# o1. C. MOHAMMED YUNUS v. SYED UNISSA AND OTHERS

- **Citation:** [1962] 1 S.C.R. 67
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal ,. No. 512 of 1957
- **Bench:** J. L. Kapur, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/o1-c-mohammed-yunus-v-syed-unissa-and-others-2160
- **Pages:** 9

## Headnote

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 .
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 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.
February I.f-.
I96I
C. Mohammed
Yunus
v.
Syed Unis~a
&, Others
Shah ].
68
SUPREME COURT REPORTS
[1962]
Held, further, that on the enactment of the Shariat Act 26
of 1937, as amended by the Madras Act 18 of 1949• the Muslim
Personal Law applies in all cases relating to the matters specified notwithstanding any custom or 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. Keshavlal
Hiralal, (1904) I.LR. 28 Born. 567, discussed.
Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.LR. 1943
Lab. 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 appellant.
Shaukat Hussain and P.O. 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 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 receiv

## Text

1 S.C.R. SUPREME COURT REPORTS
67
.o1.
C. MOHAMMED YUNUS
v.
SYED UNISSA AND OTHERS
(J. L. KAPUR, M. HIDAYATULLAH and
J. c. SHAH, JJ.)
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 .
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 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.
February I.f-.
I96I
C. Mohammed
Yunus
v.
Syed Unis~a
&, Others
Shah ].
68
SUPREME COURT REPORTS
[1962]
Held, further, that on the enactment of the Shariat Act 26
of 1937, as amended by the Madras Act 18 of 1949• the Muslim
Personal Law applies in all cases relating to the matters specified notwithstanding any custom or 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. Keshavlal
Hiralal, (1904) I.LR. 28 Born. 567, discussed.
Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.LR. 1943
Lab. 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 appellant.
Shaukat Hussain and P.O. 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 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.
'
•
•
1""'
I-
•
•
I S.C.R. SUPREME COURT REPORTS
69
Fakruddin, in the following genealogy, belonged to
one of the four families which received the income.
Sheik Mohammad
I
I
Fakir Mohammad
I
Sheik Miran
I
I
Giasuddin
Niamat Ulla
I
I
Khamruddin
Nayeem Uddin
I
Fakir Mohammad
I
I
I
Fakruddin = Sulaiman Bi
Niamat Ulla
AJdul
Wahid
(1st deft.)
(2nd plaintiff)
I
II
Nayeemuddin
I
I
(died unmarried)
Rahmat
Syed UnUnnissa (2nd
nissa (1st
defendant)
plaintiff)
I
Safi
Ulla
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.
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
I96I
C. Mohammed
Yunus
v.
~yed Unissa
& 'Others
Shah J.
C. Mohammed
Yunus
v.
Syed Unissa
& Others
Shah .J.
70
SUPREME COURT REPORTS
[1962]
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 vVahib from interfering
with their rights in that behalf. Rahmat Unnissa the
eldest daughter of Fakruddin was impleaded as defendant No. 2. Abdul Wahid defendant No. I 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 by custom in the family, females were excluded from inheritence, 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
maintainable. 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
'
•
•
I'
1 S.C.B. SUPBEME COUBT BEPOBTS
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 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.
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.
C. ft.I ohammed
Yunus
v.
Syed Unissa
S. Others
Shah ].
C. lrfohammed
Yunus
v,
Syed Unissa
&· Others
Shah J,
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 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 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 :
"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
•
•
..
,
•
\
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)."
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: '
"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
C. Mohammed
Yunus
v.
Syed Unissa
& Others
Shah ].
x96r
C. Mohammed
Yunus
v.
Syed Unissa
<f>. Others
Shah ].
74
SUPREME COURT REPORTS
[1962]
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 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.
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.
;.
•
•
...
'
•
,'<
•. .
.,t
1 S.C.R. SUPREME COURT REPORTS
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 "Mujavar".
In that view of the case, this appeal fails and is
dismissed with costs.
Appeal dismissed.
TEEKA AND OTHERS '
v.
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 P~n~l 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
z96z
C. llfohammed
Yunus
v.
Syed Unissa
6' Others
Shah J.
February r5,