Notice under section 56 before suit is mandatory.

These two appeals arise out of two suits instituted by the respondents for a declaration that the properties involved in them are not Wakf properties. The subject-matter of the litigation are two bits of lands measuring 5 acres 28 cents and 2 acres 26 cents, punja, in Rajagiri Village of Thanjavur District. As required by the provisions of section 4 of the Wakf Act, 1954, which will hereinafter be referred to as the Act, one of the Assistant Commissioners appointed under the Act enquired into the nature of the several endowments attached to Muslim institutions in Thanjavur and submitted a report to the State Government of Madras. The State Government, in its turn, forwarded this report to the Wakf Board. The Wakf Board, after examining it, published a list of wakfs existing in the district of Thanjavur in the Fort St. George Gazette dated 24th December 1958. This list included the subject-matter of these appeals.

It may be mentioned here that these properties were attached to the Thaikals called Anaikara Thaikal and Sheik Mallick Thaikal. They were purchased by the predecessor in interest of the respondents in or about the year 1944 for proper consideration. The plaintiffs brought the suits for the reliefs mentioned therein in the Court of the District Munsif of Valangiman at Kumbakonam against the Madras State Wakf Board. The basis of the suits was that the grants were personal to the ancestors of the vendors of these properties, and that, in any event, they were not wakfs within the ambit of section 3 of the Act.

These suits were opposed by the Wakf Board on the objections that the properties constituted wakfs within the connotation of section 3 of the Act and that in any event the suits were not maintainable in that the statutory notice was not issued by the plaintiffs before the institution of the suits.

While holding that the grants were to the two Thaikals and that the plaintiffs had not acquired any right thereto by adverse possession and that the sales in question were not valid and could not confer title as to the suit properties to them, the learned District Munsif decreed the suits in the view that they were not wakf properties as defined in section 3(1) of the Act. He overruled the plea regarding the notice as he felt that these suits did not require the issue of notice before commencing the litigation. On appeal by the Board the Subordinate Judge, Kumbakonam agreed with the conclusions of the District Munsif with the result that the decrees complained against were affirmed. It is this judgment of the Subordinate Judge that has given rise to these two appeals.

It may be mentioned here that during the pendency of the appeals before the Subordinate Judge a Bill was introduced in the Madras Legislature containing some provisions enlarging the scope of section 3 of the Act. But, as it had not been passed into an Act the applicability of those provisions was not considered by the Subordinate Judge. This Bill became an Act during the pendency of the Second Appeals. When these appeals came on for hearing before our learned brother Natesan, J., learned Counsel for the appellants relied upon the relevant sections of Madras Act XIX of 1961. As the constitutionality of this Act was questioned by learned Counsel for the respondents on the ground that the assent of the President had not been obtained, the learned Judge referred the matter to a Division Bench. After this reference to the Division Bench the Union Parliament had enacted the Wakf (Amendment) Act, 1964 inserting section 66-C which takes in the properties donated by even parsons not professing Islam for the support of a wakf within the ambit of the Wakf Act, 1954. This rendered the Madras Act XIX of 1961 superfluous.

The questions that are posed before me in these Second Appeals are whether these endowments answer the description of wakf by user as defined in section 3(1) of the Act and whether the failure to issue the statutory notice is fatal to the