LexAYESHA BIBI versus COMMISSIONER OF WAKFS, WEST BENGAL & ORS.
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AYESHA BIBI
v.
COMMISSIONER OF WAKFS, WESTBENGAL & ORS.
.
....,._.
July 15, 1969
[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
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
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 Com-
missioner 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.
In appeal by special leave, this Court,
HELD : The ap1'eal must be allowed and the judgment of the Subor-
dinate 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
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
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]
586
SUPREME COURT REPORTS
p 970] I S.CR
Tt:c Commissioner had notice of whole of the suit and of the claim
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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.
The Judgment of the Court was delivered by
llidayalullah, C.J.
This is dn appeal by special leave fror;, the
judgment and orExcerpt shown. Read the full judgment & AI analysis in Lexace.