State Wakf Board, Madras vs Abdul Azeez Sahib and Others

M. Anantanarayanan, Offg. C.J.

(1) This Letters Patent Appeal has been instituted by the Wakf Board of Madras State represented by its Secretary, from the judgment of

Kailasam, J., in C.M.P. No. 6252 of 1964 in S.A. No. 965 of 1961. We may very briefly state, before setting out the essential facts necessary for

an analysis of the ground of controversy in this appeal, that the application was under the Muslim Wakf Act, for declaring a particular decree

(decree in O.S. No. 432 of 1956 on the file of the Third Additional District Munsif, Tiruchirapalli, confirmed by the judgment in A.S. No. 437 of

1958, District Court, Tiruchirapalli and S.A. No. 965 of 1961 of this Court) as void within the scope of S. 57, sub-clause (3) of the Act (29 of

1954). The learned Judge (Kailasam, J.) dismissed the petition as barred by limitation and the appeal is from this order.

(2) Before proceeding to the facts, it may be necessary to notice the precise terms of S. 57(1) and 57(3) of the Wakf Act (29 of 1954). Section

57(1) states--

In every suit or proceeding relating to title to wakf property.......the Court shall issue notice to the Board at the cost of the party instituting such

suit or proceeding.

(2-A) u/s 57(3) ""In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if

the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf"".

(3) The following events and dates, furnishing the background of the litigation, are essential for a proper understanding of the ground of

controversy. The dispute related to a wakf known as Rustom Saheed Durga Wakf in Sirudayur village, Tiruchirapalli district. Admittedly the wakf

was included in the list of wakfs published by the Wakf Board in the ''Fort St. George Gazette, dated 10-2-1958. A certain Kandaswami Iyer

filed O.S. No. 616 of 1949 and O.S. No. 12 of 1950 in the District Munsif''s Court, Tiruchirapalli, for recovery of possession of two properties,

S. Nos. 131/3 and 132 of Sirudayur village, and these actions were resisted by the Durga on the ground that these were properties of the Durga in

which the plaintiff had no right whatever. It is admitted that the suits were dismissed by the trial Court (the learned District Munsif) on 15-10-1951.

First appeals were filed by the plaintiff concerned in the Court of the Sub-Judge, Tiruchirapalli, and they were numbered as A.S. Nos. 49 and 50

of 1952 and dealt with on the merits. It is not in dispute that the appeals were allowed on 2-9-1952 thereby declaring the title of the plaintiff and

his right to possession. S.A. Nos. 2053 and 2054 of 1952 were again decided in favour of that plaintiff and were dismissed by Krishnaswami

Nayudu J. on 25-1-1956. In this context itself, we may note that the Muslim Wakf Act 29 of 1954 received the assent of the President on 21-5-

1954. There was a period of an interregnum, when no Wakf Board under the Act, was constituted in Madras State; but ultimately such a Board

was constituted on 1-2-1958.

(4) There was a subsequent suit O.S. No. 432 of 1956 instituted on behalf of the Durga, for a declaration that the decrees in the two previous suits

in the First Appellate Court and in second appeals in this Court, which allowed and established the claim of the plaintiff (Kandaswami Iyer) to the

suit properties and his right to possession, were really fraudulent and collusive decrees, obtained by collusion between the plaintiff and the then

representative of the Durga. This was dismissed by the District Munsif, Tiruchirapalli, on 22-4-1958 and the first appeal from this decree of

dismissal, A.S. No. 437 of 1958, was dismissed by the District Judge on 7-9-1960. On 2-4-1964, the second appeal from the decree (S. A. No.

965 of 1961) was disposed of by Kailasam, J., and the second appeal was dismissed. The application out of which this Letters Patent Appeal

arises seems to have been instituted in July 1964.

(5) On 6-6-1964, the Secretary of the State Wakf Board received a letter from one L. N. Ghulam Mohamed, whose precise status and interest

need not concern us now, pointing out the above fact, and equally stressing that the Wakf Board ought to have been made a party at least to the

subsequent litigation which came into existence after the Board was constituted, and that the interests of the endowment have suffered because the

statute was not complied with in this regard. On this letter on 6-7-1964, namely, within the period of one month specified as the period of limitation

in S. 57(3) that we have extracted, and set forth earlier, the Wakf Board instituted C.M.P. No. 6252 of 1964 under S. 57(3) of Act 29 of 1964.

The legal representative of the original plaintiff strenuously contended before the learned Judge (Kailasam, J.) that on two main grounds this civil

miscellaneous petition should fail. The first was that whatever might be said about the character of the two original suits, namely, O.S. No. 616 of

1949 and O.S. No. 12 of 1950, the subsequent suit O.S. No. 432 of 1956 could not be regarded as ""a suit or proceeding relating to title to

property"" within the meaning of these words in Sec. 57(1). On the contrary, the suit or proceeding related to the nature of the decree in the two

earlier suits, as fraudulent and collusive, and sought to establish that character. The title to the properties was not directly in issue in the subsequent

suit O.S. No. 432 of 1956 and the suit on the relevant proceedings did not thereby violate S. 57(1) because no notice was issued to the Wakf

Board.

(6) The second ground was that, in any event, the application was barred by limitation. Sri P. Sherifuddin, learned counsel, who appeared on

behalf of the representatives of the Durga who filed O. S. No. 432 of 1956 of this Court in second appeal S.A. No. 965 of 1961 must necessarily

have been aware of the nature of the proceedings and of the properties concerned. He was thus aware that the proceedings related to certain

decrees, which declared that title to the properties against the Druga (and thereby against the Wakf Board). Thus, the Board must be considered

to have had knowledge of the suit or proceedings when Sri Sherfuddin appeared in S.A. No. 965 of 1961 since admittedly Sri Sherfuddin was

elected Chairman of the Madras State Wakf Board on 11-5-1963, and has functioned as such officer ever since. Of the two arguments Kailasam,

J., dismissed the argument based upon the non-applicability of the terms of Sec. 57(1) to the subsequent suit. But he did accept the argument that

the State Wakf Board must be held to have had knowledge of the proceedings even in April 1964 when the second appeal was disposed of by the

learned Judge, and when Sri Sherfuddin appeared as counsel for one of the parties since the knowledge of Sri Sherfuddin was the knowledge of

the Chairman of the State Wakf Board, the Board had the necessary knowledge long before its application in this petition, the Board cannot claim

that it had knowledge only on receipt of the letter from Sri Ghulam Mohammed dated 6-6-1964. This argument was accepted by the learned

Judge, with the result that the proceeding was dismissed on the ground of limitation.

(7) Sri Arunachalam, for the present respondents (legal representatives of the original plaintiff) sought to support the judgment of the learned Judge,

even on the ground on which the learned Judge held against his clients, that is, the ground relating to the application of S. 57(1) of the Act, to the

subsequent suit. We shall immediately dispose of this matter, before proceeding to the ground on which the learned Judge dismissed the application

of the Wakf Board before him.

(8) We have no doubt whatever that the learned Judge (Kailasam, J.) was correct in his view that even the second suit has to be interpreted as

within the scope of the words employed in Sec. 57(1), namely, ""In every suit or proceeding relating to title to wakf property"". There is ample

judicial authority for the view that such words as ""relating to"" or ""in relation to"" are words of comprehensiveness which might both have a direct

significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought not to be so

construed. The matter has come up for judicial determination in more than one instance. The case in Compagnie Financiee Due Pacifique v.

Peruvian Guano Co., (1882) 11 QBD 55, it of great interest, on this particular aspect and the judgment of Brett, L.J., expounds the interpretation

of Order 31, Rule 12 of the Rules of the Supreme Court, 1875, in the context of the phrase ""material to any matter in question in the action"". Brett,

L.J., observed that this could both be direct as well as indirect in consequence and according to the learned Judge the test was this (at page 63)--

.......... a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case

or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry, which may have either of these

consequences.

(9) In other words, applying the test of the decision to the present situation of fact, if allowance of the claim in O.S. No. 432 of 1956, the second

suit would necessarily have consequences upon the declaration of title to the property claimed as Wakf property in the earlier suit, it is also a suit

or proceeding ""relating to the Wakf property"". The fact that two steps have to be taken to arrive at this inference, instead of one direct step, cannot

make any essential difference.

(10) In Netal Charan Bagchi v. Sureshchandra Paul, (1962) 66 CWN 767, a Bench of that Court had occasion to consider a very similar rule

relating to Sec. 5(4) and item 7 of the First Schedule of the West Bengal Civil Courts Act XXI of 1953, and it is noteworthy that the very phrase

interpreted was the phrase ""relating to"". The learned Judges cited the dicta of Sulaiman, C.J., in (Sahu) Shyam Lal Vs. M. Shayamlal, , to the effect

that matters may not strictly speaking, be the subject-matter of the suit itself as brought, and yet they may relate to the suit. The learned Judges also

cited and followed the dicta of Brett, L.J., in the case that we have referred to. Our attention has not been drawn to any decision embodying or

expressing a contrary view, of a more restricted interpretation of such words as ""relating to"". The authorities and the lexicons to which our attention

has been drawn, are uniformly in favour of the more comprehensive interpretation. We think it is sufficient, in this context, to refer to 76 Corpus

Juris Secundum 621 on the word ''relate'' commentary on the word: ''It is a very broad word, and it presupposes another subject-matter"".

(11) In the light of these authorities we agree with the learned Judge in his view that the second suit and decree do come within the ambit of Sec.

57(1) of the Act XXIX of 1954. That being the case, if the application is in time, the State Wakf Board (appellant) has every right to advance such

an application and the Court will have jurisdiction to hear and determine the application. The question whether the application on the present facts

is time-barred or not, is of course, another matter, but we might make it clear in the present context itself, that the fact that the second suit ripened

into a decree which was confirmed in first and second appeals appears to us to make no essential difference.

(12) The consequences of our declaring the decree as void, in terms of Sec. 57(1) may be extremely inconvenient; it may even involve further

complications and disturb a state of rights that has not been challenged since the year 1952. But this consequence of the situation of law cannot be

shirked. So long as the law is clear, it is our duty to give effect to the intent and purport of the section of the law as it stands, irrespective of the

impact or consequence of this finding on the rights of parties.

(13) After very careful consideration, we are convinced that the view of the learned Judge cannot be supported, that the knowledge of Sri

Sherfuddin, counsel for the representatives of the Durga in S.A. No. 965 of 1961, disposed of on 2-4-1964 is knowledge of the Chairman of the

State Wakf Board, and as a further step, that such knowledge on his part will fix the Wakf Board itself with the knowledge of these relevant

proceedings. For a variety of reasons which appear to us to merit acceptance at our hands, we are unable to agree with the learned Judge in

thinking that this issue can at all be approached from the perspective of ''piercing the veil'' of corporate personality. The learned Judge has quoted

two extracts in support of his view. One of them is from Dillon on Municipal Corporation, V. II, p. 1296, and another from Clerk on Modern

Corporation Law, Vol. I, at page 25. At the highest, these passages may justify the interpretation that, where a corporation has certain duties or

obligations, the fact that its servants had the requisite knowledge, might lead to the just inference that the corporation had the knowledge and

should undertake the obligation. It is generally where the corporate personality is put forward as a means or pretext to perpetuate fraud, or to

evade a plain responsibility, that Courts have pierced the veil of that personality juristic entity. Observations to this effect are to be found in the

judgment of Mckenna J. in J.J., Mc Caskill Co. v. United States, (1909) 216 U.S. 504, and they have been cited by the learned Judge.

(14) But the present is a widely different matter. Sri Sherfuddin, learned counsel for the representatives of the Durga, might or might not have

realised that the context of situation was such that the Wakf Board ought to have notice under S. 57(1) of Act XXIX of 1954. Even if he had this

consciousness or knowledge he might have well hesitated to take action as Chairman of the State Wakf Board. His knowledge might have been

imported to him by his clients (representatives of the Durga) and he might have feld naturally hesitant in taking advantage of information thus

conveyed to learned counsel in order to fulfil some statutory duty relating to a totally distinct capacity. As a principle of law, we do not think that it

can be maintained that any kind of knowledge or information, furnished to some officer of a corporate body entity in any context whatever, can be

fixed with the character of the knowledge or notice of the concerned corporate entity. On the contrary, there are authorities definitely against such

a view.

(15) We think it sufficient in this context to cite the very clear dicta appearing in Halsbury''s Laws of England, Simonds Edn., Vol. 6, p. 435, under

sub-section ""notice to officers"". The learned author states:--

In order that notice to a company may be effectual it should either be given to the company through its proper officers or received by the

company in the course of its business. Notice to a director or other officer of the company in that character is sufficient but not a notice received by

a director in the course of a transaction in which he is not concerned as such director or officer.......or if it relates to a matter which he is not bound

to and does not disclose........

(16) The analogy drawn from texts, in which the Courts have pierced the veil of corporate personality in order to prevent fraud, or to prevent the

corporation from evading its plain statutory obligations to citizens, is quite misleading, and cannot, in our view, be pressed into the present context

at all.

(17) Apart from the authority that we have cited, we are further strengthened in this by the observations of Mukharji, J., in The Commissioner of

Wakfs Vs. Sm. Ayesa Bibi and Others, . The facts of that case were no doubt quite different and the main point involved was also different one. In

that case there was a compromise decree between the parties after the Commissioner of Wakfs who was a party before the Court, had been

struck off the record by these parties, and the compromise was arrived at after the exclusion of the Commissioner from the array of parties. But

one observation of the learned Judge appears to us to be significant in the present context. That is the observation at p. 72, para. 18 to this effect:-

Suppose in a case the Commissioner had independently and privately come to know of a suit in respect of a wakf property within the meaning of

Sec. 70(1) of the Act, can it be said that his independent private knowledge will exonerate the Court from its obligation to give notice to the

Commissioner? I do not think so.

(18) In our view, therefore, the knowledge of Sri Sherfuddin, learned counsel for the representatives of the Durga in the second appeal, was not

the knowledge of the Chairman of the State Wakf Board and cannot be held to constitute such knowledge. That is the case, even if Sri Sherfuddin

was the Chairman of the State Wakf Board at the relevant period. Further, there is the complication that there may have been a conflict of duty, if

Sri Sherfuddin had acted on the knowledge obtained by him as Counsel in his capacity, as Chairman of the State Wakf Board. Even if the

Chairman of the State Wakf Board obtains knowledge of a pending proceeding, in some informal manner, or in a context that has no relation to the

functions of the State Wakf Board, we are unable to see how it could be presumed that such knowledge is the official knowledge of the Chairman

and by a further process of reasoning that it is that knowledge of the Wakf Board itself. Accordingly, we hold that the application was within time,

and it follows on our finding that the appeal will have to be allowed, and that the application must also stand allowed.

(19) The consequence of this will be that the decree in the second suit has to be declared void within the meaning of the express language of Sec.

57(3) of the Act XXIX of 1954. Some arguments have been submitted before us on the further and inevitable consequences of such a declaration

or finding. We are expressing no opinion whatever on that aspect, and it does not appear to us to be relevant to the present appeal. Whether it

immediately follows that the suit itself is reopened with the consequence that there must be notice of the Court to the State Wakf Board, which

must be brought on record and heard in the suit, or whether the consequences in strict law are different, will be matters for the concerned Court to

decide, when it is approached in this regard. The appeal is allowed. No order as to costs throughout.

(20) Appeal allowed.