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Case Number

Appeal from Original Decree no. 252 of 1950, from a decision of Mr. R.K Sinha, Subordinate Judge of Patna

Attorney(S)

Sir Sultan Ahmad, Bashiruddin and S.A Saghir, for the appellant.
Pandey Narsingh Sahai, Pandey Gopal Krishna Sahai, Guneshwar Prasad and Murtaza Fazl Ali for the respondents.

Judges

Ramaswami
Sarjoo Prosad, JJ.

Acts

sections 5, 7 and 57 of Bihav Act VIII of 1948. Section 5
sub-section (1) of section 5 of Bihar Act VIII of 1948
clause (1) of section 7 of the Bihar Waqfs Act, 1947,
Bihar Amending Act XXI of 1950, section 4
SECTION 2 AMENDING ACT
sub-section (1) of section 57
Bihar Wakf Act VIII of 1948
Wakf Act VIII of 1948
Bihar Wakf Act VIII
Act. Section 5(2)

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Smart Summary

Legal Opinion Summary — Ramaswami, J. (with concurrence by Sarjoo Prosad, J.)

Factual and Procedural Background

The plaintiff sued to challenge a deed of permanent lease dated 17 June 1948, by which defendant no. 2, Saiyid Wasi Haider (alleged Motawalli of certain endowed properties of a mosque), purportedly leased the properties listed in Schedule 1 of the plaint to defendant no. 1. The plaint alleged that the purported lessee and the Motawalli acted collusively, that the District Judge granted sanction on 8 June 1948 on the basis of misrepresentation, and that the lease purportedly violated statutory limitations on transfers by a Motawalli. The salami stated in the document was Rs. 6,000 and the rent Rs. 500.

The plaintiff contended it was established as a body corporate under the Bihar Wakf Act on 1 May 1948 and relied on statutory restrictions on leases (section 43) to assert the lease was void, that the District Judge lacked jurisdiction to sanction it, and sought declarations, ejectment, and an injunction against demolition.

The defendants' principal defence was that the plaintiff was not duly constituted under the Bihar Wakf Act and therefore not competent to sue; alternatively, they contended defendant no. 1 acted bona fide and that District Judge’s sanction validated the lease.

The Subordinate Judge dismissed the suit on the preliminary ground that the plaintiff had not been duly constituted under the Bihar Wakf Act. The plaintiff appealed; the sole question argued on appeal was whether the plaintiff had been lawfully constituted and established under the Bihar Wakf Act VIII of 1948 and thus entitled to maintain the suit.

Legal Issues Presented

Whether the plaintiff (Bihar Subai Sunni Majlis Awqaf) had been lawfully constituted and established under sections 5 and 7 (and in context section 57) of the Bihar Wakf Act VIII of 1948 and was therefore entitled to maintain the suit.
Whether the Government notification dated 1 May 1948 (appointing members under clause (1) of section 7) validly constituted the first Majlis for Bihar, given the language of section 5 and the absence of an explicit agency in that section to establish the Majlis.

Arguments of the Parties

Appellant's Arguments

The notification dated 1 May 1948, issued in exercise of the power under clause (1) of section 7, constituted the Majlis and thereby established the plaintiff as a body corporate under section 5 of the Act.
Section 5 should be construed (in its legislative and contextual setting) as delegating authority to the Provincial Government to establish the Majlis.

Respondents' Arguments

The plaintiff was not duly constituted or established under the Bihar Wakf Act and therefore lacked capacity to sue; the suit as framed was not competent.
Section 5 did not expressly delegate authority to the Government to establish the Majlis; thus the Government could not constitute the Majlis by notification under section 7.
Challenging the later legislative response: the respondents contended that the Amending Act (XXXIII of 1950) was void under Article 13 of the Constitution because it abridged the fundamental right of property under Article 19(1)(f).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Salmon v. Duncombe	Principle that words in a statute which would render the statute ineffective or produce a result contrary to its manifest purpose may be treated as immaterial or construed so as not to defeat the legislative intention.	The court relied on the case to justify construing section 5(1) of the Bihar Wakf Act so as to read in authority for the State Government to establish the Majlis (i.e., to avoid rendering section 5 meaningless and to give effect to the statute's purpose).

Court's Reasoning and Analysis

The court identified the pivotal statutory provisions as sections 5, 7 and 57 of the Bihar Wakf Act VIII of 1948. Section 5(1) provided that "as soon as possible after this Act comes into force, there shall be established for the Province of Bihar a Majlis...", and section 5(2) described the corporate nature and powers of the Majlis. Section 7 assigned appointment of the members of the first Majlis to the Provincial Government and empowered the Government to appoint a Sadr from among them. Section 57(1) referred to "the date of publication of the notification establishing the first Majlis."

The court observed a textual gap: section 5 did not expressly state which authority was to establish the Majlis, and a literal grammatical reading could produce the untenable result that a Majlis could never be constituted, frustrating the statute's purpose. To avoid so nullifying the scheme of the Act, the court applied established principles of statutory construction (quoting Maxwell on Interpretation of Statutes) and the precedent Salmon v. Duncombe to modify the literal reading where necessary to effect the clear legislative intent.

Applying those principles, the court held that section 5(1) should be read as if the phrase "by the State Government" were interpolated after "shall be established." Thus, the legislature must be understood to have delegated to the Provincial Government the authority to establish the Majlis; the omission was a casus omissus that should be remedied by construction rather than permitting the Act's object to be defeated.

The court then considered subsequent legislation bearing on the point. It noted that Amending Act XXXIII of 1950 (section 2) expressly inserted the words "by the State Government" into sub-section (1) of section 5 and declared that they should be deemed always to have been inserted. Respondents' contention that this Amending Act was void under Article 13 because it abridged the fundamental right of property (Article 19(1)(f)) was rejected: the court held the Amending Act did not directly affect the respondents' fundamental rights in the manner alleged.

Turning to the notification dated 1 May 1948 (issued under clause (1) of section 7 appointing first members), the court noted that no separate notification under section 5(1) had been produced. Respondents argued the Majlis had not been established. The court relied on Bihar Amending Act XXI of 1950, section 4, which expressly provided that the Government notifications Nos. 4448-D and 4449-D dated 1 May 1948 appointing members of the Majlises "shall be deemed to have duly established each of the Majlises" and that such establishment "shall not be called in question in any proceeding whatsoever." In light of that clear legislative provision, the court concluded notification No. 4448-D dated 1 May 1948 had duly established the Majlis.

On this combined textual-construction and statutory-amendment basis, the court concluded the plaintiff had been duly constituted and established under sections 5 and 7 of the Bihar Wakf Act and therefore had the capacity to prosecute the suit. The court accordingly allowed the appeal, set aside the Subordinate Judge's decree, and remanded the suit for hearing on the substantive question whether the deed of permanent lease was illegal and void and on consequential reliefs.

Holding and Implications

APPEAL ALLOWED; CASE REMANDED

Holding:

The court held that the plaintiff (Bihar Subai Sunni Majlis Awqaf) had been duly constituted and established under sections 5 and 7 of the Bihar Wakf Act VIII of 1948 and was entitled to maintain the suit.
The decree of the Subordinate Judge dismissing the suit for lack of competency was set aside.
The suit was remanded for consideration on the substantive merits (whether the deed of permanent lease dated 17 June 1948 was illegal and void and for consequential reliefs).
There was no order as to the costs of the appeal.

Implications:

Direct effect: The plaintiff is entitled to litigate the substantive challenge to the lease; the preliminary dismissal for want of proper constitution of the plaintiff is reversed.
The court resolved the technical gap in section 5 by reading into it the authority of the State Government to establish the Majlis, a construction reinforced by later amending legislation (Amending Act XXXIII of 1950 and Bihar Amending Act XXI of 1950).
The decision decides the issue of the Majlis's constitution for the purposes of this litigation and prevents challenge (per section 4 of the Bihar Amending Act XXI of 1950) to the 1 May 1948 notifications in any proceedings; the appeal was allowed on these bases and the matter remitted for trial on the substantive issues.
The opinion does not purport to establish a novel constitutional principle beyond these statutory-construction conclusions; it applies established construction principles and cites Salmon v. Duncombe as authority for the remedying construction.

Concurrence: Sarjoo Prosad, J. concurred. The order of the court was: Appeal allowed.

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Bihar Subai Sunni Majlis Awkaf v. Sitaram

Ramaswami, J.:— This appeal is brought on behalf of the plaintiff against the judgment and decree of the 1st Subordinate Judge of Patna, dated the 22nd June 1950.

The plaintiff alleged that defendant no. 2 Saiyid Wasi Haider was Motawalli of certain endowed properties appertaining to a mosque situated in mohalla Qazi Abdul Momin alias Bagh Lodan and that on 17th June 1948, defendant no. 2 executed a deed of permanent lease in favour of defendant no. 1 with respect to the properties mentioned in schedule 1 of the plaint. The salami mentioned in the document was Rs. 6,000 and the rent was Rs. 500 but the plaintiff alleged that defendants 1 and 2 acted collusively and the sanction of the District Judge was obtained on 8th June 1948 on misrepresentation. It was averred that on 1st May 1948, the plaintiff was established as a body corporate under the Bihar Wakf Act and under section 43 of the Act no transfer made by a Motawalli of the property of a Wakf by way of lease extending a period of three years could be valid unless made with the previous sanction of the Majlis. The plaintiff therefore asked for a declaration that the deed of permanent lease, dated the 17th June 1948, executed in favour of defendant no. 1 was void and invalid, that the District Judge had no jurisdiction to sanction the lease and defendant no. 1 had acquired no title to the properties mentioned in schedule 1 of the plaint. The plaintiff also asked that the defendant no. 1 should be ejected from the properties and that he should be restrained by permanent injunction from demolishing the structures existing on the land in question.

The main ground of defence was that the plaintiff was not duly constituted or established under the Bihar Wakf Act VIII of 1948; that in any case defendant no. 1 acted bona fide in the interest of the Wakf and since the District Judge granted sanction the deed of permanent lease in favour of defendant no. 2 was valid.

The learned Subordinate Judge dismissed the suit on the preliminary ground that the plaintiff was not duly constituted under the Bihar. Wakf Act VIII of 1948 and the suit as framed was not competent.

The sole question argued in this appeal is whether the plaintiff was lawfully constituted and established under the Bihar Wakf Act VIII of 1948 and so entitled to maintain the present suit.

The answer to this question turns upon the construction and effect of sections 5, 7 and 57 of Bihav Act VIII of 1948. Section 5 deals with the constitution and incorporation of the Majlis. Section 5(1) states: “As soon as possible after this Act comes into force, there shall be established for the Province of Bihar a Majlis to be called the Bihar Subai Sunni Majlis-e-Awqaf, and a Majlis to be called the Bihar Subai Shia Majlis-e-Awaaf, to discharge respectively in regard to Sunni Waqfs and Shia Waqfs in the Province of Bihar the functions assigned to the Majlis by this Act”. Section 5(2) enacts: “The Majlis shall be a body corporate by the name of the Bihar Subai Sunni Majlis-e-Awqaf, or the Bihar Subai Shia Majlis-e-Awqaf, as the case may be, and shall have perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to transfer, any such property subject to the prescribed conditions and restrictions and shall, by the said; name, sue and be sued”. Section 7 deals with the Sadr and members of the first Majlis and their term of office. It provides that all the members of the first Majlis shall be appointed by the Provincial Government and the Provincial Government shall appoint one from amongst the members to be the Sadr of the first Majlis. On behalf of the appellant reference was made to the notification, dated the 1st May 1948, which states that in exercise of the powers conferred by clause (1) of section 7 of the Bihar Waqfs Act, 1947, the Government were pleased to appoint certain persons to be the members of the Bihar Subai Sunni Majlis-e-Awqaf. Dr. Sultan Ahmad argued that as soon as this notification was published the Majlis was constituted and incorporated within the meaning of section 5 of the Act. But it was objected for the respondents that section 5 did not delegate to the Government of Bihar the authority to establish the Majlis. It is true that section 5 does not expressly delegate to the Government of Bihar or to any one else the authority to establish the Majlis. It is apparent also that by enacting section 5 the legislature did not incorporate in praesenti the Majlis, for the opening words of section 5(1) are—“as soon as possible after this Act comes into force, there shall be established for the Province of Bihar a Majlis………:…. “and section 57(1) refers to “the date of publication of the notification establishing the first Majlis”. It is plain therefore that the legislature did not itself establish in praesenti the Majlis but intended that the Majlis should be incorporated in future by a notification duly published. But section 5 makes no reference to the authority by which the legislature intended the Majlis to be established. If section 5 is however read in the context of the two following sections, viz., sections 6 and 7, it is sufficiently clear that the legislature intended to delegate to the Provincial Government the authority to establish the Majlis for the province of Bihar. It is therefore necessary in this case to give effect to the principle that the manifest intention of a statute ought not to be defeated by too literal an adhesion to its precise language. To put it in other words the principle is that when the main object and intention of a statute ‘is clear it must not be reduced to a nullity by a draftsman's unskilfulness or ignorance of the law. In Maxwell on the Interpretation of Statutes, 9th edition, page 236 the principle of construction is laid down in these terms:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence”.

Applying the principle in the present case, it is obvious that section 5 neither constitutes a Majlis in praesenti nor indicates the agency by whom the Majlis is to be constituted. If the section is grammatically construed, no Majlis' could ever be established or incorporated and the object; and intent of the Act—the better administration of Wakfs—would be wholly, nullified. Section 5(1) should therefore be construed as if the phrase ‘by the State Government’ is interpolated after the phrase ‘shall be established’. It is a case of casus omissus and the section must be so construed as to give effect to the undoubted object of the statute.

The principle is enunciated in the leading case Salmon v. Duncombe in which the clearly expressed intention of Colonial Ordinance was to give to any subject of the Queen resident in the Colony the power of disposing by will according to English law of property both real and personal, which otherwise would devolve according to Natal law. Section 1 of the Ordinance was operative for that purpose, except that it concluded with the provision ‘as if such subject resided in England’, the effect of which was to leave both the lex situs and the lex domicilii in operation, thus reducing the section to a nullity. It was held by the Judicial Committee that the concluding words ought not to be so construed as to destroy all that had gone before, and therefore should be treated as immaterial, the powers conferred not being affected by the question of residence in England.

Upon the proper construction of section 5(1) in this case I am of opinion that the legislature had delegated authority to the Provincial Government to establish the Majlis. But the Amending Act XXXIII of 1950 has placed the matter beyond doubt. Section 2 of the Amending Act states that in sub-section (1) of section 5 of Bihar Act VIII of 1948 after the words ‘shall be established’ the words by the State Government shall be inserted and shall be deemed always to have been inserted. It was contended for the respondents that the Amending Act was void under Article 13 of the Constitution since it abridged the fundamental right of property conferred under Article 19(1)(f). In my opinion the argument is not correct. Article 13(2) states that ‘the State shall not make any law which takes away or abridges the rights conferred by this Part’. It is manifest in this case that the Amending Act is not, a law which directly affects the fundamental right of the respondents and the argument of the learned counsel cannot be accepted.

The next question is whether the notification of the Government, dated the 1st May 1948, validly constitutes the Majlis for the State of Bihar. This notification was made by Government in exercise of the powers conferred by clause (1) of section 7 of the Act. No notification under section 5(1) establishing the Majlis has been produced in this case. It was urged on behalf of the respondents that even if the Government had the authority to establish Majlis such authority has not been exercised and the Majlis has not been established. But the argument is met by the Bihar Amending Act XXI of 1950, section 4 of which states: “Notwithstanding anything contained in sub-section (1) of section 57 or any other section of the said Act, notifications nos. 4448-D. and 4449-D., dated the 1st May 1948 of the Government of Bihar in the Development Department, appointing respectively members of the Bihar Subai Sunni Majlis-e-Awqaf and the Bihar Subai Shia Majlis-e-Awqaf to discharge respectively in regard to Sunni Wakfs and Shia Wakfs the functions assigned to the Majlis by the said Act, shall be deemed to have duly established each of the Majlises and the establishment of any of the said Majlises shall not be called in question in any proceeding whatsoever, including proceeding pending in any Court, on the ground that the order establishing the Majlis was not made, issued or published”. In view of the Amending Act it must be held that notification no. 4448-E., dated the 1st May 1948, of the Government of Bihar has duly established the Majlis.

Upon the main question argued I hold that the plaintiff, Bihar Subai Sunni Majlis Awqaf, has been duly constituted and established under sections, 5 and 7 of the Bihar Waqf Act of 1947 and that the plaintiff is entitled to prosecute the present suit.

Accordingly I would allow this appeal, set aside the decree of the learned Subordinate Judge and remand the suit for being heard on the question whether the plaintiff is entitled to a declaration that the deed of permanent lease was illegal and void and 9 for the other consequential reliefs claimed.

There will be no order as to costs of this appeal.

Sarjoo Prosad, J.:— I concur.

Appeal allowed.

S.H

Bihar Subai Sunni Majlis Awkaf v. Sitaram

Legal Opinion Summary — Ramaswami, J. (with concurrence by Sarjoo Prosad, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bihar Subai Sunni Majlis Awkaf v. Sitaram

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