TMI Blog1958 (9) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the waqf to submit its annual budg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ((1932) 34 Bom. L.R. 1065.). 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 ((1944) 47 Bom. L. R. I.). This case was an offshoot of the well-known case of Bhimabai v. Gurunathgouda ((1932) 35 Bom. L. R. 200 P.C.). It is apparent that the dispute between Narayan and Gurunathgouda ran through a long and protracted course and it reached the Privy Council twice. The decision of the, Privy Council in Bhimabai s case ((1932) 35 Bo-. L. R. 200 P. C.) 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 ((1944) 47 Bom. L. H. I.) shows that Narayan s subsequent suit to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Bhimabai in Gurunathgouda s suit did not help to attract s. 15 -to the suit filed by them in 1932: Narayan v. Gurunathgouda ((1938) 40 Bom. L.R. 1134). 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 ((1944) 47 Bom. L. R. I.). 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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