Norman Macleod, Kt., C.J.
1. The plaintiffs sued for a declaration that they had a right to manage the suit Wadi, to let it to tenants and to realize the rent, that defendants Nos. 1 and 2 had not such a right, and to get a permanent injunction against them and to restrain them from making any such use.
2. The plaintiffs alleged that they and defendants Nos. 1 and 2 belonged to the Modh Ganchi caste of Kalupur Panchpura, and that the caste owned the suit Wadi There was a caste meeting convened on December 12, 1920, to pass some resolutions in respect of the caste, as defendants Nos. 1 and 2 and one Vallabh had unauthorizedly got the management and did not submit accounts, and the property had been wasted. They further alleged that the caste entrusted the vahivat of the property to the defendants, and they were bound to hand it back to the plaintiffs in accordance with the caste resolutions,
3. Defendants Nos. 1 and 2 contended that two factions existed in the caste, that the plaintiffs' faction had no right to have the management, and that the jurisdiction of the Court was excluded.
4. The trial Judge held that the plaintiff's did not prove that the two factions in the Kalupur Panchpura caste had amalgamated, and he accordingly dismissed the unit.
5. In appeal, the judge said : ''Considering all facts I am satisfied that there was a reunion of the factions in 1969 V.S., 1913 A. D, that the plaintiffs are members of the caste and that it is in accordance with the resolution passed by a majority at a meeting, of which, the minority defendants Nos. 1 and 2 had perfect and legal notice and at which they could have had their say, if they choose to do so, that the present suit is filed. If defendants Nos. 1 and '2 choose absent themselves and remain away they must thank themselves for the consequences.' That is a finding by the Judge that there were not two sections or factions in the caste in the sense that the caste was split up into two divisions, so that a meeting of one section or faction would not bind the members of the opposite faction, and that, therefore, jurisdiction of the Court was not excluded.
6. The appellants have relied upon the Full Bench decision in Nemchand v. Savaichand I.L.R.(1888) 5 Bom. 84. There the plaintiff's, who were certain members of the Shravak caste at Surat, asked for a decree giving them half the compensation granted by the Collector in regard to certain shops belonging to the caste which had been divided into two factions, the plaintiffs forming one, and the defendants the other, of such factions. The Court confirmed the decree of the District Judge who held that the question involved was a caste question not cognisable by the civil Court.
7. We think that case is only an authority for this proposition, that when members of a caste who have filed a suit in connection with caste property have admitted that there has been a division of the caste, so that they only ask to be held entitled to the division of the property, and to a decree to the extent of half of what was the cable property, then it can be said that really the caste has been divided in such a way that the question how the caste property is to be divided is one which the Courts cannot decide. No reasons for the Full Bench decision are reported and with all due respect without reasons it can hardly be said to be convincing. In any event it cannot be extended beyond the facts of the case.
8. But in Lalji Sliamji v. Walji Wardhman I.L.R (1895). 19 Bom. 507 although there was a division, of opinion in the caste, it was held that the question at issue was not a matter relating to the internal administration and affairs of the caste, hut to the property of the caste and so the Court had jurisdiction to interfere, That is the principle which I understand has always been followed by this Court.
9. It follows then that the jurisdiction of the Courtis not excluded in every case in which there has merely been a division of opinion in the caste. Otherwise as soon as there is such a division on a particular question, no Court would have any jurisdiction to decide the question, with the result that the only way the question could ultimately be decided would be by resort to force.
10. It seems to me that in this second appeal it is only a question of fact whether or not the caste was spilt up and could be considered to be two separate entities, so that the question relating to the caste could not be decided by the Court. But from the finding of the appellate Judge it would appear that the caste was not really divided into two factions, that although some members would not agree with the opinion of the other members of the caste, still the caste remained as a caste, and could meet together when the minority might have an opportunity of protesting against the resolutions moved by the majority. The mere fact that they might vote against such resolutions cannot of itself result in the spiting up of the caste into two factions, so that the question relating to caste property could no longer be decided by the Court.
11. The plaintiffs here had the authority of the caste at their meeting to take these proceedings for the preservation of the property belonging to the caste, and it seems to me they are entitled to get the decree which the appellate Court gave them against defendants Nos 1 and 2. They must be taken merely to be holding out against the wishes of the caste with regard to the management of the caste property.
12. The appeal will be dismissed with costs.
13. I agree in holding that the decision of the lower appellate Court is right, on the ground that the question arising in this case is not a question between two distinct sections of the Modh Ghanchi Caste of Kalupur Panchapura, but that the suit was brought against defendants Nos. 1 and 2 personally.