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Madras High Court
V. RAMASWAMI
C.A.Khaja Mohidden Sahib - Appellant
Versus
Madras State Wakf Board - Respondent
Decided On : 01/21/1972
WAQF PROPERTY - NOTICE UNDER SECTION 56 OF THE MUSLIMS WAKFS ACT, 1954 - WAIVER - SUIT FOR DECLARATION THAT THE SUIT PROPERTY IS NOT A WAKF PROPERTY - NOTICE ISSUED BY ONLY ONE OF THE PLAINTIFFS - DEFECTIVE NOTICE - WAIVER OF NOTICE BY THE STATE WAKF BOARD.
Fact of the Case:
The plaintiffs filed a suit for a declaration that the suit property was not a wakf property. The Madras State Wakf Board, the defendant in the suit, did not traverse the allegation in the plaint that a notice as required under Section 56 of the Muslims Wakfs Act, 1954 had been issued and served upon the Secretary of the Wakf Board. The trial court framed an additional issue on the question of notice under Section 56 at the request of the defendant State Wakf Board. The trial court held that the suit was bad for want of notice under Section 56 of the Wakf Act. The plaintiffs filed an appeal against the dismissal of the suit. The appellate court set aside the judgment and decree of the trial court and remanded the matter for a fresh trial, directing the trial judge to consider the question of waiver of notice by the State Wakf Board.
Finding of the Court:
The High Court held that the notice issued under Section 56 of the Act was defective and did not comply with the requirements of the Act. The court also held that the State Wakf Board had waived the notice required under Section 56 by not raising the plea in the written statement and by not filing an application for amendment of the written statement to raise the additional plea.
Issues: 1. Whether the notice under Section 56 of the Muslims Wakfs Act, 1954 is mandatory? 2. Whether the notice issued by the plaintiffs was valid? 3. Whether the appellants were entitled to delete plaintiffs 2 to 6 from the array of parties? 4. Whether the State Wakf Board had waived the notice under the Act?
Ratio Decidendi: 1. The court held that the notice under Section 56 of the Act is mandatory, following the decision of a Division Bench of the court in M. S. Wakf Board v. Jamal Muhammad. 2. The court held that the notice issued by the plaintiffs was defective and did not comply with the requirements of Section 56 of the Act, as it was issued by only one of the plaintiffs and did not set out the cause of action or the relief claimed in the suit. 3. The court held that the appellants were not entitled to delete plaintiffs 2 to 6 from the array of parties, as there was no unity of title or cause of action among the plaintiffs. 4. The court held that the State Wakf Board had waived the notice required under Section 56 by not raising the plea in the written statement and by not filing an application for amendment of the written statement to raise the additional plea.
Final Decision: The High Court allowed the second appeal No. 1432 of 1968 and set aside the judgment and decree in A. S. 292 of 1963. The court also allowed the second appeal No. 1604 of 1969 and set aside the judgment and decree in A. S. 196 of 1967. The court remanded both appeals to the lower appellate court for a fresh disposal on merits.
2. O. S. No. 2175 of 1959 is a suit for a declaration that the suit property measuring about 19 grounds and 321 sq. ft. described in the plaint schedule is not a wakf property and the defendant in that suit is the Madras State Wakf Board, O. S. No. 899 of 1960 was filed by one Mir Sardar Ali for a declaration that the property which was the subject-matter in O. S. 2175 of 1959 is a Shia wakf and that he was the mutavalli of the property and for an injunction restraining the defendants from interfering with his management of the property. The first defendant in this suit is the Madras State Wakf Board and the second defendant is the first plaintiff in O. S. 2175 of 1959 and the third and fourth defendants claimed to be lessees of the property under the second defendant. Since the subject-matter in both the suits was identical property and the question whether it was wakf property or not was common, both the suits were tried together by consent of parties by the third Assistant Judge, City Civil Court, Madras.
3. Since the controversy in these second appeals relates to the question of statutory notice under Section 56 of the Muslims Wakfs Act, the facts in respect of the same alone need be set out. In the plaint in O. S. 2175 of 1959 the plaintiff pleaded that he issued a notice as required under Section 56 of the said Act and that had been served upon the Secretary of the Wakf Board. The Wakf Board did not traverse this allegation in the plaint in the written statement filed by it. Number of issues were framed, but, there was no issue relating to want of notice under Section 56 or the sufficiency of the notice issued by the first plaintiff. Both the suits were taken up for trial on 30-11-1962 as seen from the entries in the P Diary. P. W. 1 was examined on that day, Exs. A-1 to A-10 and some of the defence documents were also marked. The trial was adjourned time and again and the evidence was closed on 22-3-1963 and the case was posted for arguments. At that stage, it appears, at the request of the defendant State Wakf Board, the trial Court framed an additional issue on 9-4-1963. It is as follows :
"Is the suit bad for want of proper notice under Section 56 or has the defendant acquiesced in the validity or propriety of the notice?"
The trial Court, after hearing arguments on all the issues and after a consideration of the oral and documentary evidence, dismissed O. S. No. 2175 of 1959, holding that the suit property was a wakf property and in O. S. 899 of 1960 it declared that it is a shia Wakf. On the finding that it is a shia wakf, O. S. 899 of 1960 was decreed. The learned Third Assistant Judge City Civil Court, also gave a finding on the additional issue that the requirement of notice under Sec. 56 is a condition precedent for maintaining a suit against the Wakf Board and that the defendant could raise that plea at any stage of the proceedings and in that view held that the suit was bad for want of notice under Section 56 of the Wakf Act.
4. The plaintiffs in O. S. 2175 of 1959 filed A. S. 292 of 1963 against the dismissal of the suit in O. S. 2175 of 1959. The second defendant in O. S. 899 of 1960 who was the first plaintiff in O. S. 2175 of 1959 also filed A. S. 284 of 1963 against the decree and judgment in O. S. 899 of 1960 since that decree gave a declaration that the suit property is a Shia wakf. Both the appeals were heard together by the Principal City Civil Judge, Madras. When the appeals were heard, it appears that both the parties agreed that for a better and proper disposal of the case, some more evidence is necessary and on that ground he set aside the judg
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