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 PC Agarwala for respondents Nos 1 and 2 1961
February 14
The Judgment of the Court was delivered by SHAH J
There is in the village of Cavelong District Chiugleput in the State of Madras an ancient Durgah to which is appurtenant a Masjid
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 Maajid were also received
The income of the institution after disbursing the expenses of Sandal and Urs 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 fine
In original 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 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
69 Fakruddin in the following genealogy belonged to one of the four families which received the income
Sheik Mohammad Fakir Mohammad Sheik Miran Giasuddin Nismat Ulla Khamruddin Nayeem Uddir Fakir Mohammad FakruddinSulai Niama Ulla Abdul Safi man Bi Wahid Ulla 2nd plaintiff 1st deft Nayeemuddin died unmarried Ramat Syed Un Unnissa 2nd nissa Ist defendant plaintiff As a descendant of Sheik Mohammad Fakruddin received a 18th share of
the income
He was also by arrangement with others entitled to perform the Urs ceremony once in eight years
Fakruddin died in 1921 leaving him surviving his wife Sulaiman Bi and two daughters Rahmat Unnissa and Syed Unnissa
Sulaiman Bi is plaintiff No 2 and Rahmat Unnissa and Syed Unnissa are respectively defendant No 2 and plaintiff No 1 in suit No 156 of 1937 out of which this appeal arises
In the year 1926 it was the turn of Fakruddin to perform the Urs and it is claimed by the plaintiffs that it was performed on behalf of the widow and daughters of Fakruddin by their deputies
The next turn was in the year 1934 but in the performance of the Urs the plaintiffs and defendant No 2 were obstructed by Abdul Wahid son of Nayeem Uddin belonging to the other branch in Sheik Mohammad s family
Plaintiffs 1 and 2 then filed suit No 156 of 70 1937 in the court of the District Munsif at Chingleput For a declaration that they were entitled to enjoy the properties described in the schedule annexed to the plaint and to manage the Durgah perform the Urs festival and receive all incomes endowments and perquisites thereof once in every eight years since 1934 according to their turn
They also claimed an injunction restraining Abdul Wahib from interfering with their rights in that behalf
Rahmat Unnissa the eldest daughter of Fakruddin was impleaded as defendant No 2
Abdul Wahid defendant No 1 died during the pendency of the suit and defendants 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 lay 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
The Trial Judge held and the appellate court agreed with him that there was an immemorial custom governing the institutions precluding the plaintiffs from performing services or sharing the income emoluments and perquisites and therefore the plaintiffs were not entitled to perform those services and enjoy the surplus income and accordingly they were not entitled to the declaration of an injunction prayed for
In second appeal the High Court at Madras held that by virtue of the Shariat Act 1937 the income received from the institution had to be shared according to the per sonal 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 framed not maintainable
Against the decree passed by the High Court this appeal with special leave under article 136 of the Constitution is preferred
In our view the suit as framed was maintainable
The management of the institution is vested in the 71 trustees
The four families it is true are by tradition entitled to perform and officiate at certain ceremonies and also to share in the income
A suit for declaration with a consequential relief for injunction is not a suit for declaration simpliciter it is a suit for declaration with further relief
Whether the further relief claimed in a particular case as consequential upon adeclaration is adequate must always depend upon the facts and circumstances of each case
In Kunj Behari Prasadji Purshottam Prasadji vs Keshavlal Hiralal 1 it was held that section 42 of the Specific Relief Act does not empower the court to dismiss a suit for a declaration and injunction and that an injunction is a further relief within the meaning of section 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
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 their right
The High Court hold that plaintiff No 1 was at the date of the suit 19 years of age and was entitled to file a suit for enforcement of her right even if the period of limitation had expired during her minority within three years from the date on which she attained majority by virtue of sections 6 and 8 of the Indian Limitation Act
Apart from this ground which saves the claim of the first plaintiff alone a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by article 120
of the Limitation Act and in such a suit the right to sue arises when the cause of action accrues
The plaintiffs claiming under Fakruddin sued to obtain a declaration of their rights in the institution which 1 ILR 1904 XXVIII Bom
72 was and is in the management of the trustees
The trial judge hold that the plaintiffs were not in enjoyment of the share of Fakruddin since 1921 and the suit filed by the plaintiffs more than 12 years from the date of Fakruddin s death must be held barred but he did not refer to any specific article in the first schedule of the Limitation Act which barred the suit
It is not shown that the trustees have ever denied or are interested to deny the right of the plaintiffs and defendant No 2 and if the trustees do not deny their rights in our view the suit for declaration of the rights of the heirs of Fakruddin will not be barred under article 120 of the Limitation Act merely because the contesting defendant did not recognize that right
The period of six years prescribed by article 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 against them
The trial court as well as the first appellate court held on an exhaustive review of the evidence that there was an immemorial custom governing the institutions whereby the plaintiffs were not entitled to perform service or share the income emoluments and perquisites
But since the enactment of the Shariat lot 26 of 1937 this custom must be deemed inapplicable to the members of the family
By section 2 of the Act it was enacted as follows Notwitlwtanding any customs or usage to the contrary in all questions save questions relating to agricultural lands regarding intestate succession special property of females including personal property inherited or obtained under contract or gift or 73 any other provision of Personal Law marriage dissolution of marriage including talaq ila zihar lian khula and mubarrat maintenance dower guardian
ship gifts trusts and trust properties and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law Shariat
 Under the Shariat Act 1937 as framed in questions relating to charities and charitable institutions and charitable and religious endowments the custom or usage would prevail
But the Act enacted by the Central Legislature was amended by Madras Act 18 of 1949 and a 2 as amended provides Notwithstanding any custom or usage to the contrary in all questions regarding intestate succession special property of females including personal property inherited or obtained under contract or gift or arty other provision of personal law marriage dissolution of marriage including Tallaq ila zihar lian Khula and Mubarrat maintenance dower guardianship gifts trusts and trust proper
ties and wakfs the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law Shariat
 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 statute which takes away or impairs vested rights under existing laws is presumed not to have retrospective operation
Where vested rights are affected and the question is not one of procedure there is a presumption that it was not the intention of the legislature to alter vested rights
But the question is always one of intention of the legislature to be gathered from the language used in the statute
In construing an enactment the court starts with a presumption against retrospectivity if the enactment seeks to affect vested rights but such a presumption 74 may be deemed rebutted by the amplitude of the language used by the Legislature
It is expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law
The injunction is one directed against the court it is enjoined to apply the Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary
The intention of the legislature appears to be clear the Act applies to all suits and proceedings which were pending on the date when the Act came into operation as well as to suits and proceedings filed after that date
It is true that suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act but if a suit or proceeding be pending even in appeal on the date when the Act was brought into operation the law applicable 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
We are unable to agree with the view of the Lahore High Court in Syed Roshan Ali vs
Mt Behmat Bibi 1 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 of the 
It may be observed that the court proceeded merely upon the general presumption against retrospectivity and their attention it appears was not directed to the phraseology used by the legislature to give section 2 a retrospective operation
The plea raised by counsel for
the contesting defendants that even under the Muslim Personal Law females are excluded from performing the duties of 1 AIR 1943 Lah 219
75 the offices of Peshimam Khatib and Mujavar and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court
The trial court has found that the duties of those offices could be performed through deputies
The first appellate court did not express any opinion on that question and before the High Court this question was not mooted
We do not think that we would be justified in allowing the contesting defendants to argue this question in this appeal
In any event if the income was being distributed amongst the four families the plaintiffs and defendant No 2 claiming under Fakruddin would by virtue of the provisions of the Shariat Act be entitled to receive that income
There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the duties of the offices of Peshimam Khatib and Mujavar
In that view of the case this appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The Coal Bearing Areas Acquisition and Development Act 1957 was enacted as indicated in the preamble for providing for the acquisition by the State of unworked land containing or likely to contain coal deposits and under section 41 of the Act the Central Government was empowered to issue a notification with reference to its intention to prospect for coal from land in any locality
By section 5b any mining lease granted to a person and in respect of which a notification had been issued shall cease to have effect and under section 7 the Central Government was entitled to acquire the mining rights within a period of two or three years from the date of the notification
On July 29 1960 the Central Government published a notification under s 41 of the Act in respect of an area included in the colliery in which the petitioners had acquired mining rights
Between the year 1932 and the month of May 1960 the colliery was not worked because it was uneconomical to work it but the petitioners made an application on December 3 1959 to the Coal Board for permission to reopen the Colliery and though no reply was received from the Board the petitioners commenced drilling operations in May 1960 but discontinued them from August 12 1960 in view of the notification
The petitioners challenged the validity of the notification on the ground that the preamble of the Act and sections 4 5 6 7 and 8 show that the Act was applicable only to unworked mines which must mean virgin lands and not to those which were being worked at the time of notification or which were worked in the past whereas the petitioners  coal field had been worked and the working had ceased for some time only due to the unremunerative market for the produce
The petitioners also contended that the Act contravened articles 191g and 312 of the Constitution of India on the grounds 1 that the effect of a notification under the Act was to prevent an owner or lessee of a mine from working for two or three years which was too long a period and therefore the restrictions could not be regarded as 45 reasonable 2 that the Act did not contain any provision for compensation for the deprivation of the petitioners  right to carry on their business for two or three years and 3 that section 13 of the Act though it dealt with the payment of compensation did not provide for compensation for mineral rights
Held 1 that the expression unworked land occurring in the preamble of the Coal Bearing Areas Acquisition and Development Act 1957 means land which was not being worked at the time of the notification issued under the Act and includes dormant mines
Where the object or meaning of a enactment is not clear the preamble may be resorted to to explain it
In re the Kerala Educatiion Bill 1957 1959 SCR 995
referred
2 that the Act is applicable not only to virgin lands but also to dormant collieries or unworked lands including mines which were worked in the past but mining operations therein are not being carried on at present
3 that the expression to undertake any operation in the land in section 5b of the Act refers to the undertaking of an operation on land not for the first time only but at the resumption of an operation which had been abandoned or discontinued
The resumption of the working of a mine after a casual closure or a closure in the ordinary course of the working of a mine would not fall within the bar created by section 5b
4 that the restrictions imposed upon an owner or lessee of a mine by which he is prevented from working his mine for a certain period of time under ss4 and 5 of the Act are not unreasonable and that the Act does not contravene article 191g of the Constitution
5 that such restrictions amount to a modification of his rights within the meaning of article 31A1e of the Constitution and that the validity Of sections 4 and 5 Of the Act cannot be challenged on the ground that they infringe article 312 in view of the provisions of article 31A1e
Thakur Raghbir
Singh vs Court of Wards Ajmer   explained
Sri Ram Ram Narain Medhi vs State of Bombay 1959 Supp
1 section C R 489 Atma Ram vs The State of Punjab 1959 Supp
r SCR 748 and In re  1951 SCR 793 relied on
6 that the Act cannot be challenged on the ground that sections 5a and 13 do not provide for payment of compensation for mineral rights because sections 13 and 14 lay down the principles on which compensation is to be determined and under Art 312 such a law cannot be called in question on the ground of the inadequacy of the compensation provided