P.B. Mukharji, J.
1. This is an application under Section 115 of the Code of Civil Procedure on behalf of the Commissioner of Wakf, West Bengal. It raises an interesting question.
2. A brief account of the facts will set out in good relief the points to be decided in this application. A title suit was filed in the third court of the Munsif, Howrah being title suit No. 21 of 1956 by Aysha Bibi who is the first opposite party in this application. That suit was instituted on or about the 14th day of February, 1956. The prayers in that suit were for a declaration that the Wakf deed executed by Haji Abdul Karim on the 30th March, 1917 was illegal, invalid, inoperative and void and not binding on the plaintiff. There was an incidental prayer for injunction. There were four defendants in that suit. The first three were(1) Mamud Ali who is the plaintiff's husband's brother's son, (2) Abdul Rashid who was the younger son of the plaintiffs husband's brother, (3) the third one is Daud Ali who is the plaintiff's son. (4) The fourth and the last defendant was the Commissioner of Wakf.
3. During the career of the suit and when it was about to be heard a compromise petition bearing the date 15th May, 1958 between the first three defendants and the plaintiff was filed in court. The record does not show that any copy of this compromise petition was served on the defendant Commissioner of Wakf. No doubt on the date when the compromise petition was filed by these three defendants and the plaintiff, the Commissioner of Wakf was a party defendant to the suit. The Commissioner of Wakf is not a party to the compromise petition at all. The compromise petition tries to secularise the whole of this Wakf estate.
4. Then on the 22nd May, 1958 two events occurred in the course of the suit. Order No. 35 on the 22nd May, 1958 was passed by the learned Munsif expunging the name of the Commissioner of Wakf as a defendant in the suit, on the application of the plaintiff. After that order was passed another order being order No. 36 was passed on the same 22nd May, 1958 decreeing the suit in terms of the compromise petition. The result of that decree is that there is a decree declaring the Wakf to be invalid and secularising the wakf property on a compromise between the plaintiff and her son, the third defendant and her husband's brother's two sons as the other two defendants. By a private arrangement a fifty year old religious wakf was thus by a stroke extinguished.
5. It is necessary to state here that on the record there is the written statement of the defendant Commissioner of Wakf. That written statement of the Commissioner took a number of objections to the suit. It pleaded non-joinder of parties including other descendants of the wakf, other beneficiaries of the Wakf as well as the members of the Muslim public. It also pleaded that the Wak if Haji Abdul Karim made a permanent dedication of his property and executed a registered deed of Wakf on the 30th of March, 1957. The Commissioner pleaded in the written statement that it was agood valid wakf and under the provisions of the Bengal Wakf Act this wakf was classified as Wakf-al-al-aulad. It was also pleaded as a defence to the suit by the Commissioner of Wakf that the wakf had been acted upon for over forty years. The Wakif's wife, daughter and after his death his descendants and widow treated the property as Wakf and observed the terms of the wakfnama. In fact, on the 25th January, 1956 his two sons Mohd. Idris and Abdul Hamid actually enrolled this very wakf in the office of the Commissioner of Wakf and the Commissioner of Wakf had been supervising and controlling the administration in exercise of the powers conferred upon him by the Bengal Wakf Act, 1934. It is expressly - pleaded in the written statement of the Commissioner of Wakf that Mohammad Idris, Abdul Hamid, the husband of the plaintiff Sheikh Mamud Ali, Abdul Rashid, sons of Mohammad Idris and Daud Ali, son of theplaintiff herself--all became Mutwallis under the very trust and acted as Mutawallis and treated the property as wakf property and accepted the wakf deed as legally binding and operative on them. In fact, these Mutwallis paid this wakf board contribution payable by them, and mutations of the names of different Mutwallis were made from time to time under the Bengal Wakf Act as proved by Exhibit 'B' dated the 16th January 1939, Exhibit B(3) dated 5th March 1954 and Exhibit B(4) dated the 5th March 1954. In fact, there is a further exhibit marked Ext. B(5) dated 13th January 1957 by Abdul Hamid and Mamud Ali who is the first defendant for a sanction under Section 54 of the Wakf Act for sale of some of the wakf properties in the Hindu locality and for re-investment of the some in some other suitable place. It shows the treatment by defendant Mamud Ali that the wakf was a valid wakf although he now signed a compromise petition of the plaintiff to secularise the property.
6. Now when the suit was decreed on the 22nd May 1958 on the basis of the compromise petition between the plaintiff and the three defendants keeping the defendant Commissioner out of the suit by striking his name from the list of the defendants, the Commissioner apparently did not realise what had happened. In paragraph 4 of the petition before this court the Commissioner of Wakf has challenged this compromise to be collusive, fraudulent and destructive of the wakf. What the present petitioner Commissioner did was to make an application under Section 70(4) of the Bengal Wakf Act to the Munsif's court for declaring the decree bad on the ground that he had no notice under Section 70(1) of the Act. In paragraph 5 of the petition of the Commissioner before the learned Munsif the Commissioner staled that since his name was struck off from the category of the defendants the suit came within the purview and mischief of Section 70(1) of the Act and the Commissioner of Wakf was entitled in a notice to be issued by the court before it could dispose of the suit by a decree in his absence and in the absence of such notice the decree is bad and void. It was also pleaded that the Commissioner was not a party defendant in the suit at the exact point or time when this compromise decree was made.
7. The learned Munsif by his order dated 30th April, 1960 allowed this application of the Commissioner of Wakf and declared the decree passed in title suit No. 21 of 1956 void under Section 70(4) of the Bengal Wakf Act. On appeal the learned Subordinate Judge, however, allowed the appeal and set aside the judgment of the learned Munsif. It is against the order of the learned Subordinate Judge that this Rule is directed. By the order of the learned Subordinate Judge the result is that this about half a century old Wakf is secularised by a private compromise between the interested persons in spite of the fact that there was on record the written statement of the Commissioner while he was a party that this was a valid trust and had been acted upon by the other defendants to which the plaintiff himself was a privy treating the Wakf as good and valid.
8. It will now be appropriate on this background 'of facts to formulate the point for decision in this case. The point is: Is a notice under Section 70(1) of the Bengal Wakf Act necessary to avoid the decree made in the circumstances set out above? The decision of this point depends on the interpretation of Section70 of the Act, especially Sub-sections (1) and (4) thereof and appreciation of some of the observations made in two decided cases of this Court.
9. Leaving out the irrelevant portion for the purpose of this application the material words of Section70(1) of the Bengal Wakf Act are as follows:
'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 Mutwali the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding.'
10. Then Sub-section (4) of the Section70 proceeds to lay down as follows:
'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.'
11. The compromise decree in this case is dated 22nd May 1958. The Commissioner made this application under Section70(4) of the Act on the 20th June, 1958 which was within the month mentioned in Section70(4) of the Act.
12. The learned Subordinate Judge apparently look the view that Section70(1) of the Act does not apply to the case where the Commissioner of Wakf is himself a party defendant. I am inclined to accept that view. I am of the opinion that where the Commissioner of Wakf is himself a party defendant, in a suit in respect of a Wakf property, notice under Section 70(1) to the Commissioner need not be given, for the simple reason that being himself a party defendant the notice of the suit is given to him through the summons that is served on him notifying the filing of the suit and the contents of the plaint. Notice under Section 70(1) of the Bengal Wakf Act ensures that a suit or a proceeding in respect of any Wakf property must be with notice and knowledge of the Commissioner. The idea is clear. The Commissioner is a guardian of the Wakfs in this state, Once that view is taken the consequence stated in Sub-section (4) of the Section is clear. Any decree or order which is made without such notice as contemplated under Section 70(1) of the Act shall be declared void by the court. The court has no other option.
13. The controversial question arises when this principle is applied to the facts of this case. No doubt the defendant petitioner Commissioner was a party defendant to the suit at a certain stage; yet the fact is that he was struck off from the category of defendants and he ceased to be a party defendant to the suit, He therefore ceased to be a party to the suit at the crucial stage when the compromise decree was made. In other words he was not a party when the decree was made on the basis or the compromise filed between the remaining parties viz., the plaintiff and three defendants. The learned Subordinate Judge in dealing with this point has said that although the Commissioner was struck off as a party defendant, he nevertheless was aware that a suit was pending in the court and therefore, no notice under Section70(1) of the Act was necessary. It is further said by the learned Subordinate Judge that no objection was raised on behalf of the Commissioner to the order striking his name off as a party defendant in the suit. It is, therefore, argued by Mr. Chakravorty, learned advocate for the opposite parties that if the Commissioner has consented to his name being struck off as a party defendant it is not for him to object now to the consent decree made as between the remaining parties on a compromise. It is necessary at this stage to meet this argument and analyse actually the legal position under the Act.
14. On an interpretation of the whole of Section 70 of the Bengal Wakf Act and its five different sub-sections it is plain that the notice to the Commissioner of Wakf is mandatory in the cases mentioned in the different sub-sections of Section 70. Section 71 of the Act provides for the cases when the Commissioner may be made a party to a suit or proceeding regarding a Wakf on his own application. The language used in Section 71 of the Act is that the Commissioner in the cases mentioned there may intervene and shall on the application be added as a party and shall be entitled to conduct or defend such suit or proceeding on behalf of and in the interest of the wakf. It has been argued by Mr. Chakravarty for the opposite parties that even after the name of the Commissioner was struck out from the cause title of the defendants he could have claimed his right of intervention. That seems to me to be an unsound argument having regard to the language of Section 71. This right to intervention appears along with the right to make the application to be added as a party. Having himself agreed not to be continued as a party defendant, it would be insensible for the Commissioner in such circumstances to have applied under Section71 of the Act to intervene and make an application to be added as a party. That will be clearly illogical.
15. At the same time there is a good deal of force in what the petitioner Commissioner says. By virtue of Section 46A of the Bengal Wakf Act. it is expressly provided that any question whether a particular property is Wakf property or not or whether a wakf is wakf-al-al-aulad or not shall be decided by the Commissioner whose decision, unless revoked or modified by a competent Court, shall be final, and any decision or any such question made before or after the commencement of the Bengal Wakf (Amendment) Act, 1935 shall be deemed to have been made by the Commissioner under the section. According to the Commissioner of Wakf, he has already decided that this was a wakf-al-al-aulad and has enrolled the same in the register. The facts, therefore, support the Commissioner's attitude in this matter because these facts show that really a trick was played upon the Commissioner. At first he was excluded from thesuit by striking his name as party defendant and then a compromise was filed secularising the wakf property. Obviously that inference is irresistible. If the Commissioner himself remained a party he could not have supported the compromise to secularise this ancient wakf particularly after his written statement had been filed saying that it was valid and treating it as wakf for such a length of time. The only reason why the Commissioner was excluded at the fag end of the case was to keep him out in order to enable the remaining parties viz., the plaintiff and the three defendants to make a private arrangement to secularise this property. On the facts, therefore, there can be no doubt that the sympathies are and should be with the Commissioner of Wakf. But mere sympathies will not create new law and it is, therefore, necessary to examine the legal position.
16. Now reverting back to the question of law and to the interpretation it will be appropriate to begin the discussion by a reference to some decisions of this Court. A Division Bench of this Court in the case of Benoy Kumar Acharjee v. Ahammad Ali : AIR1942Cal467 observed on an interpretation of Section70 of the Wakf Act that the Bench was not impressed by the argument that Section70 of the Wakf Act applied only where the suit was in respect of a property which was admittedly wakf and that no notice was necessary if the defendant contended that the property was not wakf. Sen, J. who delivered the judgment of the Division Bench observed at p. 340 (of Cal WN): (at p. 467 (1) of AIR) as follows:
'The Commissioner of Wakfs is an Officer appointed to protect wakf-properties. The intention of the Section is to enable the Commissioner to carry out this function in suits. If in a suit a claim is made that certain property is wakf the Commissioner of Wakfs as protector of all wakfs is obviously interested to see that the suit is properly conducted so that no wakf estate is destroyed or adversely affected. Section 70 enables him to do this. To limit the extent of Section 70 in the manner suggested on behalf of the appellants would be to stultify the very object of the section. We are of opinion that a notice under Section70 is necessary even if the claim that the property is wakf is contested'.
17. Another Division Bench of this Court in the case of the Commr. of Wakfs, Bengal v. Shahebzada Mohammed Zahangir Shah : AIR1944Cal206 holds that an enrolment of a wakf under Section 29 of the Act may imply a decision that the property is wakf and an order of enrolment. It holds that 'no suit lies for setting aside the order but the decision is liable to be revoked or modified by the Civil Court. It may be recalled here on the facts that one of the prayers in the suit in the plaint is a declaration that the enrolment in the wakf office is wrongly done. This Division Bench says that such a suit is not permissible, and Pal, J. who delivered the judgment of the Division Bench observed at p. 162 (of Cal WN): (at p. 210 of AIR) of that report us follows:
'It should not be a suit against the Commissioner at all in his capacity as the Officer givingthe decision. But even in such a suit the Commissioner may be entitled to a notice under Section 70 of the Act and may intervene under Section 71 of the Act. When he comes in as intervener, the suit does not become a suit against him in respect of any act purporting to be done by him in his official capacity. As has been pointed out above, prayer No. 2(a) in the present case was 'for a declaration that the decision of the Commissioner of Wakfs, Bengal, that the property in suit is wakf is illegal, wrong and ultra vires. Even for this relief the Commissioner as the deciding officer was not a necessary party. Rather it would be improper to add him as a parry defendant in his capacity of the officer giving the decision. But. at the same time, he as Commissioner of Wakfs was entitled to a notice of the suit under Section 70 of the Act and was entitled to intervene under Section 71 of the Act. In this case the procedure adopted in adding him as a party defendant was irregular. But as the Commissioner contested the claim on its merits, we do not see why we should not treat him as an intervener under Section 71 of the Act. The irregularity in the procedure adopted has not in the least affected the merits of the case or the jurisdiction of the court'.
18. Now these observations are material. In the first place there are materials to show that making the Commissioner a party defendant was irregular in this present case. Therefore, it was quite right to strike him off as a defendant but then to hold in the same breath that although there was irregularity and although his name had been struck off, the statutory notice under Section 70(1) of the Bengal Wakf Act should or could not be given, when the most fateful step of passing the decree here on such a compromise petition secularising the wakf property is made appears to me to be not only illogical but against the statute. Once the Commissioner is struck off from the cause title as a party defendant, legally and in technical theory, he is no longer a party to the suit. Then it becomes a question of interpretation whether under Section 70(1) of the Act as quoted above he should be given a notice. I shall clear the ground with an illustration. Suppose in a case the Commissioner had independently and privately come to know of a suit in respect of a wakf property within the meaning of Section 70(1) of the Act, can it be said that his independent and private knowledge, will exonerate the court from its obligation to give notice to the Commissioner? I do not think so. Even then the mandatory duty cast upon the Court to issue a notice to the Commissioner must in my view, be discharged and fulfilled by the Court. In this case, applying that analogy it is quite true that the Commissioner had knowledge of a suit in respect of the wakf property while he was a party to the suit but that does not mean that the Commissioner had knowledge of a notice required by statute under Section 70 (1) of the Act, even after he had been struck off from the list of defendants. On the facts I do not see that the Commissioner knew anything about the compromise petition and specially the terms thereof. I have already emphasised the fact that records do not show that even acopy of this compromise petition was served on the Commissioner of Wakf. Nor can it be said that the Commissioner could assume that in spite of his own written statement being on the record the court could proceed to pass a consent decree on that compromise without giving notice to the Commissioner whose entire written statement is an eloquent objection to any decree being passed on such a compromise.
19. It is noteworthy that Section 70 (1) of the Act does not specify when the notice is to be given. Normally when the suit is instituted' it will be an appropriate time to give such notice to the Commissioner but then no specific time is fixed. All that it says is that such notice shall issue at the cost of the party instituting the suit or proceeding. On an interpretation I hold that no notice is necessary under Section 70(1) of the Act so long as the defendant Commissioner remains a party to the suit. Notice becomes essential when he ceases to be a party for any step taken by the Court subsequent to his ceasing 'to be a party. That notice is a statutory mandate upon the court. The language of Section 70(1) of the Act is imperative and it says 'the court shall issue notice to the Commissioner' i.e. the statutory obligation of the court and the Court cannot be exonerated from that obligation on the facts of this case specially because the record of the order sheet does not state that when the decree on compromise was passed on the 22nd May, 1958 by the Court it was so done in the presence of the Commissioner defendant or his lawyer.
20. This fact is important because of some of the observations made by the learned Subordinate Judge. It is stated that the compromise petition was filed on the 15th May, 1958 but it is to be noted that the copy of the compromise petition was not served on the defendant Commissioner. It is further stated that the suit thereafter proceeded to trial between the plaintiff and the Commissioner of Wakf and both the parties adduced documentary evidence which are marked exhibits and the parties file3 a joint petition praying for a date for argument because neither the plaintiff nor the Commissioner wanted to adduce oral evidence. These facts, however, only go to show that even after the 15th May, 1958 when the compromise petition between the plaintiff and the three other defendants had been filed the Commissioner of Wakf wanted to contest the suit and they prove conclusively that the Commissioner of Wakf was not aware of the fact that such a compromise petition had been filed. Otherwise there was no need to go on contesting the suit and filing documents. The documents filed by the Commissioner of Wakf were in support of his written statement that the wakf has been treated as a wakf for more than forty years. In these facts and circumstances, it was improper and illegal for the Court to have proceeded to pass a consent decree to the compromise petition without giving notice to the Commissioner of Wakf. The knowledge of the Commissioner aliunde or independently is not enough to exonerate the court from its obligation to issue a notice under Section 70(1) of the Act. That will be a less excuse on the facts and circumstances of such acase where it is plain that the plaintiff and the three other defendants were very closely related and who have themselves for a long number of years accepted this wakf and where both the second and the third defendants in fact acted as Mutwallis of this very wakf as proved by Exhibit A in this record. The need for caution for the court was all the greater when in this private contest and after such a length of time and on the face of the written statement of the Commissioner, before it proceeded to pass a consent decree on the basis of such a compromise.
21. For the reasons stated above, I make the Rule absolute and set aside the order of the lower appellate court and restore the order of the learned Munsif. I declare that the decree challenged is void under Section 70(4) of the Bengal Wakf Act on the ground that this decree was passed without notice under Section 70(1) of the Act to the Commissioner.
22. There will be no order as to costs.