Case Note & Summary
This civil appeal arose from a suit concerning rights of female descendants of Fakruddin, a member of one of four families sharing surplus income of an ancient Durgah and appurtenant Masjid in village Cavelong, Chingleput district, Madras. The institution was managed by trustees under a scheme framed in Original Suit No. 27 of 1940. Fakruddin died in 1921 leaving widow Sulaiman Bi and daughters Rahmat Unnissa and Syed Unissa. The plaintiffs Syed Unissa and Sulaiman Bi sued for declaration and injunction to perform Urs festival and receive share of income once in eight years, after obstruction in 1934 by Abdul Wahid. The defence claimed custom excluding females from inheritance and office, and contended suit was barred by limitation and not maintainable as mere declaration. Trial court and first appellate court dismissed suit based on custom; High Court reversed holding Shariat Act 1937 as amended by Madras Act 18 of 1949 abrogated custom, suit maintainable, and not barred by limitation. Supreme Court, by special leave, considered whether custom survived, whether suit maintainable, and whether claim time-barred. The Court held that suit for declaration with consequential injunction was maintainable under Section 42 Specific Relief Act, relying on Kunj Behari Prasadji. On limitation, Article 120 Limitation Act applied and right to sue accrued only upon infringement or clear threat; mere denial by contesting defendant did not start limitation when trustees were willing to honour rights; also plaintiff No.1 was minor entitled to extension under Sections 6 and 8. On custom, Section 2 of Shariat Act 1937 as amended by Madras Act 18 of 1949 expressly made Muslim Personal Law prevail notwithstanding any custom or usage in matters including wakfs, trusts and trust properties; hence inherent custom excluding females was inapplicable. The Court disapproved Syed Roshan Ali v. Mt. Rehmat Bibi. Accordingly, the Supreme Court dismissed the appeal and upheld the High Court's decree recognising plaintiffs' entitlement to share income and perform Urs once in eight years.
Headnote
A) Muslim Law - Religious Endowment - Surplus Income Distribution and Custom Excluding Females - Muslim Personal Law (Shariat) Application Act, 1937 (as amended by Madras Act 18 of 1949), Section 2 - The trial courts found an immemorial custom excluding females from receiving shares and performing services, but the Supreme Court held that after the Shariat Act 1937 as amended by Madras Act 18 of 1949, any custom or usage contrary to Muslim Personal Law stands abrogated in matters including wakfs, trusts, and trust properties; therefore the custom was inapplicable and female heirs of Fakruddin were entitled to share the income and perform the Urs once in eight years. Held that Muslim Personal Law governed the parties (Paras not available). B) Civil Procedure - Declaratory Suit with Consequential Relief - Maintainability under Section 42 Specific Relief Act, 1877 - Indian Limitation Act, 1908, Article 120 - A suit for declaration with consequential relief for injunction is not a suit for declaration simpliciter; it is a suit for declaration with further relief and is maintainable. The Court relied on Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal Hiralal, holding that injunction is further relief within Section 42. The suit for declaration and injunction was therefore not barred merely because defendants did not recognize the right (Paras not available). C) Limitation - Accrual of Right to Sue - Article 120 Indian Limitation Act, 1908 - The period of six years under Article 120 is computed from the date when the right to sue accrues; there can be no right to sue until accrual of the asserted right and its infringement or at least a clear and unequivocal threat to infringe that right. Mere denial by a contesting defendant does not set limitation running when trustees under the scheme were willing to allow legitimate rights. Also plaintiff No. 1 was a minor and entitled to benefit of Sections 6 and 8 of Limitation Act (Paras not available). D) Precedent - High Court Decisions - Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.I.R. 1943 Lah. 219 - The Supreme Court disapproved this Lahore High Court decision which apparently took a contrary view regarding applicability of custom after Shariat Act, aligning with the amended provision (Paras not available).
Issue of Consideration
Whether a suit for declaration with consequential relief for injunction was maintainable; whether the claim was barred by limitation; whether custom excluding females from inheritance and sharing in religious endowment income survived after the Muslim Personal Law (Shariat) Application Act, 1937 as amended by Madras Act 18 of 1949
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's decree. The Court held that the custom excluding females was inapplicable after the Shariat Act, 1937 as amended by Madras Act 18 of 1949, that the suit was maintainable as one for declaration with consequential injunction, and that the claim was not barred by limitation. The plaintiffs were entitled to share the income of the institution and perform the Urs ceremony once in every eight years according to their turn.
Law Points
- Suit for declaration with consequential injunction is maintainable under Section 42 Specific Relief Act
- limitation under Article 120 Limitation Act runs from accrual of right and clear threat
- not mere denial
- custom excluding females in matters of succession and wakf stands abrogated by Shariat Act 1937 as amended by Madras Act 18 of 1949
- Muslim Personal Law governs parties
