving him surviving his wife and two daughters who were obstructed in the performance of the "Urs" by the appellant's father.
The said Muslim female members filed a suit for declaration • that they were entitled to enjoy the properties and to manage the Durga, perform the "Urs" festival and receive all incomes, endowments and perquisites thereof once in every eight years according to their turn. The right to a share in the income was denied by the appellant contending that by custom in the family, females were excluded from inheritance and that the claim was barred by the law of limitation and that, in any event, the suit for mere declaration was not maintainable .
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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. r20 is to be computed from the date when the right to sue accrued and there could be no right to sue until there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequi- vocal threat to infringe that right.
If under the law a person was entitled to any legitimate • right, the mere denial of the right will not set the period of limitation running against the person entitled to such right.
68 SUPREME COURT REPORTS [1962]
I-
| I96I C.****Mohammed Yunus v. **Syed**Unis~a |
_Held,_further,thaton the enactmentofthe Shariat Act26 of1937,as amended by the Madras Act18of1949•the Muslim Personal Law applies in all cases relating to the matters speci- fiednotwithstanding any custom or usage to the contrary even atthe stageofappeals,ifother conditions prescribed underthe Act are fulfilled. |
|---|---|
| &,Others | _KunjBehari Prasadji Purshottam Prasadji_v.Keshavlal Hiralal,(1904)I.LR.28Born.567,discussed. |
| _Syed Roshan Ali_v._Mt. Rehmat Bibi and Others,_A.LR.1943 Lab.219,disapproved. |
|
| CIVIL APPELLATE JURISDICTION: Civil Appeal No. 512of1957. |
|
| Appeal by special leave fromthejudgmentand decree dated August29,1952,oftheMadrasHigh Court in Second Appeal No. 2349of1946. |
|
| _Azizuddin_and_K. R. Choudhury,_fortheappellant. _Shaukat Hussain_and_P.O.Agarwala,_for respon- dents Nos. 1and2. |
,.
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Shah ]. SHAH, J.-There is in the village of Cavelong, District Chingleput in the State of Madras an ancient Durgah to which is appurtenant aMasjid. 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 Masjid were also received. The income of the institution after disbursing the expenses of "Sandal", and "U rs" 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 line. 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.
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I S.C.R. SUPREME COURT REPORTS 69
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Fakruddin, in the following genealogy, belonged to one of the four families which received the income.
Sheik Mohammad
I
I I Fakir Mohammad Sheik Miran I I Giasuddin Niamat Ulla I I Khamruddin Nayeem Uddin I Fakir Mohammad I I I I Fakruddin = SulaiNiamat Ulla AJdul Safi man Bi Wahid Ulla (2nd plaintiff) II (1st deft.) I Nayeemuddin I I (died unmarried) Rahmat Syed UnUnnissa (2nd nissa (1st defendant) plaintiff)
As a descendant of Sheik Mohammad, Fakruddin received a I/8th share of the income. He was also by arrangement with others entitled to perfom the "U rs" 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. 156of1937 out of which this appeal arises.
I96I
C. Mohammed Yunus
v.
~yed Unissa
& 'Others
Shah J.
In the year 1926, it was the turn of Fakruddin to perform the "U rs" 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 be· longing to the other branch in Sheik Mohammad's family. Plaintiffs I and 2 then filed suit No. 156 of
70 SUPREME COURT REPORTS [1962]
| C.****Mohammed Yunus v. Syed Unissa &Others Shah.J. |
1937 inthecourtoftheDistrict MunsifatChingleput for a declarationthatthey were entitled to enjoythe properties described intheschedule annexedtothe plaintandtomanage the Durgah, perform the_"Urs'"_ festivalandreceive all "incomes, endowmentsand perquisites thereof once in every eight years" since 1934 according to their turn. They also claimed an injunction restraining Abdul vVahib from interfering with their rights inthatbehalf.RahmatUnnissathe eldestdaughterofFakruddinwas impleaded as defen- dantNo.2.Abdul Wahid defendant No. I died during thependencyofthe suitanddefendants 4 to10who werebroughton record on their own application as heirsandlegal representatives totheexclusionofthe daughterofAbdul Wahid defendedthesuit. They deniedtherightofthe plaintiffs to a share in the in- come contendingthatbycustom inthefamily, femal- es were excluded from inheritence,thattheofficeof "Peshimam","Khatib"and"Mujavar" could only be held by malesandthatfemales were excluded from those offices,thattheplaintiffs' claim was barredby thelawoflimitationandthatinanyevent thesuit for a mere declaration was not maintainable. The TrialJudgeheld-andtheappellate court agre- edwith himthatthere wasanimmemorial custom go- verningtheinstitutions precludingtheplaintiffs from performing services or sharingtheincome, emoluments andperquisitesandtherefore the plaintiffs werenot entitled to perform those servicesandenjoythesur- plus income, and accordinglytheywere not entitled to thedeclarationofaninjunction prayed for.Insecond appeal,theHighCourtatMadras heldthatby virtue ofthe Shariat Act, 1937,theincome received from theinstitutionhadtobe shared according to the per- sonal lawofthepartiesandthattheplaintiffs' claim wasnotbarredbythelawoflimitation nor wasthe suit opentothe objectionthatitwas as framednot maintainable. Against the decree passedbytheHigh Court, this appeal with special leave under Art. 136 ofthe Constitution is preferred. |
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1 S.C.B. SUPBEME COUBT BEPOBTS
71
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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 Prasailji Purshottam Prasadji v. Keshavlal H iralal (' ), it was held that s. 42 of the Specific Belief 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 Belief 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.
C. ft.I ohammed Yunus v.
Syed Unissa
S. Others
Shah ].
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 held 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 plaintiIT 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) XX VIII Bom. 567.
72 SUPREME COURT REPO:t;l.'l'S . [1962]
was and is in the management of the trustees. The trial judge held that the plaintiffs were not "in enjoy- C. lrfohammed ment of the share" of Fakruddin since 1921 and the Yunus v, suit filed by the plaintiffs more than 12 years from Syed Unissa the date of Fakruddin's death must be held barred, &· Others but he did not refer to any specific article in the first schedule of the Limitation Act which barred the suit. Shah J, 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 recognise that right .. The period of six years prescribed by art. 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right. If the trustees were willing to give a share and on the record of the case it must be assumed that they being trustees appointed under a scheme would be willing to allow the plaintiffs their legitimate rights including a share in the income if under the law t.hey were entitled thereto, :µiere denial by the defendants of the rights of the plaintiffs and defendant No. 2 will not set the period of limitation running against them.
The trial court as well as the first appellate court held on an exhaustive review of the evidence that there was an immemorial custom governing the institutions whereby the plaintiffs were not entitled to perform service or share the income, emoluments and perquisites. But since the enactment of the Shariat Act 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 :
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"Notwithstanding 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
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I S.C.R. SUPREME COURT REPORTS 73
any other provision of Personal Law, marriage, dis. solution of marriage, including talaq, ila, zihar, lian, khula and mubarrat, maintenance, dower, guardianship, 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)."
C. Mohammed Yunus v. Syed Unissa & Others
Shah ].
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 s. 2 as amended provides: '
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"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 any other provision of personal law, marriage, dissolution of marriage, including Tallaq, ila, zihar, lian, Khula and Mubarrat, maintenance, dower, guardianship, gifts, trusts and trust properties and rwakfs 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 a statute which takes a way or impairs vested rights under existing laws is presumed not to have retrospective operation. Where vested rights are affected and the question is not pne of procedure, there is a presumption tha:t 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 IO
74 SUPREME COURT REPORTS [1962]
x96r may be deemed rebutted by the amplitude of the C. Mohammed language used by the Legislature. It is expressly en- Yunus acted in the Shariat Act as amended that in all quesv. tions relating to the matters specified, "the rule of Syed Unissa decision" in cases where the parties are Muslims shall . Others be the Muslim Personal Law. The injunction is one directed against the court: it is enjoined to apply the Shah ]. 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 applica.ble 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. Rehmat Bibi(') 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.
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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.
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1 S.C.R. SUPREME COURT REPORTS 75
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the offices of "Peshimam", "Khatib" and "Mujavar" and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court. The trial court has found that the duties of those offices could be performed through deputies. The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted. We do not think that we would be justified in allowing the contesting defendants to argue this question in this appeal. In any event, if the income was being distributed amongst the four families, the plaintiffs and defendant No. 2 claiming under Fakruddin would, by virtue of the provisions of the Shariat Act, be entitled to receive that income. There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the duties of the offices of "Peshimam", "Khatib" and "Mujavar". In that view of the case, this appeal fails and is dismissed with costs.
z96z
C. llfohammed Yunus
v.
Syed Unissa 6' Others
Shah J.
Appeal dismissed.
•. . .,t
TEEKA AND OTHERS '
v.
February r5,
STATE OF UTTAR PRADESH
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Criminal Trial-Dishonest removal of property-Attachment of livestock-Custody of Sapurdar-Forcible removal by ownerOwner, if acts dishonestly-Wrongful gain and wrongful lossIndian Pnl Code, I86o (XLV of r86o), ss. 23, 24, I49· 424Code of Civil Procedure, r908 (V of r908), 0. zr, R, rr6 (Allahabad).
In execution of a decree the Amin attached, inter a!ia, two buffaloes from the house of the judgment debtor and entrusted them to the custody of a sapurdar. As the sapurdar had no accommodation in his house for keeping the buffaloes he kept them for the night in the enclosure of the decree-holder with his permission. Early next morning the appellants armed with
3 issues framed by the court
Whether a suit for declaration of right with a consequential injunction was maintainable and not barred under Article 120 of the Limitation Act.
Whether the family custom excluding females from sharing the endowment income survived the Shariat Act as amended by the Madras Act of 1949.
Whether the amended Shariat Act applied to suits pending in appeal at its commencement.
Colour shows how this judgement treated each authority
Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal HiralalRelied on¶54
(1904) I.L.R. XXVIII Bom. 567 · Who else cites this
Syed Roshan Ali v. Mt. Rehmat BibiDisapproved¶79
A.I.R. 1943 Lah. 219 · Who else cites this
5 provisions across 5 enactments
C. Mohammed Yunus
Syed Unissa
Sulaiman Bi
Rahmat Unnissa
J. L. Kapur
M. Hidayatullah
J. C. Shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
