B.K. Mukherjea, J.
1. The petitioners in these rules are three persons to wit Gouri Sankar Sukul, Goonganarayan Sukul and Joynarayan Sukul who are the proprietors of a certain estate in the district of Tippera, under which there was a sikmi taluk governed by Regulation 8 of 1819. In 1918 the petitioners brought a rent suit in the Court of the third Subordinate Judge at Comilla against the then patnidars for recovery of arrears of rent due in respect of the sikmi taluk and in execution of the decree which they obtained in that suit, the tenure was put up to sale and was purchased by opposite parties 2 and 3. The purchasers took delivery of possession of the tenure after their purchase and continued to be in possession since then paying rents to the petitioners. In 1935, the petitioners filed a rent suit against opposite parties 2 and 3 in the Court of the first Munsif at Chandpur for recovery of rent of the tenure for the years 1338 to 1341 B.S. and obtained a decree. In execution of this decree, the tenure was sold and purchased by the petitioners themselves on nth January 1937. Delivery of possession was taken on 15th July following. On 16th December 1940 the Commissioner of Wakfs who is opposite party 1 in these rules filed an application before the Munsif, first Court, Chandpur, under Section 70(5), Bengal Wakf Act, for a declaration that the sale was void by reason of the fact that the property was wakf property, and no notice was served on the Com. missioner as laid down in Section 70(2) of the Act. The Munsif granted the application and set aside the sale. Against this order the petitioners took an appeal to the Court of the District Judge of Tippera. The Subordinate Judge who heard the appeal dismissed it as incompetent being of opinion that the order complained of did not come within Section 47, Civil P.C. Against this order of the dismissal of appeal by the Subordinate Judge, Comilla, Rule No. 1395 of 1941 was obtained from this Court, while the other rule namely Rule No. 1396 of 1941 is directed against the original order of the Munsif setting aside the sale under Section 70(5), Bengal Wakf Act.
2. So far as Civil Rule No. 1395 of 1941 is concerned, it is conceded on behalf of the petitioners that the order of the Munsif could not have been challenged by way of an appeal. That being the position, the Subordinate Judge was right in dismissing the appeal as incompetent. This rule, accordingly, fails and is discharged. No order as to costs. Coming now to civil Rule No. 1396 of 1941 the point for our determination is whether the sale in this case could be declared void on the application of the Commissioner of Wakfs under Section 70(5), Bengal Wakf Act, To determine this point it is necessary to look closely to the provisions of Section 70, Bengal. Wakf Act. That section runs as follows:
70.(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 by 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 Government 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.
3. It is not disputed that in the present case no notice was given under Sub-section (2) of Section 70 of the Wakf Act and the Commissioner did apply for avoiding the sale within one month from the date of his knowledge of the sale. The controversy, therefore, centres round the point as to whether a notice under Sub-section (2) of Section 70 was necessary in this case. Dr. Basak appearing on behalf of the petitioners argues that a notice under Sub-section (2) of Section 70 was not necessary in this case as at the time when the sale was notified the wakf was not enrolled at the office of the Commissioner of Wakfs under Section 44, Bengal Wakf Act. His contention is that the Commissioner of Wakfs has no powers to exercise or duties to perform unless a wakf is enrolled in his office and consequently a notice to him prior to the date of enrolment is not contemplated by the Legislature. We are not at all impressed by this argument. 'Wakf' is defined in Section 6, Clause 10, Bengal Wakf Act, meaning the permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a wakf by user.
4. Thus enrolment under the Act is not a condition precedent to the existence of a valid wakf and if the intention of the Legislature had been that notice under Sub-section (2) would be necessary only after the wakf is enrolled, it would have said so in clear terms. But though we do not agree with the contention of Dr. Basak we have to consider the larger question which frequently arises for determination in such cases namely whether the Court was bound to issue a notice on the Wakf Commissioner under Section 70(2), Bengal Wakf Act, when the sale was not in execution of a decree against the wakf estate or the mutwalli as such and the property was not put up to sale as wakf property at all. Mr. Abdul Quasem (II) who appears on behalf of the opposite party has argued before us that notice under Section 70(2), Bengal Wakf Act, is mandatory when a property which is notified for sale is a wakf property in fact, although it might not be admitted to be or described as a wakf property in the suit or proceeding and although there might be nothing in the record to bring the existence of the wakf to the notice of the Court. His contention is that even if the property is sold as a private secular property and the decree was not against the wakf or mutwalli as such, the 'sale would nevertheless be declared void if there was no notice served under Section 70 (2) and the Commissioner comes into Court within one month from the date of his knowledge of the sale. Mr. Quasem says that if in a proceeding under Sub-section (5) of Section 70, Bengal Wakf Act, an auction purchaser disputes the existence or validity of the wakf, that question has got to be decided by the Court itself and the mere fact that the wakf has been already enrolled is not conclusive on the point. He winds up by saying that the whole object of the Legislature was to protect wakf property from being alienated and destroyed fraudulently and what Sub-section (5) of Section 70 contemplates is that the sale and not the decree shall be set aside so that it will be open to the Commissioner to pay the decretal dues and save the wakf property from being sold. We will consider the argument of Mr. Quasem in all its branches.
5. We agree entirely with the learned advocate that the object of the Bengal Wakf Act is to protect the wakf properties not only against strangers but against unscrupulous mutwallis also, who often treat them as their private secular properties. The intention of the Legislature in enacting Sub-section (2) of Section 70 is certainly to enable the Commissioner of Wakfs to intervene when a wakf property is going to be sold and lost to the wakf in execution of a civil Court's decree. Now, two different sets of circumstances can be conceived of, under which a wakf property can be put up to sale in execution of a decree of a civil Court. In the first place, the decree itself may be against the wakf estate or the mutawalli as such and the property might be sold as wakf property. In such cases, the property itself will vest in the purchaser free and clear of the wakf and it will be lost to the wakf estate for ever. In the other class of cases, the decree is not against the wakf or the mutwalli as such. It is a personal decree against a certain person who is not sued as representing the wakf estate and in execution of such decree the property is sold as the property of the judgment, debtor although it really belongs to the wakf. In such cases the purchaser does not acquire any title to the property against the wakf as the judgment-debtor personally had no interest in the same. In our opinion, it is in the class of cases coming under the first category that notice under Sub-section (2) of Section 70, Bengal Wakf Act, is contemplated and it is to this class of cases that the arguments put forward by Mr. Quasem are appropriate. If the decree was not against the mutwalli or the wakf estate as such, there would be no duty on the part of the Commissioner to pay the decretal dues and there could be no meaning in keeping alive the decree and avoiding the sale as is suggested by Mr. Quasem. When the decree is not against the mutwalli and the property is not sold as wakf property, the remedy of the Commissioner is, we think, provided for in Section 72, Bengal Wakf Act. As the purchaser does not acquire any title to the property in such cases as against the wakf, it is open to the mutwalli to institute a suit to recover such property from the purchaser and, if the mutwalli neglects or refuses to do so, the Commissioner himself may file a suit as is provided for in Section 72. When, however, the property is sold as wakf property in execution of a decree against the wakf estate or the mutwalli as such, the sale is binding on the wakf. It is conceded that in such cases, the Commissioner of Wakfg cannot institute a suit against the purchaser and recover the property for the wakf. In our opinion, it was to provide a remedy in such cases that the Legislature enacted in Section 70(2), Bengal Wakf Act, that a notice should be given to the Commissioner of Wakfa before the property is actually sold so that he might intervene and avoid the sale. That this was the intention of the Legislature would be clear from the following considerations : Under Sub-section (1) of Section 70 as set out above, a notice is to be given to the Commissioner in all suits or proceedings in respect of any wakf property or the mutwalli as such. The words 'as such' really indicate the intention of the Legislature. It is true that these words are not repeated in Sub-section (2) but the implication is the same. The sale contemplated by sub-3. (2) takes place in course of an execution proceeding and the word 'proceeding' in Sub-section (1) is wide enough to include a proceeding in execution as well.
6. The Commissioner might not be inclined to interfere when he is apprised of the institution of the suit or proceeding but the law gives him another opportunity before the sale is actually held and he can come in and avoid the sale if he so desires. As we have said already there could be no meaning in I the Commissioner's paying the money and avoiding the sale if the sale was not in execution of a decree which was binding on the wakf estate. If notice under Sub-section (2) of Section 70 is necessary even when the property is sold not as wakf property, it would put a burden upon the Court which it would be impossible for the Court to discharge. There may be nothing on the record to show that the property was wakf property and the question might not be raised or agitated at all. The Court cannot possibly discharge its duty unless it is apprised of the fact that the property was wakf. So far as we know, no list of existing wakfs is supplied to any Court of law and if the contention of the opposite party is to prevail, the Court will be bound to issue notice to the Commissioner of Wakfs in all cases where any immovable property is notified for sale. The difficulty will be still greater in cases coming under Sub-section (3) of Section 70 when any property is sold by the Collector or Revenue Officer for realisation of revenue or cess payable in respect of it. Unless the property is described as wakf property in the Collectorate records, it would be absurd to suggest that the Collector should issue a notice as contemplated by Sub-section (3) of Section 70. Above all, the existence or the validity of the wakf might be disputed and how is this dispute to be settled? Suppose that a property is sold as a secular property without any notice being given under Sub-section (2) of Section 70 and the Commissioner of Wakfs applies for declaring the sale to be void under Sub-section (5) of the section within the time specified therein; if the purchaser disputes the existence or the validity of the wakf what is the Court to do under these circumstances? Mr. Quasem suggests that the Court must hold an investigation into the matter and should come to a judicial finding as to whether the contention of the purchaser is right or not. In our opinion the Legislature never intended that an enquiry of this character should be held in a proceeding under Sub-section (5) of Section 70, Bengal Wakf Act.
7. The language of Sub-section (5) of Section 70 clearly indicates that the enquiry is of a summary character. It proceeds on the assumption that the property is wakf and that matter has not to be proved or investigated at all. The Judge has to proceed on the assumption that the property is wakf and the inquiry is limited to two things only namely as to whether the notice under Sub-section (2) of Section 70 was actually given and secondly, whether the Commissioner has come within one month from the date of his knowledge of the sale. This view is strengthened by the fact that not only a civil Court but a revenue authority also is entitled to set aside a sale under Sub-section (5) of Section 70, Bengal Wakf Act, and it will be totally unreasonable to think that the Legislature left the judicial determination of the existence or the validity of the wakf to the Revenue Officers. It could not have been the intention of the Legislature that even when the matter was before the civil Court the finding of the Court in a summary proceeding of this character would be conclusive as against the Commissioner of Wakfs as admittedly there is no right of appeal against the order of the Court. In our opinion, such a view would be disastrous so far as the interests of the wakf are concerned and we are unable to hold that such was the intention of the Legislature. For all these reasons our conclusion is that a notice under Sub-section (2) of Section 70 is necessary when the property is sold as wakf property and not when it is sold as the private property of the judgment-debtor who is not sued as a mutwalli or a representative of the wakf estate. If the contention of the Commissioner of Wakfs is well-founded, there 'is no duty on his part to pay off the decretal dues and it is clearly his duty to institute a suit against the purchaser for recovery of the property under Section 72, Bengal Wakf Act, if the mutwalli fails or refuses to do so. The result therefore is that this rule is made absolute and the order of the Munsif is set aside. We make no order as to costs.
8. I agree.