Full Judgment Text
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PETITIONER:
SIRAJUL HAQ KHAN & OTHERS
Vs.
RESPONDENT:
THE SUNNI CENTRAL BOARD OF WAQF,U. P. & OTHERS
DATE OF JUDGMENT:
16/09/1958
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
AIYYAR, T.L. VENKATARAMA
SARKAR, A.K.
CITATION:
1959 AIR 198 1959 SCR Supl. (1)1287
CITATOR INFO :
R 1974 SC 968 (49)
R 1979 SC 289 (35)
RF 1987 SC1161 (4)
RF 1991 SC2160 (18)
ACT:
Waqf-Suit against Central Board - Notice--Limitation-United
Provinces Muslims Waqf Act (U. P. XIII of 1936), ss. 5, 53-
The Indian Limitation Act (IX of 1908), s. 15.
HEADNOTE:
The respondent No. 1, 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, 1946, 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. 1 had no lawful authority to, issue the notification and
assume management of the said properties. It was urged on
behalf of respondent No. 1 that the suit had not been
brought within one year as prescribed by s. 5(2) of the Act,
and was as such barred by limitation; and, that since the
notice prescribed by s. 53 Of the Act had admittedly not
been served on the respondent, the suit was incompetent. It
was found that in an earlier suit, brought with the sanction
of the Advocate General, against the Managing Committee for
their removal and the framing of a fresh scheme, a decree
had been passed against the appellants on October 16 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,
1946. It was contended on behalf of the appellants that S.
5(2) Of the Act had no application and even if it had, the
suit was within time by virtue of the provisions of s. 15 of
the Limitation Act.
Held, that the contentions raised on behalf of the
appellants must be negatived.
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The expression " any person interested in a waqf " used in
s. 5(2) Of the United Provinces Muslims Waqf Act, 1936, pro-
perly construed, means any person interested in a
transaction that is held to be waqf by the Commissioner of
Waqfs 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 construction that gives a meaning to the
entire provision and makes it effective.
Chaturbhuj Mohanlal v. Bhicam Chand Choroyia & Sons, (1948)
3 C.W.N. 410, Mathu Kutty v. Varoe Kutty, A.I.R. 1950 Mad. 4
and Lal Chand v. Messrs. Basanta Mal Devi Dayal & Ors.,
1947) 49 P.L.R. 246, referred to.
Rules of limitation are arbitrary in nature and in
construing hem it is not permissible to import equitable
considerations, and effect must be given to tile strict
grammatical meaning of he words used. Section 15 of the
Limitation Act can be attracted only where a suit has been
stayed by an injunction or order and the test would be
whether its institution would or would not be an act in
contempt of the court’s order.
Nagendra Nath Dey V. Suresh Chandra Dey, (1932) 34 Bom. R.
1065, Narayan Jivangouda v. Puttabai, (1944) 47 Bom. L.R.
Beti Maharani v. The Collector of Etawah, (1894) I.L.R. 17
All. 198 and Sundaramma v. Abdul Khader, (1932) I.L.R. 56
Mad. 490, relied on.
Musammat Basso Kaur v. Lala Dhua Singh, (1888) 15 I.A. 211,
held inapplicable.
The order of the court in the earlier suit was neither an
injunction nor an order of the nature contemplated by s. 15
Of the Limitation Act and so that section was inapplicable.
Offerings made from time to time by the devotees visiting
the Darga Sharif were by their very nature an income of the
Darga, and failure to mention them in the notification under
s. 5(1) Of the Act, did not render the notification
defective.
The provision as to notice under S. 53 Of the Act was
applicable to suits in respect of acts of the Central Board
as well as suits for any relief in respect of the waqf.
JUDGMENT:
CIVIL APPELLATE 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. Appeal No. 50 of 1947, arising out
of the judgment and decree dated April 15, 1947, of the
Court of the Civil Judge, Bahraich, in Regular Suit No. 25
of 1946.
S. K. Dar, Ch. Akhtar Hussain and C. P. Lal, for the
appellants.
Ch. Niyamatullah, Onkar Nath Srivastava, J. B. Dadachanji,
S. N. Andley and Rameshwar Nath, for respondent No. 1.
1958. September 16. The Judgment of the Court was
delivered by
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GAJENDRAGADKAR J.-The suit from which this appeal arises
relates to a shrine and tomb known as Darga Hazarat Syed
Salar Mahsood Ghazi situated in the village of Singha Parasi
and properties appurtenant to it. The plaintiffs who have
preferred this appeal are members of’ the Waqf Committee,
Darga Sharif, Bharaich, and, in their suit, they have
claimed a declaration that the properties in suit were not
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covered by the provisions of the United Provinces Muslims
Waqfs Act (U. P. XIII of 1936) (hereinafter described as
the Act). The declaration, the consequential injunction and
the two other subsidiary reliefs are claimed primarily
against respondent 1, 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 exer-
cise its authority over the properties in suit under the
provisions 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 provisions of the Act and not subject to the
jurisdiction of respondent 1, arid 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 appellants’ claim was resisted by respondent I 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 I
was a duly constituted Sunni Central Board and it was
authorised to exercise supervision over the management of
the said waqf. The case for respondent I 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 required by
s. 53 of the Act.
On these pleadings several issues were framed by the
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learned trial judge; but the principal points in dispute
were three :
(1) Are the properties in suit governed by the Act ?
(2) Is the suit in time ? and
(3) Is the suit maintainable without notice as required by
s. 53 of the Act ?
The learned trial judge held that the properties in suit
cannot be held to be waqf as defined by the Act. In his
opinion it was not the village 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 to the condition of resumption and since
the profits had not been vested in the Almighty, the grant
cannot be construed to be a waqf as contemplated by
Muhamniadan 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 the said section, it was
within time having regard to the provisions of s. 14 of the
Limitation Act. The plea raised by respondent 1 under s. 53
of the Act was partly upheld by the learned trial judge; he
took the view that the first three relief,-, claimed by the
appellants were barred but the fourth was not. In the
result the learned judge granted a declaration in favour of
the appellants to the effect that " the shrine in question
together with its attached buildings and the Chharawa were
not waqf properties within the meaning of the Act." As a
consequence, an injunction was issued restraining respondent
1 from removing or dissolving the committee of management of
the appellants and respondents 2 and 3 " not otherwise than
provided for under s. 18 of the Act in so far as the
management and supervision of those properties are concerned
in respect of which the appellants were not being granted a
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decree for a declaration sought for by them in view of the
absence of the notice under s. 53 of the Act ". The rest of
the appellants’ claim was dismissed. This decree was passed
on April 15, 1947.
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Against this decree respondent I preferred an appeal in the
High Court of Judicature at Allahabad (Lucknow Bench) and
the appellants filed cross objections. The High Court has
reversed the finding of the trial court on the question as
to the character of the properties in suit. According to
the High Court the said properties constituted waqf as
defined by the Act. The High Court has also held that the
suit filed by the appellants was barred by limitation and
was also in-’ competent 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
I was allowed, the appellants’ cross-objections were
dismissed, 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 has
come to this Court.
Though the dispute between the parties raises only three
principal issues, the facts leading to the litigation are
somewhat complicated ; and it is necessary to mention 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 of Muhammad Ghazni and he met his death
at the hands of a local chieftain when he paid a visit to
Bahraich. On 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 object
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 accretions were made to
the said properties by the savings from the income of the
endowed properties and the offerings brought by the
devotees.
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The tomb was managed by a body of persons known as Khuddams
of the Darga. This body had been looking after the Darga
and the performance of ceremonies and other services at the
shrine. Whilst the management of the Darga was being thus
carried on, Oudh came to be annexed in 1856 and the
proclamation issued by Lord Canning confiscated all private
properties 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 as before. This happened in
regard to the properties appertaining to the Darga.
It would appear that in 1859 or 1860 a Sanad had been
granted to Fakirulla who was the head of the khadims in
respect of rent-free tenure of the village Singha Parasi.
The grantee was given the right to collect the usufruct of
the village which was to be appropriated towards the
maintenance of the Darga. The grantee’s son Inayatulla was
apparently not satisfied with the limited rights granted
under the Sanad and so he brought an action, Suit No. 1 of
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1865, claiming proprietary rights in the said properties.
Inayatulla’s suit was substantially dismissed on November
11, 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 terms of the grant was, however, recognized. Soon
after this decision, it was brought to the notice of the
Chief Commissioner in 1872 that the khadims at the Darga
were mismanaging the properties of the Darga and were not
properly maintaining the Darga itself. On receiving this
complaint a committee of mussalmans was appointed to examine
the affairs of the Darga and to make a report. The
committee submitted its report on February 20, 1877, and
made recommendations for the improvement of the management
of the Darga and its properties. According to the
committee, it was
necessary to appoint a jury of five persons including two
khadims to manage the Darga and its properties. Meanwhile
some of the lands appurtenant to the Darga had been sold and
offerings made by the devotees as well as other properties
had become the subject-matter of attachment. In the
interest of the Darga, Government then decided to take
possession of the properties under the provisions of
Pensions Act, (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 management
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 had joined him
claimed possession of the Darga together with the buildings
appurtenant 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 allega-
tion that the proprietary interest in the properties 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 Darga was a religious establishment
within the meaning or 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
declared " to vest in the trustees when appointed ". The
decree further provided for a scheme for the management of
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the Darga and its properties. The scheme thus framed came
into operation and the trustees appointed under it began to
manage the Darga and its properties. The scheme appears to
have worked smoothly until 1934. In 1934 Ashraf Ali and
others clamed (Suit No. 1 of 1934) that an injunction should
be issued restraining the defendants from taking part in the
management of the affairs of the Darga. The plaintiffs also
prayed that the defendants should be prohibited from
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spending monies belonging to the waqf on frivolous
litigations due to party feelings. On May 7, 1934, the
learned District Judge expressed his regret that animosity
and party feelings should find their way in the management
of a trust and issued an order directing the defendant
committee that no 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.
For nearly six years after the date of this order the Darga
and its properties appear to have been free from any
litigation. This peace was, however, again disturbed in
1940 when a suit was filed (No. 1 of 1940) with the
sanction of the Advocate-General by five plaintiffs against
the managing committee and its trustees for their removal
and for the framing of a fresh scheme. On October 16, 1941,
the suit 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
March 7, 1946, the decree under appeal was set aside, though
a few minor amendments were made in the original scheme of
management.
Whilst this litigation was pending between the parties, the
United Provinces Muslim Waqfs Act (U.P. XIII of 1936) was
passed in 1936 for better governance, administration and
supervision of the specified muslim waqfs in U. P. In
pursuance of the provisions of the Act, respondent I was
constituted and, under s. 5(1), it issued the notification
on February 26, 1944, declaring the properties in suit to be
a Sunni Waqf under the Act. After this notification was
issued, respondent 1 called upon the committee of management
of
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the waqf to submit its annual budget for approval and to get
its accounts audited by its auditors. Respondent I also
purported to levy the usual contributions against the waqf
under s. 54 of the Act. The members of the committee of
management and the trustees with the exception of two
persons held that the properties in suit did not constitute
a waqf within the meaning of the Act and that respondent 1
had no authority or jurisdiction to supervise the management
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 back ground of the
present dispute.
For the appellants Mr. Dar has raised three points before
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’ suit was barred by s. 5(2) and was
incompetent under s. 53 of the Act. Mr. Dar has fairly con-
ceded 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. Since 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 maintanability 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
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the Act as alleged by the appellants.
Before dealing with the question of limitation, it would be
useful to refer to the relevant part of the scheme of the
Act. Section 4 of the Act provides for the survey of waqfs
to be made by the Commissioner
of Waqfs appointed under sub-s. (1) of s. 4. Subsection (3)
requires the Commissioner to ascertain and determine inter
alia the number of Shia and Sunni Waqfs in the district,
their nature, the gross income of the properties comprised
in them as well as the expenses incurred in the realisation
of the income and the pay of the mutawalli. The
Commissioner has also to ascertain and determine whether the
waqf in question is one of those exempted from the
provisions of the Act under s. 2. The result of this enquiry
has to be indicated by the Commissioner in his report to the
State Government under subs. (5). Section 6 deals with the
establishment of two separate Boards to be called the Shia
Central Board and the Sunni Central Board of Waqfs. Section
18 defines the functions of the Central Boards and confers
oil them general powers of superintendence over the
management of the waqfs under their jurisdiction. After the
Boards are constituted a copy of the Commissioner’s report
received by the State Government is forwarded to them and,
under s. 5, sub-s. (1), each Central Board is required as
soon as possible to notify in the official gazette the waqfs
relating to the particular sect to which, according to the
said report, the provisions of the Act apply. It is after
the prescribed notification is issued by the Board that it
can proceed to exercise its powers under s. 18 in respect of
the waqfs thus notified. It is the notification issued by
respondent under s. 5 (1) and the subsequent steps taken by
it in exercise of its authority that have led to the present
suit.
Mr. Dar contends that the provisions of s. 5 (2) do not
apply to the present suit, and so the argument that the suit
is barred by limitation under the said section cannot
succeed. It is clear that the notification was issued on
February 26, 1944, and the suit has been filed on October
18, 1946. Thus there can be no doubt that if the one year’s
limitation prescribed by s. 5 (2) applies to the present
suit it would be barred by time unless the appellants are
able to invoke the assistance of s. 15 of the Limitation
Act. But, according to Mr. Dar, the present suit is outside
s. 5 (2)
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altogether and so there is no question of invoking the
shorter period of limitation prescribed by it.
Let us then proceed to consider whether the present suit
falls within the mischief of s. 5 (2) or not. Section 5 (2)
provides that:
" The mutawalli of a waqf or any person interested in a waqf
or a Central Board may bring a suit in a civil court of
competent jurisdiction for a declaration that any
transaction held by the Commissioner 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 waqf reported by such Commissioner as being
subject to the provisions 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 waqif. Sub-section (4) of s. 5 lays down
that the Commissioner of the waqf’s shall not be made a
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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 colour 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
mutawallis of the waqf nor are they persons interested in
the waqf. Their case is that the properties in suit do not
constitute a waqf under the Act but are held by them as
proprietors, and that the notification issued by respondent
I 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 I on these allegations be said to be persons
interested in the waqf, asks Mr. Dar. The word ’ waqf ’ as
used in this subsection must be given the meaning attached
to it by the definition in s. 3 (1) of the Act and since the
appellants totally deny the existence of such a waqf they
cannot be said to be interested in the ’ waqf ’. The
1298
argument thus presented appears prima facie to be attractive
and plausible; but on a close examination of s. 5 (2) it
would appear clear that the words " any person interested in
a waqf " cannot be construed in their strict literal
meaning. If the said words are given their strict literal
meaning, suits for a declaration that any transaction held
by the Commissioner to be a waqf is not a waqf can never be
filed by a mutawalli of a waqf or a person interested in a
waqf. The scheme of this sub-section is clear. When the
Central Board assumes jurisdiction over any waqf tinder the
Act it proceeds to do so on the decision of three points by
the Commissioner of Waqfs. It assumes that the property is
a waqf, that it is either a Sunni or a Shia waqf, and that
it is not a waqf which falls within the exceptions mentioned
in s. 2. It is in respect of each one of these decisions
that a suit is contemplated by s. 5, sub-s. (2). If the
decision is that the property is not a waqf or that it is a
waqf falling within the exceptions mentioned by s. 2, the
Central Board may have occasion to bring a suit. Similarly
if the decision is that the waqf is Shia and not Sunni, a
Sunni Central Board may have occasion to bring a suit and
vice versa. Likewise the decision that the property is a
waqf may be challenged by a person who disputes the
correctness of the said decision. The decision that a
property does not fall within the exceptions mentioned by s.
2 may also be challenged by a person who claims that the
waqf attracts the provisions of s. 2. If that be the nature
of the scheme of suits contemplated by s. 5 (2) it would be
difficult to imagine how the mutawalli of a waqf or any
person interested in a waqf can ever sue for a declaration
that the transaction held by the Commissioner of the waqfs
to be a waqf is not a waqf. That is why we think that the
literal construction of the expression " any person
interested in a waqf " would render a part of the sub-
section wholly meaningless and ineffective. The legislature
has definitely contemplated that the decision of the
Commissioner of the Waqfs that a particular transaction is a
waqf can be challenged by persons who do not accept the
correctness of the said decision, and it is, this class of
persons who -are
1299
obviously intended to be covered by the words "any person
interested in a waqf ". It is well-settled that in
construing the provisions of a statute courts should be slow
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to adopt a construction which tends to make any part of the
statute meaningless or ineffective; an attempt must always
be made so to reconcile the relevant provisions as to
advance the remedy intended by the statute. In our opinion,
on a reading of the 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 inter-
ested 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 decision 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 the present suit must not be strictly or
literally construed, 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 obviously
interested in the suit properties which are notified to be
waqf by the notification issued by respondent 1, and so the
suit instituted by them 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 expression " 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
applicant is described by the section as a party to the
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1300
agreement. If the expression " any party to an arbitration
agreement " is literally construed it would be difficult to
conceive of a case where the existence of an agreement can
be impeached by a proceeding under s. 33. The material
clause must therefore be read liberally and not literally or
strictly. It must be taken to mean a person who is alleged
to be a party to 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 Mohanlal v. Bhicam Chand
Chororia & Sons Mathu Kutty v. Varoe Kutty (2) ; Lal Chand
V. Messrs. Basanta Mal Devi Dayal & Ors. (3). We 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 there is a valid agreement of reference between them
does not preclude the latter party from disputing the
existence of the said agreement in proceedings taken under
s. 34. These decisions illustrate the principle that where
the literal meaning of the words use& in a statutory
provision would manifestly defeat its object by making a
part of it meaningless and ineffective, it is legitimate and
even necessary to adopt the rule of liberal construction so
as to give meaning to all parts of the provision and to make
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the whole of it effective and operative.
Before we part with this part of the appellants’ case it is
necessary to point out that the argument urged by Mr. 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 its appurtenant properties constitute a
waqf Under the
(1) (1948) 53 C.W.N. 410. (2) A.I.R. 1950 Mad. 64.
(3) (1947) 49 P.L.R. 246.
1301
Act; but it is urged that they do not attract its provisions
for the reason that the waqf in question falls within the
class of exemptions enumerated in s. 2 (ii)(a) and (c) of
the Act. " The Darga waqf ", says the plaint in para. 11,
,is of such a nature as makes it an exception from the
purview of the Act as provided by s. 2 of the Act ". Indeed,
consistently with this part of the appellants’ case,, the
plaint expressly admits that the cause of action for the
suit accrued on February 26, 1944, and purports to bring the
suit within time by relying on ss. 14, 15, 18 and 29 of the
Limitation 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 any paper or document the word I 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 that
the subject-matter of the suit is covered by the exemptions
of s. 2, cls. (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 doubt constituted a waqf under
the Act, but they did not fall within the purview of the Act
because they belong to the category of waqfs which are
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 1 to contend that the appellants 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 during which proceedings are suspended " and it lays
down that " in computing the period of limitation prescribed
for any
1302
suit or application for the execution of a decree, the
,institution or execution of which has been staved by an
injunction or order, the time of the continuance of the
injunction or order, the day on which it was issued or made
and the day on which it was withdrawn, shall be excluded ".
It is plain that, for excluding the time under this section,
it must be shown that the 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 requirements of s. 15
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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. We are,
however, prepared to assume in the present case that s. 15
would apply even to cases where the institution of a suit is
stayed by necessary implication of the order passed or
injunction issued in the previous litigation. But, in our
opinion, there would be no justification for extending the
application of s. 15 on the ground that the institution of
the subsequent suit would be inconsistent with the 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; but 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 the 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 decision of the Privy
Council in Narayan Jivangouda v. Puttabai (2). This case
was an offshoot of the well-known case of Bhimabai v.
Gurunathgouda (3). It is apparent that the dispute between
Narayan and Gurunathgouda
(1) (1932) 34 Bom. L.R. 1065. (2) (1944) 47 Bom. L. R. I.
(3) (1932) 35 Bom. L. R. 200 P.C.
1303
ran through a long and protracted course and it reached the
Privy Council twice. The decision of the, Privy Council in
Bhimabai’s case (1) upholding the validity of Narayan’s
adoption no doubt led to a radical change in the accepted
and current view about the Hindu widow’s power to adopt in
the State of Bombay, but this decision was of poor
consolation to Narayan because the judgment of the Privy
Council in Narayan, Jivangouda’s case (2) shows that
Narayan’s subsequent suit to recover possession of the
properties in his adoptive family was dismissed as barred by
time. 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 sued
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 and it
was confirmed when the suit was decreed in favour of
Gurunathgouda. By this injunction the defendants were
ordered " not to take the crops from the fields in suit, not
to interfere with the plaintiff’s wahiwat to the said 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 Narayan had been
duly adopted by Bhimabai in fact and whether Bhimabai was
competent to make the adoption. These issues were answered
against Narayan by the trial court. Bhimabai and Narayan
appealed to the Bombay High Court, but their appeal failed
and was dismissed: Bhimabai v. Gurunathgouda (3). 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. In the result the
injunction granted by the courts below was dissolved on
November 4, 1932. Oil
(1) (1932) 35 Bo-. L. R. 200 P. C.
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(2) (1944) 47 Bom. L. H. I.
(3) (1928) 30 Bom. L. R. 859.
1304
November 25, 1932, Narayan and Bhimabai filed their suit to
recover possession of the properties from Gurunathgouda.
They sought to bring the suit within time inter alia on the
ground that the time taken up in litigating the former suit
or at least the period commencing from the grant of
temporary injunction on February 25, 1920 to November 4,
1932, when the injunction was dissolved by the Privy
Council, should be excluded under s. 15 of the Limitation
Act. This plea was rejected by the trial court and on
appeal the same view was taken by the Bombay High Court.
Rangnekar J. who delivered the principal judgment
exhaustively considered the relevant judicial decisions
bearing on the question about the construction of s. 15 and
held that the injunction issued against Narayan and Bhimabai
in Gurunathgouda’s suit did not help to attract s. 15 -to
the suit filed by them in 1932: Narayan v. Gurunathgouda
(1). The matter was then taken to the Privy Council by the
plaintiffs; but the Privy Council confirmed the view taken
by the High Court of Bombay and dismissed the appeal:
Narayan v. Puttabai (2).
In dealing with the appellants’ argument that the injunction
in the prior suit had been issued in wide terms and in
substance it precluded the plaintiffs from filing their
suit, their Lordships observed that there was nothing in the
injunction or in the decree to support their case that they
were prevented from instituting a suit for possession in
1920 or at any time before the expiry of the period of
limitation. It appears from the judgment that Sir Thomas
Strangman strongly contended before the Privy Council that
since the title of the contending parties was involved in
the suit, it would have been quite futile to institute a
suit for possession. This argument was repelled by the
Privy Council with the observation that " we are unable to
appreciate this point, for the institution of a suit can
never be said to be futile if it would thereby prevent the
running of limitation ". There can be little doubt that, if,
on considerations of equity the application of s. 15 could
be extended, this was pre-
(1) (1938) 40 Bom. L.R. 1134.
(2) (1944) 47 Bom. L. R. I.
1305
eminently a cast for such extended application of the said
provision; and yet the Privy Council construed the material
words used in s. 15 in their strict grammatical meaning and
held that no order or injunction as required by s. 15 had
been issued in the earlier litigation. We would like to add
that, in dealing with this point, their Lordships did not
think it necessary to consider whether the prohibition
required by s. 15 must be express or can even be implied.
There is another decision of the Privy Council to which
reference may be made. In Beti Maharani v. The Collector of
Etawah (1), their Lordships were dealing with a case where
attachment before judgment under s. 485 of the Code of Civil
Procedure had been issued by the court at the instance of a
third party prohibiting the creditor from recovering and the
debtor from paying the debt in question. This order of
attachment was held not to be an order staying the
institution of a subsequent suit by the creditor under s. 15
of Limitation Act of 1877. " There would be no violation of
it " (said order), observed Lord Hobhouse, " until the
restrained creditor came to receive his debt from the
restrained debtor. And the institution of a suit might for
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more than one reason be a very proper proceeding on the part
of the restrained creditor, as for example in this case, to
avoid the bar by time, though it might also be prudent to
let the court which had issued the order know what he was
about ". In Sundaramma v. Abdul Khader (2) the Madras High
Court, while dealing with s. 15 of the Limitation Act, has
held that no equitable grounds for the suspension of the
cause of action can be added to the provisions of the Indian
Limitation Act.
It is true that in Musammat Basso Kaur v. Lala Dhua Singh
(3) their Lordships of the Privy Council have observed that
it would be an inconvenient state of the law if it were
found necessary for a man to institute a perfectly vain
litigation under peril of losing his property if he does not
; but this observation must be read in the context of facts
with which
(1) (1894) I.L.R. 17 All. 198, 210, 211.
(2) (1932) I.L.R.56 Mad. 490,
(3) (1888) 15 I.A. 211.
1306
the Privy Council was dealing in this case. The respondent
who was a debtor of the appellant had agreed to convey
certain property to him setting off the debt against part of
the price. No money was paid by the respondent and disputes
arose as to the other terms of the agreement. The
respondent sued to enforce the terms of the said agreement
but did not succeed. Afterwards when he sued for the debt
he was met with the plea of limitation. The Privy Council
held that the decree dismissing the respondent’s suit was
the starting point of limitation. The said decree imposed
on the respondent a fresh obligation to pay his debts under
s. 65 of the Indian Contract Act. It was also held
alternatively that the said decree imported within the
meaning of Art. 97 of Limitation Act of 1877 a failure of
the consideration which entitled him to retain it. Thus it
is clear that the Privy Council was dealing with the
appellants’ rights to sue which had accrued to him on the
dismissal of his action to enforce the terms of the
agreement. It is in reference to this right that the Privy
Council made the observations to which we have already
referred. These observations are clearly obiter and they
cannot, in our opinion, be of any assistance in interpreting
the words in s. 15.
It is in the light of this legal position that we must
examine the appellants’ case that the institution of the
present suit had been stayed by an injunction or order
issued against them in the earlier litigation of 1940. We
have already noticed that Civil Suit No. 1 of 1940 had been
instituted against the appellants with the sanction of the
Advocate-General for their removal and for the settlement of
a fresh scheme. The appellants were ordered to be removed
by the learned trial judge on October 16, 1941; but on
appeal the decree of the trial court was set aside on March
7, 1946. It is the period between October 16, 1941, and
March 7, 1946, that is sought to be excluded by the
appellants under s. 15 of the Limitation Act. Mr. Dar
contends that the order passed by the trial judge on October
16, 1941, made it impossible for the appellants to file the
present suit until the final decision of the
1307
appeal. By this order the appellants were told that they
should not in any way interfere with the affairs of the
Darga Sharif as members of the committee and should comply
with the decree of the court by which they were removed from
the office. It is obvious that this order cannot be
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construed as an order or an injunction staying the
institution of the present suit. In fact the present suit
is the result of the notification issued by respondent I on
February 26, 1944, and the subsequent steps taken by it in
the purported exercise of its authority under the Act. The
cause of action for the suit has thus arisen subsequent to
the making of the order on which Mr. Dar relies; and on the
plain construction of the order it is impossible to hold
that it is an order which can attract the application of s.
15 of the Limitation Act. We have already held that the
relevant words used in s. 15 must be strictly construed
without any consideration of equity, and so construed, we
have no doubt that the order on which Mr. Dar has placed
reliance before us is wholly out side s. 15 of the
Limitation Act. We would, however, like to add that this
order did not even in substance create any difficulty
against the institution of the present suit. The claim made
by the appellants in the present suit that the properties in
suit do not constitute a waqf and the declaration and
injunction for which they have prayed do not infringe the
earlier order even indirectly or remotely. We must accord-
ingly hold that the High Court was right in taking the view
that s. 15 did not apply to the present suit and that it was
therefore filed beyond the period of one year prescribed by
s. 5(2) of the Act.
That takes us to the consideration of the next preliminary
objection against the competence of the suit under s. 53 of
the Act. Section 53 provides that " no suit shall be
instituted against a Central Board in respect of any act
purporting to be done by such Central Board under colour of
this Act or for any relief in respect of any waqf until the
expiration of two months next after notice in writing has
been delivered to the Secretary, or left at the office of
such
166
1308
Central Board, stating the cause of action, the name,
description and place of residence of the plaintiff and ’the
relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left ".
This section is similar to s. 80 of the Civil Procedure
Code. It is conceded by Mr. Dar that if s. 53 applies to
the present suit the decision of the High Court cannot be
successfully challenged ’because the notice required by s.
53 has not been given by the appellants before the
institution of the present suit. His argument, however, is
that the notification issued by respondent I on February 26,
1944, did not refer to the Darga and offerings made by the
devotees before the Darga and he contends that the present
suit in respect of these properties is outside the
provisions Of s. 53 and cannot be held to be barred on the
ground that the requisite notice had not been given by the
appellants. We are not impressed by this argument. Column
1 of the notification in question sets out the name of the
creator of the waqf as Shahan-e-Mughalia and the name of the
waqf as Syed Salar Mahsood Ghazi. In col. 2 the name of the
mutawalli is mentioned while col. 3 describes the properties
attached to the waqf. The tomb of Syed Salar Mahsood Ghazi
which is the object of charity in the present case is
expressly mentioned in col. 1 and so it is futile to suggest
that the tomb or Darga had not been notified as a waqf by
respondent 1 under s. 5(1). In regard to the offerings we
do not see bow offerings could have been mentioned in the
notification. They are made from time to time by the devo-
tees who visit the Darga and by their very nature they
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constitute the income of the Darga. It is unreasonable to
assume that offerings which would be made from year to year
by the devotees should be specified in the notification
issued under s. 5(1). We must, therefore, reject the
argument that any of the suit properties have riot been duly
notified by respondent I under s. 5(1) of the Act. If that
be so, it was incumbent upon the appellants to have given
the requisite notice under s. 53 before instituting the
present suit. The requirement as to notice applies to
1309
suits against a Central Board in respect of their acts as
well as to suits for any relief in respect of any waqf. It
is not denied that the present suit would attract the
provisions of s. 53 if the argument that the Darga and the
offerings are not notified is rejected. The result is that
the suit is not maintainable as a result of the appellant’s
failure to comply with the requirements of s. 53. We would
accordingly confirm the finding of the High Court that the
appellants’ suit is barred by time under s. 5(2) and is also
not maintainable in view of the fact that the appellants
have not given the requisite notice under s. 53 of the Act.
The result is that the appeal fails and is dismissed with
costs.
Appeal dismissed.