MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS. v. SAYED AHMED MOHINDEEN AND ORS

Citation: [1989] SUPP. 2 S.C.R. 519

Court: Supreme Court of India

Bench: K.N. SINGH, N.M. KASLIWAL

Case summary

The present suit relates to the controversy between the decendants of the branch of Gulam Dastagir Sahib. the Hundial collections as such it should be held that her rights had become barred.

Judgment text

The Judgment of the Court was delivered by KASLIWAL, J. This Civil Appeal by the plaintiffs is directed against the Judgment of High Court of Judicature at Madras in Second Appeal Nos. 650 & 894 dated 17th November, 1981. Mohd. Zainulabdeen and Yasin Bi filed a suit for declaration that they were entitled to be in enjoyment and possession of Saint Syed Moosa Shah Khadiri Dargah in Madras for a period of 27 days in all in the months of February, March, June, July, October & November and to restrain the defendants from interfering with the plaintiffs aforesaid right and management in the Dargah. The case of the plaintiffs as set up in. the plaint was that the Dargah in question was being managed by the members of the family of one Sayed Mohideen Sahib. Sayed Mohideen had two sons Sayed Ismail Sahib and Sayed Gulam Dastagir Sahib. As per Judgment in C. S. 116 of 1909 the right of management was divided between the two sons each taking six months for himself.

According to this arrangement the branch of Sayed Ismail Sahib used to remain in management for the months of January, April, May, August, September and December and the branch of Gulam Dastagir Sahib for the other six months, namely, February, March, June, July October and November. The present suit relates to the controversy between the decendants of the branch of Gulam Dastagir Sahib. According to the plaintiffs after the death of Sayed Gulam Dastagir the right and management of the Dargah according to Muslim Law devolved on his two sons and one daughter, namely, Sayed Gaffar Sahib, Sayed Mohideen and Fathima Bee in proportion of 2:2: 1 respectively. The plaintiffs alleged that thus Fathima Bee had 1/5 share in 6 months i. e. 36 days. Fathima Bee left surviving one son and two daughters. The plaintiffs who are one son and one daughter of Fathima Bee as such are entitled to 3/4 share i. e.

27 days, as another daughter Zahurunnissa was not interested in claiming her right has been impleaded as defendant No. 2. After the death of Fathima Bee, the plaintiffs being her son and daughter associated themselves in the G. management of the Dargah with their maternal uncles and the sons of the maternal uncles and were getting share of the income of the Dargah, According to the plaintiffs this arrangement was going on for several years eversince the death of Fathima Bee in 1957. However on account of some dissensions, the first defendant Sayed Mohideen (since deceased} and another defendant being the son of another' deceased maternal uncle were preventing the plaintiffs from exercising their right and enjoying the income of the Dargah. The plaintiffs served a notice on 23. 3. 1972 calling upon the defendants to recognize the right of management of the plaintiffs in the Dargah. The defendants sent a reply on 22. 4.

1972 stating that the plaintiffs claiming through female were not entitled to any right in the management or share in the offerings in the Dargah and even if they were entitled to any right or claim the same was barred by limitation. Sayed Mohideen (since deceased) defendant No. 1 in the suit filed a written statement and took the plea that his father Sayed Gulam Dastagir was a Mujawar and was receiving the offerings by right of inheritence. Sayed Ismail being cousin brother of Sayed Gulam Dastagir as such he was also a Mujawar along with Sayed Gulam Dastagir Sahib. Fathima Bee the daughter of Sayed Gulam Dastagir had no right of Mujawar as the right was given only to the male members and not to the females. Fathima Bee as such was not entitled to claim any right of Mujawar.

The widows of Sayed Gulam Dastagir also could not claim any right of Mujawar thus neither Wazir Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed Gulam Dastagir could take upon the management of the Dargah as they were female members. According to the defendants no female members got the right of direct management of the Dargah and the Judgment in Suit No. 116 of 1909 also negatived the right of any management by Wazir Bee and Mohideen Bi. It was admitted that though Fathima Bee was alive but she was not a party to the aforesaid suit. It was however pleaded that claim of Fathima Bee was not recognized in the above suit. It was further alleged in the written statement that Fathima Bee never participated in the management of the Dargah. According to Muslim Law females were excluded from performing the duties of the offices of Peshimam Khatib and Mujawar.

It was further alleged that Fathima Bee never enjoyed the right to the Hundial Collection of the Dargah and even if she had got any right, the same was lost as she did not claim any right till her death. Fathima Bee never asserted any right during her life-time nor received any share in the offerings. Her right, if any, was extinguished within 12 years after the death of her father Sayed Gulam Dastagir. It was further alleged that as Fathima Bee had no right or claim of share in the Mujawarship and was also ousted from the enjoyment of any share in the Hundial Collections, the plaintiffs who were claiming through Fathima Bee were also not entitled to any relief. Defendants Nos. 2 to 6 adopted the written statement filed by the first defendant. So far as the defendants Nos. 7, 8 & 10 were concerned, they filed a written statement taking the plea that the family members were recognized as sharers in the management of the Dargah and they were also sharing the incoine.

It was further alleged that even the answering defendants were paying such share to their sister Ahamadunnissa (10th defendant) in the Hundial collection of the Dargah. The 7th defendant (Anser Bi) filed a suit No. 7518 of i971 in the Court of 4th Assistant City Civil Court and her right to manage was recognised for 9 days in a year. Hence it was false to state that the females were not entitled to claim management. It may be mentiont! d at . this stage that defendant No. 1 Sayed Mohideen died during the pendency of the suit and defendants Nos. 12 to 19 were added as his legal representatives. The Trial Court decreed the suit and in the operative part held that the plaintiffs were entitled to manage the Dargah for 27 days in February (viz. from February 1to February 27). · The defendants Nos. 3 to 6 and 12 to 19 filed appeals aggrieved against the Judgment of the Trial Court while 7th defendant in the suit filed cross objections in respect of a particular portion of the decree.

Learned City Civil Court, Madras affirmed the Judgment and decree of the Trial Court except some modifications in the relief as mentioned below. "The Plaintiffs are entitled to the reliefs of declaration that they are entitled to be in management of the Suit Dargah for a period of 27 days in a year during the months of February-March, June-July and October-Novembef each year and that the said 27 days shall be February 1to6, June I to 6 and October 1 to 6 for the first plaintiff and 9 days from July 1 to 9 for the second plaintiff and· that the plaintiffs are entitled to the relief of possession of the said right to be in management of the Dargah and to be in enjoyment of the Hundial income during the said period. The cross objections of the 7th defendant is dismissed. " Different sets of defendants filed second appeals Nos. 650 & 894 of 1981, and both these second appeals were disposed of by the High Court by order dated 17th November, 1981.

The High Court allowed the second appeals and while setting aside the Judgments and decrees of the Courts below dismissed the suit filed by the plaintiffs. The High Court took the view that the Courts below proceeded upon an erroneous assumption as if it was the duty of the defendants to prove by what hostile assertions of title and (JOssession ouster has been established. In the view of the learned Judge by allowing inaction, more so when it was coupled with sharing of profits in not claiming the profits at any point of time, there would arise a clear presumption of ouster. The High court laid great emphasis on the circumstances that Fathima Bee till her death in 1957 did not care to make a demand of her right or share at any point of time. It was further observed that after the decree in Civil Suit No. 116 of 1909, it was only male heirs who were exercising their rights. The High Court in this regard further referred to the statement of P. W.

1 himself and drew the conclusion that after the death of his mother nobody was employed as an agent. Only at the time when he consulted the Vakil he came to know that his mother had 36 days share in the Mujawarship. Before that he did not do anything ' concerning the share of the Hundial collections. The demand was from 1960 to 1972. But nothing was paid. He knew that he had rights even before. The High Court on the basis of the above evidence of P. W. 1 observed that it was clear that the mother of P. W. 1 was aware of the filing of Civil Suit No. 116 of 1909. Irrespective of that, in so far as there was absolutely no evidence whatsoever to show at any point of time till her death in 1957 that Fathima Bee ever made a demand or asked for a share of . the Hundial collections as such it should be held that her rights had become barred.

The High Court in these circumstances held that if really the rights of Fathima Bee had become barred by her not exercising the rights, the plaintiffs themselves can have no independent right to claim. It may be mentioned at the outset that there is no controversy now as regards the period of 27 days falling to the share of the plaintiffs and on the question that females are also entitled in the right and management of Dargah according to Muslim Law. Thus the only controversy now left to be determined is whether the High Court was right in holding that the rights of Fathima Bee had become barred by limitation by ouster and as such the plaintiffs who were also claiming through Fathima Bee had lost their right by ouster? It would first be necessary to make it clear as to what is the impact of the decree dated 11. 8. 1910 passed in Civil Suit No. 116 of 1909, so far as the present litigation is concerned.

A perusal of the Judgment in the above case goes to show that Sayed Moosa Sahib and Wazir Bi filed a suit against Sayed Gaffar Sahib, Sayed Mohideen Sahib and Mohideen Bi for a declaration that the plaintiffs and the defendants were entitled to perform the duties of Mujawar of the Dargah in turns and they were entitled to collect and receive the offerings, gifts and other emoluments of the Dargah as well as the collec- tion of the hundi box in the Dargah and appropriate the same in two equal moities and to settle a scheme for managing the' said Dargah so as to equalize the amount of income and emoluments to be collected and appropriated by both the parties during their respective turns. In the said case a decree was passed that the Ist plaintiff and the Ist & 2nd Defendants were entitled to perform the duties of Mujawar of the Dargah in question in turns. A scheme was also drawn for collecting and receiving the offerings, gifts .

and other emoluments of the said Dargah as well as the collections of the hundi box and apportion the same in two equal moities and that Sayed Moosa Sahib, the Ist plaintiff was entitled to one half and Sayed Gaffer Sahib and Sayed Mohideen, the Ist and 2nd defendants were entitled to the other half of the collections, offerings, gifts and other emoluments. A great capital has been raised on the basis of the above decree by the learned counsel for the defendant-respondents that no share was given to the female m'embers in the above decree, namely, to Wazir Bi and Mohideen Bi and from this it was clear that the females were totally excluded from the right or claim of any share in the management or offerings in the Dargah. We do not find much substance in the above contention. In the above judgment the controversy whether females were entitled to any right or management of the offerings in the Dargah was neither raised for decided.

Fathima Bee though alive but was not a party in the aforesaid litigation and any judgment given in that suit cannot be held as res judicata or binding on Fathima Bee or the present plaintiffs. Mr. Krishnamurthy Aiyer, learned counsel for the defendantrespondents contended that he was not arguing that the aforesaid judgment and decree were res judicata or binding on Fathima Bee, bnt his submission was that it should be taken as a circumstances in proving ouster of Fathima Bee from the right or management of the p Dargah or any claim in the offerings. In our view as already mentioned such judgment cannot be considered as an oust. er of Fathima Bee coupled with other circumstances which clearly show that there was no ouster in the facts of the present case. It is an admitted case of the parties that Sayed Gulam Dastagir Sahib had a right of management in the Dargah in question for six months (180 days) in the months of February-March, June-July and October-November.

Gulam Dastagir had one daughter Fathima Bee and two sons and as such Fathima Bee got I/5th share and which came to 36 days out of aforesaid 180 days. Thus Fathima Bee was a co-sharer in the right of management and possession of the Dargah as well as the