COMMR OF WAKFS Vs. GOLAM AHMED

JUDGEMENT

(1.) In an earlier suit for partition instituted in 1952 between the defendants inter se, decrees for partition, both preliminary and final, were passed on compromise between the parties on the footing that the properties were secular and not Wakf Properties. Another suit by the defendants instituted in 1955 for a declaration that the alleged Deed of Wakf of 1936 in respect of the suit properties was null and void was, however, dismissed for default in 1968.

(2.) The Commissioner of Wakf, the plaintiff-appellant, has now filed this suit mainly for a declaration that the compromise decree for partition passed in the Suit for partition of 1952 is null and void and the suit-properties which were dedicated by way of Wakf could, not stand mundanised or otherwise affected by the said decree for partition.

(3.) The trial Court decreed the suit holding that the suit properties being wakf could not thus be disvested of their legal character by any partition-suit between interested private parties and declared the said decree to be null and void and of no effect. On appeal by the defendants, the appellate Court also held the suit-properties to be Wakf and thus immune from any onslaught by or under any partition decree on the footing of their being secular properties liable to partition by and between the alleged co-sharers or co-owners. But the appellate Court nevertheless allowed the appeal and dismissed the suit on the finding that the suit was not maintainable at the instance of the plaintiff, i.e. the Commissioner of Wakfs, under the provisions of Section 72 of the Bengal Wakf Act, 1934. Hence this second appeal by the plaintiff Commissioner. Let us, for the facility of discussion, reproduce the provisions of Section 72 of the Bengal Wakf Act, 1934, as it stood then, which is now renumbered as Section 72(1) and reads as hereunder :-