Ayesha Bibi Vs. Commissioner of Wakfs,
West Bengal & Ors [1969] INSC 145 (15 July 1969)
15/07/1969 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) MITTER, G.K.
CITATION: 1970 AIR 287 1970 SCR (1) 583 1969
SCC (2) 305
ACT:
Bengal Wakfs Act, 1934, S. 70(1)-Court passed
decree on compromise in presence of Commissioner-Commissioner challenges decree
for want of notice.
HEADNOTE:
The predecessor of respondents 2 to 4
executed a wake al-alaulad providing for the benefit of the family and after
the extinction of all the family a scheme for feeding the poor. The appellant
filed a suit claiming share in the property after the death of her husband, and
for a declaration that the wakf was invalid and void and its enrolment in the
wakf office was wrongly done. This claim was made against respondents 2 to 4
who were the Mutawalis, and the Commissioner of Wakfs, West Bengal was joined
as defendant to the suit. The Commissioner -appeared in answer to the notice of
the suit and filed written statement and characterised the suit as collusive.
The parties to the suit, other than the Commissioner filed an application of
compromise and an application was made forstriking off the name of the
Commissioner from the array of defendants.
The counsel for the Commissioner was present
at the hearing and he did not object to the name being struck off. The name of
Commissioner was struck off, and the suit was decreed on compromise declaring
the wakf invalid and void and granting a perpetual injunction. The Commissioner
made an application under s., 70 (4) of the Bengal Wakfs Act, 1934 for
declaring the decree void as no notice was given to him under 70(1) of the Act.
The Munsif allowed the application and declared the decree to be void. -On
appeal, the Subordinate Judge held that the application under s. 70(4) was
incompetent as the Commissioner was present in the suit and the decree was
passed with the knowledge of the Commissioner and there was no need for a fresh
notice to him under s. 70(1) of the Act.
The High Court, in revision, reversed the
decision of the Subordinate Judge and restored that of the Munsif.
In appeal by special leave, this Court,
HELD : The appeal must be allowed and the
judgment of the Subordinate Judge must be restored.
Section 70 speaks of several special notices,
such as, in sub-s. (2) Before any wakf property is notified for sale in
execution of a decree or in sub-s. (3) before any wakf property is notified for
'sale for the recovery of any revenue, cess, rates or taxes, but it does not
provide for any special notice of a petition for compromise of a suit except
the first notice that a suit had been filed in the court. In s. 69 although
compromise cannot be made without the sanction of the trying court, there is no
mention of any special notice to the Commissioner. It follows, therefore, that
the Commissioner was entitled to a notice of the suit.
That may be by a letter from the court giving
him this notice, or, if he was made a party, by a summons to attend the court.
In the present case the second course was followed and a copy of the plaint
must have accompanied the summons and this was sufficient compliance with the
provisions of the first sub-section of s. 70. [589 F-590 A] 586 The
Commissioner had notice of whole of the suit and of the claim made by the plaintiff
in the case. He was afforded an opportunity to resist the suit and, in fact,
resisted it but later gave up the fight and agreed to go out of the suit.
In these circumstances, it will be wrong to
bold that the decree was void because the Commissioner was not given a notice
of the compromise petition. [592 C] State Wakf Board, Madras v. Abdul Azeez
Sahib & Ors. A.I.R.
1968 Mad 79, distinguished.
Muzafar Ahmed v. Indra Kumar Das & Ors.
77 C.L.J., 159, Benoy Kumar Acharjee Choudhury & Ors. v. Ahamma Ali &
Anr.
46 C.W.N. 339 and The Commissioner of Wakfs,
Bengal v. Shahbzada Mohammed Zehangir Shah, 48 C.W.N. 157, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 579 of 1966.
Appeal by special leave, from the judgment
and order dated August 20, 1964 of the Calcutta High Court in Civil Rule No.
1715 of 1961.
D. N. Mukherjee, for the appellant.
B. C. Mitra and S. C. Majumdar, for
respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal by special leave from the judgment and
order of the High Court of Calcutta, August 20, 1964, in an application under
S. 115 of the Code of Civil Procedure, reversing the judgment of the
Subordinate Judge, Howrah. The facts are as follows :
One Haji Abdul Karim, grandfather of
respondents 2 to 4 executed a Wakf al-al-aulad on March 30, 1917. He
constituted himself as the first Mutwali and named his two sons and widow as
Mutwalis after his own death. The Wakf provided for the benefit of the family
and after the extinction of all the family a scheme for feeding,the poor. On
February 14, 1956 the present appellant Ayesha Bibi filed a suit claiming -1
/16th of the property as a share after the death of her husband Abdul Hamid.
This claim was made against respondents 2 to 4 who were the Mutwalis. Ayesha
Bibi joined the Commissioner of Wakfs, West Bengal as a defendant to the suit.
The suit was filed in the Court of Munsif, Howrah and reliefs claimed were a
declaration that the Wakf was invalid, inoperative and void and that its
enrolment in the Wakf Office was wrongly done and was of no avail. She also
asked for a permanent injunction restaining the Commissioner of West Bengal and
other respondents from interfering with the possession of the property. The
Commissioner of Wakfs appeared in answer to the notice of the suit and filed a
written-statement on April 4, 1956. He contended that the properties were
governed by the Wakf which was valid and also that he was entitled to a notice
under S. 80 of 587 the Code of Civil Procedure before the suit was filed. He
stated that although he was entitled to a notice under s. 70(1) of the Bengal
Wakfs Act, 1934 it was, not necessary to add him as a defendant and he denied
collusion between himself and the other defendants. He observed that the other
defendants were interested in secularising the wakf property for their own
selfish ends.
On November 15, 1957 an application for
amendment of the relief against the Wakf Commissioner was made to which the
Wakfs Commissioner objected. In his objections he stated that the suit was of a
collusive nature as was apparent from the nature of the pleadings of the
plaintiff and defendants other than himself. The petition, however, was
allowed. No action was taken by the Commissioner to get that order set aside.
On May 15, 1958 the parties to the suit, other than the Commissioner, filed an
application of compromise and May 22, 1958 was fixed for decision. On the same
day an application for striking off the name of the Commissioner from the array
of the defendants was made. This was heard in the presence of the counsel for
the Commissioner and he did not object to the name being struck, off. As a
result the name of the Commissioner was struck off -as a defendant.
The suit was also decreed the same day on
compromise declaring the Wakf to be invalid 'and void and granting a perpetual
injunction.
On June 20, 1958 the Commissioner made an
application under s. 70(4) of the Act for a declaration that the decree was
void as no notice was given to him under s. 70(1) of the Act. The appellant
objected but on April 20, 1960 the Munsif allowed the application and declared
the decree to be void. The appellant appealed to the Court of the Subordinate
Judge, Howrah and the appeal was allowed. It was held that the application
under s. 70(4) was incompetent as the Commissioner was present in the suit and
the compromise decree was passed with the knowledge of the Commissioner and
there was no need for a fresh notice to him under s. 70(1) of the Act. The
Commissioner then filed a revision under s. 115, C.P.C. and a learned single
Judge of the High Court by the order, now under appeal, reversed the decision
of the Subordinate Judge and restored the decree of the Munsif. The order is
challenged in this appeal.
Before we consider the question whether the
Commissioners application under s. 70(4) was proper it is necessary to examine
the scheme of the Wakf Act. The Act was passed to make provision for proper
administration of Wakf properties in Bengal. It applies to all wakfs whether
created before or -after the commencement of the Act, any property of which is
situated in Bengal. By Chapter 11 a Wakf Board is constituted and a whole-time
Officer called the Commissioner of Wakfs is appointed. Chapter III lays 588
down the functions of the Board and the Commissioner and one of the functions
under S. 34 is the protection of Wakfs-alal-aulad. Chapter IV deals with the
enrolment of the Wakfs for which purpose a register of Wakfs is maintained.
Under s. 45 the Commissioner has the power to enrol wakfs and also to amend the
register from time to time. Under s. 46A the decision of the Commissioner is
final subject to a decision of a competent court. Chapter V deals with wakf
accounts and Chapter VI with statements of wakfs al-al-aulad. Chapter VII
creates a bar to transfer of immovable property of wakfs. Chapter VIII lays
down the, duties of Mutwalis with other ancillary matters. Chapter,IX deals
with finance and Chapter X deals with judicial proceedings. Chapter XI, XII and
XIII deal with amendments and appealed, rule-making power of the Provincial
Government and power of the Board to make by laws and include some
miscellaneous provisions.
We are concerned in this case with Chapter X
which deals with judicial proceedings. Section 69 in this Chapter provides as
follows :
"69. Bar to compromise of suit or
proceeding without sanction of Court.
No suit or proceeding by or against a mutwali
as such in any Court shall be compromised without the sanction of the trying
Court." Section 70 then provides "70. Notice of suits etc., to be
given to the Commissioner.
(1) In every suit or proceeding in respect of
any wakf property or of a mutwalli as such except -a suit or proceeding for the
recovery of rent by or on behalf of the mutwalli the Court shall issue notice
to the Commissioner at the cost of the party instituting such suit or
proceeding.
(2) Before any wakf property is notified for
sale in execution of a decree, notice shall be given by the Court to the
Commissioner.
(3) Before any wakf property is notified for
sale for the recovery of -any revenue, cess, rates or taxes due to the Crown or
to local authority notice shall be given to the Commissioner by the Court,
Collector or other person under whose order the sale is notified.
(4) In the absence of a notice under subsection
(1) any decree or order passed in the suit or proceeding shall be declared
void, if the Commissioner, within one month of his coming to know of such suit
or proceeding, applies to the Court in this behalf.
(5) In the absence of a notice under
sub-section (2) or sub-section (3) the sale shall be declared void, if the
Commissioner within one month of his coming to know of the sale, applies in
this behalf to the Court, or other authority under whose order the sale was held."
Section 71 enables the, Commissioner to join as a party in any lit' gation on
his own application and to conduct or defend certain suits or proceedings on
behalf of or in the interest of the wakf.
It will be noticed from the analysis of the
Act that the Commissioner has a definite duty to perform in all suits in which
the interests of the wakfs are involved. Sub-s. (1) of s. 70 requires that in
every suit or proceedings in respect of any wakf property the court shall issue
a notice to the Commissioner. This was done here because the Commissioner was a
party and a summons had gone to him from the Court. It is contended before us
that this was not a notice but only a summons but we that nothing much turns
upon this distinction. The Commissioner had notice of the proceedings. He
appeared in the case, defended the wakf, characterised the suit -as collusive
and he was fully cognizant of all that was happening in the suit. The learned
Judge in the High Court also held that there was no need to give the Commissioner
another notice under sub-s. (1) because the Commissioner had already notice of
the suit.
The question, therefore, is whether in the
-absence of a notice under sub-s. (1) the decree could be declared to be void.
Here the argument of the Commissioner in the High Court was that he had been
removed from the array of the defendants and that he was, therefore, entitled
to a special notice of the petition of compromise in the case. It is to be
noticed that s. 70 speaks of several special notices, such as, in sub. s. (2)
before any wakf property is notified for sale in execution of a decree, or in
sub-s. (3 ) before any wakf property is notified for sale for the recovery of
any, revenue cess, rates or taxes, but it does not provide for any special
notice of a petition for compromise of a suit except the first notice that a
suit had been filed in the court. It is significant that in s' 69 although
compromise cannot be made without the sanction of the trying court, there is no
mention of any special notice to the Commissioner. It follows. therefore, that
the Commissioner was entitled to a notice of the suit. That may be by a letter
from the court giving him this notice, or if he was made a party, by a summons
to attend the court. In the present case the second course was followed and a
copy of the plaint must have accompanied the summons and in our opinion this
was sufficient compliance with the provisions of the first sub-section of S.
70.
It is to be recalled that the Commissioner
did appear, filed a written statement, contested the suit and also described it
as a collusive action between the plaintiff and the other defendants. It is,
however, surprising that when an application was made for striking off his name
from the array of the defendants the Commissioner agreed to such a course. This
meant that in spite of notice to him of the collusive nature of the suit he was
content to remain outside the suit and to give up all his pleas about the wakf
and the collusive nature of the suit. Having so acted it seems difficult to
think that the decree could be declared void simply because the Commissioner
had no special notice of the compromise. No special notice of compromise
petition is required to be issued under the Act. He had notice of whole of the
Suit and of the claim made by the plaintiff in the case. He was afforded an
opportunity to resist the suit and, in fact' resisted but later gave up the
fight and agreed to go out of the suit. In these circumstances, it will be
wrong to hold that the decree was void because the Commissioner was not given a
notice of the petition.
Learned counsel for the Commissioner relied
strongly upon a decision of the Madras High Court reported in State Wakf Board,
Madras v. Abdul Azeez Sahib and others(1) in which the decision in the present
case was noticed and applied for declaring a decree void. In that case the
counsel for the representatives of Wakf Board, Mr. Sherfuddin was also for some
time the chairman of the Wakf Board and his knowledge of the suit was
attributed to the State Wakf Board and it was heldd that there was notice as
required by S. 57(1) of Wakf Act 1954 (29 of 1954). Section 57 (1) of that Act
read:
In every suit or proceeding relating to title
to wakf property ... the Court shall issue notice to the Board at the cost of
the party instituting such suit or proceeding." Under S. 57(3) it was
further provided "In the absence of a notice under sub-section (1) any
decree or order passed in the suit or proceeding shall be declared void, if the
Board, within one month of its coming to know of such suit or proceeding,
applies to the Court in this behalf." Under the third sub-section quoted
here the application had to be made win one month of the knowledge of the Board
and it was held by the trial Judge that knowledge of Mr. Sherfuddin was
knowledge of the Board and the application was delayed. Reversing this decision
the learned Chief H Justice of Madras held that (1) A.I.R. 1968 Mad. 79.
Under the third sub-section quoted, here the
application had to be made within one month of the-knowledge of the Board and
it was held by the trial Judge that knowledge, of Mr. sherfuddig was knowledge
of the Board and the application was delayed. Reversing this decision the
learned Chief Justice of Madras held that (1) A.I.R. 1968 Mad. 79.
591 knowledge of Mr. Sherfuddin was not the
knowledge of the Chair man of the State Wakf Board and could not be held to
constitute knowledge within the section. According to the learned Chief Jus
tice the knowledge which started limitation for the application was official
knowledge in his capacity as a Chairman and not in his capacity as counsel.
This case is thus distinguishable. Here the
Commissioner of Wakfs Board was made a party and had full notice of the
pendeacy of the suit and that it was -a collusive suit between the plaintiff
and the Mutwalis. It cannot be said, therefore, that he had no knowledge or
that he had no notice of the proceedings. Indeed the learned Chief Justice of
Madras while relying upon the decision in the present appeal -also said that
the facts of the 'two cases were quite different and the main point involved
was also different.
He only relied upon a passage that in the
judgment of the learned Judge of the Calcutta High Court the private know ledge
of the Commissioner did not exonerate the court from its obligation to give
notice to the Board. There is no question here of any private knowledge. The
knowledge was -provided by the summans to the Commissioner and he did appear in
the case. In the other case there was no notice whatever from the court, nor
even a summons and it is thus clearly distinguishable.
The learned counsel further relied upon
Muzafar Ahmed v. Indra Kumar Das and Others(1). In that case the Commissioner
was sent a notice but was not made a party.
The suit was,dismissed. In the appeal that
followed the Commissioner was not made a party and no notice of appeal was
served or him. The appeal was allowed. In the second appeal a ground was taken
that the appeal below was incompetent as there was no notice to the
Commissioner.
Notice of the second appeal was however,
issued to the Commissioner. The decree was had to be not void but voidable and
as the Commissioner had not applied within a month the decree was allowed to
stand. the court also held that the words 'suit or proceeding' in s.70(40 did
not include an appeal. There is much in this decision which may require careful
consideration. It is sufficient to say that the decision does not support the
present contention of the Commissioner.
Benoy Kumar Acharjee Choudhury & Ors. v.
Ahamama Ali and Anr.(2) only lays down that under s.70 of the Act a notice is
necessary to be served on the Commissioner in a suit in respect of wakf
property even though the wakf may not be admitted. To this proposition no exception
can be taken but it does not advance the case of the Commissioner.
On the other hand, in The Commissioner of
Wkfs Bengal v. Shuhbzada Mohammed Zahangir Shah(30 it was held that although
(1) 77 C.L.J. 159 (2) 46 C.W.N. 339 (3) 48 C.W.N. 157 592 a Commisisoner was
entitled to a notice of a suit, under s. 70 of the Wakf Act, but if he actually
contested the suit as a party-defendant, he could be treated as an intervener
under s. 71, even, if no notice was given to him and that the suit was not
vitiated. This case supports the proposition that joining the Commissioner as a
party and his actual appearance in the suit stand equal to a notice under S.
70(1).
None of the cases really supports the
proposition now contended for before us. The language of the fourth subsection
of s. 70 is quite clear that the Commissioner must not have knowledge
previously of the suit. Where the Commissioner has knowledge of the suit be,
cannot claim a second knowledge as the start of C limitation. In other words,
his presence as a party in the suit after summons to him must be treated as a
notice to him under the first subsection of s. 70. The decision of the
Subordinate Judge was thus correct and was wrongly reversed.
The Commissioner attempted to raise the
question of a notice under s. 80 of the Code of Civil Procedure but that
question could D only arise in the original suit and not in these proceedings.
In the result the judgment under appeal must be set aside and that of the
Subordinate Judge, Howrah restored with costs against the Commissioner. We
regret this result and only hope that some way will be found out of the
difficulty created by the-foolish action of the Commissioner in leaving the
field clear for the compromise of the suit.
Y.P. Appeal allowed.
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