ASRAFANNESSA KHANUM Vs. MIRZA ALI ZAMIN

JUDGEMENT

(1.) The plaintiff instituted the suit for declaration that he was the sole mutawalli of the wakf estate in question and the defendants were not validly appointed mutwallis. The defence was that the suit was not maintainable, because Wakf Commissioner was not made a party. The learned Munsif relied on the decision in 48 Cal WN 157 : (AIR 1944 Cal 206) and repelled that contention that the notice under Section 70 of the Wakf Act was necessary. The suit was decreed in part against defendant No. 3 and dismissed against the rest. An appeal was taken out. A cross-objection was filed. The learned Subordinate Judge stated that the appellant could not be the sole mutwalli and her brother, that is, respondent No. 2, was also a mutwalli. So the appeal and the cross-objection were dismissed. Hence this appeal.

(2.) In this Court the learned Advocate appearing on behalf of the appellant referred to the decision of Mr. Justice P. B. Mukherji in and stated that the notice under Section 70 (1) of the Wakf Act was mandatory unless Wakf Commissioner was a party to the suit. Some other submissions have been made on the merits. It has been contended that in view of that decision, the suit must fail, because the Wakf Commissioner was not a party and no notice required by Section 70 (1) of the Act was issued.

(3.) The learned Advocate appearing on behalf of the respondent has contended that the records of the learned District Judge show that when the appeal was filed, two applications were put in. One prayer was made according to the provisions of Order 1, Rule 8, C. P. C. and later necessary publication made in the local newspaper, viz., "Bartabaha". Secondly, a prayer was made to issue a notice on the Wakf Commissioner. That prayer was also allowed. So it has been contended that since at the stage of the appeal such proper notice was sent and the Wakf Commissioner did not raise any objection within one month from the date of receipt thereof, the present objection raised on behalf of the appellant cannot be sustained.