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Case Number

R.F.A No. 119 of 1980

Attorney(S)

Mr. D.L.N Rao for Appellant
Mr. S. Vijayashankar for R-1, 2 & 5; Mr. L. Umakanthan, HCGP for R-3 & 4

Judges

D.P Hiremath
N.D.V Bhat, JJ.

Acts

SECTION 6 WAKF ACT 1954
Section 80(3) C.P.C and sub-section (3)
sub-section (2) of Section 5.Provided
sub-section (2) of Section 5 of Wakf
sub-section (1) of Section 6
sub-section (2) of Section 5
Wakf (Amendment) Act, 1969,
Institutions Act, 1927.
Section 80 C.P.C
Section 3(h).

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Smart Summary

Summary of Judgment delivered by Hiremath, J.

Factual and Procedural Background

The plaintiffs (respondents 1 and 2) brought a representative suit on behalf of the Hindu community seeking declarations and injunctions concerning the "Guru Dathatreya Peeta" (also referred to as the "Peeta of Bababudan Giri"). The plaint alleged that the institution is a religious place of worship belonging to both Hindus and Mohammadans, that it is not a Wakf property, and that the inclusion of the plaint-schedule property in the list of Wakfs by the Wakf Board (the 2nd defendant and present appellant) was improper and illegal. The plaintiffs sought re-transfer of administration, management and control of the schedule property from the Wakf Board to the 3rd defendant (the Commissioner for Religious and Charitable Endowments, Mysore) and a permanent injunction restraining the Wakf Board from interfering with the plaintiffs' rights.

Facts described in the plaint (and not disputed in material part) include: the Peeta is ancient and esteemed by Hindus and Mohammadans alike; Hindus worship there (e.g., Paduke and Nandadeepa are part of worship practices); the head of the Peeta is a Sajjada who is Muslim but succession is governed by rules applicable to Gurus to Mutts; the institution had been under control of the 3rd defendant under the Mysore Religious and Charitable Institutions Act, 1927; the Wakf Board included the institution in a List of Wakfs prepared after survey/notification (said inclusion dated to 1964), and a 1975 order directed handing over possession to the Wakf Board. In March 1976 the Wakf Board seized Paduke and Nandadeepa, leading to community representations and restoration of status quo. Plaintiffs gave a notice under Section 80 CPC on 8-10-1976 and filed suit on 13-12-1976.

The trial Court framed seven issues (including whether the Peeta is a religious institution belonging to both communities, whether it is Wakf property, limitation and jurisdiction questions) and answered Issues 1, 2 and 6 in the affirmative and Issues 3–5 in the negative, resulting in a decree for the plaintiffs directing retransferral of management to the 3rd defendant. The Wakf Board appealed, raising points summarized below.

Legal Issues Presented

Whether the suit is barred by time because it was not filed within one year from the date of publication of the List of Wakfs by the Wakf Board (i.e., interaction with Section 6 of the Wakf Act, 1954).
Whether the suit is bad for non-compliance of Section 56 of the Wakf Act (notice to the Board) — i.e., whether the statutory notice requirement was satisfied.
Whether the trial Court was correct in directing re-transfer of management of the institution to the 3rd defendant (i.e., whether the Wakf Board's claim to management based on inclusion in the List of Wakfs is sustainable in the absence of proof that the institution is a Wakf within the statutory definition).

Arguments of the Parties

Appellant (Wakf Board) — main contentions

The suit is time-barred because it was not filed within one year as required by Section 6 of the Wakf Act, 1954.
The suit is bad for non-issue of notice under Section 56 of the Wakf Act (i.e., the mandatory notice to the Board before instituting suit was not given as required by statute).
Because both Hindus and Muslims visit the Darga/Peeta and continue to offer worship despite its inclusion in the List of Wakfs, the rights of Hindus are not materially affected and the Wakf Board's management claim should stand. (The Wakf Board also relied on the survey that resulted in inclusion in the List of Wakfs.)

Plaintiffs / Respondents — main contentions

The suit was a representative action on behalf of Hindus asserting that the institution is a religious place belonging to both Hindus and Mohammadans and is not a Wakf.
Inclusion of the Peeta in the List of Wakfs (published in 1964) was improper, illegal and without proper enquiry, and therefore inclusion did not divest Hindus of their rights.
Cause of action for the plaintiffs arose in March 1976 (when they learnt of the 1964 notification being acted upon and of the transfer to the Wakf Board), and the plaint was filed after issuing a Section 80 CPC notice.
The plaintiffs relied on historical customs and practices (Paduke, Nandadeepa, annual Urus observed according to Hindu calendar, procession with Hindu musical instruments) to show that the institution is not exclusively Islamic and that non-Muslim rights could not be put in jeopardy by mere inclusion in a list of Wakfs.

3rd Defendant (Commissioner) — contentions in written statement (as recorded)

Admitted many of the plaint averments and conceded that both Hindus and Muslims visit the Peeta and offer prayers at Urus, though the 3rd defendant characterised the annual Urus as a Muslim custom ceremony (even if held according to Hindu calendar).
Admitted the Wakf Board's seizure of Paduke and Nandadeepa in 1975 and described administrative efforts (emergency meeting, verification) that led to restoration of Paduke and Nandadeepa.
Asserted that the suit is barred by limitation because it was not filed within one year from the date of publication of the List of Wakfs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wakf Board of Muslims Rajasthan v. Radha Kishan, 1979 2 SCC 468	The principle that a non-Muslim stranger in possession of property included in the List of Wakfs is not required to file a suit within one year under the proviso to Section 6(1); the special limitation rule in Section 6(1) is intended to narrow disputes between the Board, Mutawalli and persons interested in a Wakf (as defined), and should not put non-Muslims' rights in jeopardy.	The Court relied on this authority to hold that the plaintiffs (representing non-Muslim interests) were not necessarily bound by the one-year limitation in Section 6(1) and that the trial Court was justified in concluding the suit was not time-barred.
State of Punjab v. Geeta Iron & Brass Works Ltd., 1978 1 SCC 68	The purpose of statutory notice under Section 80 CPC is to alert the State and promote settlement; substantial compliance with statutory notice requirements is sufficient to serve that object, and technical defects should not defeat the suit.	The Court applied the principles to hold that the notice given (stated to be under Section 80 CPC and containing the cause of action and reliefs) constituted substantial compliance with Section 56 of the Wakf Act; hence the suit should not be dismissed on technical defects in the notice.

Court's Reasoning and Analysis

The Court addressed the three principal disputed points as follows.

1. Limitation under Section 6 of the Wakf Act (whether suit barred)

The Court analysed Section 6(1) of the Wakf Act (which permits suits to decide whether a property specified in a published list is a Wakf, but contains a proviso prescribing a one-year bar from publication). The Court relied on the Supreme Court's decision in Wakf Board of Muslims Rajasthan v. Radha Kishan to interpret the proviso narrowly: the special rule of limitation in Section 6(1) was intended to confine disputes between the Wakf Board, the Mutawalli and persons interested in the Wakf as defined by Section 3(h). The Supreme Court had observed that non-Muslim persons in possession should not have their rights imperilled merely because of inclusion in the list, and such persons could challenge inclusion even after one year if necessity arises.

Applying that precedent, the Court concluded that the present plaintiffs (who sued in representative capacity on behalf of Hindus and asserted they were non-Muslim persons whose rights were affected by inclusion) were not necessarily bound by the one-year limitation. The trial Court therefore correctly found the suit was not barred by time, and this Court saw no reason to differ.

2. Notice requirement under Section 56 of the Wakf Act (whether statutory notice given)

The Court compared Section 56 of the Wakf Act with Section 80 CPC and noted they are pari materia. The plaint averred that a notice under Section 80 CPC (Ex. P-7) addressed to all defendants was issued on 8-10-1976 and that the notice contained the cause of action, relief claimed and other material particulars. The Court stated the object of Section 56 is to inform the Board and give opportunity to negotiate settlement; it observed that substantial compliance with the notice requirements would fulfil that object.

The Court relied on State of Punjab v. Geeta Iron & Brass Works Ltd. (supra) to emphasize the remedial and conciliatory purpose of statutory pre-suit notices and to accept that substantial compliance suffices. The Court further noted legislative amendment (Section 80(3) CPC added by 1976 amending Act) which expressly provides courts should not dismiss suits for mere errors or defects in statutory notice provided certain minimum particulars are present. Given Ex. P-7’s contents and the lack of any reply from the Wakf Board, the Court concluded that substantial compliance with Section 56 had been made and that the suit should not be defeated on technical grounds.

3. Entitlement to relief (whether institution is a Wakf and whether management should be retransferred)

The Court examined the definition of "Wakf" in Section 3(1) of the Wakf Act: a wakf is a permanent dedication by a person professing Islam of property for purposes recognised by Muslim law. The Court observed that the Wakf Board did not contend in the trial Court (and did not prove on record) that the institution fulfilled this definitional requirement or that it came into existence by dedication by a Muslim. Because there was no averment or proof that the institution was a Wakf in the statutory sense, the Court held the Wakf Board could not claim its inclusion in the List of Wakfs made its management unassailable.

The Court also cited documentary description from the Mysore Muzrai Manual, 1934 (which described the Darga/Peeta as ancient and esteemed by Hindus and Mohammadans, presided over by a Sajjada with succession regulated by guru succession rules) and found this description consistent with the plaint. Given lack of proof that the institution satisfied the statutory definition of Wakf and the Wakf Board's failure to contest material averments below, the appellate Court concluded the trial Court was justified in directing retransferral of management to the 3rd defendant.

Throughout the analysis the Court avoided extending findings beyond what the record supported; it relied on statutory text and the cited Supreme Court authorities to resolve limitation and notice questions, and on the absence of proof to resolve the management question.

Holding and Implications

Holding: The appeal is dismissed. The trial Court's decree in favour of the plaintiffs is sustained, including the direction to re-transfer administration, management and control of the schedule property to the 3rd defendant. Costs were awarded to respondents 1 and 2.

Implications:

Direct effect: The Wakf Board's appeal failed; the decree restoring management to the 3rd defendant (Commissioner) stands and the plaintiffs' declarations and injunctions as decreed below remain effective. Costs were awarded against the appellant to respondents 1 and 2.
On limitation and notice: The Court applied established Supreme Court principles to hold that (i) non-Muslim persons in possession are not necessarily bound by the one-year bar in Section 6(1) where the legislative scheme targets disputes within the Wakf framework, and (ii) substantial compliance with the statutory pre-suit notice obligation (Section 56 of the Wakf Act / Section 80 CPC) suffices to meet the object of the requirement and should not defeat a suit on mere technical defects.
No new legal precedent was formulated by this judgment; the Court applied existing authorities and statutory interpretation to the facts before it and keyed the outcome to the absence of proof that the institution was a Wakf under the statutory definition.

Note: This summary is based exclusively on the content of the provided opinion and does not add information beyond what the judgment records.

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Karnataka Board Of Wakfs v. Nagaraja Rao

The Judgment of the Court was delivered by

Hiremath, J.:— The present appellant was the second defendant in the original suit before the trial Court of the District Judge at Chickmagalur in which the plaintiffs - respondents-1 and 2 had sued the appellant as well as State Government, the Commissioner for Religious and Charitable Endowments, Karnataka and 5th respondent Sajjada Nashan for the reliefs stated in the plant viz., for declaration that the suit institution is a religious institution being a holy place of worship belonging to Hindus and Mohammedans alike that the same is not a Wakf property and inclusion of the plaint schedule property by the appellant in the list being improper and illegal does not affect the rights of plaintiffs or Hindus to the said properties and that since the appellant has no right to control or manage the said institution the administration, management and control of the schedule property be re-transferred from the control of the appellant to that of the 3rd defendant - the Commissioner. They further prayed for a permanent injunction restraining the appellant from interfering with the rights of the plaintiffs or Hindus as aforesaid. That was a representative suit on behalf of Hindu community people after observing the necessary formalities required in respect of representative suits. The facts briefly stated are that there exists Sri Guru Dathathreyaswamy Peeta in Inam Dathathreya Peeta Village, Jaagra Hobli in Chickmagalur taluk. This ‘Peeta’ is situated in Inam Dathathreya Peeta village. It is also referred to as “Peeta of Bababudan Giri”. It has an unique distinction of having devotees among Hindus as well as Mohammadans. Hindus worship the Peeta as Sri Guru Dathatreya Swamy Peeta and Mohammadans as Darga of Dada Hayath Khalander. It is however recognised by the Government as Guru Dathathreya Bababudan Swamy's Darga and was a major Muzarai institution until the same was included in the List of Wakfs prepared and published by the Board of Wakfs.

2. It was under the control and management of the 3rd respondent under the Mysore Religious and Charitable Institutions Act, 1927. It is an ancient one and held in high esteem both by Hindus and Mohammadans. The “Paduke” are reputed to be of Shri Guru Dathathreyaswamy and Nandadeepa (eternal light) is kept for the purpose of Pooja. Hindus offer worship or pooja by offering flowers and coconuts and burning holy camphor. The annual Urus is also held at the Peeta but not according to the Mohammedan Calendar. It is held three days after the Holi Festival according to the Hindu Calendar. During Urus Gandha of the Holy Sandal Wood Paste is taken in procession from Athigundi to Peeta accompanied by Hindu Musical Instruments like Kombu, Kahale and Tamate. The Head of the Peeta is a person professing Islamic faith and is called as Sajjada. But the succession to the Office is regulated by the Rules governing the succession of Guru to Mutt. Even Sajjada recongised as Guru is exempted from personal appearance in the Civil Courts. Thus the plaintiffs emphasised that from the narration of the custom referred to above, the institution is not exclusively a Mohammadan institution but is one belonging to Hindus and Mohammadans alike.

3. These being the facts, in the year 1975 the 3rd defendant passed an order directing the Tahsildar, Chickmagalur to handover possession and control of Dathathreya Swamy Peeta to the 2nd defendant under the impression that it is a Wakf. That was in pursuance of an enquiry which was held by the 1st defendant in or about the year 1973. The Tahsildar, Chickmagalur had sought instructions about the plaint schedule institution from the Government, but it appears he did not receive any reply. After the order referred to above was passed, the 2nd defendant-appellant in March 1976 seized Paduke and Nandadeepa which act deprived the devotees of offering or performing Pooja. A representation of the leaders of Chickmagalur Town to the Deputy Commissioner brought about settlement and by that settlement the status quo was directed to be maintained. This is how the Paduke and Nandadeepa were restored to their original position. After the Wakf Act came into force in the year 1964 the institution was notified as a Wakf and this came to the knowledge of the plaintiffs only after the property was transferred to the 2nd defendant-appellant. They maintain that the inclusion of the plaint Peeta as Wakf property in the list of Wakfs without proper enquiry and against the requirements of law is improper and illegal and beyond jurisdiction of the 2nd defendant. Ghouse Mohiuddin styled as Muthavalli and never acted as Muthavalli or Sajjada or Guru of the said Peeta but it was the 4th defendant alone who was the Sajjada or Guru and he is entitled to act as such. Even after the List was published it was not acted upon and the Peeta was under the control and management of the 3rd defendant till 1975. When this came to the notice of the plaintiffs, they got issued notice under Section 80 C.P.C to all the defendants on 8-10-1976 and inspite of defendants being served duly no reply was sent. It is stated that in March 1976 the cause of action arose for the plaintiffs to file this suit when they came to know the notification of 1964. Defendants 2 and 4 viz., the present appellant - Wakf Board and the Sajjada Nashan respectively did not file any written statement and it appears they did not participate during hearing as well by cross-examining the witnesses. Defendant No. 3 however filed written statement contending that the allegations in the plaint are substantially true but with regard to the annual Urus he has stated that it is Muslim custom ceremony. Though it is done according to Hindu Calendar it is not shown anywhere as a Hindu ceremony. However, both Hindus and Muslims pay visit to the Peeta and offer prayers at the time of Urus. He admits about the Wakf Board seizing the Paduke and Nandadeepa in the year 1975 and adds that on 10-3-1976 an emergent meeting was held by the Deputy Commissioner, Chickmagalur District on the presentation of both Hindus and Muslims of Chickmagalur town and particularly concerning the seizing and sealing of Paduke and Nandadeepa and in that meeting the Tahsildar was asked to verify the facts and report. It was however reported that Paduke were in the sealed box but not the Nandadeepa. They were restored to their original condition. The rest of the allegations with regard to the handing over of the properties to the Wakf Board are not disputed. It is contended that because the suit is not filed within one year from the date of publication of List of Wakfs it is barred by time.

4. The trial Court addressed itself to the following issues:

1) Do plaintiffs prove that ‘Guru Dattatreya Peeta’ is a Religious Institution belonging to both the Hindus and Mohammadans alike?

2) Do defendants 1 and 3 prove that the said Peeta is included in the list of Wakfs and that it is Wakf property?

3) Do they prove that the Civil Court has no jurisdiction to try the suit?

4) Do they prove that the suit is barred by limitation?

5) Do they prove that the Court-fee paid is sufficient?

6) Are plaintiffs entitled to the declaration and injunction sought?

7) To what reliefs are the parties entitled?

Issues 1, 2 and 6 were answered in the Affirmative and Issues 3 to 5 in the Negative and a consequent decree in favour of plaintiffs followed.

5. The Wakf Board - 2nd defendant challenging this decree has mainly contended that the suit is barred by time as it was not filed within one year as required under Section 6 of the Wakf Act 1954 (‘the Act’ for short hereafter) and secondly, that it is bad for non-issue of notice under Section 56 of the Act. It was further contended that in view of undisputed facts that both Hindus and Muslims visit this Darga or Peeta and offer worship inspite of the same being included in the List of Wakfs their rights are not at all affected materially. It may be mentioned here that the allegations in the plaint that the Peeta or Darga is visited by persons of both community and that they have got right in the institution was not challenged by the appellant by raising any contentions to the contrary. Though there was representation of the appellant and sufficient time was granted for filing statement ultimately nothing was filed.

6. In this Appeal the following points arise for determination:

1) Whether the suit is barred by time as the same is not filed within one year from the date of the publication of the list of Wakfs by the appellant?

2) Whether the suit is bad for non-compliance of Section 56 of the Act?

3) Whether the Court below was right in directing that the management be given back to the 3rd defendant as prayed for in the suit?

7. Section 6(1) of the Act relates to disputes regarding the Wakfs. It reads as follows:

“6(1) If any question arises whether a particular property specified as Wakf property in a list of Wakfs published under sub-section (2) of Section 5 of Wakf property or not or whether a wakf specified in such list is a Shia or Sunni Wakf, the Board or the Mutawalli of the wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the civil Court in respect of such matter shall be final;

Provided that no such suit shall be entertained by the civil Court after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5.

Provided further that in the case of the list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969, such suit may be entertained by the Civil Court within the period of one year from such commencement.”

8. The contesting respondents herein have contended that they are the persons interested in the institution and they have filed the suit in representative capacity on behalf of the Hindus. They contend that it is not at all a Wakf and the appellant was not justified in including it in the List of Wakfs. The trial Court in this behalf referred to a Decision of the Supreme Court in the case of Wakf Board of Muslims Rajasthan v. Radha Kishan . 1979 2 SCC 468 and extracted the observations of the Supreme Court at para-18 of its Judgment. The relevant observations are as follows:

“It follows that where a stranger who is a non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year; the special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.”

It was pointed out by the Supreme Court by referring to the provisions of the Wakf Act and also Decisions cited therein at page 298 that the word ‘therein’ appearing in sub-section (1) of Section 6 must, therefore, mean any person interested in a Wakf as defined in Section 3(h). The object of sub-section (1) of Section 6 is to narrow down the dispute between the Board of Wakfs, the Mutawalli and the person interested in the Wakf, as defined in Section 3(h). They further observed that it could never have been the intention of the Legislature to cast a cloud on the right, title or interest of persons who are not Muslims. If a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the List published under sub-section (2) of Section 5. In para-34 it was also pointed out that the purpose of Section 6 is to confine the disputes between the Wakf Board, the Mutawalli and a person interested in the Wakf.

9. It is now contended on behalf of the appellant that the plaintiffs herein are the persons interested in the Wakf as contemplated under Section 3(h) of the Act and therefore, they were duty bound to file the suit within one year from the date of publication of the List of Wakfs under Section 6 of the Act. In our view, the Supreme Court in analogous cases discussed at length with reference to the various Decisions and observed that a suit of this nature cannot be governed by Section 6 of the Act. The trial Court was therefore justified in placing reliance on the Decision and to find that the suit is not barred by time. We do not find any reason to come to a different conclusion. Accordingly, we find that the suit is not barred by time.

10. The next point raised is one of notice under Section 56 of the Act. There is averment in the plaint that notice under Section 80 C.P.C was issued to the defendants-1 to 4. Section 56 of the Act relating to notice of suits by parties against the Boards is pari materia to Section 80 C.P.C It is stated no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any Rules made thereunder until the expiration of two months next after notice in writing has been delivered to or left at the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Ex. P-7 is a copy of the notice under Section 80 C.P.C and addressed to all the defendants. Virtually all the allegations in the plaint find place in this notice. Thus with regard to the relief, the cause of action, the nature of the claim the notice fulfils the requirement of Section 56 of the Act. There is an averment in the plaint that the notice has been so issued. Here again, as already stated there was no contention of the appellant that the suit is bad for non-issue of notice under Section 56 of the Act. Still that being a statutory notice it is for the Court to consider whether such a notice as required under Section 56 of the Act was issued to the appellant at all. The argument of the learned Counsel for the respondents-plaintiffs that no such notice was required to be issued cannot be countenanced for the simple reason that if the plaintiffs were to challenge the act of the Wakf Board-appellant done in pursuance of the provisions of the Act, then, whatever is the relief claimed it is mandatory that notice as required under Section 56 has to be issued. The trial Court did not advert to this aspect perhaps for the reason that there was no contention raised by the affected party viz., the present appellant and there was no issue on it. However, as Section 56 makes it obligatory that the plaintiff should make an averment that such a notice has been issued and in view of the mandatory requirement of issuance of such notice, it was necessary for the Court to consider this aspect.

11. As already stated the purpose of the notice is to inform the Wakf Board that a suit of the nature that the plaintiff were contemplating would be filed against it for the reliefs claimed therein. It may be stated that the purpose of issuance of such notice is only to inform the affected party that if necessary and found desirable it may consider if the reliefs that the plaintiffs are claiming in the suit could be granted without plaintiffs approaching the Court. If all the requirements of Section 56 of the Act are fulfilled whether non mention of the provision of law in the notice viz., Section 56 of the Act would make the notice not according to law is the point. In this behalf, the observations of the Supreme Court in the case of State Of Punjab v. Geeta Iron & Brass Works Ltd. . 1978 1 SCC 68 may be noted for understanding the object of such a notice. Their Lordships held that a statutory notice of the proposed action under Section 80 C.P.C is intended to alert the State to negotiate a just settlement or atleast for the courtesy to tell the potential outsider why the claim is being resisted. A litigative policy in the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in Court. This exactly is the object and purose of giving a notice before suit. In our view though “Section 80 C.P.C” has been quoted as a provision under which this notice has been issued it is sufficient and substantial compliance of requirement of Section 56 of the Act and the object was to put the appellant on its alert to negotiate a just settlement or at least to have the courtesy to tell the potential outsiders why the claim if any was being resisted. It is undisputed that the appellant did not think it necessary to send any reply to this notice. In our view, therefore when there is substantial compliance of the requirement of Section 56 of the Act mere non-mentioning of the provision in the notice that it was one under Section 56 of the Act does not affect the very institution of the suit. This notice was dated 8-10-1976. The suit was filed on 13-12-1976. Our attention was invited to Section 80(3) C.P.C and sub-section (3) was added by the amending Act of 1976. However, it may be noted that the Legislature recognised the object and purpose of issuance of such notice and enacted by introducing sub-section (3) that no suit instituted against the Government or against a public officer in respect of any act purporting to be done by an officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice - (a) the name, description and residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1); and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. Thus the Legislature thought it fit that this sub-section (3) finds place on the statute book so that on technical errors the suit should not fail. If the object of providing for statutory notice is considered in the light of the Decision of the Supreme Court in the case of Geeta Iron & Brass Works Ltd. (supra), it must be said, the same is not by substantial compliance with requirement of Section 56 of the Act. The suit therefore need not fail on this technical error.

12. Now turning to the relief it is contended that after a survey was made by the Wakf Board as required under the Act the institution came to be included in the List of Wakfs published by the appellant and therefore even if the Hindus also have a right to visit the Peeta and offer their Pooja they can do so without any hindrance. The trial Court was not justified in granting the relief of retransferring the institution to the Register maintained by the 3rd defendant Commissioner. The nature of the institution finds mention in the Mysore Muzrai Manual, 1934 at page 571. It says:—

“The Guru Dathatreya Bababudan Swamy's Darga on the Bababuden Hills in the Chickmagalur Taluk is an ancient and important institution held in high esteem by Hindus and Mohammadans alike and is resorted to by large members of pilgrims from all parts of India. It is presided over by a Sajjada whose succession to the office is regulated by the Rules governing the succession of Gurus to Mathas.

The Darga is endowed with the inam villages of Suraguppe, Dattatreya Peeta and Jannath Nagara. Owing to the expansion of the Railway system and the opening out of a decent road to the very gate of the Peeta, the number of pilgrims to the shrine increased very much, and as the income was found insufficient a cash grant of Rs. 1,800 a year was sanctioned in recent years.”

13. This description of the shrine very much concurs with the averments in the plaint. The Wakf is defined in Section 3(1) of the Act to mean the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. “Wakif” means any person making such dedication. It is necessary to note in this context that it was not contended by the appellant that this institution fulfills the requirement in the definition of a “Wakf” and it was nowhere contended atleast by the contesting defendants that it came into existence by virtue of dedication by a Muslim. Unless the institution falls within this definition of “Wakf” it would not be proper to contend that because it is included in the List of Wakfs, the Board of Wakf should continue to manage the institution. In our view unless there is averment and proof that the institution is a Wakf, the appellant cannot contend that its inclusion in the List of Wakfs is unassailable and hence the right to manage vests in it. The very purpose of the Wakf Act is to provide for better administration and supervision of Wakfs as stated in the preamble to the Wakf Act. Therefore when the appellant did not contend in the Court below that it is a Wakf and there is no proof that it is a Wakf the appellant cannot in this appeal contend that the decree of the trial Court in directing retransferring of the institution as prayed in the plaint to the Register maintained by the 3rd defendant cannot be sustained.

14. We cannot part with this Judgment without placing on record our happiness and appreciation of the spirit of brotherhood among the Muslims and Hindus who offer prayer at this Darga or Peeta. The drab slogan we hear elsewhere in the Country day in and day out that Ram and Rahim or Ishwar and Allah is one without practising the faith in its true spirit finds its translation into concrete action and practice in this Holy Shrine. What is more heartening and commendable is the attitude of the 4th defendant Sajjada who is said to be Muslim not to challenge the averments of his Hindu brothern the plaintiffs that this shrine belongs to both Hindus and Muslims. Equally heartening is the spirit of Hindu plaintiffs in not claiming the shrine as exclusively belonging to the Hindus for the reason that there are “Paduke” and “Nandadeepa” maintained and protected since ancient time and it is also known as “Guru Dathatreya Peeta”. It is only the Wakf Board that wants to lay claim on it taking advantage of its own unilateral acts in 1964 without the very Muslim community people offering prayer since hundreds of years making any claim on it as their exclusive shrine. The suit institution “the Guru Dathatreya Babadudan Swamy” stands aloft as a shining example of true secularism in this world divided so sharply on narrow caste, communal or religious considerations.

We do not find any merit in this appeal. The same is liable to be dismissed and it is dismissed with costs of the respondents 1 and 2.

Karnataka Board Of Wakfs v. Nagaraja Rao

Summary of Judgment delivered by Hiremath, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Wakf Board) — main contentions

Plaintiffs / Respondents — main contentions

3rd Defendant (Commissioner) — contentions in written statement (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

1. Limitation under Section 6 of the Wakf Act (whether suit barred)

2. Notice requirement under Section 56 of the Wakf Act (whether statutory notice given)

3. Entitlement to relief (whether institution is a Wakf and whether management should be retransferred)

Holding and Implications

Karnataka Board Of Wakfs v. Nagaraja Rao

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