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 section C Majumdar for respondent No 1
The Judgment of the Court was delivered by Hidayatullah CJ
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 section 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 feedingthe 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 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 section 80 of 587 the Code of Civil Procedure before the suit was filed
He stated that although he was entitled to a notice under section 701 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 section 704 of the Act for a declaration that the decree was void as no notice was given to him under section 701 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 section 704 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 section 701 of the Act
The Commissioner then filed a revision under section 115 CPC 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 section 704 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 section 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 section 45 the Commissioner has the power to enrol wakfs and also to amend the register from time to time
Under section 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
ChapterIX 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 section
1 of section 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 sub section
1 because the Commissioner had already notice of the suit
The question therefore is whether in the absence of a notice under sub section
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 section 70 speaks of several special notices such as in sub
section 2 before any wakf property is notified for sale in execution of a decree or in sub section
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 section 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 vs Abdul Azeez Sahib and others1 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 section 571 of 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 section 573 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 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 AIR 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 AIR 1968 Mad
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 vs Indra Kumar Das and Others1
In that case the Commissioner was sent a notice but was not made a party
The suit wasdismissed
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 s7040 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
vs Ahamama Ali and Anr2 only lays down that under s70 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 vs Shuhbzada Mohammed Zahangir Shah30 it was held that although 1 77 CLJ 159 2 3 592 a Commisisoner was entitled to a notice of a suit under section 70 of the  but if he actually contested the suit as a party defendant he could be treated as an intervener under section 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 section 701
None of the cases really supports the proposition now contended for before us
The language of the fourth sub section of section 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 section 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 section 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
YP Appeal allowed


Summary:
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 section 70 4 of the Bengal Wakfs Act 1934 for declaring the decree void as no notice was given to him under 701 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 section 704 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 section 701 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 section
2 before any wakf property is notified for sale in execution of a decree or in sub section
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 section 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 section 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 vs Abdul Azeez Sahib  Ors
AIR  distinguished
Muzafar Ahmed vs Indra Kumar Das  Ors
77 CLJ 159 Benoy Kumar Acharjee Choudhury  Ors
vs Ahamma Ali  Anr
and The Commissioner of Wakfs Bengal vs Shahbzada Mohammed Zehangir Shah  referred to