Judgment

SHAH, J. : There is in the village of Cavelong, District Chingleput 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 Masjid 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 line. In original suit No. 27 of 1940 of the file of the Subordinate 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.

2. Fakruddin, in the following geneology, belonged to one of the four families which received the income.

3. As a descendant of Sheik Mohammad, Fakruddin received a 1/8th 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.

4. 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 year1934, 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 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 Wahid 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 by 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.

5. 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 or the 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 personal law of the parties and that the plaintiff s claim was not barred by the law of limitation nor was the suit open to the objection th