C. Mohammed Yunus vs Syed Unissa and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 512 of 1957

Decision Date: 14 February 1961

Coram: J.C. Shah, J.L. Kapur, M. Hidayatullah

In this matter the Supreme Court of India delivered its judgment on 14 February 1961. The petition was brought by C Mohammed Yunus against Syed Unissa and others. The judges who formed the bench were J C Shah, J L Kapur and M Hidayatullah. The case is reported in the 1961 volume of the All India Reporter at page 808 and also appears in the 1962 Supplement to the Supreme Court Reports at page 67. Citator references include R 1966 SC 470, F 1974 SC 923. The issue concerned the application of Muslim personal law to a religious endowment, specifically the distribution of surplus income among family members, a claim advanced by female members of the family. The statutes mentioned were the Muslim Personal Law (Shariat) Application Act 1937, as amended by the Madras Amendment 1949, section 2, and the Indian Limitation Act 1908, article 120, which deals with the computation of limitation periods for declaratory suits with consequential relief.

The Court described that under a scheme a board of trustees had been appointed to administer a Durgah and an adjoining Masjid, for which the Nawab of Carnatic had granted two villages in inam for their maintenance. After the institution’s expenses were paid, the remaining income had long been shared equally among the descendants of four families. The scheme further stipulated that any surplus income should be distributed among members of those four families. One of the descendants died, leaving a surviving wife and two daughters. These female heirs were prevented from performing the annual “Urs” ceremony by the father of the appellant. Consequently, the Muslim women filed a suit seeking a declaration that they were entitled to enjoy the property, to manage the Durgah, to conduct the “Urs” festival and to receive all incomes, endowments and perquisites on a rotating eight‑year basis. The appellant denied their right to a share, arguing that family custom excluded females from inheritance, that the claim was barred by limitation, and that a suit for mere declaration was not maintainable. The Court held that a suit for declaration of rights together with an injunction is not merely a declaratory suit; it is a declaratory suit with further relief and therefore is not barred by article 120 merely because the opposing party does not recognise the right. The six‑year limitation period under article 120 commences when the right to sue accrues, which requires an actual infringement or a clear, unequivocal threat of infringement. The Court further observed that where law grants a person a legitimate right, a mere denial of that right does not start the limitation period against the person entitled to the right. The judgment also noted a further holding regarding the effect of the enactment of the Shariat Act, though the specific detail was not reproduced in the excerpt.

In this case, the Court observed that the Madras Act of 1937, as amended by the Madras Act of 1949, stipulated that the Muslim Personal Law governed all matters expressly mentioned in the Act, even if local customs differed, provided that the other conditions prescribed by the Act were satisfied. The Court noted earlier authorities such as Kunj Behari Prasadji Purshottam Prasadji v. Keshav Id Hiralal (1904) I.L.R. 28 Bom. 567, and mentioned the disapproval of the decision in Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.I.R. 1943 Lah. 219. The judgment concerned Civil Appeal No. 512 of 1957, filed by special leave against the judgment and decree dated 29 August 1952 of the Madras High Court in Second Appeal No. 2349 of 1946. Counsel for the appellant and for respondents Nos. 1 and 2 were listed, and the judgment was delivered on 14 February 1961 by Justice Shah.

The factual background described an ancient Durgah and an adjoining Masjid located in the village of Cavelong, District Chingleput, State of Madras. The Nawab of Carnatic had historically granted two villages in inam for the upkeep of the Durgah and the Masjid, and the institution received offerings from devotees. After meeting the expenses of the “Sandal” and “Urs” ceremonies and feeding the poor, the remaining income had long been divided equally among descendants belonging to four families. By custom, females and persons asserting rights through females were excluded from sharing the income, which was distributed only among males tracing descent through the male line. In original suit No. 27 of 1940 before the Subordinate Judge, Chingleput, a scheme was formulated for the administration of the Durgah and the Masjid, and a Board of Trustees was appointed to implement that scheme. The scheme provided that any surplus income would be shared among the members of the four families.

Within the genealogy presented, Fakruddin was identified as a member of one of the four families entitled to the income. The lineage traced from Sheik Mohammad through several generations to Fakruddin, who held a one‑eighth share of the income and, by arrangement with the other family members, was entitled to perform the “Urs” ceremony once every eight years. Fakruddin died in 1921, leaving his widow, Sulaiman Bi, and two daughters, Rahmat Unnissa and Syed Unnissa. Sulaiman Bi was designated as plaintiff No. 2, while Rahmat Unnissa and Syed Unnissa were respectively defendant No. 2 and plaintiff No. 1 in suit No. 156 of 1937, the suit from which the present appeal arose. In 1926, when it was Fakruddin’s turn to conduct the “Urs,” the plaintiffs claimed that the ceremony was performed on behalf of the widow and daughters by their deputies. The next scheduled turn occurred in 1934, but the narrative of events following that year continued in the subsequent portion of the judgment.

In this dispute, the plaintiffs reported that their right to perform the “Urs” ceremony and to receive the associated income had been obstructed by Abdul Wahid, a son of Nayeem‑Uddin belonging to a different branch of Sheikh Mohammad’s family. As a result of this obstruction, the first and second plaintiffs instituted suit No. 156 of 1937 before the District Munsif Court at Chingleput. The suit sought a declaration that the plaintiffs were entitled to enjoy the properties listed in the schedule annexed to the plaint, to manage the Durgah, to perform the “Urs” festival, and to receive all incomes, endowments and perquisites thereof once in every eight years, beginning with the turn that fell due in 1934. In addition, the plaintiffs asked for an injunction restraining Abdul Wahid from interfering with those rights. The eldest daughter of Fakruddin, Rahmat Unnissa, was impleaded as defendant No. 2. During the pendency of the suit, Abdul Wahid, who was defendant No. 1, died. Subsequently, defendants 4 through 10 entered the proceedings on their own application, claiming to be heirs and legal representatives, while the daughter of Abdul Wahid was specifically excluded. These defendants denied the plaintiffs’ claim to any share in the income, contending that an immemorial family custom excluded females from inheritance, that the offices of “Peshimam”, “Khatib” and “Mujavar” could be held only by males, that the plaintiffs’ claim was barred by the law of limitation, and that, even if the limitation defence were ignored, the suit for a mere declaration was not maintainable. The trial judge, and later the appellate court, concurred that the longstanding custom governing the institution prevented the plaintiffs from performing the religious services or sharing the income, emoluments and perquisites, and therefore held that the plaintiffs were not entitled to the declaration or the injunctive relief they sought. On a second appeal, the Madras High Court held that, under the Shariat Act, 1937, the income received from the institution must be shared according to the personal law applicable to the parties, and that the plaintiffs’ claim was not barred by limitation and the suit was not per se unmaintainable. The present appeal, filed with special leave under Article 136 of the Constitution, challenges the decree of the High Court. The Court observed that the suit, as framed, was maintainable. Management of the institution is vested in its trustees, and, although tradition assigns certain ceremonial duties and a share of income to the four families, a suit for declaration coupled with consequential injunction is not a simple declaration suit but one seeking further relief. The adequacy of such consequential relief depends on the particular facts and circumstances of each case. In Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal Hiralal, the Court had held that Section 42 of the Specific Relief Act empowers a court to grant an injunction as further relief in a suit for declaration, thereby confirming the maintainability of suits that combine a declaration with an injunction.

The Court observed that the Specific Relief Act did not give the court power to dismiss a suit seeking both a declaration and an injunction, and that an injunction constituted a further relief within the meaning of section 42 of that Act. In the precedent cited, the plaintiff contended that a particular will was void and, as a close relative of the last holder of a gadi, asserted his entitlement to become the Acharya in place of that holder. He also sought an injunction to prevent the defendants from obstructing his occupation of the gadi. The Court held that a suit presenting those two reliefs was maintainable.

The Court then turned to the facts of the present case. The trustees distributed the surplus income of the institution, and the plaintiffs asked the Court to declare their right to receive a share of that income and to grant an injunction restraining the defendants from interfering with the exercise of that right. The High Court had held that plaintiff No 1 was nineteen years of age at the date of filing the suit and was therefore entitled to bring an action for enforcement of her right even though the period of limitation had expired during her minority, because section 6 and section 8 of the Indian Limitation Act allowed a three‑year extension after she attained majority. Apart from this special protection for the first plaintiff, the Court noted that a suit for declaration of a right together with an injunction is governed by article 120 of the Limitation Act, which provides that the right to sue arises when the cause of action accrues. The plaintiffs, claiming rights under the estate of Fakruddin, sought a declaration that the institution remained under the management of the trustees. The trial judge had found that the plaintiffs had not been in enjoyment of Fakruddin’s share since 1921 and therefore held the suit, filed more than twelve years after Fakruddin’s death, to be barred; however, the trial judge did not cite any specific provision of the first schedule of the Limitation Act to support that conclusion. The Court observed that there was no evidence that the trustees had ever denied or intended to deny the plaintiffs’ right, and that, if the trustees did not deny those rights, the suit for declaration of the heirs’ rights could not be barred merely because a defendant failed to recognize the right. The six‑year limitation period prescribed by article 120 must be counted from the date when the right to sue accrues, and no cause of action exists until the asserted right is either infringed or faced with a clear and unequivocal threat of infringement. Consequently, if the trustees were willing to allocate a share, the limitation period would not have commenced until such a right was asserted or threatened.

In this case the Court assumed that the trustees, who were appointed under a scheme, would be prepared to grant the plaintiffs their lawful entitlements, including a share of the income, if the law recognised such a share. The mere denial of the plaintiffs’ rights by the defendants, including defendant No 2, could not be taken as the event that started the limitation period. The trial court and the first appellate court, after a thorough examination of the evidence, concluded that an ancient custom had governed the institutions and that, under that custom, the plaintiffs were not entitled to perform any service or to receive any share of the income, emoluments or perquisites. However, the Court held that the enactment of the Shariat Act 26 of 1937 rendered that custom inapplicable to members of the family. Section 2 of the Act provides that, notwithstanding any contrary custom or usage in all matters (except those relating to agricultural lands) concerning intestate succession, the special property of females, personal property acquired by contract or gift, and any other provision of personal law relating to marriage, dissolution of marriage (including talaq, ila, zihar, lian, khula and mubarrat), maintenance, dower, guardianship, gifts, trusts and trust property, and wakfs (other than charities and charitable institutions 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, the rule of decision in matters involving charities and religious endowments was left to the prevailing custom or usage. The Act was later amended by Madras Act 18 of 1949, and Section 2 as amended states that notwithstanding any contrary custom or usage, in all questions regarding intestate succession, the special property of females, personal property obtained by contract or gift, and the other matters listed, the rule of decision for Muslim parties shall be the Muslim Personal Law. Consequently, the amended statute makes it clear that the governing law in all the enumerated questions where the parties are Muslims is the Muslim Personal Law. The Court noted that, as a general principle, a statute that impairs vested rights is presumed not to operate retrospectively. When vested rights are affected and the issue is not merely procedural, the presumption is that the legislature did not intend to alter those rights, but that intention must be discerned from the language employed. In construing such legislation, the Court begins with a presumption against retrospectivity if the enactment appears to affect vested rights, although that presumption may be displaced if the language of the statute is sufficiently expansive to indicate a contrary legislative purpose.

In examining the scope of the language employed by the Legislature, the Court noted that the Shariat Act, as amended, expressly states that for every question relating to the matters listed in the statute, “the rule of decision” in cases where the parties are Muslims shall be the Muslim Personal Law. This provision therefore creates a mandatory injunction directed at the courts, requiring them to apply Muslim Personal Law in all disputes concerning the specified matters irrespective of any contrary custom or usage. The legislative intention, as read from the text, appears unmistakably clear. Accordingly, the Act is deemed to govern all suits and proceedings that were pending at the moment the Act came into force, as well as any suits and proceedings that were instituted after that commencement date. The Court recognised that suits and proceedings which had already attained a final judgment would not be disturbed by the enactment. However, where a suit or proceeding remained pending—even if it was pending on appeal—on the date when the Act became operative, the law that must be applied for its determination is the Muslim Personal Law, provided that the additional conditions prescribed by the Act are satisfied.

The Court then turned to the assessment of the lower courts’ determinations. It affirmed that the High Court was correct 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. The Court could not concur with the position taken by the Lahore High Court in Syed Roshan Ali v. Mt. Behmat Bibi, wherein that Court had held that a right acquired before 1937—the year the Shariat Act was brought into operation—to institute a declaration suit challenging the alienation by a widow of the limited estate that she had succeeded to by custom, was not removed by the Muslim Personal Law (Shariat) Application Act, 1937. The present Court observed that the earlier decision relied only on the general presumption against retrospectivity and seemed to overlook the specific phraseology used by the Legislature to give section 2 a retrospective operation. Additionally, the pleading advanced by counsel for the contested defendants, asserting that under Muslim Personal Law women are excluded from performing the duties of the offices of “Peshimam”, “Khatib” and “Mujavar” and that they cannot discharge those duties even through deputies, was a question that had not been raised before the High Court. The trial court had found that the duties of those offices could indeed be performed through deputies, and neither the first appellate court nor the High Court had expressed any opinion on that point, meaning it had never been mooted before them. Consequently, the Court concluded that it would not be appropriate to allow the contested defendants to introduce this issue at the present appeal stage. Finally, the Court noted that if the income in question were being distributed among the four families, the plaintiffs and Defendant No. 2, who claim under Fakruddin, would, by virtue of the provisions of the Shariat Act, be entitled to receive that income.

The Court observed that the claimant was legally entitled to receive the income in question. It examined the record and found no evidence indicating that the entitlement to that income depended on the performance of the duties associated with the offices known as “Peshimam”, “Khatib” and “Mujavar”. In other words, the Court saw that the documents and testimony presented did not contain any condition linking the receipt of the income to the execution of the specific functions of those offices. Because the material on file did not show any such contingency, the Court concluded that the right to the income existed independently of any requirement to fulfill the responsibilities of those offices. Having reached that conclusion, the Court determined that the appeal did not disclose any ground on which it could succeed. Accordingly, the Court held that the appeal failed. As a result, the Court ordered that the appeal be dismissed and that the costs of the proceedings be awarded against the appellant. The final order therefore dismissed the appeal and imposed the costs on the party who had brought the challenge.