Bench:
J.C.Shah,J.L.Kapur, M.Hidayatullah
Appellant:
C. Mohammed Yunus
Respondent:
Syed Unissa And Others
Issue
I) Whether the said female individuals were qualified to appreciate the properties and to perform the "Urs" celebration with the fact that the female were excluded by the custom of the family?
Facts
- Under a scheme, a Board of Trustees was delegated for the administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had conceded two villages inInam.
- The pay of the institution after disbursing the expenses had quite a while ago been shared by the descendants in four families in equivalent shares. The scheme additionally provided that the surplus income was to be distributed among the members of the said four families.
- One of the descendants died leaving his wife and two daughters behind who were discouraged in the performance of the "Urs" by the appellant's father.
- The said Muslim female members filed a suit for declaration that they were qualified to appreciate the properties and to manage the Durga, perform the "Urs" festival and receive allin comes, endowments and perquisites thereof once in every eight years as per their turn. The right to a share in the income was denied by the appellant arguing that by the custom in the family, females were not included from inheritance and that the claim was banned by the law of limitation and that, regardless, the suit for mere declaration was not maintainable.
- The trial Judge held and the appellate court agreed with him that there was an immemorial custom administering the organizations precluding the plaintiffs therefore the plaintiffs were not entitled to perform those services and enjoy the surplus income, and accordingly they were not qualified for the assertion or the injunction prayed for.
- In the second appeal, the High Court at Madras held that under the Shariat Act, 1937, the income received from the organisation had to be shared as per the personal law of the parties and that the plaintiffs' claim was not barred by the law of limitation nor was the suit open to the objection that it was as outlined not maintainable. Against the order passed by the Hon’ble High Court, this appeal with special leave under Article 136 of the Constitution is preferred.
Appellant’s Contentions
- The appellant denied the right of the respondents to a share in the income contending that by the custom in the family, females were rejected from an inheritance, that the office of "Peshimam", "Khatib" and "Mujavar" could only be held by males and that females were prohibited from those offices, that the plaintiffs' claim was banned by the law of limitation and that in any event, the suit for a mere declaration was not maintainable.
Respondent’s Contentions
- Respondent in this appeal claimed for an assertion that they were entitled to enjoy the properties and to manage the Durga, perform the "Urs" festival and receive all incomes, endowments, and perquisites thereof once in every eight years as per their turn.
Judgment
The Court held that the appeal by special leave was dismissed. Considering the fact and circumstances of the case, this appeal fails and is dismissed with costs.
Relevant Paragraphs
In para 1, Under a scheme a Board of Trustees was appointed for administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had granted two villages inInam.The pay of the institution after disbursing the expenses had since a quite a while ago been shared by the descendants in four families in equivalent shares. Additionally, the scheme provided that the surplus income was to be distributed amongst the members of the said four families. One of the descendants died leaving his wife and two daughters who were deterred in the performance of the “Urs" by the appellant's father.
In para 2, The said Muslim female members filed a suit for declaration that they were qualified to enjoy the properties and to manage the Durga, perform the "Urs" festival and receive allin comes, endowments and perquisites thereof once in every eight years as per their turn. The right to a share in the income was denied by the appellant arguing that by the custom in the family, females were not included from inheritance and that the claim was banned by the law of limitation.
Last Para, the plea raised by counsel for the challenging defendants that significantly under the Muslim Personal Law, females are barred from performing the duties of the offices of "Peshimam", "Khatib" and "Mujavar" and that they can’t perform the duties of those offices even through deputies is one which was not raised before the Hon’ble High Court. The trial court has recognized that the duties of those offices could be performed through deputies. In any event, if the income was being distributed amongst the four families, one of the descendant’s wife and two daughters who were discouraged in the performance of the "Urs"under the provisions of the Shariat Act, be entitled to receive that pay. There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the "Urs" celebration. Considering the fact and circumstances of the case, this appeal fails and is dismissed with costs.
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