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PETITIONER: AYESHA BIBI

       Vs.

RESPONDENT: COMMISSIONER OF WAKFS, WEST  BENGAL & ORS.

DATE OF JUDGMENT: 15/07/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: 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-al- aulad providing for the benefit of the family and after  the extinction of all thefamily  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

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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.

JUDGMENT: 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 exe- cuted  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 sharer 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

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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-al- al-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

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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 bv 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  sub-               section (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  cog- nizant 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

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             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  sgnificant  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 compli- 590 ance with the provisions of the first sub-section of S.  70. It is to be recalled that the Commissioner did appear, filed a writtenstatement, 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  out- side  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

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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 wain 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 HJustice 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.  Rever-  sing 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  knowlegde 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  hed 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  worrds ’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 constention 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.

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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  sub- section  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  sub- section 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. 593