What are necessary conditions for compromise of representative suit?

We also find ourselves unable to agree with the
contention of the appellants that the violations of Order XXIII
Rule 3B, CPC while passing the compromise decree dated
16.02.1981 in O.S. No. 10/1974 are merely procedural and do
not vitiate the decree, and that the decree should therefore be
regarded as proof of breach of custom.
Under Order I Rule 8, CPC, which pertains to
representative suits, a person may sue or defend on behalf of
others and for the benefit of others having the same interest, with
the permission of the Court. The object of Order I Rule 8 is to
facilitate the decision of questions in which a large number of
persons are interested without recourse to ordinary procedure.
Per Order XXIII Rule 3B, in order to compromise in a
representative suit, it is necessary to obtain the leave of the
Court. Before grant of leave to compromise, the Court needs to
give notice in such a manner as it may think fit, to such persons
as may appear to it to be interested in the suit.
It is pertinent to note that it is not clear whether the suit
in O.S. No. 10/1974 was filed under Order I Rule 8 or not. Even
assuming that we accept the respondents’ contention that the
said suit was not strictly filed under Order I Rule 8, it would be
regarded in the nature of a representative suit for the purposes of
Explanation (c) to Order XXIII Rule 3B. Explanation (c) provides
that the term ‘representative suit’ includes suits where the
compromise decree passed therein becomes binding on persons
not named as parties to the suit. In O.S. No. 10/1974, Pattakal
Koyammakoya was representing the respondent family’s interests
in his capacity as Karanavan of the family. Hence the compromise

decree, if upheld, would prejudice the family’s customary right to
the office of mutawalli and the terms thereof would become final
and binding by virtue of Section 96(3), CPC. Thus, it is clear that
the two conditions mentioned supra in relation to representative
suits have to be complied with if the compromise decree passed in
O.S. No. 10/1974 is to be held valid.
The Tribunal as well as the High Court, on considering
the compromise decree passed and the records thereof, have on
facts concluded that the parties to the decree did not obtain leave
of the court and did not give notice to other persons who were
interested in the suit, i.e., members of the Pattakal family, as
required under Order XXIII Rule 3B. The appellants before this
court have also not disputed that the compromise decree was
without leave of the court and without notice to interested family
members. As is evident from the foregoing discussion, such
violations of Order XXII Rule 3B
cannot be said to be merely
procedural, and go to the root of the matter since they deprive the
affected parties of the chance to question the terms of the
compromise that they are going to be bound by. Since both the

conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010

ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs  PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.

MOHAN M. SHANTANAGOUDAR, J.

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Whether under muslim law female can perform act of Mutawalli?

It is not disputed that under Mahomedan Law a femalealso can perform the act of Mutawalli. If a female can perform the
act of Mutawalli the defendant No.5 should not have appointed any 
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is

entitled to act as Mutawali of the Wakf property.

THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,
 -Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

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Whether jurisdiction of civil court is barred in respect of dispute relating to wakf property?

In view of the provisions laid down in the Wakf Act and
the law explained by the apex Court in Anis Fatma Begum(supra)
the civil Court is barred in exercising jurisdiction in respect of a
dispute of Wakf. Since in the present case, it is an admitted position
that a Wakf was created by the deceased Nachir Mohammed, any
dispute regarding the Wakf or Wakf property should be decided by
the Tribunal and the plaintiff or the defendants may approach the 
Tribunal for deciding the dispute which is brought in the civil suit.
The apex Court has held that against the decision of the Tribunal an
aggrieved party can approach the High Court which can call for the
records for satisfying itself as to the correctness, legality or
propriety of the decision of the Tribunal. The plaintiff-appellant, if
so advised may approach the appropriate Tribunal for deciding the
dispute and in case the plaintiff-appellant is aggrieved by the
decision of the Tribunal it may approach the High Court as per the
law explained by the apex Court.
THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,

 -Vs –
The State of Tripura,

BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

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