# Corporation of India Ltd v. Commercial Tax Officer, A.l.R. 1963 S.C

- **Citation:** [1967] 2 S.C.R. 318
- **Court:** Supreme Court of India
- **Decided:** 1967-01-04
- **Bench:** K. N. Wanchoo, R.S. Bachawat, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/corporation-of-india-ltd-v-commercial-tax-officer-a-l-r-1963-s-c-3954
- **Pages:** 7

## Headnote

Part B States (Laws) Act, 1951-Indum Vmitation Act, 1908 txtend·
~d to Hyderabad-Hyderabad Act II of Fl322 repealed-Possession of
muslim wakf property situated in Hyderabad lost
in
1937-Suit for
recovery filed in 1956-Suit whether fi/Rd wit/Jin
time-Indian Act or
Hyderabad Act to apply-Effect of Indian Limitation Ac•, .r. 30.
The Dargah Hazarat Habeeb Ali Shah Saheb, a muslim wakf had
certain property in Hyderabad of which it was dispossessed in 1937. The
Hyderabad Limitation Act 11 of 1322F did n.ot apply to wakf properties
and thus there was no limitation under it for a suit for recovery of such
property.
On April 1, 1951 the Part B States (laws) Act, 1951 came
into force and extend< d the Indian Limitation Act. 1908 to Hyderabad
and the corresponding law in Hyderabad accordingly stood repealed. By
s. 30 the Indian Act laid down that any suit for which the period of
limitation prescribed under the Indian Act, was shorter than that prescribed in the State Act could be instituted "within the period of two years
next after the coming into force of this Act in that Pan B State or within
the period .Prescribed for such suit by such corresponding law, whichever
period expires first."
Jn 1956 the mutawalli of the aforesaid Dargah
and the Board of Muslim Endowmenli, Hyderabad filed the present suit
for recovery of the wakf property. The trial court, on the footing that
the Indian Limitation Act applied, dismi~sed the suit as time barred under
Art. 142. The High Court however held that the application of the
Indian Limitation Act, I 908 to the suit would bar and confiscate the
existing cause of action for the recovery of the suit property, as the P&rt
B States (Laws) Act while ••tending the Indian Limitation Act to Hyderahad did not allow a reasonable
time to the plaintiffs for
enforcing
the existing cause of action and consequently the Indian Limitation Act
could not affect the suit and the suit was governed by the Hyderabad
Limitation Act.
Some of the defendants appealed to this Court.
HELD : The trial court had rightly held the suit to be time-barred.
(i) The ••tension of the Indian Limitation Act, 1908 to Hyderabad
artd t'te consequential change in law prescribing shorter period of limita·
tion did not confisc.1te the existing cause of actron and must be regarded
as an alteration in the Jaw of procedure for its enforcement
Therefore
the normal rule that the law of limitation applicable to the suit is 1he
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law in furce at the date of the inst'tution of the suit must apply. (321 C-DJ
G
The period of limitation for the suit prescribed by the Indian Limita•
tion Act was shorter than the period prescribed by the Hydcrnbad Act.
Therefore s. 30 of the Indian Act enabled the plaintiffs to institute th:
suit within a period of two years after April I. I951. The suit not
having been instituted within that period the r!aintiffs could not avail
themselves of the benefit of s. 30. [321 DJ
(ii) The Bo.rd of Muslim Endowments was not an agent of the State
Government by virtue of any provr.iion of the Muslim Wakf Act, I 954
and a suit instituted by it for the recovery of wakf property was not a
318
H
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SYED YOUSUF v. SYED MOHAMMED (Bachawat, J.)
319
A
suit by or on behalf of the State Government to which Art. 149 of the
Indian Limitation Act, 1908 was applicable. [322 C]
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Tamlin v. Hannafored. (1949)2 A.E.R. 327, and State ,
0•"ng
Corporation of India Ltd. v. Commercial Tax Officer, A.l.R. 1963 S.C.
811, referred to.
Since the passing of the Religious Endowments Act, 1963 the Mutawalli eannot be regarded as a proeurator of the Government. A suit
by him for the recovery of wakf property cannot be regarded as a suit
on its behalf, [322, E-FJ
Jewan Doss Sahoo v. Shah Kubeer.o<xl-Deen, 2 Moo. I.A. 390 Shaikh
Laul Mohomed v. Lalla Bri/ Kishore, 17 Weekly Refnrter (Sutherland)
430 and Beharl Lal & Sons. v. Muhamad Muttaki, .L.R. 20 All. 482,
referred to.
On his appointment the Mutawalli acquires no new right of suit and
his appo

## Text

'
SYED YOUSUF Y\RKHAN & ORS.
\',
SYED MOHAMMED YARKHAN & ORS.
January 4, 1967
(K. N. WANCHOO, R.S. BACHAWAT AND
J. M. SHELAT, JJ.j
Part B States (Laws) Act, 1951-Indum Vmitation Act, 1908 txtend·
~d to Hyderabad-Hyderabad Act II of Fl322 repealed-Possession of
muslim wakf property situated in Hyderabad lost
in
1937-Suit for
recovery filed in 1956-Suit whether fi/Rd wit/Jin
time-Indian Act or
Hyderabad Act to apply-Effect of Indian Limitation Ac•, .r. 30.
The Dargah Hazarat Habeeb Ali Shah Saheb, a muslim wakf had
certain property in Hyderabad of which it was dispossessed in 1937. The
Hyderabad Limitation Act 11 of 1322F did n.ot apply to wakf properties
and thus there was no limitation under it for a suit for recovery of such
property.
On April 1, 1951 the Part B States (laws) Act, 1951 came
into force and extend< d the Indian Limitation Act. 1908 to Hyderabad
and the corresponding law in Hyderabad accordingly stood repealed. By
s. 30 the Indian Act laid down that any suit for which the period of
limitation prescribed under the Indian Act, was shorter than that prescribed in the State Act could be instituted "within the period of two years
next after the coming into force of this Act in that Pan B State or within
the period .Prescribed for such suit by such corresponding law, whichever
period expires first."
Jn 1956 the mutawalli of the aforesaid Dargah
and the Board of Muslim Endowmenli, Hyderabad filed the present suit
for recovery of the wakf property. The trial court, on the footing that
the Indian Limitation Act applied, dismi~sed the suit as time barred under
Art. 142. The High Court however held that the application of the
Indian Limitation Act, I 908 to the suit would bar and confiscate the
existing cause of action for the recovery of the suit property, as the P&rt
B States (Laws) Act while ••tending the Indian Limitation Act to Hyderahad did not allow a reasonable
time to the plaintiffs for
enforcing
the existing cause of action and consequently the Indian Limitation Act
could not affect the suit and the suit was governed by the Hyderabad
Limitation Act.
Some of the defendants appealed to this Court.
HELD : The trial court had rightly held the suit to be time-barred.
(i) The ••tension of the Indian Limitation Act, 1908 to Hyderabad
artd t'te consequential change in law prescribing shorter period of limita·
tion did not confisc.1te the existing cause of actron and must be regarded
as an alteration in the Jaw of procedure for its enforcement
Therefore
the normal rule that the law of limitation applicable to the suit is 1he
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law in furce at the date of the inst'tution of the suit must apply. (321 C-DJ
G
The period of limitation for the suit prescribed by the Indian Limita•
tion Act was shorter than the period prescribed by the Hydcrnbad Act.
Therefore s. 30 of the Indian Act enabled the plaintiffs to institute th:
suit within a period of two years after April I. I951. The suit not
having been instituted within that period the r!aintiffs could not avail
themselves of the benefit of s. 30. [321 DJ
(ii) The Bo.rd of Muslim Endowments was not an agent of the State
Government by virtue of any provr.iion of the Muslim Wakf Act, I 954
and a suit instituted by it for the recovery of wakf property was not a
318
H
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SYED YOUSUF v. SYED MOHAMMED (Bachawat, J.)
319
A
suit by or on behalf of the State Government to which Art. 149 of the
Indian Limitation Act, 1908 was applicable. [322 C]
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G
H
Tamlin v. Hannafored. (1949)2 A.E.R. 327, and State ,
0•"ng
Corporation of India Ltd. v. Commercial Tax Officer, A.l.R. 1963 S.C.
811, referred to.
Since the passing of the Religious Endowments Act, 1963 the Mutawalli eannot be regarded as a proeurator of the Government. A suit
by him for the recovery of wakf property cannot be regarded as a suit
on its behalf, [322, E-FJ
Jewan Doss Sahoo v. Shah Kubeer.o<xl-Deen, 2 Moo. I.A. 390 Shaikh
Laul Mohomed v. Lalla Bri/ Kishore, 17 Weekly Refnrter (Sutherland)
430 and Beharl Lal & Sons. v. Muhamad Muttaki, .L.R. 20 All. 482,
referred to.
On his appointment the Mutawalli acquires no new right of suit and
his appointment does not give him a fresb 1tarting point .of limitation for
the recovery of the property. [322 F-0)
(iii) The contention that as limitation did not run under the Hyderabad Limitation Act, the date when the Indian Limitation Act, 1908 came
into force in Hyderabad should be regarded •
the starting point of
limitation has no force.
During the currency- of lhe Hydernbad Limitation Act limitation did not run, but the Act did not change the date of
dispossession. That date was September 20, 1937. For the purpose of
Art, 142 of the Indian Limitation Act, 1908 under which. the case fell,
that date must be regarded as the starting point of limitation. [322 G.H;
323 A-BJ
CML APPELLATE JURISDICATION: Civil Appeal No.760 of 1964.
Appeal by special leave from the judgment and decree dated
December 12, 1962 of the Andhra Pradesh High Court in C.C.C
Appeal No. 5 of 1960.
R. V. Pillai and /'.1. M. Kshatriya, for the appellants.
Daniel A. Latifi and M. /. Khowaja, for the respondents.
The Judgment of the Court wa& delivered by
Bachawat, J. This appeal arises out of a suit for the recovery
of possession of the house
known as
Sama
l(hana
and
five tiled rooms inside the compound of a dargah at Katalamandi,
Hyderabad. The property belongs to Dargah Hazarat Habbeeb
Ali Shah Saheb. The dargah while in possession of the property
was dispossessed by the defendants long ago. Counsel for the
plaintiffs conceded before us that the dargah was dispossessed of
the property on or about September 20, 1937, when the defendants
filed objections in the course of certain proceedings for enrolmeat
of the property as endowed
property under the Hyderabad Endowment Regulations. While the Hyderabad Limitation Act Tl
of i322 F was in force il1 Hyderabad, there was no limitation for a
suit for recovery of a wakf property. Section 29(c) of the Act
applied to suits relating to wakf. By virtue of s. 29(c), a suit for
recveryofawakfpropertywasoutside the Act. On April I, 1951,
320
SUPREME COURT REPORTS
11967] 2 SC.R.
the
Part
B States (Laws) Act,
1951,
came into force and
extended the Indian Limitation Act 1908 to Hyderabad, and the
corresponding law in force in Hyderabad stood repealed. On
February 3, 1956, the mutawalli of the dargah and the Board c-f
Muslim Endowments, Hyderabad, instituted the present suit for
recovery
of the property from the
defendants. The suit was
substantially a suit on behalf of the wakf who while in possession
of the property had been dispossessed.
On the assumption that the
Jndi·:i Limitation Act, 1908 applies to the suit, primafacie the suit
would be governed by art. 142 of that Act and would be barred by
limitation. The trial court dismissed the suit on the ground that it
was so barred. On appeal, the High Court of Andhra Pradesh
held that the suit was governed by the Hyderabad Limitation Act
and was not barred by limitation.
On this finding the High
Court decreed the suit. Some of the defendants now appeal to
this Court by special leave.
The High Court held that the application of the Indian Limitation Act 1908 to the suit would bar and confiscate the existing cause
of action for the recovery of the suit property, as the Part B States
(Laws) Act while extending the Indian Limitation Act to Hyderabad
did not allow a reasonable time to the plaintiffs for enforcing the
existing cause of action and consequently the Indian Limitation Act
could not affect the suit and the suit was governed by the Hyderabad
Limitation Act.
Now, the Part B States (Laws) Act 1951 was passed
on February 22, 1951. The Act came into force on April 1, 1951 by
virtue of a notification of the Central Government dated March 7,
I'J51 and published in the gazette on March 10, 1915.
It extended
to the Part B States the Indian Limitation Act 1908 as amended
with the addition of s. 30 which is in these terms:
"30. Provision for States for which the period prescribed is shorter than that prescribed by any law previously
in force in a Part R State.
Notwithstanrling anything
herein contained, any suit for which the per'·Jd of limitation
prescribed by this Act is shorter than the period of limitation
prescribtJ by any law corresponding to this Act in force
in a Part B State which is repealerl bv the Plrt B States
(Laws) Act, 1951. may be instituted within the period of
two years next after the coming into force of this Act in
that Part B States or within the period prescribed for
such suit by
such corrsponding law, whichever period
expires first."
Section 30 should be construed liberally considering that it
is intended to alleviate hardship consequential on the introduction
of a shorter period of limitation.
Ex-facie, s. 30 applies to a suit
for which the period of limitation prescribed by the Indian Limitation Act 1908 is shorter than the period of limitation prescribed
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SYED YOUSUF v. SYED MOHAMMED (Bachawat, J.)
321
by the corresponding Jaw in force in the Part B State.
N<:>w, the
Hyderabad Limitation Act did no~ply to a suit for recovery of
possession of a wakf property. The result was that under the
corresponding law in force in Hyderabad, there was no limitation for
such a suit. In other words, the period of limitation prescribed
for the suit by the corresponding law in Hyderabad was an unlimited period. Article 142 of the Indian Limitation Act 1908
applies to a suit for recovery of possession of the wakf property.
As it prescribes a shorter period of limitation for the institution of
the suit, s. 30 enabled the plaintiffs to institute the suit within a
period of two years after April 1, 1951. The Part B States (Laws)
Act 1951 while extending the Indian
Limitation Act 1908
to Hyderabad thus allowed the plaintiffs reasonable time to institute
the suit for recovery of the property. The extension of the Indian
Limitation Act 1908 to Hyderabad and the consequential change
in law prescribing a shorter period of limitation did not confiscate
the existing cause of action and must be regarded as an alteration
in the law of procedure for its
enforcement. We must, therefore,
apply the normal rule that the law of limitation applicable
to the suit is the law in force at the date of the institution of the suit.
The suit is, therefore, governed by the Indian Limitation Act 1908.
The ~ laintiffs did not institute the suit within two years after April
1, 1951. They cannot therefore avail themselves of the benefit of s. 3Ci.
Counsel submitted that the present suit was a suit by or on
behalf of the State Government and was therefore governed by
art. 149 of the Indian Limitation Act 1908. He submitted that the
Board of Muslim Endowments, Hyderabad, which ;tccording to
him was the Board of Wakfs constituted under the Muslim Wakfs
Act 1954, was an agent of the Central Government.
By s. 9(2)
of the Muslim Wakfs Act, 1954, the Board of Wakfo is a body
corporate and by s. 15 of this Act, the Board is vested with the
right of general superintendence of wakfs and
is empowered
to take measures for the recovery of the lost properties of any wakf
and to initiate and defend suits and proceedings relating to
wakfs. Counsel submitted that a corporation may be an agent of
the State Government, . and in support of this con!ention relied
upon Halsbilry's Laws ofEngland, 3rd Ed., Vol. 9, p. IO-Tamlin v.
Hannaford('), and the observations of Shah, J. in State Trading
Corporation of India Limited v. The Commercial Tax Officer(2). He
submitted that the State Government has delegated its functions of
superintendence over wakfs to the Board of Wakfs and the Board
should therefore be regarded as an agent of the State Government.
We are unable to accept this contention. By the Religious Endowments Act 1863, the Government divested itself of the management
and superintendence of religious endowments which was vested in
(I) [1949) ~All E. R. 327.
(2) A.I.R. 1963 S.C. 8ll, 849, 850, paras. 115-ll7.
MlSup. C. I/67-7
322
SUPREME COURT REPORTS
(1967) 2 S.C.R
it under Reg. 19 of 1810 and Regulation 7 of 1817. The Board of
Wakfs though subject to the control of the State Government, is
a
statutory corporation and is vested with statutory powers,
functions and duties. The Board has power to hold property and is
in control of the wakf fund (ss. 9 and 48). The State Government
has no concern with the property vested in the Board save during
the pc:iod of supersession of the Board under s. 64. Nor is the
State
Government liable fo1 any expenditure incurred by the
Board in. connection with the administration under the Act (s. 54).
The Board of Wakfs is not discharging a government?.! function.
The Act nowhere says that the Board would act as the agent of the
State Government. It rather indicates that tne Board is not the
agent of the Government and the Government is not responsible for
its acts. 'Ne must, therefore, hold that the Board of Wakfs is not
an agent of the State Government and a suit instituted by it for the
rccoverv of a wakf property is not a suit by or on behalf of the
State Government.
Counsel next submitted that the mutawalli is the agent of the
State Government and that in any event the limitation for a
suit by the mutawalli starts on the date of his appointment. In
support of this contention counsel relied upon the decision in
Jewun Doss Sahoo v. Shah Kubeer-ood Deen,(') where the Privy
Council held that under the law then in force it was the duty of the
Government to protect endowments and the mutawalli in that case
was the procurator of the Government and his right to sue arose
on his being appointed mutawalli. This ruling of the Privy Council
was given under Regulation 19 of 1810. Since the passing of the
Religious Endowments Act 1863, the mutawalli cannot be regarded
as a procurator of the Government. He is not appointed by the
Government, nor does he manage the endownment on its behalf and
a suit by him for the recovery of the wakf property cannot now be
regarded as a suit on its behalf, see Shaikh Lau/
Mahomed
v. Lalla Brij Kishore (2) and Behari Lal & Ors. v. Muhammad
Muttaki(J). If the wakf while in possession of its property is dispossessed, it has an immediate right to sue for recovery of the
property and the limitation for the suit begins to run.
On his
appointment, the mutawalli acquires no new right of suit and his
appointment dot's not give him a fresh starting point of limitation
for the recover)' of the property. The suit, therefore, is not by or on
behalf of the State Government and art. 149 has no application.
The suit is governed by art. 142. The date of dispossession of the wakf
is the start'ng point of limitation under this article. "It was suggested that as limitation did not run under the Hyderabad Limitation
Act, the date when the Indian Limitation Act 1908 came into force in
Hyderabad should be regarded as the starting point of limitation.
This suggestion has no force.
During the currency of the Hydera-
-(T)2M0o-;-CA-:-39oai p. 222
(2) 17 Weekly Reporter (Surbcrland) 430.
(3). I.LR 20 All 482, 488.
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"YED YOUSUF v. SYED MOHAMMED (Bachawat, J.)
323
bad Limitation Act, limitation did not run but the Act 1did no~
change the date of dispossession. That date was September 20,
1937. For the purposes of art. 142 of the Indian Limitation Act
1908, that date must be regarded as the starting point of limitation.
We may now briefly .notice two contentions based on ss.14
and 15 of the Indian Limitation Act, 1908
On August 13, 1941
the defendants instituted a suit for a declaration of there title to the
property and obtained an injunction restraining the enrolment of
the property in the Book of Endowment. On. March IO, 1942,
the suit was dismissed. On May 18, 1942, the property was enrolled
inthe Book of Endowment. On May 21, 1942, summary proceedings
for the recovery of the property by the dargah were started under
s. 14 of the Hyderabad Endowme1;t Regulation before the Addi.
Chief Judge, City Civil Court, Hyderabad at the instance of the
Director, Ecclesiastical Department of the
Government of
Hyderabad. On June 20, 1942; the defendants filed in the High
Court an appeal from the decree dismissing their suit and obtained
an interim injunction restraining their eviction from the property.
On July 25, 1942, the interim irijunction was made absolute. By an
order dated February 14, 1942, the Addi. Chief Judge consigned
the records of the proceeding under s. 14 to the record room and
directed that action would be taken after the disposal of the case in
the High Court. On October IS, 1945 the High Court allowed the
appeal arid remanded the suit to the trial court for disposal according
to law. On August 28, 1948, the trial court dismissed the suit. On
Septem6er 21, 1955, an appeal filed by the defendants from this
decree was dismissed On these facts, it was contended before the
High Court that in view of s. 15 of the Indian Limitation Act 1908,
in computing the period of limitation prescribed for the suit, the
plaintiffs were entitled to exclude the period of time during which
ejectment of the defendants in the proceeding under s. 14 of the
Hyderabad Endowment Regulation had been stayed by the order
of injunction. The High Court rightly pointed out that there was
no injunction restraining the institution of the present suit, and the
plaintiffs were not entitled to any exclusion of tim~ under s. 15.
This contention is no longer pressed. In this Court however for
the first time counsel sought to argue thPt under s. 14 of the Indian
Limitation Act 1908 the plaintiffs were entitled to the exclusion
of the entire period from May 21, 1942 during which the summary
proceeding under the Hyderabad Endowment
Regulation was
pending. The contention based on s. 14 raises mixed questiclns of
law and fact. It was not raised in the courts below. There i:> no
mention of this contention even in the petition for special leave to
appeal or in the statement of case. We think that the plaintiffs
ought not to be allowed to raise this contention in this Court for the
first time. Counsel submitted that the plaintiffs are entitled to
revive and continue the proceeding under s. 14 of the Hyderabad
324
SUPREME COURT REPORTS
[1967]2 s.c.R
Endowment Regulation. We do not know whether that procceeding is still pending. The question whether the plaintiffs are entitled
to revive and continue that proceeding under the laws now in force
does not arise for consideration in this case and we e~press no
opinion on it. All we need say is that our decision in this appeal
will not affect the right, if any, of the plaintiffs to revive and continue the proceeding.
As the suit was instituted more than 12 years after the date of
dispossession, it is barred t-y limitation and must be dismissed. The
trial court rightly dismissed the suit. The High Court was in error
in reversing this decree.
Jn the result the appeal is allowed. The decree of the High
Court is set aside and the decree of the trial court is restored. The
sui~ is dismissed. There will be no order as the costs of this
appeal.
G.C.
Appeal alloll'erl.
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