# AYESHA BIBI v. COMMISSIONER OF WAKFS, WESTBENGAL & ORS

- **Citation:** [1970] 1 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 1969-07-15
- **Bench:** M. HlDAYATULLAH, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ayesha-bibi-v-commissioner-of-wakfs-westbengal-ors-4666
- **Pages:** 8

## Headnote

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 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.
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
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.
B
,\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.

## Text

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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 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.
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
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
A
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.
B
,\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
ITM.
C
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 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
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 collusiQil 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 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
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
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 injunc1ion.
On June 20, 19$8 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 byt on April 20, 1960 the Munsif allowed the
application and decjared the decree to be void.
The appel13111t
appealed to the Co\irt 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 comproijiise decree was passed with the knowledge of
the CommissiQiler 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, qP.C. and a !earned 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 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
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
58~
Sf'.PRBIE COURT REPORTS
[I 970J I S.C.R.
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.
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.
~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 :
"70. Notice of suits etc .. to he given to the Com1nis,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.
( 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
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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
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 Commissioner 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
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 Commissioner 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
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
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
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!iI
590
SUPROIE COURT REPORTS
[1970] I SC.R
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."
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
(I) A.LR. 19f18 ~1ad. i9
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knowledge of Mr. Sherfuddin was not the knowledge of the Chairman of the State Wakf Board and could not be held to constitute
knowledge within the sectio.n. According to the learned Chief Justice 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
Comn\issioner of Wakfs Board was made a party and had full notice
of the pende,ncy 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 diffen;nt 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 knowledge 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
summqns 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 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
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
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
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.
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.
59"
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[ 1970] l S.C.R.
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).
'
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.
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The Commissioner attempted to raise the question of a notice
under s. 80 of the Code of Civil Procedure but that question could
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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.
Y.P.
Appeal allowed.