AYESHA BIBI Vs. COMMISSIONER OF WAKFS WEST BENGAL

JUDGEMENT

(1.) This is an appeal by special leave from the judgment and order of the High Court of Calcutta, August 20, 1964, in an application under Section 115 of the Code of Civil Procedure, reversing the judgment of the Subordinate Judge, Howrah. The facts are as follows:

(2.) One Haji Abdul Karim, grandfather of respondents 2 to 4 executed a Wakf al-al-aulad on March 30, 1917. He constituted himself as the first Mutwali and named his two sons and widow as mutwalis after his own death. The Wakf provided for the benefit of the family and after the extinction of all the family a scheme for feeding the poor. On February 14, 1956 the present appellant Ayesha Bibi filed a suit claiming 1/16th of the property as a sharer after the death of her husband Abdul Hamid. This claim was made against respondents 2 to 4 who were the Mutwalis. Ayesha Bibi joined the Commissioner of Wakfs, West Bengal as a defendant to the suit. The suit was filed in the Court of Munsif, Howrah and relief claimed were a declaration that the Wakf was invalid, inoperative and void and that its enrolment in the Wakf Office was wrongly done and was of no avail. She also asked for a permanent injunction restraining the Commissioner of West Bengal and other respondents from interfering with the possession of the property. The Commissioner of Wakfs appeared in answer to the notice of the suit and filed a written-statement on April 4, 1956. He contended that the properties were governed by the Wakf which was valid and also that he was entitled to a notice under Section 80 of the Code of Civil Procedure before the suit was filed. He stated that although he was entitled to a notice under Section 70 (1) of the Bengal Wakfs Act, 1934 it was not necessary to add him as a defendant and he denied collusion between himself and the other defendants. He observed that the other defendants were interested in secularizing the Wakf property for their own selfish ends.

(3.) On November 15, 1957 an application for amendment of the relief against the Wakfs Commissioner was made to which the Wakfs Commissioner objected. In his objections he stated that the suit was of a collusive nature as was apparent from the nature of the pleadings of the plaintiff and defendants other than himself. The petition, however, was allowed. No action was taken by the Commissioner to get that order set aside,. On May 15, 1958 the parties to the suit, other than the Commissioner, filed an application of compromise and May 22, 1958 was fixed for decision. On the same day an application for striking off the name of the Commissioner from the array of the defendants was made. This was heard in the presence of the counsel for the Commissioner and he did not object to the name being struck off. As a result the name of the Commissioner was struck off as a defendant. The suit was also decreed the same day on compromise declaring the Wakf to be invalid and void and granting a perpetual injunction.