PRINCE SYED FATEH ALI MIRZA Vs. SAJJAD HOSSAIN

JUDGEMENT

(1.) This is an appeal from an order made by the District Judge of the 24-Parganas on 26th August 1936, whereby after having heard the parties at great length he came to the conclusion that the appointment of an interim receiver should be maintained. The suit was originally brought by a lady named Sahebzadi Meherunessa Begum and certain other persons against Prince Syed Fateh Ali Mirza in his capacity as the mutawalli of a certain wakf properties. The suit in its nature was one which prior to the Bengal Wakf Act 1934 would certainly have come within the purview of the provisions of Section 92, Civil P.C., and so it could only have been brought either by the Advocate-General of Bengal himself or by persons who had obtained the consent of the Advocate-General for the institution of the suit. In the present instance the plaintiffs as it appears from an endorsement on the plaint obtained the consent to the institution of the suit of the Commissioner of Wakfs in accordance with the provisions of Section 73(2), Bengal Wakf Act of 1934. So that, to all intents and purposes, they were very much in the same position as if they had instituted the suit under Section 92, Civil P. C, with the consent of the Advocate-General of Bengal. The learned Judge in the course of the judgment which he delivered on 26 August 1936, says this: On behalf of the defendant a preliminary objection was taken that no appointment of receiver could be made as the whole proceedings were invalid ab initio. It was urged that the suit is one framed under Section 92, Civil P.C. Section 92 requires the sanction of the Advocate-General. No such sanction has been obtained in the present suit and therefore the proceedings are bad ab initio and no subsequent permission can avail to validate proceedings which are bad from the very start. It was also urged that although the wakf Commissioner has been brought on the record under Section 73, Bengal Wakf Act of 1934, the suit was not instituted by the Commissioner himself and therefore cannot stand.

(2.) The same contentions have now been put forward before us in this appeal from the order made by the learned District Judge on 26 August 1936. Mr. Bose has argued on behalf of the appellant that Section 73, Bengal Wakf Act, 1934, only contemplates the institution of suits by the Commissioner of Wakfs himself and not suits instituted with the assent of the Commissioner. It is a little difficult to see how that argument can be put forward having regard to the express provisions of Section 73(2) which says: No suit to obtain any of the reliefs referred to in Sub-section (1) relating to a wakf shall be instituted by any person or authority other than the Commissioner without the consent in writing of the Commissioner.

(3.) It seems to us that the plaintiffs have put themselves completely within the ambit of Section 73. In order to make the position doubly sure as regards the legality and the regularity of the institution of the suit, further steps were taken in that the Commissioner of Wakfs asked for permission to intervene and to be made a plaintiff in the suit, and on 25th May 1936 an order was made by the learned District Judge in these terms: The Commissioner of Wakf, Bengal, appears and files a petition praying for the reasons stated therein that he may be added as a party plaintiff under Secs.71 to 73, Bengal Wakf Act and under Order 1, Rule 10, Civil P.C.