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Prince Syed Fateh Ali Mirza Vs. Sajjad HossaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal740,173Ind.Cas.921
AppellantPrince Syed Fateh Ali Mirza
RespondentSajjad HossaIn and ors.
Cases ReferredAmbalavana Pandara Sannidhi v. Advocate
Excerpt:
- .....to validate proceedings which are bad from the very start. it was also urged that although the wakf commissioner has been brought on the record under section 73, bengal wakf act of 1934, the suit was not instituted by the commissioner himself and therefore cannot stand.2. the same contentions have now been put forward before us in this appeal from the order made by the learned district judge on 26th august 1936. mr. bose has argued on behalf of the appellant that section 73, bengal wakf act, 1934, only contemplates the institution of suits by the commissioner of wakfs himself and not suits instituted with the assent of the commissioner. it is a little difficult to see how that argument can be put forward having regard to the express provisions of section 73(2) which says:no suit to.....
Judgment:

Costello, Ag. C.J.

1. This is an appeal from an order made by the District Judge of the 24-Parganas on 26th August 1936, whereby after having heard the parties 'at great length' he came to the conclusion that the appointment of an interim receiver should be maintained. The suit was originally brought by a lady named Sahebzadi Meherunessa Begum and certain other persons against Prince Syed Fateh Ali Mirza in his capacity as the mutawalli of a certain wakf properties. The suit in its nature was one which prior to the Bengal Wakf Act 1934 would certainly have come within the purview of the provisions of Section 92, Civil P.C., and so it could only have been brought either by the Advocate-General of Bengal himself or by persons who had obtained the consent of the Advocate-General for the institution of the suit. In the present instance the plaintiffs as it appears from an endorsement on the plaint obtained the consent to the institution of the suit of the Commissioner of Wakfs in accordance with the provisions of Section 73(2), Bengal Wakf Act of 1934. So that, to all intents and purposes, they were very much in the same position as if they had instituted the suit under Section 92, Civil P. C, with the consent of the Advocate-General of Bengal. The learned Judge in the course of the judgment which he delivered on 26th August 1936, says this:

On behalf of the defendant a preliminary objection was taken that no appointment of receiver could be made as the whole proceedings were invalid ab initio. It was urged that the suit is one framed under Section 92, Civil P.C. Section 92 requires the sanction of the Advocate-General. No such sanction has been obtained in the present suit and therefore the proceedings are bad ab initio and no subsequent permission can avail to validate proceedings which are bad from the very start. It was also urged that although the wakf Commissioner has been brought on the record under Section 73, Bengal Wakf Act of 1934, the suit was not instituted by the Commissioner himself and therefore cannot stand.

2. The same contentions have now been put forward before us in this appeal from the order made by the learned District Judge on 26th August 1936. Mr. Bose has argued on behalf of the appellant that Section 73, Bengal Wakf Act, 1934, only contemplates the institution of suits by the Commissioner of Wakfs himself and not suits instituted with the assent of the Commissioner. It is a little difficult to see how that argument can be put forward having regard to the express provisions of Section 73(2) which says:

No suit to obtain any of the reliefs referred to in Sub-section (1) relating to a wakf shall be instituted by any person or authority other than the Commissioner without the consent in writing of the Commissioner.

3. It seems to us that the plaintiffs have put themselves completely within the ambit of Section 73. In order to make the position doubly sure as regards the legality and the regularity of the institution of the suit, further steps were taken in that the Commissioner of Wakfs asked for permission to intervene and to be made a plaintiff in the suit, and on 25th May 1936 an order was made by the learned District Judge in these terms:

The Commissioner of Wakf, Bengal, appears and files a petition praying for the reasons stated therein that he may be added as a party plaintiff under Sections 71 to 73, Bengal Wakf Act and under Order 1, Rule 10, Civil P.C.

4. The question whether the suit in which this order appointing a receiver was made, was properly constituted or not, is one of the issues framed in the suit itself. It is therefore really a matter for the learned Judge at the trial finally to determine the question whether the suit was properly instituted or, if there was any defect originally, that defect has been cured by the adding of the Commissioner of Wakfs as a plaintiff. It is perhaps therefore undesirable that we should say anything very definite on this point. Mr. Bose has urged that this is one of the matters dealt with by the learned Judge before he made the order appointing the receiver, and because the view taken by him was incorrect, he had no right to appoint a receiver at all. I would permit myself to say this: in my opinion, the matter is very analogous to, if not identical with the kind of situation which there was in Ambalavana Pandara Sannidhi v. Advocate-General of Madras AIR 1920 Mad 133, where at page 708, Spencer, J. said:

Another argument based on the wording of Section 92, Civil P.C. is that a suit brought by the Advocate-General, in conjunction with two other worshippers to whom he has given his consent in writing to sue, would not be maintainable. It is argued that the exercise of the right of action by one party exhausts the right of the other. As we understand the section, the Advocate-General has the power to sue, and the other parties have the same right, and they may exercise that right separately or in conjunction with each other. The right of each to sue in his own name is not exclusive of the right of the other.

5. In any event, we are of opinion that it was well within the competency of the learned District Judge of the 24-Parganas, in the exercise of his discretion to appoint the receiver pending the determination of all the matters in issue between the parties in the suit including the issue as to the competency of the suit. It has been repeatedly held in other High Courts that it is well within the power of a Judge in dealing with a suit under Section 92 of the Code, to appoint a receiver pending the hearing of the suit. A suit under the provisions of the Bengal Wakf Act, 1934 is very much the same as a suit under Section 92. It was therefore quite open to the learned Judge to appoint a receiver in the way he did. The appeal is therefore dismissed with costs, one set being given to the respondents other than the Commissioner of Wakf who will get his separate costs. Hearing fee is assessed at two gold mohurs for each set of respondent.

Edgley, J.

6. I agree.


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