1. Plaintiff is the appellant. Suit is for declaration that the publication dated 6-5-1959 in the official Gazette in respect of the suit property declaring that it is a wakf property is illegal, ultra vires and void in so far as it is against the plaintiff and defendants 2 to 5 and for setting aside the same.
2. The plaint allegations are that the suit property belongs to the plaintiff and defendants 2 to 4, that the fifth defendant is the usufructuary mortgagee of the said property and that the suit property is not wakf property within the meaning of he Wakf Act but private property belonging to the plaintiff and defendants 2 to 4. The authorities, however, called upon the plaintiff to register the suit property as wakf property and the plaintiff was resisting the claim. While so, the plaintiff's case is that the suit property has been notified as wakf property and that the plaintiff was informed on 6-10-1960 of the publication in the Gazette dated 6-5-1959 of the suit property as wakf property. The plaintiff's further case is that no enquiry was made in determining the character of the suit property and that the enquiry, if any, was if at all done behind his back and that the publication is ultra vires of the Act.
3. The first defendant filed a written statement contending that the suit property is wakf property dedicated to the support of the burial ground, that the Assistant Commissioner of Wakfs after due enquiry furnished the report under Section 4(3) of the Wakf Act to the Government that the publication in the Gazette was made in consequence thereof and further that the suit is barred by limitation as it was filed beyond the period of one year provided under Section 6(1) of the Act.
4. Defendants 2 to 4 support the plaintiff, and the fifth defendant filed a separate written statement putting forward the same case as that of the plaintiff and further contending that his mortgage is supported by consideration and that he has been in possession of the property from the date of the usufructuary mortgage.
5. The trial court dismissed the suit holding that the suit property is wakf property and not private property, that the suit was barred having been filed beyond one year period provided and that the prescribed procedure has been followed in declaring the property as wakf property. The plaintiff filed A. S. 249 of 1963 on the file of the Subordinate Judge, Coimbatore and the learned Judge confirmed the decision of the trial court on all the points and dismissed the appeal. The plaintiff has filed the above second appeal.
6. The learned counsel for the appellant contends that the publication in the Gazette was made without making the requisite enquiry and without notice to him. There is considerable force in the contention of the learned counsel. The learned Subordinate Judge, in paragraph 7, observed that no witnesses were examined by the Assistant Commissioner of the Wakf Board. It is further seen that the particulars entered (in the?) publication in the Gazette are vague inasmuch as under Clause No. 1 the name of the Wakf alone is given as Pudupalayam Burial ground Wakf, without specifying its exact location. Under the head 'Name of the village' the entry is Manjakuppam; and in column No.3 it is shown 'pious religious and charitable for the support of the burial ground' Except that the place of the wakf is given as South Arcot District, there is no other indication to identify the property. There is an annexure to the notification and entry No. 11 of the annexure shows that no notice was served on the Mutavalli. The actual entry No. 11 in the annexure runs: 'the Mutavalli is absent at Pondicherry and his address is not known'. It is, therefore, clear that no attempt was made to serve the Mutavalli. I am therefore satisfied that the complaint of the appellant that he has not been served with notice of the enquiry prior to the making of the report has been made out.
7. In a similar situation Alagiriswami, J. In W. P. No. 1142 of 1966 (Mad) held (Syed Hussain v. State Wakf Board by Secretary):
' The publication in the Gazette is hardly a proper substitute for notice to the person affected. Not everybody is expected to look into the gazette every day at the risk of his losing his property rights. Publication in the gazette must be accompanied by notice to the persons affected. Otherwise there will be absence of the minimum requirements of natural justice before a person is deprived of his property rights.'
The said judgment was confirmed in appeal. Following the above decision. I allow the appeal and set aside the decrees of the courts below. It is open to the first defendant to take proper steps after issue of the requisite notice to the muthavalli and making an enquiry to notify the same as a wakf if in his opinion it is found to be wakf property. The Madras Wakf Board is impleaded as the first respondent in the Second appeal. It is unfortunate that no one has represented the Wakf Board. There will be no order as to costs. No leave.
8. Appeal allowed.