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Malhar Bhagvant Kulkarni Vs. Narsinh Krishna Majli - Court Judgment

LegalCrystal Citation
SubjectTrust and Societies
CourtMumbai
Decided On
Case Number Second Appeal No. 492 of 1911
Judge
Reported in(1912)14BOMLR941; 17Ind.Cas.665
AppellantMalhar Bhagvant Kulkarni
RespondentNarsinh Krishna Majli
Excerpt:
civil procedure code (act. v of 1908), section-public religious trust-suit by trustees to recover trust property from strangers-scope of the section.;a suit by the trustees of a public religious trust, to' recover property belonging to the trust which has gone wrongfully into the possession of strangers to the trust, does not fall within the purview of section 92 of the civil procedure code of 1908. - - the extent and meaning of this section are well explained in lakshmandas parashram v......were appointed trustees on the 26th april 1908. the defendants' father had been manager of the trust property from 1883 up to his death in 1905. after his death his accounts were examined by the plaintiffs-trustees who discovered, as they allege, that a large balance due to the temple was with him. they, therefore, as trustees, now sue to recover property belonging to the trust which has gone wrongfully into the possession of defendants who are strangers to the trust. to such a suit as this' section 92 has no application : it is a suit, not by persons interested in the trust against defaulting trustees, but by the trustees against outsiders alleged to be in wrongful possession of the trust property. the extent and meaning of this section are well explained in lakshmandas parashram v......
Judgment:

Batchelor, J.

1. We are of opinion that in this case the lower Courts were wrong in thinking that this was a suit governed by the provisions of Section 92 of the Civil Procedure Code. The suit was brought by the plaintiffs as trustees of a public religious trust. They were appointed trustees on the 26th April 1908. The defendants' father had been manager of the trust property from 1883 up to his death in 1905. After his death his accounts were examined by the plaintiffs-trustees who discovered, as they allege, that a large balance due to the temple was with him. They, therefore, as trustees, now sue to recover property belonging to the trust which has gone wrongfully into the possession of defendants who are strangers to the trust. To such a suit as this' Section 92 has no application : it is a suit, not by persons interested in the trust against defaulting trustees, but by the trustees against outsiders alleged to be in wrongful possession of the trust property. The extent and meaning of this section are well explained in Lakshmandas Parashram v. Ganpatrav Krishna ILR (1884) 8 Bom. 365; Strinivasa Ayyangar v. Strinivasa Swami ILR (1892) Mad. 31, and Budree Das Mukim v. Chooni Lall Johurry ILR (1906) 33 Cal. 789. And these decisions show that the present suit is outside the scope of Section 92.

2. It is faintly suggested by Mr. Rele in this second appeal that his clients themselves should be regarded as occupying the position of trustees, but, we think, there is no substance in this argument. No such admission was made in the plaint, and no such assertion was made in the written statement. The defendants are only heirs of the late manager and can have no claim to be regarded as trustees.

3. We must, therefore, allow this appeal, reverse the decree of the lower appellate Court and remand the suit for trial on its merits.

4. The appellants must have their costs in this Court and in the lower appellate Court from the respondents. Costs in the first Court will abide the result.


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