TMI Blog1961 (2) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... nce long been shared by descendants in four families in equal shares. By custom females and persons claiming through females were excluded from receiving a share of the income and the income was distributed amongst the males descended in the male line. In original suit No. 27 of 1940 of the file of the Subordinate Judge, Chingleput, a scheme was framed for administration of the Durgah and the Masjid and a Board of trustees was appointed for that purpose. By the scheme, provision was made for distribution of the surplus income amongst the members of the four families. 2. Fakruddin, in the following genealogy, belonged to one of the four families which received the income. 3. As a descendant of Sheik Mohammad, Fakruddin received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 4 to 10 who were brought on record on their own application as heirs and legal representatives to the exclusion of the daughter of Abdul Wahid defended the suit. They denied the right of the plaintiffs to a share in the income contending that by custom in the family, females were excluded from inheritance , that the office of Peshimam , Khatib and Mujavar could only be held by males and that females were excluded from those offices, that the plaintiffs' claim was barred by the law of limitation and that in any event the suit for a mere declaration was not maintainable. 5. The Trial Judge held - and the appellate court agreed with him that there was an immemorial custom governing the institutions precluding the plaintiffs from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a suit for a declaration and injunction and that an injunction is a further relief within the meaning of s. 42 of the Specific Relief Act. In that case, the plaintiff had claimed that a certain will was null and void and that being a close relative of the last holder of a gadi, he was entitled to be the Acharya in the place of that last holder and for an injunction restraining the defendants from offering any obstruction to his occupation of the gadi. It was held that such a suit was maintainable. 8. The surplus income of the institution is distributed by the trustees and the plaintiffs are seeking a declaration of the right to receive the income and also an injunction restraining the defendants from interfering with the exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant did not recognise that right. The period of six years prescribed by art. 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right. If the trustees were willing to give a share and on the record of the case it must be assumed that they being trustees appointed under a scheme would be willing to allow the plaintiffs their legitimate rights including a share in the income if under the law they were entitled thereto, mere denial by the defendants of the rights of the plaintiffs and defendant No. 2 will not set the period of limitation running again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding intestate succession, special property of females, including personal property inherited or obtained under contract, or gift or any other provision of personal law, marriage, dissolution of marriage, including Tallaq, ila, zihar, lian, Khula and Mubarrat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). 11. Manifestly by this act, the rule of decision in all questions relating to intestate succession and other specified matters including wakfs where the parties to the dispute are Muslims is the Muslim Personal Law. The terms of the Act as amended are explicit. Normally a statute which takes awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable for decision would be the Muslim Personal Law if the other conditions prescribed by the Act are fulfilled. In our view, the High Court was right in holding that it was bound to apply the provisions of the Shariat Act as amended by Madras Act 18 of 1949 to the suit filed by the plaintiffs. 12. We are unable to agree with the view of the Lahore High Court in Syed Roshan Ali v. Mt. Rehmat Bibi A.I.R. 1943 Lah. 219 that a right acquired before 1937 (the date on which the Shariat Act was brought into operation) to bring a suit for a declaration that the alienation by the widow of the last holder who had by custom succeeded to the limited estate left by her husband was not binding upon the reversioner, was not taken away by the enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
