The Bihar Wakf Act, 1948, delegates authority to the Provincial Government to establish the Majlis, and the notification issued by the Government of Bihar on 1-5-1948 validly established the Majlis.

Ramaswami, J.

1. This appeal is brought on behalf of the plaintiff against the judgment and decree of the 1st Subordinate Judge of Patna dated 22-6-1950.

2. The plaintiff alleged that defendant No. 2 Saiyid Wasi Haider was Motawalli of certain endowed properties appertaining to a mosque situated in mohalla Qazi Abdul Momin alias Bagh Lodan and that on 17-6-1948 defendant No. 2 executed a deed of permanent lease in favour of defendant 1 with respect to the properties mentioned in Schedule I of the plaint. The salami mentioned in the document was Rs. 6000.00 and the rent was Rs. 500.00 but the plaintiff alleged that defendants 1 and 2 acted collusively and the sanction of the District Judge was obtained on 8-6-1948 on misrepresentation. It was averred that on 1-5-1948 the plaintiff was established as a body corporate under the Bihar Wakf Act and under Sec. 43 of the Act no transfer made by a Motawalli of the property of a wakf by way of lease ex- tending a period of three years could be valid unless made with the previous sanction of the Majlis. The plaintiff, therefore, asked for a declaration that the deed of permanent lease dated 17-6-1948 executed in favour of defendant No. 1 was void and invalid, that the District Judge had no jurisdiction to sanction the lease and defendant 1 had acquired no title to the properties mentioned in Schedule 1 of the plaint. The plaintiff also asked that the defendant 1 should be ejected from the properties and that he should be restrained by permanent injunc-tion from demolishing the structures existing on the land in question.

3. The main ground of defence was that the plaintiff was not duly constituted or established under the Bihar Wakf Act VIII of 1948; that in any case defendant 1 acted bona fide in the interest of the Wakf and since the District Judge granted sanction the deed of permanent lease in favour of defendant 2 was valid.

4. The learned Subordinate Judge dismissed the suit on the preliminary ground that the plaint was not duly constituted under the Bihar Wakf Act VIII of 1948 and the suit as framed was not competent.

5. The sole question argued in this appeal is whether the plaintiff was lawfully constituted and established under the Bihar Wakf Act VIII of 1948 and so entitled to maintain the present suit.

6. The answer to this question turns upon the construction and effect of Sections 5 and 57 of Bihar Act VIII of 1948. Sec. 5 deals with the constitution and incorporation of the Majlis. Sec. 5 (1) states :

"As soon as possible after this Act comes into force, there shall be established for the Province of Bihar a Majlis to be called the Bihar Subai Sunni Majlis-e-awqat & a Majlis to be called the Bihar Subai Shia Majlis-e- awqaf, to discharge respectively in regard to Sunni Waqfs and Shia Waqfs in the Province of Bihar the functions assigned to the Majlis by this Act."

Section 5 (2) enacts :

"The Mailis shall be a body corporate by the name of the Bihar Subai Sunni Majlis-e-Awqaf, or the Bihar Subai Shia Majlis-e-Awqaf, as the case may be, and shall have perpetual succession and a common seal, with power to acquire and hold property both movable and immovable, and to transfer any such property subject to the prescribed conditions and restrictions and shall, by the said name, sue and be sued".

Section 7 deals with the Sadar and members of the first Majlis and their term of office. It provides that all the members of the first Majlis shall be appointed by the Provincial Government and the Provincial Government shall appoint one from amongst the members to be the Sadar (sic) of the first Majlis. On behalf of the appellant reference was made to the notification dated 1-5-1948 which states that in exercise of the powers conferred by Clauses (1) of Section 7, Bihar Waqfs Act, 1947, the Government were pleased to appoint certain persons to be the members of the Bihar Subai Sunni Majlis-e-Awqaf.

Dr. Sultan Ahmed argued that as soon as this notification was published the Majlis