# S11•J1<l Haq Kha 11 64 and Lal Chand v. Messr1. Bl1sanla Ma! Devi Dayal & Ors

- **Citation:** [1959] 1 S.C.R. 1287
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** V'ENXATARAMA ArYAR, GAJENDRAGADXAR itnd A. K. SARKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s11-j1-l-haq-kha-11-64-and-lal-chand-v-messr1-bl1sanla-ma-devi-dayal-ors-1532
- **Pages:** 23

## Headnote

W a,qf-Suit against Central
Board- Noticc-LimitationUnited Provinces Muslims Wa,qf Act (U. P. XIII of r936), ss. 5,
53-The Indian Limitation Act (IX of r908), s. r5.
The respondent No. I, a Central Board constituted under the
United Provinces Muslims Waqf Act, 1936, by a notification
under s. 5(1) of the Act dated February 26, 1944• took into
management the properties of a Darga Sharif and on October 18,
1'446, the appellants, three of the five members of the Managing
Committee of the said Darga Sharif, brought the suit, out of
which the present appeal arises, for a declaration that the Darga
properties did not constitute a waqf within the meaning of the
Act and that the respondent No. l had no lawful authority to
issue the notification and assume management of the said properties, It was urged on behalf of respondent No. I that the
sait had not be.en brought within one year as prescribed by
s. 5(2) of the Act, and was as such barred by !imitation; and, that
since the notice prescribed bys. 53 of the Act had admittedly not
been served on the respondent, the suit was incompetent. It
"'as found that in an earlier suit, Jjrought with the sanction of
the Advocate General, against the Managing Committee for
their removal and the framing of a fresh schejlle, ji decree had
been passed against the appellants on October i6, 1941, and it
directed them not to interfere with the affairs of the Darga as
members of the said Committee and to comply with the direction removing them from office. On appeal the said decree was
set aside by the Chief Court on March 7, i946. It was contended
on behalf "f the appellants that s. 5(2) of the Act had no application and even if it had, the suit was within time by virt11e of
the provisions of s. 15 of the Limitation Act.
Held, that the contentions raised on behalf of the appellants
must be negatived.
The expression "any person interested in a waqf" used in
s. 5(2) of the United Provinces Muslims Waqf Act, 1936, properly construed, means any person interested in a transaction
that i&,held to be waqf by the Commissioner of \Vaqfs appointed
under the Act and as such the appellants fell within that category.
Where a literal construction defeats the.object.of the statute
and makes part of it meaningless, it is legitimate to adopt a
liberal coiostruction.that gives a meaning to the entire provision•
and makes it effective.
·
•
Septemb~r zlS.
•
•
•
1288
SUPREME COURT R.EPORTS
[1959]
1958
Chalurb/mf Moha11/al \', Bhicam Chand Choro~a & So11s, (r948)
. .
53 C.\V.N. 410, Jlatlm K11tty v. Varoe K11lt)'. A.l.R. 1950 Mad.
S11•J1<l Haq Kha 11 64 and Lal Chand v. Messr1. Bl1sanla Ma! Devi Dayal & Ors.,
6- Others
(HJ47) 49 P.L.R. 246, referred to.
Th s v •. C 1 1
Rules of limitation are arb;trary in nature and in construing
;
u~ui1 lveii ;(1 thcrn it is ~ot pcrmissihlc to import equitable considerations,
Uoo; ; 0,:q · and eff<!ct must he gi,·en to the strict grammatical meani'ng of
· ·
"' the words used.
Sectio11 15 of the Limitation Act can be
•
attracterl only \\·here a suit has h::!r.n stayed by au injunction or
.-:_
•
order a11<l the test would be whether its institution would or
would not be an act in contempt of the court's order.
;\'agendra Satlz Dey'" Suresh Chandra Dey, (1932) 34 Born.
L. R. rn65, Narayan }ivan[;ouda v. Pu.ttabai, (1944) 47 Born. L.R.
I, /icli Maharmii , .. The Collector of Etau,a/z, (1894) l.L.R. 17 All.
198 and Sundaramma v. Abdul J{!radcr, (1932) l.L.R. 56 }lad. 490,
relied on.
Musommat Basso Kaur v. Lala Dhua Si1'gh, (1888) 15 l..l.
211, held mapplicahle.
The order of tl:r court in the earlier suit was neither an
injunction nor a11 order of the 11at11rc eontemplatecl bys. 15 of
the I.imitation Act and so that section was inapplicable.
Offerings made fro1n tin1e to tin1c by the dc\·otccs Yisiting
the Dorga Sharif were by their very nature a~ income of the
i)arga. ancl failure to mention them in the notification under
s. 5(1) of the Act, did not render the notificotion defective.
'fhc pro\'

## Text

_Characters 0–39,965 of 54,095. This is a partial read: ask again with offset=39965 for what follows._

•
S.C.R.
SUPREME COURT REPORTS
SIRA~UL HAQ KHAN & OTHERS
1287
'!I,
• •
THE SUNNI CENTRAL BOARD OF W AQF,
U. P. & OTHERS
(V'ENXATARAMA ArYAR, GAJENDRAGADXAR itnd
A. K. SARKAR JJ.)
W a,qf-Suit against Central
Board- Noticc-LimitationUnited Provinces Muslims Wa,qf Act (U. P. XIII of r936), ss. 5,
53-The Indian Limitation Act (IX of r908), s. r5.
The respondent No. I, a Central Board constituted under the
United Provinces Muslims Waqf Act, 1936, by a notification
under s. 5(1) of the Act dated February 26, 1944• took into
management the properties of a Darga Sharif and on October 18,
1'446, the appellants, three of the five members of the Managing
Committee of the said Darga Sharif, brought the suit, out of
which the present appeal arises, for a declaration that the Darga
properties did not constitute a waqf within the meaning of the
Act and that the respondent No. l had no lawful authority to
issue the notification and assume management of the said properties, It was urged on behalf of respondent No. I that the
sait had not be.en brought within one year as prescribed by
s. 5(2) of the Act, and was as such barred by !imitation; and, that
since the notice prescribed bys. 53 of the Act had admittedly not
been served on the respondent, the suit was incompetent. It
"'as found that in an earlier suit, Jjrought with the sanction of
the Advocate General, against the Managing Committee for
their removal and the framing of a fresh schejlle, ji decree had
been passed against the appellants on October i6, 1941, and it
directed them not to interfere with the affairs of the Darga as
members of the said Committee and to comply with the direction removing them from office. On appeal the said decree was
set aside by the Chief Court on March 7, i946. It was contended
on behalf "f the appellants that s. 5(2) of the Act had no application and even if it had, the suit was within time by virt11e of
the provisions of s. 15 of the Limitation Act.
Held, that the contentions raised on behalf of the appellants
must be negatived.
The expression "any person interested in a waqf" used in
s. 5(2) of the United Provinces Muslims Waqf Act, 1936, properly construed, means any person interested in a transaction
that i&,held to be waqf by the Commissioner of \Vaqfs appointed
under the Act and as such the appellants fell within that category.
Where a literal construction defeats the.object.of the statute
and makes part of it meaningless, it is legitimate to adopt a
liberal coiostruction.that gives a meaning to the entire provision•
and makes it effective.
·
•
Septemb~r zlS.
•
•
•
1288
SUPREME COURT R.EPORTS
[1959]
1958
Chalurb/mf Moha11/al \', Bhicam Chand Choro~a & So11s, (r948)
. .
53 C.\V.N. 410, Jlatlm K11tty v. Varoe K11lt)'. A.l.R. 1950 Mad.
S11•J1<l Haq Kha 11 64 and Lal Chand v. Messr1. Bl1sanla Ma! Devi Dayal & Ors.,
6- Others
(HJ47) 49 P.L.R. 246, referred to.
Th s v •. C 1 1
Rules of limitation are arb;trary in nature and in construing
;
u~ui1 lveii ;(1 thcrn it is ~ot pcrmissihlc to import equitable considerations,
Uoo; ; 0,:q · and eff<!ct must he gi,·en to the strict grammatical meani'ng of
· ·
"' the words used.
Sectio11 15 of the Limitation Act can be
•
attracterl only \\·here a suit has h::!r.n stayed by au injunction or
.-:_
•
order a11<l the test would be whether its institution would or
would not be an act in contempt of the court's order.
;\'agendra Satlz Dey'" Suresh Chandra Dey, (1932) 34 Born.
L. R. rn65, Narayan }ivan[;ouda v. Pu.ttabai, (1944) 47 Born. L.R.
I, /icli Maharmii , .. The Collector of Etau,a/z, (1894) l.L.R. 17 All.
198 and Sundaramma v. Abdul J{!radcr, (1932) l.L.R. 56 }lad. 490,
relied on.
Musommat Basso Kaur v. Lala Dhua Si1'gh, (1888) 15 l..l.
211, held mapplicahle.
The order of tl:r court in the earlier suit was neither an
injunction nor a11 order of the 11at11rc eontemplatecl bys. 15 of
the I.imitation Act and so that section was inapplicable.
Offerings made fro1n tin1e to tin1c by the dc\·otccs Yisiting
the Dorga Sharif were by their very nature a~ income of the
i)arga. ancl failure to mention them in the notification under
s. 5(1) of the Act, did not render the notificotion defective.
'fhc pro\'ision as to 11 1)tice.u!1der s. 53 of the .Act \\·as applicable to suits in respect of acts of the Central Board as well as
suits for any relief in respect of the waqf.
C1v1r. APPEr.L'.\TE ,JURISDICTION:
Civil Appeal No.
121 of 1955.
Appeal from the judgment and decree dated
April 22, 1953/24th February, 1954, of the Allahabad
High Court (Lucknow Bench) in F. C. Appe!i.l No. 50
of lll4 i, arising out of the judgment a nil decree dat~d
April 15, 1947, of tho Court of the Civil Judge,
Bahrnich, in Hegular Suit Xo. 25 of 1946.
S. K.. Dar, Ch. Akhtar Hussain and C. P. Lal, for the
a ppollan ts .
Ch. NiyamatuUah, Onkar Nath Srivastava, .!. B.
Dadachanji, S. N. Andley and Rameshwar Nath, for
respondent ~o. l;
1'958. .Sep tern her 16.
\vas delivered by
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The Judgment of the Court
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S.C.R.
SUPREME COURT REPORTS
1289
GAJENDRAcfADKAR J.-The suit from which this
r958
appeal arises relates to a ~hriotie and tomb known as 5 .
. 1-H Kh
~' J
d Gh .
.
d. iraJU
aq
an
Darga Hazarat Syed Salar 1Yia isoo
az1 situate
.,_Others,
in the village of Singha Parasi and properties appurv.
tenant to it. The plaintiffs who have preferred this The Sunni Central
appe!tl are members of the Waqf Committee, 'Darga
Board of Waqf,
Sharif, Bharaich, and, in their suit, they have claimed a u. P. &- Othm
declaration "that the properties in suit were not covered Gajendragadl<a 1
by the provisions of the United Provinces Muslims
r
·
Waqfs Act (U. P. XIII of 1936) (hereinafter described
as the Act).
T_he declaration, the consequential
injunction and the two other ·subsidiary reliefs are
claimed primarily against respondent l, the Sunni
Central Board of Waqf, United Provinces of Agra and
Oudh. Two trustees who did not join the appellants
in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before
us. It appears that respondent 1 purported to exercise its authority over the properties in suit under the
.11rovisions of.the Act and that led to the present suit
which was filed on October 18, 1946 (No. 25 of 1946).
The appellants' .case is that the properties in suit are
outside the operative provisi<lns of the Act and not subfect to the jurisdiction of respondent 1, and so, according to the appellants, respondent 1 has acted illegally
and without jurisdiction in assuming' authority over
the management of the said properties. That is the
basis of the reliefs claimed by the appellants in their
plaint.
The a:iirellants' claim was resisted by respondent 1
on several grounds. It was alleged that the properties
in suit. did form a waqf as defined by the Act 'and
were covered by its operative provisions. It was
urged that respondent 1 was a duly constituted Sunni
Central Board and it was authorised to exercise supervision over the management of the said waqf. The
case J.or respondent 1 also was that the appellants'
•
suit was barred by limitation and was incompetent
inasmuch as before the filing of the suit the appellants
had not given the statutory notice as"requ!red by s. 53
of the A~t.
,
.
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On these pleadings severa! issues were, framed by the
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SUPREME COURT REPORTS
[1959]
learned trial judge; but the principal p11ints in dispute
were three :
•
,
Si,.ajul llaq Kliati
.s. othm
(l) Arc the properties in Huit go\'erncd by the
Act?
v.
Thi Sunni Ce,Jlral
Board of W "qf,
U. f'. 6- Others
(2) Is the suit in time ? and
(:f) Is the suit maintainable without notice as
required by s. 53 of the Act?
.
Gajmd,agadk"' J. The learned trial judge held that tho properties in suit
cannot be held t-0 be waqf as defined by the Act. In
his opinion it wa.s not the villa.ge Singha Parasi but
its profits free from land revenue that had been
granted in trust for the shrine and its khadims; and
since the usufruct of the profits was subject t-0 the
condition of resumption and since the profits had not
been vested in the Almighty, the grant cannot be c01istrued to be a waqf as contemplated by :'lfohammada.n
Law.
On the question of limitation the learned judge
held that s. 5(2) of the Act applied to the suit; but,
according to him, though the suit was filed beyond the
period of one year prescribed by tho saiO. section, it
was within time having regard to the provisions of
s. 14 of the Limitation Act.
The plea raised by respondent l under s. 53 of the Act was partly upheld by
the learned trial judge; he took the view that the
first three reJief.~ claimed b,v the appellants were barred but the fourth was not.
ln the result the learned
judge granted a decbration in favour of the appellants
to the effect that "Lhc shrine in queotion together with
its attached buildings and the Chharawa were not
waqf properties wit-hi11 the meaning of the ;\ct." As
a consequence, an iujunct-ion was issued restraining
respondent l from removing or dissolving th~ committee of management of the appellants and respondents 2 and 3 "uot otherwi8e than provided for under
s. 18 of the Act in so far as the management and
•
•
supervision of those properties a.re concerned in respect
of which the appellants were not being gran!ed a·
clecree for a declaration sought for by Lhem in view of
the absence pf thll notice under s. 53 of the Act". The
rest' of the appellants' claim was dismissed.
This
tlecree was passed on April 15, 1947.
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S.C.R.
SUPREME COURT REPORTS
1291
Against thisedecree respondent 1 preferred an appeal
r958
in the High Court of Judiootu~e at Allahabad (Luck- 5 .. 1Kh
now Bench) and the appellants filed cross objections. ""
7~ %,~;,, an
The High Court has reversed the finding of the trial
v.
court on the question as to the character of the pro- The Sunni Central
perties in suit.
According to the High Cout't the
Boord of Waqf'.
said properties constituted waqf as defined by the Act.
u. P. & Others
The High Court has also held. th~t the suit filed by ~he Gajendragadkar ].
appellants was barred by lmntatwn and was also m-
· ·
corn petent in view of the fact that the statutory notice
required by s. 53 of the Act had not been given by the
appellants prior to its institution. As a result of these
findings the appeal preferred by respondent 1 was
allowed, the appellants' cross.objections were dismissecl. the decree passed by the trial court was set aside
and the appellants' suit dismissed (April 22, 1953).
The appellants then applied for and obtained a certificate from the High Court to prefer an appeal to this
Court under Art. 133 of the Constitution. That is how
this appeal h~ come to this Court.
·Though the dispute between the parties raises only
three principal issues, the facts leading to the litigation
are somewhat complicated; a~d it is necessary to menti!m them in order to get a clear picture of the background of the present dispute. It is believed that
Syed Salar Mahsood Ghazi was a nephew tf Muhammad Ghazni and he met his death at the hands of a
lo~al chieftain when he paid a visit to Bahraich. Ou
his death his remains were buried in village Singha
Parasi by .his followers and subsequently a tomb was
constructed. In course of time this tomb became an
objeet of pilgrimage and veneration. Urs began to' be
held at the shrine every year and it was attended by
a large number of devotees who made offerings before
the shrine. It is partly from the income of these
offerings that the tomb is maintained. Certain properties. were endowed by the Emperors of Delhi in
favour of this tomb and acuretions were made to the
said properties by the savings from the income of the
endowed properties and the offerings" brotigh_t by the
devotees. •
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1292
SUPRE~IE COURT REPORTS
[1959]
1958
The tomb was managed by a body of~ersons known
Sirajul Haq [(h•n as Khuddams of the .Darga.. This body had been
c;. Others
looking after the Darga and the performance of
v.
ceremonies a.nd other services at the shrine.
Whilst
The Sunni Centml the management of the Darga. was being thus carried
~oard of Waqf. on, Otidh came to be annexed in 1856 a.nd the proolama-
. P. 6- Others t'
·
d b Lo d C
·
fi
d II
.
_
ion rnsue
y
r
annmg con 1scate a private
Gaj,,idra~adkar J. propertied and inams in the said State. The properties
attached to the Darga. were no exception. Fresh
settlements were, however, subsequently made by the
Government as a. result of which previously existing
rights were revived usually on the same terms a.s
before.
This happened in regard to the properties
appertaining to the Darga..
lt would appear that in 1859 or 1860 a Sauad h1>d
been granted to Fa.kirulla who was the head of the
kha.dims in respect of rent-free tenure of the village
Singha. Para.si. The grantee was given the right to
collect the usufruct of tho village which was to be
appropriated towards the maintenance '1f the Darga.
The grantee's sou Ina.ya.tulla was apparently ·not
satisfied with the limited rights granted under the
Sa.natl and so he brought an action, Suit No. I of 1865,
claiming proprietary rights in the said propertiL"S.
Inayatulla's suit was substantially
dismissed on
November ll, 1870, by the Settlement Officer. It was
held that the proprietary rights of the Government in
respect of the properties had been alienated for ever
in favour of the charity and so the properties were
declared to vest in the endowment. Inayatulla's right
to manage the said properties under the term~ of the
gritnt was, however, recognized. Soon aft9r this
decision, it was brought to the notice of the Chief
Commi8oioner in 1872 that the khadims at the Darga
were mismanaging the properties of the Darga and were
not properly maintaining the Darga itself. On recci> -
•
ing this complaint a committee of mussalmans was
appointed to examine tho affairs of the Darga 'lrnd t-0
make a report. The committee submitted its report
on. February 20,• 1877, and ma.de recommendations for
the imptovement of the management of the Darga.
• and its properties. According to the t:ommitt~e. it was
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S.C.R.
SUPREME COURT REPORTS
1293
necessary to ajpoint a jury of five persons· including
x95&
two khadims to manage th~ Da.rga and its properties. Sfrajul Haq Khan
Meanwhile some of the land!l appurtenant to the
°"Others
Darga h11d been sold and offerings made by the
v.
devotees as well as other properties had become the The Sunni Central
subjeat-matter of attachment. In the interest of the Board 0! Waff.
D
G
t h
d 'd d t t k
•
f
U. P. 11" Others
arga, overnmen t en ec1 e
o a e possess10n o
_
the properties under the provisions of Pensions ActGajendragadkar J.
(XXIII of 1873.) This decision was reached after the
·
Government had considered the report made by the
Deputy Commissioner on August 31, 1878. The result
of declaring that the properties were governed by the
provisions of the Pensions Act was to free the properties from the mortgages created by the khadims. The
m'inagement of the Darga and its properties by the
Government continued until 1902.
During this period Inayatulla attempted to assert
his rights once more by instituting a suit in the civil
court in 1892. In this suit Inayatullah and two
others who hasJ joined him claimed possession of the
• Dri.rga together with the buildings a ppurten11nt thereto
and village Singha Parasi. Their claim was decreed
by the trial court; but on appeal the said decree was
set aside on July 20, 1897. The appellate court of the
Judicial Commissioner held that Inayatulla's allegation that the proprietary interest in the propocties vested
in him was not justified. Even so, the appellate court
observed that it was not proper or competent for the
Government to interfere in the management of the
waqf and its properties; the Dari,ga was a religious
establishrrtent within the meaning of Religious Endowments Act (XX of 1863) and the assumption of the
management of the Darga and its properties was unauthorised and improper.
As a result of these observations the Legal Remembrancer to the Government of the United Provinces
of Agra and Oudh filed a suit, No. 9 of 1902, under
•
s. 539 ('present s. 92) of the Code of Civil Procedure.
This suit ended in a decree on December 3, 1902. By
the decree the properties in suit were dec;lared " to
vest in the trustees when appointed ". The decree
further pr"vided for a scheme for the management of •
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1204
SUPHEME COURT REPORTS
(1959)
r958
tho .Dnrga and its properties.
The scheme thus
S .
. ,-H •. h framed came int<> operalion and the trustees appoint-
,,o;u
aq n a11 d
d
.
b
h
D
.
e. Othm
e
un er it
egan to' manage t e
arga and its
v.
properties. The •cheme appears to have worked
The Sunni C"'trarnmoothlv until l!lil4.
In 1934 Ashraf Ali and others
Board 0 1 Woqf. claime<i°(Snit. N'o. I of 1934) that llll injunction should
u. P. & Oihm he issued rest-raining the defendants from taking part
Gaj,.d•agadk°' J. in the management of the affairs of the Darga. The
plaintitfa also prayed that the defendants should bo
prohibited from spending monies belonging to the
waqf on fri,·olous litigations due to party feelings. On
~lay 7, 1934, tho learned District Judge expresse<l his
regret that animosity and party feelings should find
their way in the management of a trust and issued an
order directing t.he
defendant committee that. JlO
money out of the Darga funds should be spent either
in the litigation pending before him, or in any other
litigation, without the sanction of the court.
}'or nearly six years after the date of this order the
Darga and its properties appear t-0 li,ave been free
from any litigation. This peace was, however, aga'in •
disturbed in 1940 when a suit was filed (No. l of 1940)
with the sanction of the Advocate-General by five
plaintiffs against tho nmna-ging committee and its
tru5tees for their removal and for tho framing of a
fresh schcJ11c. • On October 16, 1941, the Auit was
decreed. The managing committee and the trustees,
however, challenged the said decree by preferring an
appeal to the Chief Court. Their appeal succeeded
and on ~larch 7, 1946, the decree under appeal w11.s
set aside, though a few minor amondmonts were made
in 'tho original scheme of management.
.
Whilst this litigation was pending between the
parties, the United Provinces llluslim Waqfa Act (U.P.
XIII of 1936) was passed in 1936 for better governance, administration and supervision of tho specified
•
muslim waqfa in U. P. ln pursuance of the pr~visions
of the Act, respondent l was constituted and, under
s. 5(1), it issued the notification on :February 26, 1944,
d~claring ~ho jll"Operties in suit to be a Sunni Waqf
under the Act-. After this notification was issued, res-
• pondent l called upon the committeEl'of mamtgement of
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S.C.R.
SUPREME COURT REPORTS
1'295
the waqf to submit its annual budget for a.pproval and
i958
to get its accounts audited.by· jts auditors. Respondents' . ,-H ··xh
.
.
i1-a1u~
aq
an
I also purported to levy the usual contnbut1ons
& others
against the waqf under s. 54 of the Act. The members
v.
of the committee of management and the trustees The Sunni CenlYal
with the exception of two persons held that the proBoard 01 Waqf,
perties in suit did not constitute a waqf within the u. P. <!'>· Others
meaning of the Act and that respondent 1 had no Ga ·sna:;;g-;dkai 1.
authority or jurisdiction to supervise the management
1
of the said properties. That is how the appellants
came to institute the present suit on October 18, 1946,
against respondent 1. That in brief is the background
of the present dispute.
For the appellants Mr. Dar has raised three points
l:vifore us.
He contends that the High Court was in
error in coming to the. conclusion that the properties
in suit constituted a waqf over which respondent I
can exercise its authority or jurisdiction and he
argues that it was erroneous to have held that the
appellants' svit was barred by s. 5(2) and was incompetent under s. 53 of the Act. Mr. Dar has fairly conceded that if the finding of the High Court on the
question of limitation or on the question of the bar
pleaded under s. 53 was upheld, it would be unnecessary to consider the merits of his argument about the
character of the properties in suit .• SiJJ.ce we have
reached the conclusion that the High Court was
right in holding that the suit was barred under s. 5(2)
and was also incompetent under s. 53 of the Act, we
do not propose to decide the question as to whether
the properties in dispute are waqf within the meaning
of the. Act. The plea of limitation under s. 5(2) as
well as the plea of the bar under s. 53 are in substance preliminary objections to the maintainability
or competence of the suit and we propose to deal
with these objections on the basis that the properties
in dispute are outside the purview of the Act as
alleged by the appellants.
Before dealing with the qnestion of limitation, it
would be useful to refer to the re]e..,.ant. part of, the
scheme of the Act.
Section 4 of the Act pr.,vides for
the sur1ey of W'aqfs to be made by the Commissioner'
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1296
SUPREME COURT REPORTS
(1959]
z958
of Waqfs appointi>d under sub-s. (l·) .pf s. 4.
Suhs. . 1-1,
K"
section (3) requires the <:ommis.~ioner to ascertain and
lrOJU
aq
nan d
,
.
] '
t..
•
b
f S ,
,
.s. Uthe.,
etermme 111ter a 1a tire num er o
b1a and Sunni
v.
Waqfs in the district, their nature, the gross income
The su .. ni c,.,,.., of the properties comprised in them as well as the
Board 0! w .. qf. expenies incurred in the realisa1.ion of the incom~ and
u. l'. ''°Others the pay of the mntawa.lli.
The Commissioner has also
•
c
G<1jcndra~adkar 1 . to ascert<>in and determine whether the waqf in quesf·
tion is one of those exempted from the provisions of the
Aet under s. 2. The result. of this enquiry has to be
indicated by the Commissioner in his report to the
State Govt>rnmcut under sub-s. (5).
Section 6 deals
with the establishment of two separate Boards to be
called tbe Shia Central Board and the Sunni Central
Board of \V aqfs. Section 18 defines the functions ~f
the Central Boards and confers on them general powers
of superintendence ornr the management of the waqfs
under their jurisdiction.
After the Boa.rds are constituted a copy of the Commissioner's report received
by the State Government is forwarded to them 1md,
under s. 5, sub-s. (I}, each Central BoarJ is required
a8 soon as possible to notify in the official gazette the
waqfs rela.ting to the particular sect to which, according to the said report, the' provisions of the Act appl)'.
It is after the prescribed notification is issued by the
Hoard t.hat. i~ can proceed to exercise its powers under
s. 18 in respect of the waqfs thus notified.
Jt iH the
notification issuer! hy respondent under s. 5 (1) and the
s11Lse411ent steps taken by it in exercise of its authority
that lmve led tn the pre8eut snit.
l\Ir. Dar contends that the provisions of s. '5 (2) do
not 'apply t<> t.he present suit, and so the argpment
that t.hc suit is barred bv limitation under tho said
seetion cannot succeed. it is clear that the notification was issued on Februarv 26, 1944, and the suit has
been filed on October 18, 1 U46.
Thus there cu.11 bo no
•
doubt that if the one yea.r's limitation prescribed by
A. 5 (2) applies to tho present suit it would he barred
hy time unless the appellants are able to invoke the
assi~tancc of s. H> of tho Limitation Act. But, according to :11r. Dar, t.he present suit is outside s. 5 (2)
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altogether an~ so there is no question of invoking the
z958
shorter period of limitati011 p~scribed by it.
5 .
. 1 H
Kh
h h.
I
,,.,.a;u
aq
an
Let us then proceed to constder w et er t 1e present
& Othm
suit falls within the mischief of s. 5 (2) or not. Section
v.
5 (2) provides that:
The Sunni Central
'l The mutawalli of a waqf or any person interestBoard of Waqf.
ed in a waqf or a Central Board may bring a suit in a
u. P.~thers
civil court of comp~tent jurisdiction for a ~ec!aration Gajendragadkar 1.
that any transact10n held by the Commrns10ner of
·
waqfs to be a waqf is not a waqf, or any transaction
held or assumed by him not to be a waqf is a waqf, or.
that a waqf held by him to pertain to a particular sect
does not belong to that sect, or that any waqfreported
by such Commissioner as being subject to the provisipns of this Act is exempted under section 2, or that
any waqf held by him to be so exempted is subject to
this Act."
The proviso to this section prescribes the period of one
year's limitation to a suit by a mutawalli or a person
interested in, the waqf.
Sub-section (4) of s. 5 lays
dbwn that the Commissioner of the waqfs shall not be
made a defendant to any suit under sub-s. (2) and no
suit shall be instituted against him for anything done
by him in good faith under cc1lour of this Act,
The appellants' argument is that before s. 5 (2) can
be applied to their suit it must be shown that the suit
is filed either by a mutawalli of a waqf or any person
interested in the waqf. The appellants are neither the
mutawa!lis of the waqf nor are they persons interested
in the waqf. Their case is that the properties in snit
do not coi'J.stitute a waqf under the Act but are held by
them as proprietors, and that the notification issned
by respondent 1 and the authority purported to be
exercised by it in respect of the ·said properties are
wholly void.
How can the appellants who claim a
declaration and injunction against respondent l on
these allegations be said to be persons interested in the
•
waqf, asks Mr. Dar. The word ' waqf' as used in this
sub-section must be given the meaning attached to it
by the definition in s. 3 (1) of the Aat and since t)le
appellants totally deny the existence of such a waqf
they canrtot be said to be interested in the' waqf '. The •
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SUPREME COURT REPORTS
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argument thu~ presented appears pti•m facie to be
--
1
attractive and plausible; btl.t on a close examination of
Siraj1'1l/aaI\.1'111
-
(2 .
Id
·
& 011,;,,
s. n
) 1t won
appea\· clear that the words "any
v.
person interested in a wa<1f" c'rnnot be construed in
TheS"""' Con1rn1their strict literal meaning. If the said words ;1re given
Hoard~! Waqf. their f<t.rict literal me;111ing, suits for a declara.tioa that
u. P. "' 01•"' any transaction hcdd by the Commissioner to he a waqf
Gaj,,,dragadkar /.is not a waqf can ne1·er be flied by a mutawall1 of a waqf
or a μerson interested in a waqf. The scheme of this
sub-section is clear. When the Cent.ral Board assumes
jurisdict.ion over any waqf un<ler the Act it proceeds
to do so 011 the decision of three points by the Commissioner of \Vaqfa.
lt assumes that the prupcrty is
a waqf, that it is either a Sunni or ;t Shia waqf, and
t.hat it is not a waqf which fall.> within the exceptioljs
mentioned ins. 2.
ft is in respect of each one of these
deeisions that a suit is contemplated hy s. 5, sub-8. (2).
lf the decision is that the property is not a wa<1f or
that it is a waqf falling within the exceptions mi,ntinned by s. 2, the Centml Board may hav~ occasion to
bring a suit. Similarly if the decision i8 that. the wacJf
i• Sltia and uot Sunni, 11 Sunni Central Bimrd may
hiH"e occasion to bring a suit anti ,·ice ,·ers;1. Likewise
the deci8ion that the pro·pcrty i.> a waqf may be chailcnged by a person who disputes the correctness of the
said decisio1•.
:fhe decision that a property does not
fall within the exceptions mentioned bys. 2 may also
be challenged by a person who claims that the waqf
attracts the pro;·isions of s. 2. If that; be the nature
of the scheme of suits contemplated bys. 5 (2) it would
be difficult to imagino how the mutawalli of ii. wa,1f or
an.'' person interested in 11 waqf can ever s111; for a
declarntion that the trnnsaction held by the Commitisioner of the waqfs 1.0 be a waqf i;; not",1 waqf. That
is why we thi11k that the literal construction of the
expression " any person interested in ti waqf" would
•
render a part. of the sub-section wholly mca11ingless and
ineffective. The legi:ilature has dcfinit<>ly contempl:itod that tho decision of the Commissioner of the Waqfa
thl\t a partK,ula1• transaction is a waqf C(lll lie challenged by persons who do not accept the correctness of the
0 said decision, and it is this class of•persona\vho are
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S.C.R.
SUPREME COURT REPORTS
1299
obviously int•nded to be covered by the words "any
'958
person interested in a waqf ".• It is well-settled that .Sirajul Haq Khan
in construing the provisions ofa statute courts should
& Others
·
be slow to adopt a construction which tends to make
v.
any part of the statute meaningless or ineffective; an The Sunni Cenlral
attempt must always be made so to reconcik the
Board 0! Woqf.
relevant provisions as to advance the remedy intended u. P.!:.!!thers
.,..
by the statute. In our opinion, on a reading of the Gajendmgadkar. J ..
provisions of the relevant sub-section as a whole there
can be no doubt that the expression "any person
interested in a waqf" must mean "any person interested in what is held to be a waqf ". It is only persons
who are interested in a transaction which is held to be
a waqf who would sue for a declaration that the
de,pision of the Commissioner of the Waqfs in that
behalf is wrong, and that the transaction in fact is not
a waqf under the Act. We must accordingly hold that
the relevant clause on which Mr. Dar has placed his
argument in repelling the application of s. 5 (2) to tho
present suit Q:rnst not be strictly or literally con-
• strued, and that it should be taken to mean any
person interested in a transaction which is held to be
a waqf. On this construction the appellants are
ol:Tviously interested in the suit properties which are
notified to be waqf by the notification issued by
respondent 1, and so the suit instituted by i!hem would
be governed by s. 5, sub-s. (2) and as such it would be
barred by time unless it is saved under s. 15 of the·
Limitation Act.
In this ,connection, it may be relevant to refer to
the provisions of s. 33 of the Indian Arbitration Act
(X of 1940). This section provides that any party 'to
an arbitration agreement desiring to challenge the
existence or validity of an arbitration agreement shall
apply to the court and the court shall decide the
question on affidavits. It would be noticed that the
expressj.on " any party to an arbitration agreement "
used in the section poses a similar problem of construction. The party applying under s. 33 may dispute
the very existence of the agreement> and yet the
appHcant is descri~ed by the section as a party to the •
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1300
SUPRE:\IE COURT REPORTS
[1959)
1958
agreement.. If the expression " any ~awty to an arbis . . 1 H
Kh tration agreement" is litcr1dlv construed it would bo
HO)lf
aq
an d'ffi
,
~
•
.,_ oihm
1 cult to conceive 01 a case where the existence of
v.
an agreement can be impeached by a proceeding
Th• s"""i c,,,,,.1 under s. 33. The material clause must therefore be
B0••d 0! Waqf, read fiberally and not literally or strictlv. It mtJst be
u. P. 6 oihm taken to mean a person who "is alleged to be a party to
G•i••d••gadkar J. an arbitration agreement; in other words, the clause
must be construed to cover cases of persons who are
alleged to be a party to an arbitration agreement but
who do not admit the said allegation and want to
challenge the existence of the alleged agreement
itself. This liberal construction has been put upon
the clause in several judicial decisions: Chaturbhuj
MoharUo.l
v. Bhicam Chand Chororia
& Sons (l);
Mathu Kutty v. Varoe KuUy ('); Lal Chand v . . Messrs.
Basanta Mal Devi Dayal & Ors.('). \Ve may also point
out incidentally that in dealing with an application
made under s. 34 of the Arbitration Act, it is incumbent upon the court to decide first of all.whether there
is a binding agreement for arbitration between the
parties ; in other words, the allegation by one party
against another that tliere is a valid agreement of
reference between them does not preclude the latrer
party from disputing the existence of the said agreement in pr6cee"dings taken under s. 34. These decisions
illustrate the principle that where the literal meaning
of the words used in a statut-0ry provision would
manifestly defeat its object by making a part of it
mcaningloss and ineffective, it is legitimate .and even
necessary t-0 adopt the rulo of liberal construction so
as' to give meaning to all parts of tho provisio.Q and to
make the whole of it effective and operative.
•
•
•
Before we pa.rt with this part of the appellants'
case it is necessary to point out that the argument
urged by )fr. Dar on the construction of s. 5(2) is
really inconsistent with the appellants' pleas. in the
trial court. The material allegations in the plaint
clearly amount to an admission that the Darga. and
it~ appqrtenant" properties constitute a waqf under the
(1) (1948) 53 C.W.X. 410.
(z) .A.I.R. 195 .. Mad. 64 .
(3) (1947) 49 P.L.R. 246 .
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S.C.R.
SUPREME COURT REPORTS
1301
Act; but it is ilrged that they do not attract its pro-
'958
visions for the reason that.the. waqf in question falls 5 .
. 1 H
Kh
within the class of exemptions 'lmumerated in s. 2 (ii)( a) ""
1 ~ 01Z;,s
an
and (c) of the Act. "The Darga waqf ",says the plaint
v.
in para. 11, "is of such a nature as makes it an excep- The Sunni Central
tion from the purview of the Act as provided ey s. 2
Board of Waqf.
of the Act ". Indeed, consistently with this part of u. P. & Others
the appellants' case, the plaint expressly admits, thatGajendragadkar 1.
the cause of action for the suit accrued on ]ebruary 26, 1944, and purports to bring the suit within
time by relying on ss. 14, 15, 18 and 29 of the Limita·
tion Act. In their replication filed by the plaintiffs
an attempt was made to explain away the admissions
contained in the plaint by alleging that "if ever in
apy paper or document the word 'waqf' had been
used as a routine or hurriedly then it is vague and of
no specific meaning and its meaning or connotation is
only trust or amanat ".;_and yet, in the statement of the
case by the appellants' counsel, we find an express
admission th:i.t the subject-matter of the suit is covered
oy the exemptions of s. 2, els. (ii) (a) and (ii) (c). Thus,
on the pleadings there can be no doubt that the appellants' case was that the Darga and its properties no
croubt constituted a waqf um!er the Act, but they did
not fall within the purview of the Act because they
belong to the category of waqfs which 11re.excepted by
s. 2(ii) (a) and (c).
The argument based on the application of s. 2 has not been raised before us and so on a
consideration of the pleadings of the appellants it
would be open to respondent l to contend that the
a ppellant"s are admittedly interested in the waqf and
their suit falls within the mischief of s. 5 even if ·the
words " any person interested in a waqf" are literally
and strictly construed.
The next question which calls for our decision is
whether the appellants' suit is saved by virtue of the
provisions of s. 15 of the Limitation Act. That is the
•
only provision on which reliance was placed before us
by Mr. Dar on behalf of the appellants. Section 15
provides for " the exclusion of time d,uring which proceedings are suspended " and it lays down that " in
computing the pc;riod of limitation ~rescribed for any•
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SUPREME COURT REPORTS
[1959]
1958
suit or application for the execution •oi a decree, the
Sira1,.1 Haq Kha" institution or execution.of which has been stayed by
,, oo.,,,
an injunctiou or order,' the time of the continuance of
v.
the injunction or order, the day on which it was issued
1 he su.,., c,.,,.,., or made and the day on which it was withdrawn,
~
0
"'/ nf Woqf. shall be excluded". It is plain that, for excluding the
· ·~'h"' time under this section, it must be shown that the
GaJ•"d'-c•dkar 1. institution of the suit in question had been stayed by
·
an injunction or order; in other words, the section
requires an order or an injunction which stays the
institution of the suit. And so in cases falling under
s. 15, the party instituting the suit would by such
institution be in contempt of court. If an express
order or injunction is produced by a party that clearly
meets the requirements of s. 15. Whether the requir,,.
ments of s. 15 would be satisfied by the production of
an order or injunction which by necessary implication
stays the institution of the suit is open to argument.
\Ve arc, however, prepared to assume in the present
case thats. 15 would apply even to cas"s where the
institution of a suit is stayed by necessary implication
of the order passed or injunction issued in the previous
litigatiou. But, in our opinion, there would be no
justification for cxtendii1g the application of s. 15 an
the ground that the institution of the subsequent suit
would be ineon3istent with tho spirit or substance of
the order passed in the previous litigation. It is true
that rules of limitation are to some extent arbitrary
and :may frequently lead to hardship; bnt there can
be no doubt that, in construing provisions of limitation,
equitable considerations are immaterial and irrelevant,
and in applying them effect must be given to th\' strict
grammatical meaning of the words used by them:
•
Nagendra Nath Dey v. Suresh Chandra Dey (1).
In considering the effect of the provisions contained
in s. 15, it would be useful to refer to the deci~ion of
the Privy Council in Namyan Jivangouda v. futtabai (').. This case was an offshoot of the well-known
case of Bhimabai v. Gurunathgouda (3). It is apparent
tha>t the ~isputc between Narayan and Gurunathgouda
•
(l) (1932) 34 Born. L.R. 1o65.
(2) (1944) 47 Bom .• L.R. l.
(3) (1932) 35 Bom. L. R. 200 P.C .
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S.C.R.
SUPREME COURT REPORTS
1303
·ran through 41. ·Jong and protracted course and it
'958
reached the Privy Council twice. The decision of the 5 . . 1 H
Kh
Privy. Council in Bhimabai's' case(') upholding the ""J~.ot;;,, an
validity of N arayan's adoption no doubt led to a radical
v.
change in the accepted and current view about the The Sunni Central
Hindu widow's power to adopt in the State of Bombay,
Board of Waqf.
but this decision was of poor consolation to Narayan u .. P. & Others
because the judgment of the Privy Council in NarayanGajendra$ad!wr 1,
Jivangouda's case (') shows that Narayan's subsequent
·
suit to recover possession of the properties ·in his
adoptive family was dismissed as barred by tii:ne.' The
. dispute was between Narayan and his adoptive mother
Bhimabai on the one hand and Gurunathgouda on the
other. On November 25, 1920, Gurunathgouda had
sqed Bhimabai and Narayan for a deClaration that he
was in possession of the lands and for a permanent
injunction restraining the defendants from interfering
with his possession. On the same day when the suit
was filed, an interim injunction was issued against the
defendants aQd it was confirmed when the suit was
• d'ecreed in favour of Gurunathgonda .. By this injunction the defendants were ordered " not to tiike the
crops from the fields in suit, not to interfere with the
plaintiff's wahiwat to the saicI lands, not to take rent.
notes from the tenants and not to obstruct the plaintiff from taking the crops raised by him or.from taking
monies from his . tenants" .. Two important issues
which arose for decision in the suit were whether
:Narlj.yan had been duly adopted by Bhimabai in fact
and whether Bhimabai was competent to make the
adoption. 'These issues were answered against Narayan
by theprial court. Bhimabai and Narayanappealed_to
the Bombay High Court, but their appeal failed and
was dismissed: Bhimabai v. Gur~nathgouda ('). There
was a _further appeal by the said parties to the Privy
Council.
The Privy Council held that the adoption of
Narayan was valid and so the appeal was allowed and
•
Gurunathgouda's suit
was dismissed
with costs
throughout.