Notice under Section 70 (1) of the Bengal Wakf Act is necessary when the Commissioner of Wakf ceases to be a party to the suit.

( 1 ) THIS is an application under Section 115 of the Code of Civil Procedure on behalf of the Commissioner of Wakf, West Bengal. It raises an interesting question.

( 2 ) A brief account of the facts will set out in good relief the points to be decided in this application. A title suit was filed in the third court of the Munsif, Howrah being title suit No. 21 of 1956 by Aysha Bibi who is the first opposite party in this application. That suit was instituted on or about the 14th day of February, 1956. The prayers in that suit were for a declaration that the Wakf deed executed by Haji Abdul Karim on the 30th March, 1917 was illegal, invalid, inoperative and void and not binding on the plaintiff. There was an incidental prayer for injunction. There were four defendants in that suit. The first three were (1) Mamud Ali who is the plaintiff's husband's brother's son, (2) Abdul Rashid who was the younger son of the plaintiffs husband's brother, (3) the third one is Daud Ali who is the plaintiff's son. (4) The fourth and the last defendant was the Commissioner of Wakf.

( 3 ) DURING the career of the suit and when it was about to be heard a compromise petition bearing the date 15th May, 1958 between the first three defendants and the plaintiff was filed in court. The record does not show that any copy of this compromise petition was served on the defendant Commissioner of Wakf. No doubt on the date when the compromise petition was filed by these three defendants and the plaintiff, the Commissioner of Wakf was a party defendant to the suit. The Commissioner of Wakf is not a party to the compromise petition at all. The compromise petition tries to secularise the whole of this Wakf estate.

( 4 ) THEN on the 22nd May, 1958 two events occurred in the course of the suit. Order No. 35 on the 22nd May, 1958 was passed by the learned Munsif expunging the name of the Commissioner of Wakf as a defendant in the suit, on the application of the plaintiff. After that order was passed another order being order No. 36 was passed on the same 22nd May, 1958 decreeing the suit in terms of the compromise petition. The result of that decree is that there is a decree declaring the Wakf to be invalid and secularising the wakf property on a compromise between the plaintiff and her son, the third defendant and her husband's brother's two sons as the other two defendants. By a private arrangement a fifty year old religious wakf was thus by a stroke extinguished.

( 5 ) IT is necessary to state here that on the record there is the written statement of the defendant Commissioner of Wakf. That written statement of the Commissioner took a number of objections to the suit. It pleaded non-joinder of parties including other descendants of the wakf, other beneficiaries of the Wakf as well as the members of the Muslim public. It also pleaded that the Wak if Haji Abdul Karim made a permanent dedication of his property and executed a registered deed of Wakf on the 30th of March, 1957. The Commissioner pleaded in the written statement that it was a good valid wakf and under the provisions of the Bengal Wakf Act this wakf was classified as Wakf-al-al-aulad. It was also pleaded as a defence to the suit by the Commissioner of Wakf that the wakf had been acted upon for over forty years. The Wakif's wife, daughter and after his death his descendants and widow treated the property as Wakf and observed the terms of the wakfnama. In fact, on the 25th January, 1956 his two sons Mohd. Idris and Abdul Hamid actually enrolled this very wakf in the office of the Commissioner of Wakf and the Commissioner of Wakf had been supervising and controlling the administration in exercise of the powers conferred upon him by the Bengal Wakf Act, 1934. It is expressly - pleaded in the written statement of the Commissioner of Wakf that Mohammad Idris, Abdul Hamid, the husband of the plaintiff Sheikh Mamud Ali, Abdul Rashid, sons of Mohammad Idris and Daud Ali, son of the plaint