Madras High CourtMadras State Wakf Board Represented By ... vs B.A. Jamal Muhammed And Ors. on 20 December, 1965Equivalent citations: (1966)2MLJ104JUDGMENT
 

P. Chandra Reddy, C.J.1. These two appeals arise out of two suits instituted by the respondents for a declaration that the properties involved in them are not wakf properties. The subject-matter of the litigation are two bits of lands measuring 5 acres 28 cents and 2 acres 26 cents, punja, in Rajagiri Village of Thanjavur District. As required by the provisions ofSection 4of the Wakf Act, 1954, which will hereinafter be referred to as the Act, one of the Assistant Commissioners appointed under the Act enquired into the nature of the several endowments attached to Muslim, institutions in Thanjavur and submitted a report to the State Government of Madras. The State Government, in its turn, forwarded this report to the Wakf" Board. The Wakf Board, after examining it, published a list of wakfs existing in the district of Thanjavur in the Fort St. George Gazette dated 24th December, 1958. This list included the subject-matter of these appeals.2. It may be mentioned here that these properties were attached to the Thaikals called Anaikara Thaikal and Sheik Mallick Thaikal. They were purchased by; the predecessor in interest of the respondents in or about the year 1944 for proper consideration. The plaintiffs brought the suits for the reliefs mentioned therein in the Court of the District Munsif of Valangiman at Kumbakonam against the Madras State Wakf Board. The basis of the suits was that the grants were personal to the ancestors of the vendors of these properties, and that, in any event, they were not wakfs within the ambit ofSection 3of the Act.3. These suits were opposed by the Wakf Board on the objections that the properties constituted wakfs within the connotation ofSection 3of the Act and that in any event the suits were not maintainable in that the statutory notice was not issued by the plaintiffs before the institution of the suits.4. While holding that the grants were to the two Thaikals and that the plaintiffs had not acquired any right thereto by adverse possession and that the sales in question were not valid and could not confer title as to the suit properties to them, the learned District Munsif decreed the suits in the view that they were not wakf properties as defined inSection 3(1)of the Act. He overruled the plea regarding the notice as he felt that these suits did not require the issue of notice before commencing the litigation. On appeal by the Board the Subordinate Judge, Kumbakonam, agreed with the conclusions of the District Munsif with the result that the decrees complained against were affirmed. It is this judgment of the Subordinate Judge that has given rise to these two appeals.5. It may be mentioned here that during the pendency of the appeals before the Subordinate Judge a Bill was introduced in the Madras Legislature containing some provisions enlarging the scope ofSection 3of the Act. But, as it had not been passed into an Act the applicability of those provisions was not considered by the Subordinate Judge. This Bill became an Act during the pendency of the Second Appeals. When these appeals came on for hearing before our learned brother Natesan, J., learned Counsel for the appellants relied upon the relevant sections of Madras Act XIX of 1961. As the constitutionality of this Act was questioned by learned Counsel for the respondents on the ground that the assent of the President had not been obtained, the learned Judge referred the matter to a Division Bench. After this reference to the Division Bench the Union Parliament had enacted the Wakf (Amendment) Act, 1964 inserting Section 66-C which takes in the properties donated by even persons not professing Islam for the support of a wakf within the ambit of theWakf Act, 1954. This rendered the Madras Act XIX of 1961 superfluous.6. The questions that are posed before me in these Second Appeals are whether these endowments answer the description of wakf by user as defined inSection 3(1)of the Act and whether the failure to issue the statutory notice is fatal to the suits.7. Having regard to the view We have taken of the applicability of the provisions relating to the issue of notice it is not necessary for us to deal with the other issues at any length. However, we shall just indicate our prima facie views in these matters.8. As mentioned earlier, both the Courts below were inclined to hola that the properties were not wakf because they were endowed by Hindu Rulers and not by a person professing Islamic faith. Dealing with the contention of the Wakf Board that even otherwise they are wakf properties for the reason that they had been treated as such for several generations the Courts below reached the conclusion that the properties could not answer the description of wakf by user having regard to-the. known origin thereof. It does not require much of an argument to say that this conclusion is a fallacious one. If originally they were wakfs as denned by the section there is then no need to invoke the inclusive definition. Under the latter definition the only requirement is that the properties should be shown to have been used as wakf for a long time. It is interesting to note that the District Munsif, with whose opinion the Subordinate Judge concurred, stated;So with the significance to be attached to the expression Thaikal, with the Government Revenue records referring to the property as Devadayam and with the law recognising the gift to a Takia as a wakf as understood in Muslim Law, the net result of the evidence as discussed above leads to the conclusion that the dedication in the present case is one which would amount to a wakf within the meaning; of the Muslim law.9. Basing himself on these remarks Sri Ismail urges that the properties should be regarded as having been used as wakfs and therefore the suits should be dismissed on this ground. It is contended on the other side that these observations were made by the learned District Munsif in connection with the controversy relating to the nature of the wakfs and that they should not be regarded as a finding that the properties Were used as wakfs and if We are with him on the other points the matter has to be sent back to the trial Court for reconsideration of the whole issue. We would have accepted this suggestion if it had become necessary although primes facie it looks as if the properties were Wakfs by user:10. On the question whether Act XXXIV of 1964 would advance the case of the. appellant it is submitted by Sri Rajah Ayyar, appearing for the respondents, that the properties are not governed by any of the sections of Act XXXIV of 1964. It is convenient at this stage to read Section 66-C which has widened the scope ofSection 3of the Act of 1954. That section says:Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being--(a) a mosque idgah, imambara, dargah, Shangah or a meqbara; .(b) a Muslim graveyard;(c) a choultry or a muzafarkhana,
 

then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner-as the wakf in which it is comprised.The question that is debated is whether Thaikal could be considered to be a Muslim, graveyard. Sri Rajah Ayyar contends that since there was no consideration of the question by the trial Court as to the character of these Thaikals it would not be safe to treat them as Muslim graveyards and apply the provisions ofSection 66-Cof Act XXXIV of 1964, whereas Sri Ismail says that there can be little doubt that the Thaikals are Muslim graveyards or dargahs within the pale of Section 66-C Although there seems to be more force in the argument of Sri Ismail we are relieved of the necessity of either expressing any final opinion or sending back the case to the trial Court having regard to the view we have taken of the relevant provision of the Act necessitating the issue of notice before the institution of the suits under this Act.11. Before dealing with the relative contentions of the parties relating to the need for the issue of notice before suit it is useful to readSection 56of the Act which has a bearing on this controversy. That section recites:No suit shall be instituted against the Board in respect of any act purporting to be done by it a pursuance of this Act or of any Rules made thereunder. Until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, 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 clause that falls to be construed by us is " any act purporting to be done by it in pursuance of this Act or of any Rules made thereunder". Sri Rajah Ayyar's. contention is that the present suits are outside the purview of this section because no grievance is made of any act of the Board and that this section is inapplicable to statutory suits, being relevant only in the context of common law suits and thatSection 6provides a special right of suit which does not attractSection 56of the Act.12. Before we consider the validity of this argument it is convenient to look atSection 6of the Act.Section 6reads:(1) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil Court of competent jurisdiction for the decision of the question and the decision of the civil Court in respect of such matter shall be final.13. The other provisions of this section are not of immediate relevancy and therefore need not be extracted. The comment made by Sri Rajah Ayyar on the language of this section is that this section enables either a Wakf Board or a mutawalli or any person interested in the wakf to have resort to the section. If that were so it is unreasonable to expect only one category of plaintiffs to issue a notice since the other two, viz., the Mutawalli and the Wakf Board are exempt from the operation ofSection 56of the Act. At the outset it must be mentioned that it is not correct to say that a mutawalli need not comply with the terms ofSection 56. It is only the Wakf Board that does not fall within the ambit ofSection 56. This is not an argument that can carry conviction to any Court. If that is the effect ofSection 56it is no use complaining that discrimination is made between private individuals and the Wakf Board.14. In this connection it is relevant to refer toSection 80of the Code of Civil Procedure which recites (in so far as it has a bearing on this enquiry):No suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing. has been delivered to or left at the office of....Indisputably,Section 80, Civil Procedure Code, puts the Government in a favoured position in that when it has to file a suit against the party in respect of a transaction it need not give notice whereas in respect of the same transaction if the parties are put to the necessity of instituting the suit against the Government they are bound to issue a notice under that section. For instance if a suit is to be filed by the Government against a party for breach of a contract entered into between them no notice need issue. But if a private party has to lay an action against the Government in respect of the same transaction, Section 8o, Civil Procedure Code, makes it incumbent upon the plaintiff to serve notice on the Government. Is it of any avail to the private party to complain that he is forced to comply with the provisions of Section 8o, Civil Procedure Code, while there is no such requirement in regard to the Government ? This argument, therefore, does not merit much discussion.15. The submission that statutory suits fall outside the pale ofSection 56of the Act is equally untenable. It should be remembered in this connection that this, section is couched in general terms and it takes in all suits which complain against any act of the Board irrespective of the fact whether it is a statutory suit or a common law suit, and, we find no justification to read a restriction into it. We are not also persuaded that the act referred to in the section can have reference only to voluntary-acts.16. It does not require much of an effort to repel this argument that the word ' act' is applicable to Voluntary acts. It covers both voluntary and involuntary acts.17. Nor can it be postulated that what the Board did in publishing the list of wakfs underSection 5of the Act is not a voluntary act. The Board does certainly exercise its volition in issuing a list of wakfs after scrutinising the reports submitted by the Commissioner. Be that as it may, the construction suggested by Sri Rajah Ayyar is not warranted by the meaning of the word 'act' To deal With the last of the arguments we do not find anything special about the nature of the suits provided bySection 6of the Act. It is one of the three types of suits contemplated by the Act the other two being those provided bySection 15(3)andSection 27of the Act.Section 15(3)gives the right to the aggrieved party to challenge the action of the Board in settling a scheme of management whereasSection 27enables the concerned party to bring a suit questioning the decision of the Board as regards the character of the property. We find no justification to distinguish suits underSection 6from those underSections 15(3)and27of the Act.18.Section 56has to be interpreted in its widest amplitude when the terms are express explicit and mandatory and do not admit of any exception. It is expressed In very wide language and there is no warrant for excluding its application in suits underSection 6of the Act. To read a qualification into it would be, to borrow the
language of Their Lordships of the Privy Council inBhagchand Dagdusa v. Secretary of Statefor India (1927) 53 M.L.J. 81 : L.R. 54 I.A. 338 an encroachment on the function of the Legislature. In our opinion this section imposes a statutory and unqualified obligation upon the Courts to dismiss a suit if there is no compliance with that section.19. It is worthy of note thatSection 56is analogous toSection 80Civil Procedure Code and this section, asSection 80, Civil Procedure Code has been construed as applying to all types of suits against the Government. It has beenlaid down inBhagahand Dagdusa v. Secretary of Statefor India (1927) 53 M.L.J. 81 : L.R. 54 I.A. 338 that that section applies to all forms of suits and whatever the relief sought, including a suit for an injunction and this proposition was reaffirmed inA.L. AR. Vellayan Chettiar v. Government of Madras(1947) 2 M.L.J. 208 : L.R. 74 I.A. 223 and was approved and followed by the Supreme Court inState of Madras v. C.P. Agencies  Havingregard to the comprehensive nature of the terms ofSection 56of the Act we have no option but to agree with learned Counsel for the appellant that the Board could seek protection isSection 56.20. Sri Rajah Ayyar draws our attention to a judgment of the Calcutta High Court inCommissioner of Wakfs v. Mohammed Jehangir A.I.R.1944 Cal. 836 . We feel that this ruing is not in point and therefore need not be referred to in detail. There the relief asked for was for a declaration that certain entries in the cadastral survey were wrong The question posed there was whether a statutory notice was necessaryin that case. The learned Judges said that it was not necessary for the reason that the act in respect of which the prayer was asked could not be regarded as the act of the Commissioner, and further the Commissioner was added as a party only subsequently though he was not even a necessary party. It was under those circumstances that the Calcutta High Court ruled that the omission to issue a notice was not fatal to the suit.21. Sri Raiah Ayyar then relied on the decision in S.C. Board of Wakf v. Sirajul Haq A.I.R. 1954 All. 68 According to him this decision is an authority for the proposition that if the word relief is not found in the section, any suit which claims a relief of a particular Tmre is no hit at by the section requiring the issue of a notice. What happened nature is no hit at by the section requiring the issue of a notice. What happened there was this. In pursuance of the enquiry required to be done under the Muslim Wakfs Act the Sunni Central Board notified the Official Gazette of 26th February 1944, the wakfs including the wakf which was the subject of dispute in the list of Sunni wakfs. Most of the property appertaining to the wakf was also notified in the relevent clause against this wakf. After this notification was made the Sunni Central Board asked the committee of management of the wakf to submit the annual budget to
the Sunni Central Board for approval and also to get the accounts audited by the
auditors of the Board. It also levied the usual contributions to be made by the wakfs under Section 54, Muslim Wakfs Act (XIII of 1936). The management being dissatisfied with these directions and also being of opinion that the contribution asked for by the Board could not come within the purview of the Act instituted the suit against the Sunni Central Board of Wakf. The Wakf Board invited the Court to dismiss the suit in limine on the ground that the statutory notice contemplated bySection 53of the Act was not issued to the Board. This objection did not prevail with the trial Court which decreed the suit. But on appeal it was upheld by the High Court of Allahabad and the suit was dismissed.The decision of the High Court was affirmed by the Supreme Court inSirajul Haq v. S.C. Board of Wakf1959 S.C.J. 367.22. Sri Rajah Ayyar argues that both the Allahabad High Court and the Supreme Court rested their decision on the specific words ofSection 53which has the additional words " or for any relief in respect of any wakf".23. We will do well at this stage to read Section 53 of the U. P. Muslim Wakf Act. That section provides:No suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any wakf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office: of such Central Board, 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.It is true that in this section there is an additional clause " for any relief in respect of any wakf". But does that make any difference so far as the present suit is concerned, or can it be said either that the Allahabad High Court or the Supreme Court based their judgment on the existence of these additional words ? It is pertinent to note here that the Allahabad High Court has relied more on the analogy ofSection 80, Civil Procedure Code, than on the existence of this expression. Say the learned Judges of the Allahabad High Court in paragraph 20 of the judgment:These provisions are almost analogous to the provisions ofSection 80, Civil Procedure Code.. In view of the fact that it has been found that the subject-matter of dispute in this case was wakf property it was necessary for the plaintiffs to serve the statutory notice provided underSection 53, Muslim Wakf Act, before the institution of the suit.Thus it is the analogy obtaining between the two sections that induced the learned. Judges to reach this decision. So nothing turns upon the absence of those words inSection 56.24. Whatever might have been the doubt that could be entertained in regard to the basis of the judgment of the Allahabad High Court, all doubts will be resolved if reference is made to the judgment of the Supreme Court inSiraj
Ul Haq v. Board of Wakf1959 S.C.J. 367.Gajendragadkar, J., as he then was, in delivering the judgment of the Court, observed
:The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any wakf.Thus, the absence of the expression " for any relief in respect of any wakf" does no alter the situation so far as this act is concerned.25. We cannot agree that no relief is asked for against the Wakf Board, and, in any event,Section 56is attracted to suits of this type.26. We are unable to share the view sought to Be pressed upon us by Sri Rajah Ayyar that the act complained of is not of the Wakf Board. It is true that the publication of the list of wakfs in the State is founded upon the report submitted, by the Commissioner. But what is attracted in the suit is the publication of the list in the Fort St. George Gazette. If the wakf was not included in this list the respondents would not in any way have been affected. It is the publication that has given rise to this suit, and, in fact, it is specifically mentioned in the suit that the cause of action had arisen on 24th December, 1958, the date of publication in the Fort St. George Gazette. Therefore it is the act of the Board that is questioned. We cannot also ignore the fact that the suit is instituted against the Board and not against the Commissioner and in fact the Commissioner cannot be made a party to the suit. There can therefore be no doubt that it is the act of the Board in publishing the list including the subject-matter of this litigation that is complained against and that is the basis of the suit. For these reasons we uphold the objection of the appellant that the omission to issue the statutory notice has affected the maintainability of the suit.27. In the result, the judgments and decrees of the Courts below are set aside and the suits dismissed. We direct the parties to bear their own costs throughout.