Narayan Chandra Sil, J.
1. This is to consider a suit for specific performance of contract filed before the learned Assistant District Judge, Sealdah and registered as Title Suit No. 78 of 1990. Thereafter the suit was transferred to the High Court and registered as E.O.S. No. 2 of 1996.
2. The plaintiff case in short is that the defendant Nos. 1 to 4 and their mother Mst. Hoorunessa Bibi entered into an agreement with the plaintiff No. 1 on 11th August, 1980 for sale of a three-storied brick built building together with land measuring 4 cottahs, 6 chittacks and 13 sq. ft. appertaining to premises No. 3, Dr. Sundari Mohan Avenue, Calcutta-16 (formerly known as plot No. 22, of surplus land of Calcutta Improvement Trust Scheme, Calcutta) which is in fact the suit property. The price agreed to be paid was Rs. 1,80,000/- and the plaintiff No. 1 paid a sum of Rs.12,000/- as advance and in part payment of the consideration money.
3. One Mr. Azisul Haque also known as Hazi Md. Azizul Haque (hereinafter referred to as 'Hazi Sahab') since deceased while being absolutely seized and possessed of the suit property created a Wakf-Al-Aulad in respect of the suit premises by a Bengali Deed of Declaration appointing the defendant Nos. 1 to 4 and their mother Hoorunessa Bibi who thereby became Mutawallis of the said Wakf Estate from time to time.
4. It is also stated that the deed of declaration dated 2,1.1960 provides inter alia :
'..........be it further known that the Mutawallis will be competent to sell or give out on long lease the wakf property for purchasing better property.'
5. In the agreement for sale executed on 11.8.1980 between the defendant Nos. 1 to 4 on one hand and the plaintiff on the other has provided that:
'.....the vendors agree to sell and the purchaser agrees to purchase ALL THAT the said three-storeyed brick built dwelling house together with the land thereunto belonging situate lying at and being premises No. 3, Dr. Sundari Mohan Avenue, in the town of Calcutta more fully and particularly mentioned and described in the schedule here under written and hereinafter for the sake of brevity referred to as the said property and the inheritance thereof in fee simple in possession free from all encumbrances and liabilities whatsoever at or for the price of the sum of Rs. 1,80,000/- (Rupees one lac eighty thousand) only to be paid as under :
a) Rs. 12,000/- (Rupees twelve thousand) only paid simultaneously with the execution of this presents by way of earnest and in part payment of purchase money;
b) The balance of the purchase money is to be paid on or before completion of the purchase.
2. The vendor shall within seven days from the date hereof deliver to M/s. T. Banerji & Company, Solicitors, and Advocates, on their accountable receipts all the remaining documents of title relating to the said property as are in their possession and custody for investigation of title of the vendors of the said property........The said Solicitors and Advocates shall send to the vendors a draft of the proposed conveyance for approval by or on behalf of the vendors and return the same duly approved by the vendors within a period of one week from the date of receipt of such draft. In the agreement it was provided in paragraph 6 of the agreement dated 11.8.1980......The vendors shall cause necessary notice to be served upon the Board of Wakf in terms of Section 53 of Bengal Wakf Act, 1934 at least one month before the date of completion of the transaction and shall obtain and produce for inspection the permission or sanction, if any, required by the vendors from the Commission or the Board of Wakfs authorising sale of the said property by the vendors to the purchasers. It was further provided in the aforesaid agreement that the vendors after obtaining the necessary certificate under Section 230(A)(l) of the Income-tax Act and necessary permission from the competent authority under the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976, the purchase shall be completed within a fortnight from date of intimation by the vendors to the purchaser's Solicitors (Advocate).........'
6. Accordingly, defendant Nos. 1 to 4 applied to the Commissioner of Wakf on 14.10.1988 who is the defendant No. 5 under Section 53(2) of the Wakf Act for permission to sell the property which was registered as a Misc. Case No. 44 of 1981 but the Commissioner of Wakf (hereinafter referred to as 'Commissioner' only) in terms of the resolution of the Board dated 1.11.1989 without any legal justification and in violation of natural justice directed the defendant Nos. 1 to 4 to advertise the proposed sale of the suit property in three leading newspapers (English, Bengali and Urdu) inviting offers for sale of the suit property. The plaintiffs further stated that in giving that direction by the Commissioner it was overlooked that the agreement between the parties was a completed contract. Therefore, the defendant Nos. 1 to 4 filed writ petition before this Court which was numbered as C.R. No. 14872(W) of 1984 and the matter was heard by Hon'ble Mr. Justice Bhagabati Prosad Banerjee (since retired) and it was held by him as under :
'In my view, when the Wakf in question provided expressed power the question of obtaining prior permission or sanction as contemplated in Section 53(1) of the said Act did not and could not arise at all. It is a case where admittedly the Wakf deed in question expressly provided power for sale of the property and that power conferred upon the Mutawalli. Accordingly, the petitioners are entitled to sell and dispose of the property only after complying with the provisions of Section 53(2) of the said Act.........The Rule is made absolute as indicated above,'
7. It is submitted by the plaintiffs that Section 53(2) of the Wakf Act never provides for any publication as was done by the Wakf Commissioner. It is also stated that a total sum of Rs. 54,500/- was paid from time to time by the plaintiffs to the defendant Nos. 1 to 4 and the plaintiffs are always willing to pay the entire consideration money. It is also submitted that the price offered by the plaintiffs for purchase of the suit property is the proper market price at the relevant point of time when the agreement was entered into. It is also alleged that the defendant No. 5 in collusion with the defendant No. 6 and other defendants for some ulterior object directed to publish in the newspapers for offer of the price as a condition for permission of sale in order to frustrate the agreement of sale with the plaintiffs. It is also claimed that the plaintiffs had also sent the draft of conveyance to the defendants calling upon them to return the draft for completion of the transaction. It is also submitted that the time is not the essence of contract in question and the plaintiffs are entitled to specific performance.
8. In the background what is stated all above the plaintiffs prayed for (1) passing a decree against the defendants for specific performance of contract for sale in respect of the suit property, (2) for a decree directing the defendants to register a formal conveyance of the suit property along with other prayers.
9. The record goes to show that despite several opportunities given to the defendants they do not ultimately appear either to file the written statement or to contest the suit and as such the matter is taken up for ex parte disposal of the suit.
10. The present suit arose for implementation of the agreement dated 11th August, 1980 for sale of the suit premises. Undisputedly, the property in suit is a Wakf property and the vendors are the Mutawalis. When the agreement was made the Bengal Wakf Act, 1934 was in force. But the said Act was repealed by the Wakf Act of 1995. In the circumstances, the question comes as to whether the suit will be disposed of either in terms of the Bengal Wakf Act of 1934 or in terms of the provisions of Wakf Act of 1995. This question appears in view of the provisions of Section 51 of the Wakf Act, 1995 wherein it is stated that notwithstanding anything contained in the Wakf Deed, any gift, sale or exchange, mortgage of any immovable property which is Wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board. The facts of this case suggest that the vendors applied to the Commissioner of Wakf for permission to sell and the Commissioner referred the matter to the Board and in terms of the recommendation of the Board the Commissioner, in contrary to the provision of agreement, made advertisement calling offer of the sale price from the other intending purchasers. And this was challenged before the Court. The Court having relied upon the provisions of Section 53(1) of Bengal Wakf Act, 1934 dismissed the action of the Commissioner. This is why the question comes whether the suit at the time of disposal should come under the purview of the Act of 1934 or the Act of 1995.
11. The learned Advocate appearing for the plaintiffs has drawn my attention to clause 6 of the Agreement (Ext. 'A') which reads as under :
'The vendors shall cause necessary notice to be served upon the Board of Wakf in terms of Section 53 of the Bengal Wakf Act, 1934 at least one month before the date of completion of the transaction in favour of the purchaser and shall obtain and produce for inspection the permission or sanction, if any, required by the vendors from the Commissioner or the Board of Wakfs authorising sale of the said property by the vendors to the purchaser.'
12. It is also submitted that in terms of the said clause as quoted above the notice was served by the vendors upon the Board. It is further submitted that in view of the provisions of Section 112 of the Act of 1995 apparently it seems to have given the retrospective effect but the proviso to that Section has totally dispelled the speculation in this regard. The said proviso to Section 112 reads as under:
'Provided that such repeal shall not affect the previous operation of that corresponding law and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken.'
13. The learned Advocate for the plaintiff has also referred to the provisions of Section 6 of the General Clauses Act which has it:
'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not:
(a) revive anything not in force or existing at the time at which, the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'
14. The imbroglio has further been removed by the judicial pronouncement of our Apex Court in the case of K.C. Dora and Ors. v. G. Annamanaidu and Ors., : [1974]2SCR655 , wherein it was inter alia held that ordinarily when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action began unless the new statute shows a clear intention to vary such rights. The Wakf Act of 1995 does not contain anything clearly that it will have its retrospective effect. That being the position we have no hesitation to hold that the present suit comes under the Bengal Wakf Act of 1934.
15. In the instant case one Manick Mohan Saha who is the plaintiff No. 1 has examined himself as a witness. He has proved the documents. He has also deposed to support the case of the plaintiff and it is stated by him in his deposition that he is ready and willing to perform the contract of 11th August, 1980. I have nothing to disbelieve his evidence in the absence of any evidence to the contrary or any challenge of the said evidence by way of cross-examination from the side of the defendants. Thus, the plaint case appears to have been substantiated and the plaintiff is entitled to get the decree.
16. The suit is, therefore, decreed. The plaintiff do get a decree with costs against the defendants. The defendants are directed to register the deed of sale in favour of the plaintiffs in respect of the suit property within a period of two months from the date and deliver khas possession thereof failing which the plaintiffs are at liberty to get the suit property registered through Court.
17. Decree may be drawn up expeditiously.
18. All parties are to act on a signed copy of the operative portion of the judgment on the usual undertaking.