Sirajul Haq Khan and Others vs The Sunni Central Board Of Waqf, U.P.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 121 of 1955

Decision Date: 16 September 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar

In the case titled Sirajul Haq Khan and Others versus The Sunni Central Board of Waqf, U.P., the Supreme Court rendered its judgment on 16 September 1958. The opinion was authored by Justice P.B. Gajendragadkar, who sat with Justices A.K. Sarkar, Iyyar, T.L. Venkatarama Sarkar and A.K. Sarkar. The petitioners were Sirajul Haq Khan and other members of the managing committee of a Darga Sharif, while the respondents included the Sunni Central Board of Waqf, Uttar Pradesh, and additional parties. The citation of the decision appears in the 1959 All India Reporter at page 198, the 1959 Supplement to the Supreme Court Reporter at page 1287, and it is also referenced in several later law reports, including R 1974 SC 968, R 1979 SC 289, RF 1987 SC 1161 and RF 1991 SC 2160. The matters under consideration involved the United Provinces Muslims Waqf Act of 1936 (U.P. XIII of 1936), specifically sections 5 and 53, together with the Indian Limitation Act of 1908, section 15.

The respondent designated as No. 1 was a Central Board created under the United Provinces Muslims Waqf Act, 1936. By means of a notification issued under section 5(1) of that Act on 26 February 1944, the Board assumed management of the property belonging to a Darga Sharif. On 18 October 1946, three of the five members of the Darga’s managing committee – the petitioners – instituted a suit seeking a declaration that the Darga’s property did not constitute a waqf within the meaning of the Act and that the respondent Board lacked lawful authority to issue the notification and to take over the management of the property. The Board contended that the suit was barred by the limitation period prescribed in section 5(2) of the Act, which required an action to be brought within one year, and further argued that the suit was incompetent because the notice required by section 53 of the Act had not been served on the Board.

The factual background revealed that an earlier suit, filed with the sanction of the Advocate General, had aimed at removing the managing committee and at framing a fresh scheme for the Darga. A decree dated 16 October 1941 ordered the petitioners not to interfere with the affairs of the Darga as members of the committee and directed their removal from office. That decree was set aside by the Chief Court on 7 March 1946. On this basis, the petitioners maintained that section 5(2) of the Waqf Act did not apply to them, and even assuming its applicability, they argued that the suit fell within the exemption provided by section 15 of the Limitation Act.

The Court held that the contentions raised by the petitioners must be rejected. It interpreted the phrase “any person interested in a waqf” used in section 5(2) of the United Provinces Muslims Waqf Act, 1936, to mean any individual who has an interest in a transaction that is deemed to be a waqf by the Commissioner of Waqf appointed under the Act. Accordingly, the petitioners were deemed to be persons interested in a waqf and therefore fell within the scope of section 5(2). The Court consequently concluded that the suit was not barred by the limitation provision and that the failure to serve the notice under section 53 did not render the suit incompetent.

The Court observed that when a literal construction defeats the object of a statute and renders part of it meaningless, a liberal construction may be adopted to give meaning to the whole provision and make it effective. The Court referred to the authorities in 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. It held that rules of limitation are arbitrary in nature and that, while construing them, equitable considerations cannot be imported; the strict grammatical meaning of the words used must be given effect. Section 15 of the Limitation Act, the Court explained, can be attracted only where a suit has been stayed by an injunction or an order, and the test is whether instituting the suit would constitute contempt of the court’s order. In support of this view the Court relied on 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. The decision in Musammat Basso Kaur v. Lala Dhua Singh (1888) 15 I.A. 211 was held inapplicable. The Court further observed that the order of the court in the earlier suit was neither an injunction nor an order of the kind contemplated by Section 15 of the Limitation Act, and therefore that section was inapplicable. The Court noted that offerings made from time to time by devotees visiting the Darga Sharif are, by their very nature, income of the Darga, and that failure to mention such offerings in the notification under Section 5(1) of the Act does not render the notification defective. It also held that the notice provision under Section 53 of the Act applied both to suits concerning acts of the Central Board and to suits seeking any relief in respect of the waqf. The judgment concerned Civil Appeal No. 121 of 1955, an appeal from the judgment and decree dated 22 April 1953 and 24 February 1954 of the Allahabad High Court (Lucknow Bench) in F.C. Appeal No. 50 of 1947, which arose from the decree dated 15 April 1947 of the Civil Judge, Bahraich, in Regular Suit No. 25 of 1946. Counsel for the appellants included S. K. Dar, Ch. Akhtar Hussain and C. P. Lal; counsel for respondent No. 1 comprised Ch. Niyamatullah, Onkar Nath Srivastava, J. B. Dadachanji, S. N. Andley and Rameshwar Nath. The judgment was delivered on 16 September 1958 by Justice Gajendragadkar. The suit from which the appeal arose related to the shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and the properties appurtenant thereto; the appellants, who are members of the Waqf Committee, Darga Sharif, Bahraich, claimed a declaration that those properties were not covered by the provisions of the United Provinces Muslims Waqf Act.

In this case the Court observed that the suit was filed under the United Provinces Muslim Waqfs Act of 1936, hereinafter referred to as the Act. The plaintiffs sought a declaration, a consequential injunction and two subsidiary reliefs, primarily directing those orders against respondent 1, the Sunni Central Board of Waqf of the United Provinces of Agra and Oudh. Two additional trustees, who did not join the plaintiffs in instituting the suit, were named as pro forma defendants and appeared before the Court as respondents 2 and 3. The factual backdrop, as recorded, indicated that respondent 1 purported to exercise authority over the disputed properties pursuant to the provisions of the Act, an assertion that gave rise to the present suit filed on 18 October 1946, designated as suit No. 25 of 1946. The plaintiffs argued that the properties in dispute lay outside the operative provisions of the Act and therefore fell beyond the jurisdiction of respondent 1; consequently, they claimed that respondent 1 had acted illegally and without jurisdiction in assuming control of the management of those properties. This contention formed the foundation of the reliefs pleaded in the plaint. Respondent 1 contested the claim on several grounds. Firstly, it alleged that the properties did constitute a waqf within the meaning of the Act and were consequently subject to its provisions. Secondly, respondent 1 maintained that it was a duly constituted Sunni Central Board authorized to supervise the management of the waqf. Thirdly, it submitted that the suit was barred by limitation and was otherwise incompetent because the plaintiffs had failed, prior to commencing suit, to serve the statutory notice required by section 53 of the Act. On the basis of these pleadings the learned trial judge framed several issues, the principal ones being: (1) whether the properties were governed by the Act; (2) whether the suit was filed within the prescribed limitation period; and (3) whether the suit could be maintained without the notice mandated by section 53 of the Act. The trial judge held that the properties could not be deemed a waqf as defined by the Act. In his view the village of Singha Parasi itself, rather than its land, had been granted in trust for the shrine and its caretakers, and only the profits free from land revenue were held in trust; because those profits were subject to a condition of resumption and had not been vested in a perpetual charitable trust, the grant could not be characterized as a waqf within the meaning of Muslim law. Regarding limitation, the judge applied section 5(2) of the Act but concluded that, although the suit was filed after the one‑year period prescribed therein, it fell within time under section 14 of the Limitation Act. The plea under section 53 of the Act was partially upheld by the learned judge, who found merit in respondent 1’s contention that the lack of statutory notice affected the entitlement to certain reliefs.

The trial judge concluded that the first three reliefs claimed by the appellants were barred by law, whereas the fourth relief remained available. Consequently, the judge issued a declaration in favour of the appellants stating that “the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act.” In addition to the declaration, the judge granted an injunction that restrained respondent 1 from removing or dissolving the committee of management comprising the appellants and respondents 2 and 3. The injunction was to be applied only in the manner provided by section 18 of the Act and only with respect to the management and supervision of those properties for which the appellants had not obtained a decree of declaration because the required notice under section 53 of the Act was missing. The remainder of the appellants’ claim was dismissed. This decree was entered on 15 April 1947. In response to that decree, respondent I appealed to the High Court of Judicature at Allahabad, Lucknow Bench, while the appellants entered cross‑objections. The High Court overturned the trial court’s finding on the nature of the properties, holding that the properties in dispute did constitute a waqf as defined by the Act. The High Court further held that the suit filed by the appellants was barred by the limitation period and was otherwise incompetent because the statutory notice required by section 53 of the Act had not been served before the suit was instituted. On the basis of these conclusions, the High Court allowed respondent I’s appeal, dismissed the appellants’ cross‑objections, set aside the trial court’s decree and dismissed the appellants’ suit on 22 April 1953. After that order, the appellants applied to the High Court for a certificate authorising an appeal to this Court under Article 133 of the Constitution, and the certificate was granted. Thus the present appeal reached the Supreme Court.

The substantive dispute, although framed around three principal issues, rests on a complex factual background that requires description. It is asserted that Syed Salar Mahsood Ghazi, who was a nephew of Muhammad Ghazni, was killed by a local chieftain while visiting Bahraich. Following his death, his followers interred his remains in the village of Singha Parasi and subsequently erected a tomb over the grave. Over time the tomb acquired a reputation as a place of pilgrimage and veneration. An annual Urs began to be celebrated at the shrine, attracting large numbers of devotees who offered gifts and prayers at the site. Part of the maintenance of the tomb has been sustained by the income generated from these offerings. In addition, certain properties had been endowed to the shrine by the Emperors of Delhi, and the accumulations from the income of those endowed properties and from devotees’ offerings have been added to the shrine’s holdings.

The Government of Delhi had granted lands in favour of the tomb and additional accretions had been added to those properties from the savings generated by the income of the endowed lands as well as from the offerings brought by the devotees. The tomb was administered by a body of persons known as the Khuddams of the Darga. This body looked after the Darga, performed the ritual ceremonies and rendered other services at the shrine. While the Khuddams continued to manage the Darga in this manner, the State of Oudh was annexed in 1856 and Lord Canning issued a proclamation that confiscated all private properties and inams in the State. The lands attached to the Darga were included in that confiscation. Subsequently the Government made fresh settlements, and under those settlements the previously existing rights were generally revived on the same terms as before. In respect of the Darga’s lands, a Sanad was apparently issued in 1859 or 1860 in favour of Fakirulla, who was the head of the Khuddams. The Sanad granted Fakirulla rent‑free tenure of the village of Singha Parasi and authorised him to collect the usufruct of the village, the proceeds of which were to be applied to the maintenance of the Darga. Fakirulla’s son, Inayatulla, was dissatisfied with the limited rights conferred by the Sanad and instituted Suit No. 1 of 1865, claiming proprietary rights over the same properties. Inayatulla’s suit was largely dismissed by the Settlement Officer on 11 November 1870. The officer held that the Government’s proprietary rights in the properties had been permanently alienated in favour of the charitable endowment and that the properties therefore vested in the endowment. Nevertheless, the officer recognised Inayatulla’s right to manage the properties in accordance with the terms of the grant.

Shortly after that decision, the Chief Commissioner was informed in 1872 that the Khuddams were mismanaging the Darga’s properties and failing to maintain the Darga itself. In response to that complaint a committee of Muslims was appointed to investigate the affairs of the Darga and to prepare a report. The committee submitted its report on 20 February 1877 and made several recommendations for improving the management of the Darga and its properties. The committee advised that a jury of five persons, including two Khuddams, should be appointed to supervise the Darga and its assets. During the intervening period some lands adjoining the Darga had been sold and the offerings of devotees as well as other properties had become subject to attachment. Acting in what it considered the interest of the Darga, the Government decided to take possession of the properties under the provisions of the Pensions Act (XXIII of 1873). That decision was taken after the Government had examined the report of the Deputy Commissioner dated 31 August 1878. By declaring that the Darga’s properties were to be governed by the Pensions Act, the Government effectively removed the properties from the mortgages created by the Khuddams and placed them under official control.

In order to release the Darga’s properties from the mortgages that had been created by the khadims, the Government continued to manage the Darga and its lands until the year 1902. During the period of Government administration, a man named Inayatulla tried once again to assert a claim over the Darga by filing a suit in the civil court in the year 1892. The suit was brought by Inayatulla together with two other individuals who joined him, and they demanded possession of the Darga, the buildings that were attached to it, and the neighbouring village called Singha Parasi. The trial court accepted their claim and issued a decree in their favour. However, the decree was appealed, and on 20 July 1897 the appellate court, presided over by the Judicial Commissioner, set aside the trial‑court decree. The appellate court held that Inayatulla’s allegation that he possessed a proprietary interest in the properties was without justification. In addition, the appellate court observed that it was neither proper nor competent for the Government to interfere with the management of the waqf and its assets, because the Darga qualified as a religious establishment within the meaning of the Religious Endowments Act (XX of 1863). Consequently, the Government’s assumption of control over the Darga and its properties was considered unauthorised and improper. Acting on these observations, the Legal Remembrancer of the United Provinces of Agra and Oudh instituted a suit numbered 9 of 1902 under section 539 (now section 92) of the Code of Civil Procedure. That suit concluded with a decree dated 3 December 1902. By that decree the properties that were the subject of the litigation were declared “to vest in the trustees when appointed”. The decree also laid down a scheme for the management of the Darga and its properties. The scheme was put into operation, and the trustees appointed under it began to administer the Darga and its lands. The scheme functioned smoothly for many years, and it continued without major difficulty until the year 1934.

In the year 1934 a new controversy arose when Ashraf Ali and several other persons filed Suit No. 1 of 1934, seeking an injunction that would restrain the defendants from taking part in the management of the Darga’s affairs. The plaintiffs also prayed that the defendants be prohibited from expending any monies belonging to the waqf on frivolous litigation that was motivated by party feelings. On 7 May 1934 the learned District Judge expressed regret that animosity and party considerations should influence the administration of a trust. He issued an order directing the committee that managed the Darga that no money out of the Darga’s funds should be spent either in the litigation that was pending before him or in any other litigation without the explicit sanction of the court. Following that order, for a period of nearly six years the Darga and its properties appear to have been free from any further litigation. That peace was disturbed again in 1940 when Suit No. 1 of 1940 was filed, with the sanction of the Advocate‑General, by five plaintiffs against the managing committee and its trustees. The plaintiffs sought the removal of the committee and trustees and asked that a fresh scheme for management be framed. On 16 October 1941 the suit was decreed in favour of the plaintiffs. The managing committee and the trustees, however, challenged the decree by preferring an appeal, thereby continuing the litigation over the proper administration of the Darga and its waqf properties.

The appellants first appealed to the Chief Court, and that appeal succeeded; consequently, on 7 March 1946 the decree that had been under challenge was set aside, although the original scheme of management was altered only by a few minor amendments. While this litigation continued, the United Provinces Muslim Waqfs Act (U.P. XIII of 1936) had already been enacted in 1936 with the purpose of improving the governance, administration and supervision of specified Muslim waqfs in the United Provinces. Pursuant to the provisions of that Act, the first respondent was constituted, and under section 5(1) it issued a notification on 26 February 1944 declaring that the properties which were the subject of the present dispute were to be treated as a Sunni waqf within the meaning of the Act. Following the issuance of that notification, the first respondent called upon the managing committee of the waqf to present its annual budget for the respondent’s approval and to obtain an audit of its accounts by the committee’s auditors. In addition, the first respondent attempted to levy the customary contributions against the waqf in accordance with section 54 of the Act. The members of the managing committee and the trustees, except for two individuals, maintained that the disputed properties did not constitute a waqf as defined by the Act and that the first respondent therefore lacked any authority or jurisdiction to supervise the management of those properties. On that basis the appellants instituted the present suit on 18 October 1946 against the first respondent. That brief statement sets out the background of the current controversy. For the appellants, counsel advanced three principal points. First, counsel argued that the High Court had erred in holding that the disputed properties were a waqf over which the first respondent could exercise authority or jurisdiction. Second, counsel contended that the High Court was wrong to hold that the appellants’ suit was barred by section 5(2) of the Act. Third, counsel maintained that the suit was incompetent under section 53 of the Act. Counsel also conceded that if the High Court’s findings on either the limitation issue or the bar under section 53 were affirmed, it would be unnecessary to examine the merits of the argument concerning the nature of the disputed properties. The Court concluded that the High Court was correct in holding that the suit was barred under section 5(2) and that it was also incompetent under section 53; consequently, the Court chose not to decide the substantive question of whether the disputed properties are a waqf within the meaning of the Act. The pleas of limitation under section 5(2) and of the bar under section 53 constitute preliminary objections to the maintainability or competence of the suit, and the Court will address those objections on the premise that the properties in dispute lie outside the scope of the Act, as alleged by the appellants. Before turning to the limitation issue, it is useful to refer to the relevant portion of the scheme of the Act, namely section 4.

Section 4 provides that a survey of all waqfs shall be carried out by the Commissioner of Waqfs who is appointed under subsection (1) of that same section. Subsection (3) obliges the Commissioner to ascertain and determine, among other matters, the total number of Shia and Sunni waqfs existing in each district, the nature of each waqf, the gross income generated by the properties that constitute the waqf, the expenses incurred in realizing that income, and the remuneration payable to the mutawalli. In addition, the Commissioner must examine whether the particular waqf under consideration is one of the waqfs that are exempted from the provisions of the Act by virtue of section 2. The findings of this enquiry are to be recorded by the Commissioner in a report that must be submitted to the State Government pursuant to subsection (5). Section 6 deals with the establishment of two separate statutory bodies, namely the Shia Central Board of Waqfs and the Sunni Central Board of Waqfs. Section 18 defines the functions of these Central Boards and confers oil them general powers of superintendence over the management of the waqfs that fall within their respective jurisdictions. After the Boards have been constituted, the State Government forwards to each Board a copy of the Commissioner’s report that it has received. Under section 5, subsection (1), each Central Board is then required, as soon as possible, to publish in the official gazette a notification listing the waqfs that relate to the particular sect to which, according to the report, the provisions of the Act are applicable. Only after the prescribed notification has been issued may the Board proceed to exercise the powers conferred on it by section 18 with respect to the waqfs so notified. The present suit arose as a direct consequence of the notification issued by the respondent under section 5(1) and of the subsequent actions taken by the respondent in exercising its statutory authority.

Mr Dar contends that the provisions of section 5(2) are not applicable to the present suit, and therefore the argument that the suit is barred by the limitation period in that section cannot succeed. The factual record shows that the notification was issued on 26 February 1944, whereas the suit was filed on 18 October 1946. Accordingly, if the one‑year limitation prescribed by section 5(2) were to apply, the suit would be barred unless the appellants could rely on the exception provided in section 15 of the Limitation Act. However, according to Mr Dar, the present suit falls completely outside the scope of section 5(2), and consequently there is no issue of invoking the shorter limitation period. The Court therefore proceeds to examine whether the suit falls within the mischief contemplated by section 5(2). 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”.

The Court described the language of section 5 (2) as follows: “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 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 provision prescribes a limitation period of one year for a suit filed by a mutawalli or a person interested in the waqf. Sub‑section 4 of section 5 further provides that the Commissioner of waqfs shall not be made a defendant to any suit under sub‑section (2) and that no suit shall be instituted against him for anything done in good faith under the colour of this Act. The appellants argued that before section 5 (2) can apply, it must first be shown that the suit is brought either by a mutawalli of a waqf or by any person interested in the waqf. They contended that they are neither mutawallis nor persons interested in any waqf because, according to them, the properties involved do not constitute a waqf under the Act; instead, they hold the properties as proprietors and claim that the notification issued by respondent I and the authority claimed to be exercised by it over those properties are wholly void. Counsel for the appellants asked how the appellants, who seek a declaration and an injunction against respondent I on these grounds, could be considered persons interested in a waqf. The Court noted that the word “waqf” in this subsection must be given the meaning attached to it by the definition in section 3 (1) of the Act, and since the appellants wholly deny the existence of any such waqf, they cannot be said to be interested in a waqf. While the argument initially appears attractive and plausible, a close examination of section 5 (2) shows that the phrase “any person interested in a waqf” cannot be interpreted in its strict literal sense. If interpreted literally, suits for a declaration that a transaction held by the Commissioner to be a waqf is not a waqf could never be filed by a mutawalli or a person interested in a waqf. The Court explained that the scheme of the subsection is clear: when the Central Board assumes jurisdiction over any waqf under the Act, it does so based on three determinations made by the Commissioner of waqfs – that the property is a waqf, that it is either a Sunni or a Shia waqf, and that it does not fall within the exceptions listed in section 2. A suit is envisaged under section 5 (2) with respect to each of these determinations.

Section 5, sub‑section (2) provides that if the Commissioner decides that a property is not a waqf, or that it falls within the exceptions listed in section 2, the Central Board may be entitled to commence a suit. In a similar manner, when the Commissioner determines that a waqf is of the Shia denomination rather than Sunni, a Sunni Central Board may have cause to file a suit, and the converse situation also applies. A decision that the property actually constitutes a waqf may likewise be contested by any person who disputes the correctness of that determination. Conversely, a finding that the property does not fall within the exceptions of section 2 may be challenged by a person who contends that the waqf nevertheless attracts the provisions of section 2. If this is the scheme of suits envisioned by section 5(2), it becomes difficult to conceive how a mutawalli of a waqf or any person interested in a waqf could ever sue for a declaration that a transaction, which the Commissioner of Waqfs treats as a waqf, is not in fact a waqf. Accordingly, the Court believes that a literal interpretation of the phrase “any person interested in a waqf” would render a portion of the sub‑section wholly meaningless and ineffective. The legislature clearly intended that the Commissioner’s decision that a particular transaction is a waqf may be challenged by persons who do not accept that decision, and it is precisely this class of persons that the words “any person interested in a waqf” are meant to encompass. It is well‑settled that while construing statutory provisions, courts should be reluctant to adopt an interpretation that would make any part of the statute pointless or ineffective; instead, they must try to harmonise the provisions so as to give effect to the remedy intended by the legislation. In the Court’s view, reading the whole sub‑section shows beyond doubt that the expression “any person interested in a waqf” must be understood as “any person interested in what is held to be a waqf.” Only those individuals who are interested in a transaction that has been declared a waqf would be entitled to sue for a declaration that the Commissioner’s decision is erroneous and that, in reality, the transaction does not constitute a waqf within the meaning of the Act. Consequently, the Court must hold that the clause relied upon by Mr Dar in seeking to exclude the present suit from the operation of section 5(2) cannot be interpreted in a strict literal sense, but must be taken to mean any person interested in a transaction that is held to be a waqf. Applying this interpretation, the appellants are clearly interested in the properties that have been notified as waqf by the notification issued by the respondent, and therefore the suit falls within the ambit of section 5(2).

By the first respondent’s notification, the suit filed by the appellants fell within the ambit of section 5, sub‑section (2) of the Wa​qf Act, and consequently the suit would be extinguished by the limitation period unless it obtained protection under section 15 of the Limitation Act. In this regard, the Court found it appropriate to refer to section 33 of the Indian Arbitration Act, 1940. That provision declared that any party to an arbitration agreement who wished to contest the existence or validity of the agreement must apply to the court, and the court would determine the issue on the basis of affidavits. The Court observed that the phrase “any party to an arbitration agreement” created a similar problem of construction. A party invoking section 33 might actually dispute the very existence of the arbitration agreement, yet the statute describes such a party as a “party” to the agreement. If the expression were taken strictly, it would be hard to imagine a scenario where a party could challenge the existence of an agreement through a proceeding under section 33. Therefore, the Court held that the clause must be interpreted liberally rather than literally or narrowly. It must be understood to refer to a person alleged to be a party to an arbitration agreement, that is, a person who is claimed to be a party but who does not accept the allegation and seeks to contest the agreement’s existence. The Court noted that this liberal approach had been adopted in several decisions, including Chaturbhuj Mohanlal v. Bhicam Chand Chororia & Sons, Mathu Kutty v. Varoe Kutty, and Lal Chand v. Messrs. Basanta Mal Devi Dayal & Ors. The Court further pointed out that, when dealing with an application under section 34 of the Arbitration Act, the court must first determine whether a binding arbitration agreement exists between the parties. In other words, a claim by one party that a valid reference agreement exists does not prevent the other party from disputing that agreement’s existence in proceedings under section 34. These decisions illustrated the principle that when the literal meaning of words in a statutory provision would defeat the provision’s purpose by rendering a part meaningless or ineffective, it is proper and necessary to employ a liberal construction so that every part of the provision gains meaning and the provision operates as a whole. Before concluding the discussion of the appellants’ case, the Court indicated that the argument advanced by counsel Dar regarding the construction of section 5(2) was fundamentally inconsistent with the appellants’ pleadings in the trial court, since the material allegations in the plaint clearly amounted

In the plaint the petitioners expressly acknowledged that the Darga and the lands and buildings attached to it formed a waqf within the meaning of the Waqf Act, as indicated by the citations to (1) (1948) 53 C.W.N. 410, (2) A.I.R. 1950 Mad. 64 and (3) (1947) 49 P.L.R. 246. Nevertheless, the plaint contended that the waqf in question was exempt from the operation of the Act because it fell within the categories of exemption listed in section 2(ii)(a) and section 2(ii)(c) of the Act. Paragraph 11 of the plaint described the “Darga waqf” as a particular kind of waqf that, according to the parties, was outside the statutory purview pursuant to section 2. Consistent with this position, the plaint also stated that the cause of action for the suit arose on 26 February 1944 and that the suit was being filed within the limitation period by relying on sections 14, 15, 18 and 29 of the Limitation Act. In the plaintiffs’ replication, an attempt was made to diminish the significance of the admissions in the plaint by arguing that whenever the term “waqf” was used in any document it was a vague, routine expression having no specific meaning and that it merely signified a trust or amanat. Yet, the statement of the case presented by counsel for the appellants contained an explicit acknowledgment that the subject‑matter of the suit was covered by the exemptions of section 2, clauses (ii)(a) and (ii)(c). Consequently, the pleadings leave no doubt that the appellants admitted that the Darga and its properties indisputably constituted a waqf under the Act, but maintained that they were excluded from the Act because they belonged to the class of waqfs expressly exempted by section 2(ii)(a) and (c).

The argument invoking the application of section 2 had not been previously raised before this Court. Considering the pleadings, respondent 1 could therefore contend that the appellants, being admittedly interested in the waqf, have filed a suit that falls within the mischief of section 5 even if the words “any person interested in a waqf” are read in a strictly literal manner. The next issue for determination was whether the appellants’ suit could be preserved by virtue of the provisions of section 15 of the Limitation Act. This was the sole provision on which counsel for the appellants, through Mr Dar, relied. Section 15 provides for the exclusion of the period during which proceedings are suspended and stipulates that, in computing the limitation period for any suit or application for the execution of a decree, the time during which the suit has been stayed by an injunction or order, the day on which such injunction or order was made and the day on which it was withdrawn, shall be excluded.

The provision stipulated that the period from the date the injunction was issued to the date it was withdrawn would be excluded from the limitation period. It was clear that, in order to rely on this exclusion, the plaintiff had to demonstrate that the suit had been stayed by an injunction or a court order; in other words, the statute required that an order or injunction actually stay the institution of the suit. Consequently, where a suit fell within the scope of section 15, the party who filed the suit while it was stayed would be committing contempt of court. If a party produced an express order or injunction that unambiguously satisfied the conditions of section 15, the exclusion would apply. However, it remained an open question whether the requirements of section 15 could be met by an order or injunction that, by necessary implication, stayed the institution of the suit rather than by an explicit stay. The Court was prepared to assume, for the purposes of the present case, that section 15 would apply even when the stay of the suit resulted from the necessary implication of an order or injunction issued in earlier litigation. Nevertheless, the Court expressed the view that there was no basis for extending the operation of section 15 on the ground that a later suit conflicted with the spirit or substance of the order passed in the previous case. The Court acknowledged that limitation rules could, to some extent, be arbitrary and might cause hardship, but it emphasized that equitable considerations were irrelevant when construing limitation provisions; the strict grammatical meaning of the words had to be given effect, as noted in Nagendra Nath Dey v. Suresh Chandra Dey. In examining the effect of section 15, the Court referred to the Privy Council decision in Narayan Jivangouda v. Puttabai, an offshoot of the well‑known Bhimabai v. Gurunathgouda case. The dispute between Narayan and Gurunathgouda had proceeded through a lengthy and complex litigation that reached the Privy Council on two occasions. The Privy Council’s judgment in Bhimabai’s case upheld the validity of Narayan’s adoption and brought about a significant change in the accepted view of a Hindu widow’s power to adopt in Bombay. Yet that decision offered little consolation to Narayan because the Privy Council, in Narayan Jivangouda’s case, held that Narayan’s subsequent suit to recover possession of the property belonging to his adoptive family was barred by limitation. The original controversy involved Narayan and his adoptive mother Bhimabai on one side and Gurunathgouda on the other. On 25 November 1920, Gurunathgouda had instituted a suit against Bhimabai and Narayan seeking a declaration of his possession of the lands and a permanent injunction restraining the defendants.

The plaintiff, Gurunathgouda, obtained a decree in his favour on the same day that he filed his suit, and the court also granted an interim injunction against the defendants on that date. The interim injunction was later confirmed by the final decree. Under the terms of that injunction the defendants were expressly prohibited from taking any crops from the fields that were the subject of the suit, from interfering with the plaintiff’s right to enjoy those lands, from collecting rent notes from the tenants, and from obstructing the plaintiff in taking the crops harvested by him or in receiving payments from his tenants. Two principal questions arose for determination in the suit. The first question was whether Narayan had in fact been duly adopted by Bhimabai, and the second question was whether Bhimabai possessed the competence to effect such an adoption. The trial court decided both questions against Narayan. Bhimabai and Narayan appealed the trial‑court decision to the Bombay High Court, but the High Court dismissed their appeal, as recorded in Bhimabai v. Gurunathgouda (3). The aggrieved parties then appealed to the Privy Council. The Privy Council examined the adoption issue and held that the adoption of Narayan was valid. Consequently, the Privy Council allowed the appeal, dismissed Gurunathgouda’s suit, and awarded costs to the appellants throughout the proceedings. As a result of the Privy Council’s order, the injunction that had previously been granted by the lower courts was dissolved on 4 November 1932. The relevant citations for these proceedings are Oil (1) (1932) 35 Bom. L.R. 200 P.C.; (2) (1944) 47 Bom. L.R. I.; and (3) (1928) 30 Bom. L.R. 859.

On 25 November 1932 Narayan and Bhimabai instituted a new suit seeking to recover possession of the disputed properties from Gurunathgouda. In that suit they contended that it was filed within the limitation period, relying in part on the argument that the time consumed by the earlier litigation—or at least the period beginning with the grant of a temporary injunction on 25 February 1920 and ending with the dissolution of that injunction by the Privy Council on 4 November 1932—should be excluded from the limitation period pursuant to section 15 of the Limitation Act. The trial court rejected this plea, and on appeal the Bombay High Court affirmed the trial‑court’s view. Justice Rangnekar, who delivered the principal judgment of the High Court, examined extensively the case law relevant to the construction of section 15 and concluded that the injunction issued against Narayan and Bhimabai in the earlier suit filed by Gurunathgouda did not trigger the operation of section 15 in respect of the suit they filed in 1932, as noted in Narayan v. Gurunathgouda (1). The plaintiffs then appealed to the Privy Council, which upheld the High Court’s interpretation and dismissed the appeal, as recorded in Narayan v. Puttabai (2). While considering the appellants’ argument that the prior injunction, being wide‑rang­ing, effectively barred them from instituting a possession suit, the Privy Council observed that neither the injunction nor the decree contained any provision that prevented the plaintiffs from filing a suit for possession in 1920 or at any time before the limitation period expired. The judgment further indicated that Sir …

In this case counsel Thomas Strangman argued before the Privy Council that because the parties’ title to the property was directly involved in the litigation, instituting a suit for possession would be futile. The Privy Council rejected this contention, observing that it could not accept the argument because a suit cannot be regarded as futile merely because it serves to halt the running of the limitation period. The Court noted that even if equity might justify a broader interpretation of section 15, the earlier cases—cited as (1) (1938) 40 Bom. L.R. 1134 and (2) (1944) 47 Bom. L.R. I.—presented clear opportunities for such an extended application, yet the Privy Council interpreted the language of section 15 strictly and concluded that the earlier proceedings had not produced any order or injunction that satisfied the requirements of that section. The judges further observed that it was unnecessary to decide whether the prohibition contemplated by section 15 must be express or may be implied. The judgment also referred to another Privy Council decision, Beti Maharani v. The Collector of Etawah (1). In that case the Court considered an attachment before judgment issued under section 485 of the Code of Civil Procedure at the request of a third party, which barred the creditor from recovering the debt and the debtor from paying it. The Court held that such an attachment did not constitute an order staying the filing of a later suit by the creditor under section 15 of the Limitation Act, 1877. Lord Hobhouse explained that the order would not be violated until the restrained creditor actually sought to receive the debt from the restrained debtor, and that filing a suit could be a proper step for the creditor to avoid the limitation bar, while also informing the court that issued the attachment. The Madras High Court, in Sundaramma v. Abdul Khader (2), ruled that no equitable considerations may be added to suspend a cause of action beyond what is provided in the Indian Limitation Act. Finally, the Privy Council in Musammat Basso Kaur v. Lala Dhua Singh (3) remarked that it would be inconvenient if the law required a person to pursue a hopeless litigation to prevent loss of property, but that comment must be read in the factual context of that case.

(2) (1932) I.L.R.56 Mad. 490, (3) (1888) 15 I.A. 211. The Privy Council was addressing the facts of this case. In the facts before the Council, the respondent was indebted to the appellant and had agreed to transfer certain property to the appellant, using the debt as a set‑off against part of the purchase price. No money was actually paid by the respondent, and a dispute later arose concerning the remaining terms of that agreement. The respondent then instituted proceedings to enforce the terms of the agreement, but his suit was unsuccessful. Subsequently, when the respondent sued for the money he claimed was owed, the defence of limitation was raised against him. The Privy Council held that the decree which dismissed the respondent’s earlier suit marked the commencement of the period of limitation. That decree, according to the Council, imposed on the respondent a fresh liability to pay his debts pursuant to section 65 of the Indian Contract Act. The Council also said, alternatively, that the decree, within the meaning of Article 97 of the Limitation Act of 1877, signified a failure of consideration which entitled the appellant to retain the same. Accordingly, the Privy Council was dealing with the appellant’s right to sue, a right that had arisen when the respondent’s action to enforce the agreement was dismissed. The observations made by the Privy Council in that regard were intended to explain that right, and, as the Court notes, those observations are merely obiter dicta and, in this Court’s view, they do not aid in interpreting the expression used in section 15 of the Limitation Act. With that legal position in mind, the Court turned to the appellants’ contention that the filing of the present suit had been stayed by an injunction or an order issued in earlier litigation in 1940. The Court had already observed that Civil Suit No. 1 of 1940 had been filed against the appellants with the sanction of the Advocate‑General for their removal and for the establishment of a new scheme. The trial judge ordered the appellants to be removed on 16 October 1941; however, on appeal, that trial court decree was set aside on 7 March 1946. The appellants sought to exclude, under section 15 of the Limitation Act, the period between 16 October 1941 and 7 March 1946. Counsel for the appellants, Mr Dar, argued that the order of 16 October 1941 made it impossible for the appellants to commence the present suit until the appeal was finally decided. By that order, the appellants were instructed not to interfere in any way with the affairs of the Darga Sharif as members of the committee and to comply with the court’s decree that removed them from office. The Court found that this order could not be characterised as an order or injunction that stayed the institution of the present suit. In fact, the present suit originated from a notification issued by respondent I on 26 February 1944 and the subsequent actions taken pursuant to that notification.

In this case the Court examined whether the order issued by the trial judge could be said to fall within section 15 of the Limitation Act. The cause of action for the present suit arose only after that order was made, and the plain language of the order shows that it cannot be treated as an order that attracts the operation of section 15. The Court had already held that the words of section 15 must be read strictly, without any reference to equitable considerations. Applying that strict construction, the Court was certain that the order relied upon by the counsel for the respondent lies completely outside the scope of section 15. Moreover, the Court observed that the order did not, even in substance, create any obstacle to instituting the present suit. The appellants assert that the properties in dispute are not waqf property and they seek a declaration and injunction; those claims do not infringe the earlier order, either directly or indirectly. Consequently the Court agreed with the High Court that section 15 does not apply to the present suit and therefore the suit was filed after the one‑year period prescribed by section 5(2) of the Act. The discussion then moved to the next preliminary objection concerning the competence of the suit under section 53 of the Act. Section 53 provides that no suit may be brought against a Central Board for any act done under the Act or for any relief relating to a waqf unless, after a period of two months, a written notice has been delivered to the Secretary or left at the Board’s office. The notice must state the cause of action, the plaintiff’s name, description and residence, and the relief claimed, and the plaint must state that such notice has been given. This provision is analogous to section 80 of the Civil Procedure Code. The counsel for the respondent conceded that if section 53 were applicable, the High Court’s decision could not be successfully challenged because the required notice had not been served before the suit was instituted. However, the counsel argued that the notification issued by respondent I on 26 February 1944 did not refer to the Darga or to the offerings made by devotees at the Darga, and therefore the present suit concerning those properties falls outside the ambit of section 53 and cannot be barred on the ground of non‑service of notice. The Court was not persuaded by this argument. The notification in question, in its first column, lists the name of the creator of the waqf and the name of the waqf itself, thereby placing the tomb of Syed Salar Mahsood Ghazi, which is the subject of the present charity suit, within the notified waqf.

The notification recorded the waqf by naming it Shahan-e-Mughalia and also gave the name of the waqf as Syed Salar Mahsood Ghazi. In column two of the same notification the name of the mutawalli was listed, while column three set out the properties that were attached to the waqf. The tomb of Syed Salar Mahsood Ghazi, which is the object of charity in the present case, was expressly mentioned in column one, and therefore it was futile to suggest that the tomb or Darga had not been notified as a waqf by respondent I under s. 5(1). With respect to the offerings, the court observed that it was not possible for bow offerings to have been enumerated in the notification because such offerings are made from time to time by devotees who visit the Darga and, by their very nature, constitute the income of the Darga. Consequently, it was unreasonable to assume that year‑to‑year offerings should be specified in the notification issued under s. 5(1). Accordingly, the argument that any of the suit properties had not been duly notified by respondent I under s. 5(1) of the Act was rejected. If that were true, the appellants would have been required to give the requisite notice under s. 53 before instituting the present suit. The requirement of notice applied both to suits against a Central Board for its acts and to suits seeking any relief in respect of any waqf. It was not denied that the present suit would attract the provisions of s. 53 if the argument that the Darga and the offerings were not notified were rejected. As a result, the suit was not maintainable because the appellants failed to comply with the requirements of s. 53. The court therefore confirmed the finding of the High Court that the appellants’ suit was barred by time under s. 5(2) and was also not maintainable due to the lack of the required notice under s. 53 of the Act. Consequently, the appeal failed and was dismissed with costs, and the appeal was dismissed.