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Rugghan Prasad and anr. Vs. Mt. Dhanno and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All257
AppellantRugghan Prasad and anr.
RespondentMt. Dhanno and ors.
Cases ReferredDeokali Koer v. Kedar Nath
Excerpt:
- .....before us that the plaintiff has under that section no right to bring the present suit and reliance is placed upon a ruling of the calcutta high court reported as deokali koer v. kedar nath [1912] 39 cal. 704. in that case the plaintiff sought for a relief in respect of a certain property in which he had no interest, because of his interest in another property, and the court found that none of the declarations which he sought related to the plaintiff's legal character, or as to his right in the property. in the present case the declarations which the plaintiff seeks are as to his legal character because he claimed a right, as being either the founder of the trust or the successor of the trust or the successor of the founder of the trust to appoint a mutawalli, and he also claims a.....
Judgment:

1. The suit out of which this appeal arises was brought by One Basant Lal who is now dead and whose place has been taken on the record by his widow. This Basant Lal, in 1906, executed a deed which he described as a wakf in favour of a temple situated in Sarsuiya Ghat in Cawnpore, in which he re-dedicated certain property which had already been dedicated for the same purpose by his father and grandfather. Under the terms of this deed of wakf two persons had been appointed as mutawallis, Bansidhar and Narain Das. Section 9 of the deed lays down that each member shall have power to appoint his successor,, and if the member dies without appointing his successor, the other member shall appoint another person in his place. Bansidhar died in 1917 and appointed no successor. This suit has been brought after the death of Narain Das on the allegation that, as Narain Das also has died without appointing a successor, the right of appointment has devolved upon the plaintiff, and he has sought a declaration both that he had such a right and that he had made valid appointment of two other persons. The suit was decreed by the lower Court. An appeal has been preferred on the following grounds. Firstly, it has been argued that the suit should have been brought after obtaining the permission of the Legal Remembrancer under Section 92 of the Civil P. C. Secondly, that the suit is barred by the provisions of Section 42 of the Specific Belief Act. Thirdly, that the plaintiff has no cause of action because a valid appointment had been made by Narain Das. Section 92 of the Civil P. C. enumerates certain suits which can be brought after obtaining permission of the Legal Remembrancer. These suits can only be brought when there has been an alleged breach of a trust, or where direction of the Court is deemed necessary for the administration of any such trust. Secondly, these suits must be for one of the eight objects enumerated from (a) to (h) in the section. None of these clauses directly covers a suit of the nature of the present declaratory suit The essential difference is that the plaintiff in this case does not admit that there are any trustees in existence. His contention is that the trust has been left without any manager and that he is entitled to step in. In our opinion, Section 92 makes no provision for a suit of this nature and we cannot find that the plaintiff is debarred from suing directly in a civil Court.

2. Section 42 of the Specific Relief Act lays down the conditions under which a person may bring a suit for mere declaration without any consequential relief. It is argued before us that the plaintiff has under that section no right to bring the present suit and reliance is placed upon a ruling of the Calcutta High Court reported as Deokali Koer v. Kedar Nath [1912] 39 Cal. 704. In that case the plaintiff sought for a relief in respect of a certain property in which he had no interest, because of his interest in another property, and the Court found that none of the declarations which he sought related to the plaintiff's legal character, or as to his right in the property. In the present case the declarations which the plaintiff seeks are as to his legal character because he claimed a right, as being either the founder of the trust or the successor of the trust or the successor of the founder of the trust to appoint a mutawalli, and he also claims a right as to the property (if these words can be taken to include the right to interfere in the management of the property). Lastly, we have to consider the question of fact. (After discussing the evidence the judgment continued). In our opinion, the plaintiff is entitled to the declaratory decree which he has obtained in the lower Court and we dismiss this appeal with costs.


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