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HarnaraIn Ram and ors. Vs. Surja Kunwari and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All311
AppellantHarnaraIn Ram and ors.
RespondentSurja Kunwari and anr.
Excerpt:
.....board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in the view which we take on the second question raised by the appellants we do not deem it necessary to decide whether the suit was maintainable under act xx of 1863. we are of opinion that the contention that no endowment was created by the will of sukhmangal singh is well founded......of the rajbhog and the repairs of the thakurdwara and of the houses have been met, the savings shall be appropriated by his heirs 'for their own maintenance.' the expenses connected with the marriages of female members and dowries to be given on the occasion of their marriages were also provided for out of the estate. all this is inconsistent with the dedication of the property to the idols. on the contrary, the inference to be drawn from the will read as a whole is that it created a charge on his property for 'the expenses of the idols. subject to that charge the property was to go to his legal heirs who were fully entitled to appropriate all the income of the property. this case is very similar to that of sonatun bysack v. sreemutty juggutsoondree dosses (1859) 8 moo. i.a. 66,.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit which purports to have been brought under Act No. XX of 1863, The plaintiffs, who are two members of the community, sought a declaration that certain property is endowed property, and they prayed that the defendants might be dispossessed of the property and the plaintiffs or some other persons nominated by them might be appointed mutwalli or manager of the property and placed in charge of it. The plaint contains other prayers also to which it is not necessary to refer. The property belonged to one Sukhmangal Singh, the husband of the defendants who are appellants before us. On the 29th of October, 1903, he made a will, and it is urged on behalf of the plaintiffs that under this will he endowed the property in question to certain idols. The plaintiffs allege that the defendants have got their names recorded in the revenue papers as owners of the property, that they have made lease of the property and that they have misappropriated the income of the property and not devoted it to purposes of the endowment. The court below has decreed the claim. The defendants have preferred this appeal mainly on two grounds, namely, that Act XX of 1863 had no application to the present case and the suit could not be maintained under that Act, and, secondly, that under the terms of the will no endowment was created, but a charge was placed on the property of the deceased for the purpose of meeting the expenses of the upkeep of a certain temple. In the view which we take on the second question raised by the appellants we do not deem it necessary to decide whether the suit was maintainable under Act XX of 1863. We are of opinion that the contention that no endowment was created by the will of Sukhmangal Singh is well founded. The will, no doubt, states that a waqf was created, but from the clauses contained in it, it is manifest that what was intended by Sukhmangal Singh was that the idols should be maintained out of the income. The value of the property is stated in the plaint to be Rs. 50,000. From the evidence of the witnesses for the plaintiffs themselves it appears that the profits arising from the property amount to about Rs. 7,000 annually. The expenses of the idols, provided for in the will, as specified in paragraph 9, amount to about Rs. 500 a year, more or less. So that it is clear that the amount of the expenses bears a very small proportion to the total income of the property. In the will itself the testator provides that 'whatever money and grain produced by the sir land still remained after meeting requirements of rajbhog of Thakurji shall be used and appropriated by his successors generation after generation. It shall not be used and appropriated by any one.' It further provides that 'whatever profits would remain after meeting the expenses of the Thakurdwara, the costs of its repairs, the pay of the servants' connected with it and the costs of repairs of other buildings out of the said profits shall be spent on the estate' of the testator. The vernacular word used is 'riasat,' that is, his family property. Further down (in Clause 7 of the will) he confers authority on his heirs to effect mortgages in certain events. Again, in paragraph 9 it is provided that after the expenses of the rajbhog and the repairs of the Thakurdwara and of the houses have been met, the savings shall be appropriated by his heirs 'for their own maintenance.' The expenses connected with the marriages of female members and dowries to be given on the occasion of their marriages were also provided for out of the estate. All this is inconsistent with the dedication of the property to the idols. On the contrary, the inference to be drawn from the will read as a whole is that it created a charge on his property for 'the expenses of the idols. Subject to that charge the property was to go to his legal heirs who were fully entitled to appropriate all the income of the property. This case is very similar to that of Sonatun Bysack v. Sreemutty Juggutsoondree Dosses (1859) 8 Moo. I.A. 66, decided by their Lordships of the Privy Council. See also Ashutosh Butt v. Doorga Churn Chatterjee (1880) I.L.R. 5 Calc. 438.inion that the decision of the court below is erroneous and the suit of the plaintiffs ought to have been dismissed. We accordingly allow the appeal, set aside the decree of the court below and dismiss the suit with costs in both courts.


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