Wakf Commissioner challenged a compromise decree declaring a family wakf void, claiming no notice under s. 70(1) Bengal Wakfs Act. The Supreme Court held his summons as party-defendant was sufficient notice; decree not void.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AYESHA BIBI
v.
COMMISSIONER OF WAKFS, WESTBENGAL & ORS. . ....,._.
July 15, 1969
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[M. HlDAYATULLAH, C.J. AND G. K. MITTER, J.]
Bengal Wc:kfs Act, 1934, s. 70(1)-Court passed decree on conzpro1nise in pt.?sen<;e of Co1n1111'ssioner-Co1nn1i,~sioner cfiallenges decree for want of notice.
The predecessor of respondents 2 to 4 executed a wakf al-af .. au/qd providing for the benefit of the family and after the extinction of all the c 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 \Vas invalid and void and its enrolment in the wakf office was \vrongly done. This claim was made against respondents 2 to 4 who ~·ere the rvfutawalis, 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 uit as co1lusive. The parties to the suit, other than the commissioner D filed a!l application of compromise and an application was made for striking off the name of the Commissioner from the array of defendants. The counsel for the Commissioner was pre·sent 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 peirpetUat- jnjunction. The Commissioner made an Spplication under s., 70(4) of Bengal Wakfs Act, 1934 for decJaring the decree void as J{c( ifotice-- €s'"' given to him under s. 70(!) 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.
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In appeal by special leave, this Court,
HELD : The ap1'eal must be allowed and the judgment of the Subordinate Judge must Ce 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 G 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 fiirst notice that a suit had been filed in the court. In s. 69 although compromise cannot be made \vithout 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 H 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 \'as sufficient compliance with the provisions of the first sub-section of s. 70. [589 F-590 A]
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SUPREME COURT REPORTS
**Tt:c Commissioner had notice of whole of the suit and of the claim mallc by the pl<1intitf in the case. He \'JS afforded an opportunily to resist !hl) suit and. in. f;1ct. resisted it but** l~tcr **J!avc up the fight and a.1.:rci:d to go out of the su11. In these circumstances, it \Viii be \vrong** **_to_ h•Jld that the decree** \"~'> void hccausc the Commissioner \'as 1101 gi'cn a noti.:.: of the compromi<e petition. [5?2 CJ
Stc.tc- Wakf Board, M<rdra.r v. Abdul Azecz Sahib & Or.r. A.LR. 1968 Mad 79, distinguished.
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,\111:afar Ahn1ed v. Indra Kumar Das &: Ors. 77 C.LJ .. 159. Benoy K1.1.ma1· Acharjee Choudhury &: Ors. v. Alza1111na Ali & Anr. 46 C.W.~~. 339 a;1d The Conimissioner of Wakfs, Bengal v. Shahbz.ada ,\1oha1nmed Zehangir Shalt, 48 C.W.:-1. 157, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 579 of I™.
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Appeal by special leave from the judgwent and order dated August 20, 1964 of the Calcutta High Court in Civil Ruic ~o. 1715ofl961.
D. N. Mukherjee, for the appellant.
B. C. Mitra and S. C. Majumdar, for respondent No. I.
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The Judgment of the Court was delivered by
llidayalullah, C.J. This is dn appeal by special leave fror;, the judgment and order of the High Court of Calcutta, August ,0, 1964, in an application under s. 115 of the Code of Civil Proce· :lure, reversing the judgment of the Subordinate Judge, Howrah. 'T'he facts arc as follows :
One Haji Abdul Karim, grandfather ot 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 I I 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 Commissio,ner 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 perma,nent 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 nolice of the suit and filed a written-statement o" April 4, ! 956. 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
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AYESHA BIBI v. WAKFS COMMR. (Hidayatullah, C.J.) 587
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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 illature as was apparent from the nature of the plead;ngs of the plaintiff and defendants other than himself. The petition, however, was allowed. No action was taken by the c 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 Cununisioner from the array of the defendants was made. This was heard in the pre~ence of the counsel for the Commissioner and D 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 i,nvalid'and void and granting a perpetual injunc- 1ion.
Before we consider the questiC\Il whether the Commissioner's 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 H applies to all wakfs whether created before or after the commencement of the Act, any property of which is situated in Bengal. By Chapter II a Wakf Board is constituted and a whole-time Officer called the Commissiclner of Wakfs is appointed. Chapter III lays
[I 970J I S.C.R.
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Sf'.PRBIE COURT REPORTS
de\• n the functions of the Board and the Commissioner <<nd one of 1he functions under s. 34 is the protection of Wa-.-fs-Ji-~1-:rn'ad. Chapter IV deals with the enrolment or 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 rcristcr from time to time. T.Jnder s. 46A the decision of the Commissioner is final subject to a decision of a competent court. Chapter _!_ deals with wakf accounts and Chapter VI with statements of wakfsal-al-aulad. Chapter VII creates a bar to transfer of immovable property of waH>. Chapter VIII Jays down the duties of Mutwalis W<lh ether ancil'ary matters. Chapter IX deals with finance and Ch:1pter X deals with judicial proceedings. ·Chapter XI, XII and Xlll deal with :unendmcnts and appeals. rule-making power of the Provincial Government and power of the Board to make bylaw; and include some miscellancom provisions.
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We arc concerned in this case with Chapter X which deals with judicial proceeJin~<. Section 69 in this Chapter provides as fcJ!,_;,,·s :
"69. Uar to con1pro1nisc of ~uit or proceeding \'ithout sancrion of Court.
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~o suit or proceeding hy or against a 1nutv;a!i as such in am· Cnurt shall be compromised without the sancti1in of the 1rying Court:·
Scc:;on 70 then provides :
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"70. Notice of suits etc .. to he given to the Com- 1nis,ioncr.
(I) In every suit or procecdi.ng in respect of any wakf property or of a mutwalli as such except ·a sui1 or proceeding for the recovery of rent hy or on behalf :if the mutwalli the Court shall issue notice to the Commissioner at the cost of the p:irty 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 properly is notified for sJle for the recovery of -any revenue. ccss. rates or taxes <luc to the Crown or to local authority notice shall be given to the Commissioner bv the Court. Collector or other person under whose order the sale is notified.
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( 4) In the absence of :i notice under suh-section (I l anv decree or order pa . . sed in the suit or proceed in~ shall be"c!eclared void. if th~ Commissioner. within one month
AYESHA BIBI v. WAKFS COMMR, (Hidayatullah, C.J.)
589
A of his coming to know of such suit or proceeding, applies to the Court in thls 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 with\n one month of his coming to know of the sale, applies in this behalf to the Court, or B other authority under whose order the sale w15 held."
Section 71 enables the Commissioner to join as a party in any litigation on his own application and to conduct or defend certa\n 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 Comc missioner has a definite duty to perform in all suits in which the i,nterests 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 D this was not a notice but only a summons but we thlnk 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 ComE missioner another notice under sub-s. (I) 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 i,n the High Court was that he had been removed ftom the array of the defendants and that he F 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 i.n 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 G special notice of a petition for compromise of a suit exce£l the first notice that a suit had been filed in the court. It is significant that in s. 69 although compromise ca1U1ot be made without the sane- · tion of the trying court, there is no mention of any special .notice to the Commissioner. It follows, therefore, that the Commis~ sioner was entitled to ·a notice of the suit. That may be by a letter H 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 comp!i-
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[1970] I SC.R
590
SUPROIE COURT REPORTS
ancc with the provisions of the first sub-section of s. 70. It is to be recalled that 1he Commissioner <lid appear, filed a \Hilten· 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 fo,- slriking off his name from the array of the defendants the C01ru11is,ioner 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 tl1ink 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 it 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 compromise petition.
Learned counsel for the CommissiQner 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 Wak:f Board, Mr. Sherfuddin was also for some time the Chairman of the Wakf Board and his knowledge ot the suit was attributed to the State Wakf Board and it was held that there was notice as required by s. 57 (I) of Wakf Act 1954 (29 of 1954). Section 57 (I) 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."
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Under s. 57(3) it was further provided:
"In the absence of a notice under sub-section (I), any decree or order passed in the suit or proceedini: shall be declared void, if the Board, within one month al it< 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 within one month of the knowledge of the Board and it was held by the trial Judge that knowled~e of Mr. Sherfuddi.n was knowledge of the Board and the applicauon was delayed. Reversing this decision the learned Chief Justice of Madras held that
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(I) A.LR. 19f18 ~1ad. i9
AYESHA BIBI v. WAKFS COMMR. (Hidayatullah, C.J.) 591
The learned counsel ;further relied upon Muzafar Ahmed v. Indra Kumar Das a,nd OthersU). In that case the Commissioner was sent a notic<; but was not made a party. The suit was ,dismissed. l,n the appeal :that followed the Commissioner was not made E 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 irlcompetent as there was no notice to the Commissioner. Notice of the second appeal was, however, issned to the Commissioner. The decree was· held to be not void but voidable and as the Commissiqner had not applied within a month, the F decree was allowed .to stand. The Court also held that the words 'suit or proceeding' in s. 70(4) did not include an appeal. There is much in this decision which may require careful consideration. It is suflicien~ to say, that the decision does not support the present conte11tio,n of the Commissioner.
Benoy Kumar Acharjee Choudhury & Ors. v. Ahqmma Ali G and Anr.(') only la:Ys 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 Wakfs, Bengal v. H Shahbzada Mohammed Zahangir Shah(') it was held that although {1) 77 C.L.J. 159. (2) 46 C.W.N. 339.
(J) 48 C.W.N. 157.
[ 1970] l S.C.R.
SUPREME COl.iRT REPORTS
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a Commisisoner '11-as 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 a.n 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).
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None of'rhc cases really supports the propositiQI1 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 uf the suit he cannot claim a second knowledge as the start of limitation. ln other words, his presence as a pariy in the suit after summon' lo him must be treated as a ,notice to him under the first sub-sec1inn of s. 70. The decision of the Subordinate Judge was - thus cc:rrcc1 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 only arise in the original suit and not in these proceedi.ngs. In the result the judgment under appeal must be set aside and that of the Subordinate Judge. Howrah restored with costs against the Commissio'1cr. We regret this result and only hope that some way wi!I be found out of the difficulty created by the foolish action of the Commissioner i.ti leaving the field clear for the compromise of the suit.
Appeal allowed.
Y.P.
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2 issues framed by the court
Was the compromise decree void for want of a notice to the Wakf Commissioner under s. 70(1)?
Does service of summons on the Commissioner as a defendant satisfy the notice requirement under s. 70(1)?
Colour shows how this judgement treated each authority
State Wakf Board, Madras v. Abdul Azeez Sahib & Ors.Distinguished
A.I.R. 1968 Mad. 79 · Who else cites this
Muzafar Ahmed v. Indra Kumar Das & Ors.Referred
77 C.L.J. 159
Benoy Kumar Acharjee Choudhury & Ors. v. Ahumma Ali & Anr.Referred
46 C.W.N. 339
The Commissioner of Wakfs, Bengal v. Shahbzada Mohammed Zahangir ShahRelied on
48 C.W.N. 157
3 provisions across 2 enactments
Ayesha Bibi
Commissioner of Wakfs, West Bengal
Respondents 2 to 4 (Mutwalis)
M. Hidayatullah
G. K. Mitter
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
