This second appeal mainly raises the question of the scope and applicability of the Muslim Personal Law (Shariat) Application Act, Act No. XXVI of 1937. The plaintiffs claiming to be the daughter and widow of one Fakruddin instituted the suit for a declration that they are entitled to enjoy the properties mentioned in the plaint; manage the durgah, perform the Urs festival and receive all the incomes, endowments and perquisites thereof once in every eight years according to their turn on the ground that the properties originally belonged to four Mussalmans and they have been enjoyed from time immemorial for a number of generations in four equal shares by the respective descendants of four persons mentioned and that the plaintiffs and the defendants are the descendants of one Shaik Mohammed. Their case is that their turn comes once in every eight years. In 1926 during their turn they performed the Urs festival and in April 1934 when arrangements were made for the celebration of the Urs festival there was objection by the defendants and therefore they sued for the declaration and injunction. Defendants denied the allegations as to the plaintiffs taking part in the Urs celebrations in 1926 and it was contended that the properties having been endowed as inams for the purpose of the maintenance of the suit Durga and rendering of religious services the surplus income after meeting all the expenses was to be taken by the office-holder, and that the terms of the grant and immemorial custom governing institutions of this kind and the rules of Mohammadan law governing the parties prohibited the plaintiffs who are female members taking part or participating in the management of such institutions and enjoying the perquisites of the office. Both the Courts below have found against the plaintiffs on the question of the custom pleaded and rejected their claim.

A great volume of evidence has been adduced in proof of the custom which has been elaborately dealt with by the trial Court and considered with approval by the learned Subordinate Judge who held that it has been established by unimpeachable evidence that the custom pleaded by the defendants was true. I aim not persuaded to hold a different view other than that taken by the Courts below as regards the existence of the custom pleaded. Long course of events for nearly over a century and oral and documentary evidence have, in my view, established the essential attributes of a legally binding custom. But for the custom, it is not suggested that the Muslim Personal Law (Shariat) would debar the female members from taking part in the management of such institutions.

During the hearing of the appeal the attention of the learned Subordinate Judge was drawn to a piece of legislation which became law relating to Succession and Inheritance governing Muslims (viz) the Muslim Personal Law (Shariat) Act XXVI of 1937. The learned Subordinate Judge disposed of the question by observing, that the Act cannot apply to the present case as the suit was instituted prior to the Act taking effect. The appeal was disposed of on the 29th. June 1946 and by that time, Act XXVI of 1937 had not been amended. S. 2 of the unamended Act is as follows:

“Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding inter-state succession special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ilazihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) and the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

This section was amended by the Madras Act XVIII of 1949 and the amended section is as follows:

“Notwithstanding any custom or usage to the contrary, in all questions regarding inter-state succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ilah, zahar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

There, is no doubt that if the Act is applicable to the parties custom will cease to have any force and their personal law being applicable the plaintiffs would be entitled to participate in the management and to enjoy the emoluments of the trust properties and the prohibition of the female members taking part by reason of custom ceasing to have any effect. Basheer Ahmed Sayeed J. in C.R.P No. 1116 of 1950* in a case relating to the Moplah Muslims whose rights to property were governed by the Maruma kathayam law and with reference to a contention that the Marumakathayam Aliyasanthana Act governed the rights of the parties held b-y that by reason of the repeal of S. 16 of the Civil Courts Act by S. 6 of Act XXVI of 1937 after 1937 the customary rule of inheritance by survivorship which was still then applicable to Mappillah Muslims cannot be made applicable by Courts of law in this country and that all customs and usages contrary to the Muslim Personal law became inapplicable as a rule of decision in cases where the parties were Muslims and that all customary law stood abolished and that the Muslim Personal law took its place in all matters enumerated in S. 2 of Act XXVI of 1937 and it may be added as amended by the Madras Act XVIII of 1949.

The question, however, that requies to be considered is whether in respect of pending actions where the rights to properties are of the nature that are the subject matter of these proceedings the Muslim Personal law (Shariat) which is applicable also to trusts and trust properties and wakfs and other religious institutions by reason of the Amending Act, Madras Act XVIII of 1949 could be made applicable so as to govern the rights of parties. It is urged on behalf of the respondents that the Act is not retrospective in its operation and unless there is any specific provision in the enactment the further amendment should be construed only as prospective and not retrospective in effect. A passage from Maxwell's “The Interpretation of Statutes,” 9th Edn. page 223 is quoted which is as follows:

“Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates, a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Where vested rights are affected prima facie it is not question of procedure. There is nothing intended to alter past rights which became vested before the new Act came into operation by reason of the parties acting upon and being entitled to act upon the law as it stood before the new Act came into operation.”

With reference to this enactment Mullah in his “Principles of Mahomedan law” (13th Edn.) at page 4 observes as follows:

“The Act does not purport to disturb settled transactions or to dispossess persons who have lawfully obtained possession in the past Whether it would be applied in cases which were pending at the commencement of the Act is doubtful.”

Before considering whether by reason of a declaration and injunction granted in favour of the appellants, plaintiffs, the vested rights of the respondents would be affected it will be necessary to consider what the powers of an appellate Court are under the Civil Procedure Code, and whether when a suit comes up for appeal and before it is finally determined it would not be open to the appellate Court to take note of subsequent events not only with regard to the facts but also in regard to laws enacted and make them applicable to the facts coming up before the Court before a final decision is given in appeal. In Attorney General v. Birmingham Tame and Rea District Drainage Board(1), it was held by the House of Lords that an appeal to the Court of Appeal is by way of rehearing, and the Court may make such order as the Judge of first instance could have made if the case had been heard by him at the date on which the appeal was heard. Lord Gorell in his judgment after referring to the Judicature Acts and Rules stated that the hearing of an appeal from the judgment of a Judge is by way of rehearing and the Court has power to give any judgment and to make any order which ought to have been made, and to make such further or other order as the Court may think fit See O. LVIII, Rr. 1 and 4). The Court also has power to take evidence of matters which have occurred after the date of the decision from which the appeal is brought (see O. LVIII, R. 4). It seems clear, therefore, that the Court of Appeal is entitled and ought to rehear the case as if at the time of hearing, and if any authority were required for this proposition it is to be found in the case in Quilter v. Mapleason. Quilter v. Mapleason, is a case where a new enactment came into operation after the institution of the suit and the appeal was filed and before it came up for hearing in appeal. It was held that assuming the judgment of the Court below to have been correct according to the law as it then stood, the Court of Appeal could grant to the tenant the relief to which he was entitled according to the law as it stood at the hearing of the appeal since the general orders provide that appeals shall be by way of rehearing, and give power to the Court of Appeal not merely to make any order which ought to have been made by the Court below but to make such further order as the case may require. Bowen L. J. observed:

“The only remaining question is, whether the Court of Appeal can give relief where a judgment has been obtained by the landlord before the Act came into operation. I think we should be misreading the Judicature Rules if we held that it could not when the landlord has not obtained possession. The rules were intended to enable the Court of Appeal to do complete justice. If the law has been altered pending an appeal, it seems to me to be pressing rules of procedure too far to say that the Court of Appeal cannot decide according to the existing states of the law. I think that such is not the true construction of the rules for O. 58, R. 5 does not merely enable the Court of Appeal to make any order which ought to have been made by the Court below, but to make such further or other order as the case may require.”

The provisions of S. 107 and O. 41, R. 33, C.P.C practically incorporate O. 43, R. 5 of the judicature Rules which were relied on by the learned Judges in both the cases cited. Therefore it is not only permissible but in my view it is necessary in the interests of justice to apply to the case, the law as it stands on the date when the matter comes up before Court whether in trial or in appeal and before the final determination of the case. With respect to Bowen, L.J, I agree with the observations quoted above which correctly represent the attitude which Courts should adopt in taking notice of subsequent change of events either of fact or in law. Gwyer C.J, Sulaiman and Varadachariar, JJ. in Shyamakant v. Rambajan(2) and Viawanatha Sastri, J. in Lakshmiammal v. Naraycmaswami(3), adopt and approve the view taken by the Law Lords in the above cited decisions.

Therefore it goes without saying that this Court in Appeal has not only power but a duty to Apply the law as it stands on the date of the hearing of the appeal. But it must be noted that in applying the law so as to govern the rights of the parties which was not law on the date of the institution of the suit but became law subsequently Courts must take care not to disturb settled or completed transactions which certainly cannot be reopened, by reason of a change in the law. In the present case, however, it is for consideration whether there were any such settled or completed transactions whereby the rights of the plaintiffs have become extinguished or properties in which they had a right have passed into the hands of third parties or are not available for them to manage and enjoy. The first plaintiff was 19 years old on the date of the institution of the suit and it is not in dispute that both the plaintiffs are the heirs under the personal law they being the daughter and the widow of Fakruddin Sahib and having become entitled in accordance with their respective shares, in the other properties excepting those to which by virtue of custom they have been considered not to be entitled to claim the right to manage the Durga, perform the Urs festival and also to enjoy the surplus income if any. It cannot be said that the defendants have acquired vested rights which require to be divested by reason of the application of the new enactment. Nor could it also be said that by reason of the new enactment any final judgments or settled transactions are sought to be reopened. Plaintiffs as heirs of the late Fakruddin Saheb who died in 1922 have become entitled to share in his property but in respect of a particular item which was endowed for charity their right was only to manage and to participate in the surplus income. The plaintiffs who are female members by virtue of custom were excluded from the right to manage the Durga and to perform the Urs festival. There is force in the argument of Mr. Poker Saheb, learned Counsel for the appellant that the right to manage came to be vested in the hands of the defendants male members not by virtue of custom but by virtue of their being the sharers but custom deprived the plaintiffs of their rightful share to participation in the management and to their rightful share in the surplus income and since the new Act has abrogated any such custom the plaintiffs could be governed by the Act. Moreover would it be open to the defendants to contest the claim of any female member who might come for-ward after the enactment of the legislation under which personal law is held t o override any custom and to deny such a female member her right to manage the charities and participate in the income. The only answer is there could be no such prohibition or disqualification of the female members under the existing law.

It will not be open to the defendants to plead that they have acquired vested rights since the rights of the female members would not depend upon whatever rights the defendants might claim to have acquired but on the rights which they are entitled to under the new legislation. It must, however, be noted that in the present case the first plaintiff was 19 years old on the date of the suit. The suit having been instituted on 2nd April 1937, in no view, could it be said that her rights have been taken away or have become vested in the defendants. Her claim to establish such rights can be enforced within three years of her attaining majority and the suit having been instituted within a year of her attaining majority the defendants cannot also raise any plea of limitation or prescription. This question as to limitation was neither raised nor considered by the lower appellate Court and there is no substance in the plea of limitation.

Under these circumstances I consider that the provisions of the Muslim Personal law (Shariat) Act are applicable to the present case and that the plaintiffs are entitled to a decree as prayed for. The appeal is allowed. There will be no order as to costs. No leave.

V.C.S