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Ganga Charan and ors. Vs. Ram Chandra - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1928All33
AppellantGanga Charan and ors.
RespondentRam Chandra
Cases Referred and Sheoratan Kunwari v. Ram Pargash
Excerpt:
- - 6. in our judgment the decision of the lower appellate court is perfectly correct and ought to be affirmed. it is well settled that section 92, civil p......deed of endowment, dated the 10th january 1899. by that deed. manni ram appointed himself and one gulab shankar as sarbarakars of the endowed property. manni ram died in or about the year 1900 and gulab shankar alone continued to act as sarbarakar of the endowed property.2. by a deed styled as a deed of gift dated the 17th december 1912, gulab shankar appointed the defendant-appellant as trustee and manager in his place. about three months prior to the institution of the suit giving rise to the present appeal gulab shankar died. udho ram, the heir of manni ram, on the 15th december 1922, executed a document in favour of the plaintiff by which he appointed the plaintiff as trustee and sarbarakar of the endowed property.3. the plaintiff's case was that gulab shankar had no right to.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendants' appeal and arises out of a suit for possession of certain property that was dedicated to a certain deity by one Pandit Manni Ram by a deed of endowment, dated the 10th January 1899. By that deed. Manni Ram appointed himself and one Gulab Shankar as sarbarakars of the endowed property. Manni Ram died in or about the year 1900 and Gulab Shankar alone continued to act as sarbarakar of the endowed property.

2. By a deed styled as a deed of gift dated the 17th December 1912, Gulab Shankar appointed the defendant-appellant as trustee and manager in his place. About three months prior to the institution of the suit giving rise to the present appeal Gulab Shankar died. Udho Ram, the heir of Manni Ram, on the 15th December 1922, executed a document in favour of the plaintiff by which he appointed the plaintiff as trustee and sarbarakar of the endowed property.

3. The plaintiff's case was that Gulab Shankar had no right to nominate a successor of his own, or to appoint a trustee of the endowed property, and that, notwithstanding the execution of the deed of gift of 1912, Gulab Shankar continued to act as sarbarakar till the date of his death and that after Gulab Shankar's death the right to appoint a sarbarakar and trustee of the endowed property vested in the heirs of the founder of the trust. The plaintiff maintained that the defendant was in possession of the endowed property as a trespasser and accordingly claimed the relief referred to above.

4. The suit was contested by the defendant on various grounds, but as only two points have been argued in the present appeal, we need not notice the points other than those argued before us. It was contended by the defendant that the suit was barred by Section 92, Civil P.C., and that Gulab Shankar was competent to appoint the defendant as a sarbarakar and trustee and that the defendant-appellant was rightfully in possession of the endowed property.

5. Both the Courts below overruled the plea based on Section 92, Civil P.C. The trial Court accepted the other contention advanced on behalf of the defendant mentioned above and accordingly dismissed the plaintiff's suit. The lower appellate Court came to the conclusion that the defendant Gulab Shankar had no right in preference to the heirs of the founder of the trust to appoint a successor of his own and that the defendant had not been validly appointed and the plaintiff was a duly appointed trustee and was entitled to the relief sought.

6. In our judgment the decision of the lower appellate Court is perfectly correct and ought to be affirmed. It is well settled that Section 92, Civil P.C., has no application to suits where a plaintiff claims possession of the endowed property on the allegation that he is duly appointed trustee and that the defendant is a trespasser; vide Inayat Husain v. Faiz Mohammad A.I.R. 1923 All. 319 and Mohammad Abdul Majid Khan v. Ahmad Saeed Khan [1913] 35 All. 459 it has also been decided by this Court in the case of Puttu Lal v. Daya Nand A.I.R. 1922 All. 499 that Section 92, Civil P.C. does not apply to a suit between persons who individually claim a right to succeed to the office of trustee. In view of these authorities it is impossible to hold that the present suit was a suit of the nature contemplated by Section 92, Civil P.C. It is to be noted that Section 92 has reference to those cases and to those cases alone, where there is an allegation of breach of any express or constructive trust created for public purposes of charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust. In the present case there was no allegation of any breach of the trust nor was it alleged that the direction of the Court was necessary for the administration of the trust and in the absence of any such allegation Section 92, Civil P.C., could not apply. The view that we take is in consonance with the view taken in the case of Nilkanta Devrao v. Ram Krishna Vithal Bhat A.I.R. 1923 Bom. 67. We accordingly agree with the Courts below in holding that Section 92 was not a bar to the suit.

7. In our judgment there is no substance either in the second point argued by the learned Counsel for the appellant. We are in the present case dealing with a temple as distinguished from a math. In the case of a temple the endowed properties are deemed vested in the presiding god treated as a juristic person, the management being vested in a trustee. The manager or trustee of a temple is designated as a shebait.

The devolution of the office of shebait depends primarily on the terms of the deed by which the trust is created. In the absence of any provision in the deed as to the devolution of the office of shebait the title to the property or to the management and control of the dedicated property, as the case may be, follows the line of inheritance from the founder, in other words, it passes to his heirs unless there has been some usage or course of dealing which points to a different mode of devolution, e.g., devolution on a single heir; vide Mulla's Principles of Hindu Law, 5th edition, page 408 of the cases cited therein.

8. As already stated in the absence of a provision in the deed prescribing the mode of devolution to the office of shebait and in the absence of a custom to the contrary, the power to appoint a successor to a shebait reverts to the heirs of the founder of the trust and a shebait has no right to appoint a successor to himself, vide the cases of Chandra Nath Chakarbarti v. Jadabandra Chakarbarti [1906] 28 All. 689, Sheo Prasad v. Aya Ram [1907] 29 All. 663 and Sheoratan Kunwari v. Ram Pargash [1896] 18 All. 227. In the present case it has been held by both the Courts below that Udho Ram is the heir of Manni Ram, the founder of the trust. Therefore the appointment of the plaintiff by Udho Ram as a shebait is a valid appointment and the plaintiff has a right to enter into possession of the endowed property as a trustee. The defendant has not a shadow of title to remain in possession and the decree passed against him is perfectly correct. The remaining grounds taken in the memorandum of appeal have not been pressed. Accordingly we dismiss the appeal with costs.


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