LexC. MOHAMMED YUNUS versus SYED UNISSA AND OTHERS
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1 S.C.R. SUPREME COURT REPORTS 67 .o1. C. MOHAMMED YUNUS v. SYED UNISSA AND OTHERS (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.) Muslim law-Religious endowment-Surplus income to be dis- tributed amongst the members of the family-Claim by fem.ales-If governed by custom or personal law-Muslim Personal Law (Shariat) -~ Application Act, I937 (26 of I937), as amended by Muslim Personal Law (Shariat) Application (Madras Amendment) Act, I949 (Mad. r8 of I949), s. 2. • • • Limitation-Declaratory suit with consequential relief-If maintainable-Right to sue-Computation-Indian Limitation Act, I908 (IX of I908), art. I20. 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 in Inam. The income of the institution after disbursing the expenses had since long been shared by the descendants in four families in equal shares. The scheme also provided that the surplus in- come was to be distributed amongst the members of the said four families. One of the descendants died leaving him survi- ving his wife and two daughters who were obstructed in the performance of the "Urs" by the appellant's father. The said Muslim female members filed a suit for declaration 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 according to their turn. The right to a share in the income was denied by the appellant contending that by custom in the family, females were excluded from inheritance and that the claim was barred by the law of limitation and that, in any event, the suit for mere declaration was not maintainable . Held, that a suit for declaration of rights with a consequen- tial relief for injunction was not a suit for declaration simpliciter; it was a suit for declaration with further relief and was not barred under art. 120 of the Indian Limitation Act merely be- cause the contesting defendant did not recognise the right. The period of six years prescribed by art. r20 is to be computed from the date when the right to sue accrued and there could be no right to sue until there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequi- vocal threat to infringe that right. If under the law a person was entitled to any legitimate right, the mere denial of the right will not set the period of limitation running against the person entitled to such right. February I.f-. I96I C. Mohammed Yunus v. Syed Unis~a &, Others Shah ]. 68 SUPREME COURT REPORTS [1962] Held, further, that on the enactment of the Shariat Act 26 of 1937, as amended by the Madras Act 18 of 1949• the Muslim Personal Law applies in all cases relating to the matters speci- fied notwithstanding any custom or usage to the contrary even at the stage of appeals, if other conditions prescribed under the Act are fulfilled. Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal Hiralal, (1904) I.LR. 28 Born. 567, discussed. Syed Roshan Ali v. Mt. Rehmat Bibi and Others, A.LR. 1943 Lab. 219, disapproved. CIVIL APPELLATE JURISDICTION: Civil Appeal ,. No. 512 of 1957. Appeal by special leave from the judgment and decree dated August 29, 1952, of the Madras High Court in Second Appeal No. 2349 of 1946. Azizuddin and K. R. Choudhury, for the appellant. Shaukat Hussain and P.O. Agarwala, for respon- dents Nos. 1 and 2. 1961. February 14. The Judgment of the Court was delivered by SHAH, J.-There is in the village of Cavelong, Dis- trict Chingleput in the State of Madras an ancient Durgah to which is appurtenant aMasjid. The Nawab of Carnatic had granted two villages in inam for the maintenance of the Durgah and the Masjid. Offerings from the devotees who visited the Durgah and the Masjid were also received. The income of the institu- tion after disbursing the expenses of "Sandal", and "U rs" and of feeding the poor has since 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 origi- nal suit No. 27 of 1940 of the file of the Subordi- nate Judge, Chingleput, a scheme was framed for administration of the Durgah and the Mas
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