IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6.07.2010 CORAM : THE HONOURABLE MR. JUSTICE. M.VENUGOPAL S.A.No.1169 of 1993 The Secretary Tamilnadu Wakf Board, 3,Santhome High Road, Madras-600 004. ... 10th Defendant/10th Respondent/Appellant Vs... 1.Kancheepuram Oili Mohamed- Pettai Labbai Jumma Masjid by its Muthavalli, V.K.Abdul Khader Sahib, No.60-B, Road Street, Oil Mohamed Pattai, Kancheepuram. ... Plaintiff/Appellant/1st respondent 2.F.Mohamed Zakiruddin Wakf Inspector, Trichy. ... 1st Defendant/1st Respondent/2nd Respondent 3.V.M.Yusuf Meeran ... 2nd Defendant/1st Respondent/3rd Respondent 4.A.N.Khaja Mohideen ... 3rd Defendant/3rd Respondent/4th Respondent 5.M.K.Badruddin ... 4th Defendant/4th Respondent/5th Respondent 6.S.B.Khaja Kudbuddin ... 5th Defendant/5th Respondent/6th Respondent 7.A.M.Sheik Usman ... 6th Defendant/ 6th Respondent/ 7thRespondent 8.A.M.Syed Masood ... 7th Defendant/ 7th Respondent/8th Respondent 9.N.R.Navab Jan ... 8th Defendant/8th Respondent/9th Respondent 10.T.A.Ebrahim ... 9th Defendant/9th Respondent/10th Respondent 11.Shameer ... 11th Defendant/ 11th Respondent/11th Respondent Prayer : Second Appeal is filed under Section 100 C.P.C against the Judgment and Decree dated 26.03.1992 in A.S.No.41 of 1990 on the file of the Subordinate Judge, of Kancheepuram revising the Judgment and decree dated 16.03.1990 made in O.S.No.186 of 1984 on the file of the Additional District Munsif of Kancheepuram. For Petitioner : Mr.V.LakshmiNarayan for Mr.V.Raghavachari For respondents : Mr.Abdul Rasheed, for R1 Mr.Abdul Ravoof, for R3 to R10 11th Respondent : Given up and R2 - Died https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The Appellant/10th Respondent/10th Defendant has filed the present Second Appeal before this Court as against the Judgment and Decree dated 26.03.1992 in A.S.No.41 of 1990 passed by the Learned Sub-Judge, Kancheepuram. 2. The first Appellate Court Viz., Sub-Judge, Kancheepuram, in its judgment in A.S.No.41 of 1990 dated 26.03.1992, as among other things has held that the Defendants 1 to 9 are liable to repay a sum of Rs.8,045.06/- to the 1st respondent/Appellant/Plaintiff and resultantly allowed the appeal filed by the 1st Respondent/Appellant/Plaintiff with costs. 3. Before the trial Court, on the side of the 1st Respondent/Appellant/Plaintiff and the Defendants no one witness was examined and no documents were marked. 4. Dissatisfied with the Judgment and Decree passed in A.S.No.41 of 1990 dated 26.03.1992 by the first Appellate Authority Viz., Sub-Judge, kancheepuram, the Appellant/10th Respondent/10th Defendant has projected this Second Appeal before this Court. 5. At the time of admission of the Second Appeal, the following substantial questions of law have been framed by this Court. 1.Whether a public statutory body and its subordinates can be held personally liable while discharge of their official duties? 2. Is it not mandatory to give suit notice under Section 56 of the Wakf Act, 1954, before the Plaintiff institutes the suit against the appellant and its subordinates i.e., defendants 1 to 10? 3. Whether the suit is maintainable in view of the violation of the provisions of Section 56 of the Wakf Act? 6. Finding on Substantial Questions of law: 2 and 3:- According to the Learned Counsel for the Appellant/10th Respondent/10th Defendant, the first Appellate Court has not taken into account of the fact that no suit notice under Section 56 of the Wakf Act (now Section 89 of the Act) has been given by the 1st Respondent/Plaintiff/Appellant by granting two months time before filing of the present suit and this omission goes to the root of the matter and as such the suit filed by the 1st Respondent/Appellant/Plaintiff is not maintainable in the eye of law. 7. In support of the contention that the issuance of notice under Section 56 of the Wakf Act, 1995 (now Section 89 of the Act) is a condition precedent to the filing of the suit itself, the Learned Counsel for the Appellant cites the decision of this Court in Rahmath Bi and another Vs. State Wakf Board, AIR 1982 MADRAS 202, https://hcservices.ecourts.gov.in/hcservices/ wherein, it is held as follows: The Court cannot make exceptions or qualifications to the explicit terms of S.56 on account of consideration of hardship and absence of prejudice or detriment. A defect, as in the present case, cannot be equated to a formal defect contemplated by O.23, R.1(3) Civil P.C. It is a redical defect going to the root of the claim of the plaintif (petitioner). S.56 is express, explicit, mandatory and admits of no exceptions. Therefore, the issue of a notice under S.56 is a condition precedent to the institution of the suit itself. Cases where suits have been instituted without the issue of a notice in accordance with S.56 as in the instant case, are cases which clearly fall under O.7, R.11(d) C.P.C. 8. He also relies on the decision of this Court in C.A.Khaja Mohidden Sahib and others Vs. The Madras State Wakf Board and others, AIR 1973 MADRAS 104, wherein, at paragraph No.8, it is laid down as follows: Though the learned counsel seriously contended that the notice under Section 56 of the Act was not mandatory. I do not think it requires any serious consideration. Section 56, which is analogous to Section 80, Civil P.C. came up for consideration in this Court in the decision reported in M.S.Wakf Board Vs. Jamal Muhammad 1966-2 Mad LJ 104, wherein it was held that the notice under Section 56 is mandatory. This is a decision by a Division Bench of this Court and therefore, the point does not call for any further consideration. 9. He also seeks in aid of the decision of this Court in M.S.Abdul Hameed Vs. S.M.Sheik Mohammed and others, AIR 2003 MADRAS 179, wherein, it is observed as follows: The language of the S. 83 (5) is – plain and simple and it does not need any explanation at all so as to arrive at a different conclusion from what is meant by the language of the Section and therefore, there is no room to arrive at the conclusion that the mandatory provisions of law under S. 89 of the Act would apply only to civil Courts and not to the Tribunals. Furthermore, in the aforesaid decision at page No.183 in paragraph No.19, it is held as follows: No doubt, Section 89 is mandatory and in the negative form as it comes to be revealed from the language of Section which reads: "No suit shall be instituted against the board in respect of any Act purporting to be dome by it in pursuance of this Act or any rules made thereunder, until their expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, https://hcservices.ecourts.gov.in/hcservices/ stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left": The tenor and temper of the language employed in the Section leaves no room for any misinterpretation to the effect of dispensing with the notice under Section 89 and therefore so far as the warranting Section 89 is concerned, the only conclusion that the Court could arrive at is that no suit shall lie without compliance of Section 89 and in fact such a suit, as it has been instituted in the form of Wakf O.P., should not have been entertained and taken on file by the Tribunal. 10. Yet another decision in Syed Abdul Juabbar and others Vs. The Board of Wakfs in Karnataka and others, AIR 1992 KARNATAKA 43, wherein it is observed thus, "Where in a suit against Board or Wakf etc., all the four Plaintiffs claimed to be Muzawars of Wakf in question by inheritance inheriting such rights from their forefathers and therefore there was nothing like a body recognised under law making a claim for fights and reliefs they had claimed in the suit, the notice issued by only two of the plaintiffs for filing of suit under S.56 cannot be considered as lawful. It cannot be said in such a case that because the notice was issued by the President and the Secretary of the Committee of Muzawars it was representative in nature and hence notice was valid because there was no such valid and lawful committee existing at the time when the tree was issued. To make it representative in character it was for the plaintiffs to satisfy the Court that the two persons were acting in a representative capacity of a lawful body which had authorised them to issue notice and to file the suit, simply because a group of individuals come together and style some of them as office-bearers like President, Vice- President or Secretary or treasurer, notice issued by any such alleged office bearers cannot be considered as a notice issued by such persons representing a recognised body. The case of unregistered club or society is an instance of this nature. 11. Per contra, it is the contention of the Learned Counsel for the 1st Respondent/Appellant/Plaintiff that the suit filed by the Muthavalli on behalf of the 1st Respondent/Appellant/Plaintiff before the trial Court is perfectly maintainable in law because of the simple fact that no relief is claimed against the Appellant/10th Respondent/10th Defendant Wakf Board. 12. To lend support his contention, the Learned Counsel for the 1st Respondent/Appellant/Plaintiff cites the decision in Syed Khersha Sajanshah Mutavalli, Bhuj-Kutch Vs. The Bhuj Municipality and another, AIR 1986 GUJARAT 1, wherein, it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Although the Board was joined as a defendant, prior notice of the suit to the Board u/s.56 was not necessary, as no relief was claimed against the Board. Even if the Board was not joined as party, under S.57 of the Act, the notice would have been issued against the Board by the Court. Therefore, as the Board was joined a party without claiming any relief, it was a proper party and, therefore, the provisions of Section 56 which required statutory notice before filing of the suit were not attracted. When S.56 was not attracted in the facts of the present case, it could not be said that in the absence of the notice served on the Board before filing of the suit, the present suit was not maintainable. Hence, the lower Appellate Court had committed error in holding that the suit was not maintainable in the absence of statutory notice to the Board u/s.56. 13. In the plaint, 1st Respondent/Appellant/Plaintiff has averred that it is a Public Trust and Muthavalli of the Plaintiff's Mosque has been elected as per the direction of this Court in W.P.No.4200 of 1982 and the Muthavallii of the Mosque assumed office on 02.03.1983 and that the 2nd Respondent/1st Defendant has been the then Superintendent of Tamilnadu Wakf Board, Madras, and now he is the Superintendent at Trichy Branch of the Tamilnadu Wakf Board. 14. Further in the plaint, it is mentioned that the 2nd Respondent/1st Defendant was appointed as an Executive Officer of the 1st Respondent/Plaintiff's Mosque and he was in charge of the affairs of the Mosque from 30.06.1982 to 23.11.1982 and during his tenure, he act the assistance of the Defendants 2 to 9 in the form of Ad-hoc Advisory Committee and Tharaviah Committee with the approval and sanction of the 10th Defendant, the Wakf Board and that the 1st Respondent/Appellant/Plaintiff was served with a copy of the Audit report of the Mosque for the year 1982-83 by the Assistant Examiner of Local Funds Account and the observations of the Audit exposed the Defendants 1 to 9 for offences of criminal misappropriation, criminal breach of trust, mischief, theft, cheating. 15. According to the 1st Respondent/Appellant/Plaintiff, the Defendants 1 to 9 collected a sum of Rs.1,339/- from Thalaikattudars by way of Tharaviah Tax besides, they have shown Pre-Ramzan expenses an amount of Rs.1,719.20 paise, out of which, vouchers are available for Rs.623.10/-. Moreover, the 2nd Respondent/1st Defendant failed to hand over the receipts to the Official Receiver (while he handed over the charge to the said receiver appointed by the Sub Judge, Kancheepuram, in C.M.P.No.371 of 1982 for conducting an election to the office of the Muthavalli of the Plaintiff's Mosque) for a sum of Rs.1,096.10 paise as per Audit report, including a sum of Rs.88.45 paise now the 1st Respondent/Appellant/Plaintiff's Mosque is made to account for Rs.1,184.55 paise, which is not possible since the 1st Defendant has secreted vouchers and shown false accounts thus the 1st Respondent/Plaintiff's Mosque has sustained a wrongful loss of Rs.1,184.55 paise. https://hcservices.ecourts.gov.in/hcservices/ 16. Besides, the 2nd Respondent/1st Defendant has unlawfully withdrawn a sum of Rs.2,860/- on 05.08.1982 from the Big Kancheepuram Co-operative Town Bank and later remitted the same to the bank after 11 days likewise, the amount of Rs.9,000/- was taken from the S.B.Account and after 17 days deposited in the F.D Account. The 2nd Respondent/1st Defendant wantonly evaded handing over the aforesaid sum of Rs.9,000/- admittedly in possession of the 1st Defendant on 29.11.1982 when the Court receiver Janab.M.A.Samee took charge of the Plaintiff's Mosque also the 1st Defendant showed a cash balance of Rs.4.91 paise on 25.12.1982 but the said cash was not available D1 to D9 have caused destruction of minute book. The minute book is one evidencing the conduct of the predecessor Muthavalli. The minute book is an essential because it will contain the resolutions passed by the committee, clothe any Muthavalli with the right of collection and disbursement of Mosque fund. The Defendants 1 to 9 have caused destruction of the minute book for the year 1982 further, a sum of Rs.1,700/- has been received by the 1st Defendant as per voucher No.847 (as per Audit report page 8) and this sum has not been brought to the Plaintiff's Mosque. 17. Though the cash bill No.3295 dated 14.07.1982 for the purchase of Tube Light fitting is found, the verification of the stock Account belies the same and the Mosque in this regard has sustained a wrongful loss of Rs.85/- at the instance of D1 to D9. The Plaintiff while handing over the charge of the affairs of the Plaintiff's Mosque as predecessor Muthavalli on 30.06.1982 to the 2nd Respondent/1st Defendant has handed over the following articles. 1. Letter Pad - 1 Value Rs. 5-00 2. Wall Clock - 1 " Rs. 400-00 3. Nagara Drum - 1 " Rs. 100-00 4. Gulloro Remover - 1 " Rs. 15-00 5. Wooden Beem - - " Rs. 300-00 6. Iron Pipe 4"DIax 45'X1. - - " Rs. 450-00 ------------- Total Rs. 1270-00 ------------- But the Defendants 1 to 9 secreted and withheld them to gain wrongfully and failed to return the same or its value to the 11th Defendant (Court Receiver). 18. Further in the plaint, the 1st Respondent/Plaintiff has averred that the 2nd Respondent/1st Defendant without prior sanction from the 10th Defendant/Wakf Board wrongfully gained a sum of Rs.250/- for the period from 30.06.1982 to 28.11.1982 as honorarium at the rate of Rs.50/- per month and as a matter of fact, the 1st Defendant has no right of honorarium and as no sanction of the Wakf Board. The 2nd Respondent/1st Defendant has shown the account for two contribution to the 10th Defendant Board for Rs.1,064-10 on 19.07.1982 and another for Rs.615-00 on 19.09.1982 but no receipts have been obtained from the 10th Defendant and it is a case of misappropriation of the Plaintiff's Mosque funds by the 1st Defendant. There is an https://hcservices.ecourts.gov.in/hcservices/ unauthorised expenditure for the maintenance of Mosque to a tune of Rs.2232.50 (as per page 12 of the Audit report). 19. The Learned Counsel for the 1st Respondent/Plaintiff's Mosque contends that as against the Defendants 1 to 9, a criminal complaint has been lodged in respect of the offences under Section 34, 120, 161, 166, 206, 379, 403, 406, 409, 420, 426, 471 and 477A of the Indian Penal Code and the same is pending before the District Superintendent of Police, Chengalpat West, Kancheepuram. Thus, the Defendants 1 to 9 by the commissions and omissions have been caused a wrongful loss to an extent of 9745.06 paise to the Plaintiff's Mosque and they are bound to reimburse the loss to an extent of Rs.9,745.06 paise by way of damages. The 10th and 11th Defendants have been added as parties to suit for complete adjudication though, no relief is claimed against them. The 1st Defendant in his written statement has stated that the suit is barred against him as per Section 65 of the Wakf Act, 1995, prohibits filing of suits against him who is appointed as per the provisions of the Act. 20. A perusal of the written statement of the 1st Defendant shows that he has denied the allegations of the plaintiff's Mosque made in the plaint. According to the 1st Defendant, he has not committed any misdeeds as mentioned in the plaint. Significantly, the 1st Defendant has taken a stand in the written statement that a sum of Rs.9,000/- has been transferred from Savings Bank account to the Fixed Deposit Account in the same bank which is more beneficial to the Mosque and that FD receipts have been handed over to the 11th Defendant (Court Receiver) also a sum of Rs.1,700/- need not be brought into regular accounts of the Mosque but it is a separate account which has been handed over to the receiver with all vouchers indeed, when the plaintiff Muthavalli has not brought Pre-Ramzan expenses into regular account. In regard to the averment that Tube Light has not found a place in the stock account it does not mean that no Tube Light has been purchased and it might have been omitted in the stock account. 21. The 1st Defendant also pleads that the Letter Pad has been used and that the Wall Clock is sent for repairing and the 11th Defendant (Court receiver) has been duly informed about it and the clock is now in Mosque premises. In regard to the nagara drum, the same has been removed by the plaintiff and his partisans unlawfully and that the 1st Defendant has lodged the police complaint to Siva Kanchi Police as regards the Gullor remover, wooden beams and iron pipes, it is the contention of the 1st Defendant that they have been handed over to one Radhakrishnan who is a lessee of the lands of the Mosque for raising the motor pump from the well belonging to the Mosque and cultivated by the lessee Radhakrishnan. Therefore, the 1st Respondent is not liable for the value of the alleged articles. 22. Added further, the 2nd Respondent/1st Defendant takes a plea that the allegation that he has obtained a sum of Rs.50/- per month without sanction of the Wakf Board is not true and in fact this sum was included in the budget of the Mosque and has been approved by the Wakf Board and this is the lawful payment to him etc. https://hcservices.ecourts.gov.in/hcservices/ 23. In short, the case of the 2nd Respondent/1st Defendant is that he has not caused any wrongful loss to the Mosque and he is not liable to pay any amount as claimed in the plaint. 24. In the written statement of 2nd Defendant adopted by D3 to D9, it is mentioned that all the acts have been done by the 2nd Respondent/1st Defendant faithfully during the course of his official business and that the plaintiff has assaulted one Nasimudhin and also other members in the Mosque premises and they have filed a criminal police complaint which has been registered as C.C.No.306/82 and the case is pending. 25. The plea of the Defendants is that they are not liable to pay any amount as damages. The appellant/10th Defendant in his written statement has taken a plea that no statutory notice as per the provisions of the Wakf Act has been issued to it and that the suit is unsustainable in law etc. 26. At this juncture, this Court pertinently points out the decision in Maulvi Reza Ansari and others Vs. Shyamlal Sah and others, AIR 1983 PATNA 299, (DB), wherein, it is held as follows: The Wakf At, 1954 came into force in the State of Bihar with effect from 12.04.1973. Prior to this the Bihar Wakf Act, 1947 was in operation which stood repealed when the Central Act came into force. A mutawalli is merely a manager of the Wakf and is directly under the control and superintendence of the Board and may even be removed from his office in accordance with S.43. He has to carry out the directions of the Board and to perform other duties as specified in S.36. There is nothing in the Act which empowers a mutawalli to institute and defend suit and proceedings in a court of law relating to Wakfs on his own. This power is vested in the Board which is a corporate body which must sue and be sued in its own name. Execution proceedings of a decree passed in a suit for possession of Wakf property. After the Wakf Act came into force in the Staate of Bihar cannot be instituted by the Mutaawalli of the Wakf property. The execution case could have been filed only in the name of the Board and by the Board. It may be that the mutawalli was elected as mutawalli and was recognised as such by the Board but that would not empower him to institute any suit or proceeding in his own name in view of the specific provisions in the Act giving this power only to the Board. Further, it cannot be said that S.15 (2) (i) which vests the power to institute and defend suits and proceedings in a court of law relating to Wakf in the Board is an unreasonable restriction on the right of a mutawalli as it purports to take away his rights under the Mohammedan Law. A mutawalli has no personal right in the Wakf property except to manage and administer the Wakf property. He is merely a manager. There is no https://hcservices.ecourts.gov.in/hcservices/ question of taking away any of the rights of a mutawalli under the Mohammedan law by vesting the right of instituting and defending any suit or proceeding in the Board. In any case by doing so it is only inended to administer and manage the trust properties in a better manner. Also, in the aforesaid decision at page No.302, in paragraph No.13, it is laid down as follows: Having considered the facts and circumstances of this case and various submissions advanced by the learned counsel I am of the opinion that it is the Board alone which can institute and defend suits and proceedings in a court of law relating to Wakfs after Wakf Act, 1954, came into force and no eh mutawalli. The execution proceeding instituted by the mutawalli has been rightly held to be not maintainable. 27. It is to be noted that as per Section 32(2)(i) of the Wakf Act, 1995, the power to institute and defend suits and proceedings pertaining to Wakf lies with the board and therefore the present suit filed before the trial Court by the Muthavalli representing the 1st Respondent/Plaintiff's Mosque is not maintainable in the eye of law. 28. In regard to the plea of the Appellant/10th Defendant that issuance of notice to the Appellant/Wakf Board is a condition precedent to the filing of the suit, this Court points out that new Section 89 (old Section 56) of the Wakf Act, 1995, has not undergone any change and the notice under Section 56 (new Section 89) is analogous to Section 80 of the Civil Procedure Code and it prohibits the filing of any suit against the Wakf Board in respect any Act purporting to be done by it in pursuance of the Act or the rules framed thereunder unless, the proper notice is served on the Wakf Board before filing of the suit. Defect of want of notice goes to the root of the matter and it cannot be viewed likely. 29. In the instant case, though as against the Appellant/10th Defendant no relief is claimed as per the averment made in the plaint yet, it is a necessary party to the suit as opined by this Court. Eventhough as against the Appellant/10th Defendant no relief is