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Umadbhai Chaturbhai Patel and ors. Vs. Goswamini Shrimati Ratnaprabha - Court Judgment

LegalCrystal Citation
SubjectCivil;Trusts and Societies
CourtKerala High Court
Decided On
Case NumberA.S. No. 259 of 1977
Judge
Reported inAIR1983Ker238
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 92; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 63; Code of Civil Procedure (CPC) Amendment Act , 1976
AppellantUmadbhai Chaturbhai Patel and ors.
RespondentGoswamini Shrimati Ratnaprabha
Appellant Advocate K.N. Karunakaran and; K.C. Devarajan, Advs.
Respondent Advocate T.L. Viswanatha Iyer,; P.S. Narayanan,; K.S. Menon,;
Cases ReferredThycattuseri Church v. Sicillyamma
Excerpt:
trusts and societies - execution - sections 47, 92 and order 21 rule 63 of code of civil procedure,1908 and code of civil procedure amendment act, 1976 - suit for declaration that certain properties liable to be attached and sold in execution of decree - lower court found that suit defective for non-joinder of all trustees under scheme - defendant put claim that properties belonged to trust - burden on decree-holder to prove that judgment-debtor has saleable interest in properties attached - scheme does not authorise any one among trustees to represent estate and in absence of all trustees any decisions affecting rights of trust will not be binding on trust - held, findings of lower court confirmed. - - she raised the further contention that the suit is defective for the plaintif'fs.....balakrishna menon, j.1. the plaintiffs are the appellants. the suit is one under order 21, rule 63, c.p.c. (as it stood prior to its amendment by act 104 of 1976) for a declaration that the six items of properties mentioned in the plaint belonged to deceased goswamy shri vallabhlalji maharaj and the properties are liable to be attached and sold in execution of the decree in summary suit no. 1108/1954 on the original side of the bombay high court.2. the plaintiffs are the legal representatives of the decree-holder shri chaturbbai maganbhai patel. ext. a12 dated 21-1-1957 is the decree in summary suit no. 1108/54 for recovery of rs. 3,00,811.12 from the defendant goswamy vallabhlalji maharaj. the judgment-debtor late goswami vallabhlalji maharaj (hereinafter referred to as vallabhlalji).....
Judgment:

Balakrishna Menon, J.

1. The plaintiffs are the appellants. The suit is one under Order 21, Rule 63, C.P.C. (as it stood prior to its amendment by Act 104 of 1976) for a declaration that the six items of properties mentioned in the plaint belonged to deceased Goswamy Shri Vallabhlalji Maharaj and the properties are liable to be attached and sold in execution of the decree in summary Suit No. 1108/1954 on the original side of the Bombay High Court.

2. The plaintiffs are the legal representatives of the decree-holder Shri Chaturbbai Maganbhai Patel. Ext. A12 dated 21-1-1957 is the decree in summary Suit No. 1108/54 for recovery of Rs. 3,00,811.12 from the defendant Goswamy Vallabhlalji Maharaj. The judgment-debtor late Goswami Vallabhlalji Maharaj (hereinafter referred to as Vallabhlalji) died on 16-7-1957. E. P. No. 1/1961 was therefore tiled against his widow and legal representative, who is the sole defendant in the suit. The defendant raised objection to the execution of the decree against the suit properties as one of the trustees of Goswamy Shri Chimanlalji Ghanashyamlalji Maharaj Trust contending that the properties attached in E. P. 1/1961 belonged to the Trust and are not individual or private properties of the judgment-debtor. The claim put forward by the respondent in the E. P. was enquired into by the execution Court and that Court by Ext. 81 order dated 17-12-1966 upheld the claim on the finding that the properties belonged to the Trust aforesaid. This order of the execution Court was confirmed by this Court in revision as per Ext. 83 order dated 5-3-1970. The present suit was filed on 3-10-1970 for the declaration aforesaid to enable the legal representatives of the decree-holder to execute the decree by attachment and sale of the plaint schedule properties. According to the plaintiffs the properties are the separate and individual properties of deceased Vallabblalji, the trust referred to in Ext. 81 order constituted by the Will of Goswamy Shri Ghana-shyamlalji Maharaj (hereinafter referred to as Ghanashamlalji) does not take in the plaint schedule properties, the suit O.S. 1423/1935 on the original side of the Bombay High Court purported to have been tiled by the idols in the Mandir belonging to the trust represented by the next friend the decree-holder therein and the scheme framed in pursuance to the decree are all not binding on the suit properties, the suit properties had been dealt with by the judgment-debtor Vallabhlalji as properties belonging to him and as the legal representative of the judgment-debtor, the defendant is precluded from raising the contention that the properties belong to a Trust and not to the judgment-debtor.

3. The suit was resisted by the defendant. She has put forward the contention that her objection to execution was not as legal representative of the deceased judgment-debtor but as one of the trustees of the Ghanshamlalji Trust. Her claim was upheld on valid grounds by the execution Court. The Trust was created by the Win of late Ghanashamlalji Maharaj and the properties are the acquisitions by the Trust on its behalf. The judgment-debtor Vallabbalalji was only the mukhya adhikari of the trust by virtue if his accession to the Gadi in pursuance to the provisions contained in the Will under which the Trust itself was constituted. She raised the further contention that the suit is defective for the plaintif'fs failure to implead all the trustees, and is also barred by limitation as having been filed more than one year after Ext. 81 order upholding her claim that the properties belong to the Trust.

4. The trial Court found that the plaintiff has not proved that the properties mentioned in the plaint belonged to the judgment-debtor Vallabhlalji or that he had a saleable interest in these properties, that the properties belonged to the Trust aforesaid and deceased Valiabhalalji was only the Mukhya Adhikari by virtue of his position as Guru Maharaj on his accession to the Gadi in terms of the Will of Ghanashamlalji Maharaj constituting the Trust, that the suit is defective for nonjoinder of all the trustees, that the judgment and decree in O.S. No. 1423/1935 in pursuance to which a scheme of management and administration of the Trust was framed and implemented was binding on the judgment-debtor and that it has not been shown in what way the decree and judgment of the Bombay High Court in O.S. 1423/1935 is not binding on the plaint schedule properties described in the decree and the scheme as the 'land and buildings in Calicut known as Maharaja's Mandir'. The plea raised by the defendant that the suit is barred by limitation was overruled on the ground that it has been filed within one year after Ext. 83 order in revision by this Court and the plaintiff is entitled to exclude the time spent in prosecuting the C. R. P. before this Court under the provisions of Section 14 of the Limitation Act, 1963. On these findings the suit was dismissed and it is against this that the plaintiffs have come up in appeal.

5. The learned counsel for the appellants Sri. S. Easwara Iyer, contends that there is no trust as such created in respect of the corpus of the properties mentioned in Exhibit 86 Will of late Ghanashamlalji, that the Trust relates only to the income of the properties, the legal effect of which is only that it will be a covenant running with the land, and the corpus of the properties was the subject of inheritance by the legal heirs of the testator and founder of the Trust Ghanashamlalji. The judgment-debtor Valiabhalalji has inherited the estate of Ghanashamlalji by virtue of the provisions contained in Ext. 86 Will itself, and the properties are liable to be proceeded against as belonging to the judgment-debtor.

6. Ext. 86 dated 22-1-1905 is the English translation of the Will executed by Ghanashamlalji. There is no dispute before us about the correctness of the translation and both parties agree that Ext. 86 may be accepted as a true translation of the Will of Ghanashamlalji. It is also admitted by both sides that Ghanashamlalji died on 30-3-1906 shortly after the execution of the original of Ext. 86 Will. Ext. 86 contains detailed provisions in regard to the seva and other religious functions to be performed in the various Mandirs of Thakoreji belonging to the Pushtimarg Vaishnava Sect. Ghanasbamlalji Maharaj was the occupant of the Gadi of the Pushtimarg Vaishnavas who are the followers of Saint Vallabhacharya. The entire income of all the properties belonging to the testator Ghanashamlalji and of the properties that may be acquired thereafter is to be applied for the seva and other religious functions to be performed at the various Mandirs referred to in the Will and the residue after such use is to be appropriated by the occupant of the Gadi for the time being to maintain his position and dignity. In the event of extinction of the line of succession to the Gadi provided for in Ext. 86 there is an ultimate dedication to Thakoreji installed in the Mandir of the aforesaid Sect. Paragraph 3 of Ext. 86 refers to the various Mandirs of the Sect, where Thakoreji has been installed as the presiding deity. There is specific reference in Ext. 86 to the Mandir at Calicut. All these Mandirs are referred to as belonging to the testator Ghanashamlalji. The Will is executed with a view that the seva of Thakoreji in the various Mandirs should continue without break. There is reference to the properties that belonged to him at different places including at Calicut. There is also reference to a Trust created by one of the Sevaks by way of gift to the testator in Trust for the Gadi in his occupation. Paragraph 5 of Ext. 96 reserve to the testator himself, the right to enjoy the properties during his lifetime without being questioned and detailed provisions in the will, are made for the management and administration of the properties after the death of the testator. The testator's wife Kamalaprabha is to be the principal adhikari after his death, and in case a son is born to the testator Kamalaprabha will act as Principal adhikari only until the son attains majority. On attainment of majority such son as may be born to him will become the Principal adhikri and after him such person out of the male descendants of the testator shall according to the usage of the 'sampradaya' (persuasion) become the Principal adhikari and the principal adhikari shall carry on and perform the sevas and other functions as provided for in Ext. 86 Will. The testator had appointed his wife Kamalaprabha and six others as the executors of the will and are referred to also as trustees thereunder. Besides the sevas to be performed in the different Mandirs of Thakoerji. there are provisions in Ext. B-6 Will for various items of charities including for the feeding of cows, monkeys, peacocks and tortoises. There are also restrictions in regard to the expenses for entertaining guests. Under Ext. B-6 Will all monies received on account of Thakoreji and all income of properties belonging to the testator shall first be applied for the expenses of Seva of Shree Thakoreji and the testator requires the seva and all other duties enjoined on the principal adhikari to be performed without break for all time to come. Clause 16 of Ext. B-6 makes provision for the residual income of properties and offerings after its use for expenses in connection with the seva and other religious and charitable purposes mentioned in tke Will to be used by his wife and the son that may be born to him for the expenses to maintain the dignity and position of the occupant of the gadi in accordance with the custom of the 'vahivat' anil sampradaya. Para 18 of Ext. B-6 contemplates a contingency where no son is born to the testator Ghanashyamlalji in which case his wife with the assistance of the executors and trustees is to nominate a Balak from the Sri. Vallabha sect to ascend the Gadi and in case the balak dies during minority or dies without male descendants or his wife dies before the nomination of the balak to the Gadi, the executors and trustees of the Will are empowered to nominate a balak of Shree Vallabha sect to ascend the Gadi. The balak ascending the Gadi will make use of the income of the properties in accordance with the terms of the Will and he is interdicted from selling or mortgaging the properties or mismanaging the same at any time in future. Succession to the properties is according to the sampradaya and in the event of the extinction of the line of decent the properties stand dedicated to Sri. Thakoreji. As earlier stated the testator died on 30-3-1906 and shortly afterwards his wife Kamalaprabha also died, before a balak was nominated to ascend the Guru Maharaj's Gadi. In terms of the Will Ext. B-6, the executors nominated one Ranchodlalji Jiwanlalji of the Vallabha sect to ascend the Gadi and he was administering the trust until he died in 1932. Ranchodlalji not being an adopted son of the testator Ghanashyamlalji was the legal heir of his natural father Jiwanlalji. He had executed a Will Ext. B-18 dated 10-5-1932 shortly before his death as per which he had made provision for management of the trust properties in accordance with the terms of Ext. B-6 and for division of the ancestral properties and properties inherited from his natural father. The provisions of Ext. B-6 in regard to the administration and management of the various Mandirs of Thakoreji, the sevas to be performed and the income to be used, are all affirmed in Ext. B-18 Will of Ranchodlalji with respect to the properties appertaining to the Gadi of Ghanashyamlalji Maharaj.

7. According to the learned counsel for the appellant the dedication under Ext. B-6 relates only to the income of the properties and the corpus is the subject of a contingent dedication in the event of the extinction of the line of succession contemplated by the Will Ext. B-6. The learned counsel relies on the decision of the Supreme Court in M. Dasaratharami Reddi v. Subba Rao, (AIR 1957 SC 7971 in support of his proposition that the dedication may be complete in regard to the property or partial in regard to the income only and in the latter case the effect of the dedication is only as a covenant running with the land. Particular reference is made to the following passage at page 800.

'Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the pro-perty which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document.'

If the dedication under Ext. B-6 for religious and charitable purposes relates only to the income of the property, there can be no doubt that no trust is created with respect to the propery itself; there is only a charge for such purposes. On a reading of Ext. B-6, it is not quite clear as to whether there is a dedication of the property itself as a religious and charitable trust for the seva of Thakoreji and for the various other religious duties and charities to be carried on besides to maintain the dignity and position of the office of the Guru Maharaj whoever be the person ascending the Gadi in future. There are clear provisions as to how the income of the properties are to be applied for religious and charitable purposes and the residual income is to be appropriated by the occupant of the Gadi to maintain his dignity and position as the Guru Maharaj of the Sect. The future occupants of the Gadi are prohibited from alienating or encumbering the properties; the same, should descend to those who occupy the Gadi from generation to generation and in the event of the extinction of the line of succession to the Gadi as provided for in the Will Ext. B-6 there is an ultimate dedication to Thakoreji. With all the ambiguities of expression the intention of the testaior appears to be clear that the properly should be available for the use of its income from generation to generation for the seva of Thakoreji in the various Mandirs, for other religious functions and charities to be performed and for the upkeep of the dignity and position of the office of the Guru Maharaj with an ultimate dedication to Thakoreji himself. We do not think that the properties dealt with under Ext. B-6 were intended for inheritance by the personal heirs of the testator. The judgment-debtor Vallabhalalji ascended the gadi after the death of his father, Ranchodlalji. He is bound by the terms of Ext. B-6 Will in respect of the properties appertaining to the gadi. The properties inherited by Ranchodlalji from his father and his ancestral properties are seen separately dealt with in his Will Ext. B-18, and the previsions of Ext. B-6 Will arc affirmed in respect of the properties pertaining to the gadi of Guru Maharaj. The properties pertaining to the Gadi were the subject of litigation in O.S. No. 1423 cf 1935 on the original side of the Bombay High Court. Exhibit B-12 dated 26-8-1935 is the plaint in that suit filed by a member of the Sect as the next friend of all the idols of Shrce Thakoreji installed in shrines and temples situated at Bombay and several places in and outside British India. Vallabhlalji is the 1st defendant in the suit and the 2nd defendant is the official assignee of Bombay impleaded after the Ist defendant was adjudged an insolvent. Exts. B-13 and B-14 are respectively the written statements of defendants 1 and 2 and Ext. B-15 dated 9-10-1942 is the judgment of Chagla, J. (as he then was) in the suit O.S. No. 1423/1935.

8. The main prayers in the suit were for a declaration that the deity of Shree Thakoreji is the owner of the properties movable and immovable mentioned in the plaint, to remove the 1st defendant from management of the properties for the reason of his mismanagement, to direct him to render accounts and also to frame a scheme for the administration and management of the properties belonging to the deity. In Exhibit B-15 judgment Chagla, J. held:

'All that I have to do in this suit is to construe the provisions of the Will of Ghanshyamlalji under which the 1st defendant holds these properties and decide whether these properties are owned by him absolutely or whether these properties are impressed with a trust and if so what the nature of that trust is. As I have already said, in my opinion, it is not possible to contend that Ranchhodlalji obtained these properties under the Will of Ghanshyamlalji and by virtue of Deed of Appointment as an absolute owner, Ranchhodlalji held these properties by virtue of his office as the 'Balak' sitting on the Gadi which Ghanshyamlalji had occupied and these properties were impressed with the trust in favour of the plaintiffs for their maintenance upkeep and 'Seva' and after these trusts were satisfied the balance was to be given to the holder of the Gadi in order that he should be in a position to maintain his position and dignity as the occupier of the Gadi. Defendant No. 1 obtained these properties under the Will of Ranchhodlalji, and Ranchhodlalji has made perfectly clear in his Will that he was not disposing of these properties as the absolute owner but merely as the occupier of the Gadi. Defendant No. 1 got these properties not as the absolute owner and not in his individual capacity but in his capacity as the occupier of the Gadi, and I hold that these properties in his hands are as much impressed with the trust as they were in the hands of Ranchhodlalji.'

On the finding of mismanagement by the 1st defendant, be was directed to be removed from management and a scheme was directed to be framed for proper administration and management of the Trust-estate. The schedule of Ext. B-12 plaint does not con-lain the Calicut properties. But Ext. B-16 decree takes in also the Calicut properties apparently included by way of amendment of the plaint. In Ext. B-16 decree, the Calicut properties arc described as the lands and buildings at Calicut known as Maharaj's Mandir. Ext. B-17 dated 1-2-1943 is the scheme of administration of the trust framed in pursuance to Ext. B-16 decree. Exhibit B-17 also takes in the lands and buildings at Calicut known as Maharaja's Mandir. Clause (1) of the Scheme declares that the properties mentioned in the list attached to the scheme with all additions and accretions thereto are the trust properties of the plaintiffs namely the deities of Thakoreji and the properties are referred to in the scheme as 'The Trust Estate'. Clause (2) constitutes a Board of five Trustees of whom the third trustee is Seth Chaturbhai Mangalbhai Patel the decree-holder in O.S. No. 1108 of 1954. Clause (3) specifically stales that the Trust-Estates shall vest in the said Trustees and their successors who may be appointed from time to time. Clauses (4) and (5) of Ext. B-17 make provision for the convolution of a committee for the day-to-day management of the temples attached to the Trust. The committee consists of two members of whom No. 1 is the judgment-debtor Vallabhlalji and No. 2 is Umedbhai Chaturbhai Patel, the 1st plaintiff herein and one of the legal representatives of the decree-holder. As per Clause (6) of Ext. B-17 the control regarding religious rites and ceremonies is to vest in the 1st defendant Vallabhlalji as the Mukhya adhikari, with right to appoint assistants, nominees and servants. Sub-clause (c) of Clause (8) provides that the surplus income after defraying and incurring the above expenditure is to be appropriated by the Mukhya Adhikari as emoluments to maintain the dignity of his office. Clause (9) containing various sub-clauses makes detailed provision relating to the rights of the Trustees appointed under the Scheme. Sub-clause (j) of Clause (9) specifically states that the Trustees shall have full power as if they are owners of the Trust Estate and are authorised to file suits on behalf of the idols and deities. Clause (11) makes provision for succession to the office of the Mukhya Adhikari and states that on the death of the then Mukhya Adhikari his successors to the Ciadi from generation to generation shall be the first member of the committee referred to in Clause (5). Ext. B-15 judgment was confirmed by Ext. B-25 judgment of a Division Bench of the Bombay High Court on 19-2-1965 (sic).

9. Learned Counsel for the appellants Sri. Easwara Iyer, challenges the validity and the binding nature of Ext. B-15 to Ext. B-17 on the suit properties on the ground that in respect of a public trust a suit without resorting to the provisions of Section 92, C.P.C. will not lie and a decree obtained in contravention of the provisions of Section 92 is without jurisdiction and is totally void. The legal position is quite clear that in regard to such of the matters as are provided for in Section 92 in respect of a public trust a suit will lie only in accordance with the provisions contained therein. It is also well established that in regard to a private trust it is open to any beneficiary of the Trust to file a suit for the removal of the trustee or for the framing of a scheme for the proper management and administration of the Trust. Ext. B-12 plaint in O.S. No. 1423/35 shows that it was a suit by a next friend on behalf of the deities and idols of Thakoreji located in the shrines and temples situated in Bombay and at several other places in and outside British India.

10. Learned Counsel for the contesting respondent Sri. T. L. Viswanatha Iyer submits that a suit of the nature covered by Ext. B-12 is very well maintainable in regard to a private Trust. There is no question raised in the present suit that O.S No. 1423/35 relates to a public Trust and for that reason the decree and the scheme framed in that suit are without jurisdiction and void. The learned Counsel submits that even in regard to a Public Trust a decree obtained in a suit in contravention of Section 92, C.P.C. is not a nullity and is nevertheless binding on the Trust and the parties to the suit. For that reason also according to the learned counsel the decree and the scheme in O.S. No. 1423/1935 are binding on Vallabhalalji who was the 1st defendant in the suit and it is not open to the plaintiff collaterally challenge Exts. B-15 to B-17 and contend that in spite of the decree and the scheme framed in pursuance thereto the suit properties arc available for execution as the separate properties of Vallabhalalji. He also points out that documents are available to prove that the suit O.S. No. 1423 of 1935 relates to a private Trust in which case there is no need for recourse to Section 92. C. P C. There is no plea in the plaint that the Trust with respect to which the suit O.S. No. 1423/1935 was filed and the scheme Ext. B-17 framed is a Public Trust and hence the proceedings are opposed to Section 92 of the C.P.C. No such question is argued before the lower Court, nor is there a specific ground in the memorandum of appeal. Learned counsel for the appellant Shri Iswara Iyer submits that such a plea if raised would be opposed to his case that the properties are not Trust properties at all and hence the plaintiff was precluded from raising a specific plea that the proceedings in O.S. No. 1423/ 1935 are opposed to Section 92. C.P.C. In the absence of a plea it is not proper for us to find that the Trust in question is a Public Trust and the proceedings before the Bombay High Court were opposed to Section 92, C.P.C. It would have been open to the plaintiffs to raise the plea in the alternative to the main case that the properties are not Trust properties at all The defendant, in the absence of a plea, had no opportunity to adduce evidence and prove that the Trust in question is a. private Trust and any beneficiary of the Trust is entitled to maintain a suit for the reliefs asked for in O.S. No. 1423 of 1935 on behalf of the Trust. That apart, even assuming it is a Public Trust to which the provisions of Section 92, C.P.C. would apply, we are of the view that the decision in O.S. No. 1423/1935 and the proceedings culminating in the scheme Ext. B-17 are not void for want of jurisdiction. There is no dispute before us that the Bombay High Court which passed the decree Ext. B-16 had territorial and pecuniary jurisdiction over the subject-matter of the suit. It cannot, therefore, be said that the judgment and decree, Exts. B-15 and B-16, are null and void as beyond the jurisdiction of the Court. The judgment and decree and the further proceedings taken in pursuance thereto are all valid and binding on the parties thereto. In any event, therefore, the proceedings are binding on the judgment-debtor Vallabhlalji. An attaching decree-holder is entitled to bring to sale only such right, title and interest as the. judgment-debtor has in the properties attached. The judgment-debtor himself is bound by an earlier decision of Court with respect to the property and the attaching decree-holder is not entitled to contend that the judgment-debtor had higher rights in the property and that the judgment and decree in the suit to which the judgment-debtor is a party are not binding on the attaching decree-holder. In the decisions in Ram Sewak v. Bahal, (AIR 1935 All 888) and in Radharani v. Binodamoyee, (AIR 1942 Cal 92) it has been held that an attaching decree-holder is a representative of the judgment-debtor and any previous decision binding on the judgment-debtor is also binding on the attaching decree-holder. There cannot, therefore, be any doubt that Ext. B-15 judgment and Ext. B-16 decree in O.S. No. 1423/1935 and Ext. B-17 scheme framed to pursuance thereto are also binding on the attaching decree-holder if the properties attached are the subject-matter of those proceedings.

11. The next question raised is as to whether the plaint schedule properties were also the subject-matter of the proceedings evidenced by Exts. B-15 to B-17. As earlier staled, the Calicut properties are described in Exts. B-16 and B-17 as 'land and buildings at Calicut known as Maharaja's Mandir'. In para 9 of the plaint referring to the proceedings in O.S. No. 1423/1935 on the file of the High Court of Bombay the plaintiff has stated 'the properties situated at Calicut were described as land and buildings at Calicut known as Maharaja's Mandir in the said suit'. The reference is to the suit properties is clear from the earlier portions of para 9 and also from paras 7 and 8 of the plaint The plaint was presented by P. W. 4 as the power-of-attorney-holder of the plaintiffs. He was the Munim of the Ganshyamlalji Trust till 1961. He was also the power-of-attorney-holder of the judgment-debtor Vallabhlalji until his death in 1957. He had also a power-of-attorney from the decree-holder in O.S. No. 1108/1954. Ext. B-47 produced in this case is an affidavit dated 10-11-1960 filed by P. W. 4 in O.S. No. 1108/1954. In the affidavit P. W. 4 has sworn that he is the power-of-attorney-holder of the plaintiffs in that suit and that he is managing the affairs of the Ganshyamlalji Trust. He has further sworn that he is conversant with the affairs of the Trust and that he knows which are all the Trust properties. In his deposition at page 16, P, W. 4 has admitted that he is fully aware that the suit properties were included in O.S. No. 1423/1935 and were also the subject matter of Ext. B-16 decree and Exhibit B-17 scheme. According to P. W. 4 these properties had been removed from the Trust by a resolution of the Board of Trustees at a meeting held on 14-4-1957 and hence the properties are not Trust properties, if the properties had been Trust properties, it cannot be removed from the Trust by a resolution of the Board of Trustees. The properties which are Trust properties will continue to remain as such so long as the Trust exists or until the properties are validly alienated after compliance with the requirements of law. A photostat copy of the aforesaid resolution of the Board of Trustees was produced in the Court below and was marked as Ext. A-21. The Court below has found that the resolution is a concocted one and no reliance can be placed on the same. Whether or not the resolution is true or genuine, it cannot have the effect of taking the properties out of the Trust.

12. The decree-holder himself was one of the Trustees appointed under the scheme Ext. B-17. The scheme itself takes in the 'land and buildings at Calicut known as Maharaja's Mandir'. As per the scheme the properties vested in the Trustees. It is not, therefore, open to the decree-holder or his legal representatives to contend that the Calicut properties are not Trust properties. The first plaintiff in the present suit is a member of the executive committee constituted under Ext B-17 scheme. He should also therefore be presumed to know which are all the properties of the Trust in respect of which the scheme had been framed and the Board of Trustees and the Executive Committee constituted. Ext. B-19 dated 19-11-1943 is the plaint in O.S. No. 1594 of 1943, on the original side of the Bombay High Court filed by the Trustees under the Scheme to set aside certain mortgages executed by the judgment-debtor Vallabhlalji. The present decree-holder was the 3rd plaintiff in that suit. There is specific reference in paragraph 12 of Ext. B-19 to the suit O.S. No. 1423/1935 and the scheme framed thereunder under which the Board of Trustees had been constituted. The 3rd defendant in that suit was Vallabhlalji. In paragraph 11 of Ext. B-19 there is specific reference to Vallabhlalji's ascension to the Gadi of the Guru Maharaj on the death of his father Ranchodlalji and that he look charge of management of the idols, shrines and temples of Thakoreji attached to the Gadi. Exhibit B-32 dated 2-11-1951 is the plaint in O.S. No. 1050/1951 filed by the judgment-debtor Vallabhlalji against the Trustees under the scheme and a stranger. That suit related to certain other properties endowed by one Madhavji to the Ghanshyamlalji Trust. Defendants 2 to 5 in Ext. B-32 suit were the Trustees under the scheme Ext. B-17. In Ext. B-32 plaint Vallabhlalji refers to the judgment and the scheme, Exts. B-15 and B-17, in O.S. No. 1423/1935 and the management of the Trust properties as per the terms of the scheme. Ext. B-33 dated 24-1-1955 is the written statement of defendants 4 and 5 in O.S. No. 1050/1951. In paragraph 3 of Ext. B-33 defendants 4 and 5 therein have specifically referred to the proceedings in O.S. No. 1423/1935 and have staled that the plaintiff in the suit namely, Vallabhlalji, is not the owner of the properties, but was only a trustee or Manager removed from office by the judgment and decree in the said suit. They have also referred to the appointment of defendants 2 to 5 therein as the Trustees under the scheme Ext. B-17 for the proper Administration of the Trust and its properties. The 5th defendant in that suit is the decree-holder in O.S. No. 1108/1954, the predecessor-in-interest of the present plaintiffs. It is therefore not open to the plaintiff's now to contend that the properties involved in the proceedings evidenced by Exts. B-15 to B-17 are not Trust properties and are therefore liable to be proceeded against in execution of the decree in O.S. No. 1108/ 1954.

13. Ext. A-3 dated 1-2-1934 is the plaint in O.S. No. 194/1934 on the original side of the Bombay High Court. That was a Suit filed by the judgment-debtor Vallabhlalji against Lakshmi Vahuji, the 2nd wife of his father Ranchodlalji, and her son Govinda Rai. The suit was for a declaration that a partition marked as Ext. H produced in that case was valid and binding on the defendants, namely, Lakshmi Vahuji and Govinda Rai and that the defendants had no right to the properties pertaining to the Gadi of Guru Maharaj. Ext. A-3 plaint takes in the land and buildings at Calicut known as the Maharaja's Mandir. In respect of the properties pertaining to the Gadi the contention of Vallabhlalji was that as successor to the Gadi he is absolutely entitled to the same to the exclusion of his step-mother Lakshmi and step-brother Govind Rai. Ext. A-4 dated 18-7-1935 is the compromise decree in the said suit O.S. No. 194/1934 as per which the ancestral properties and properties inherited from Ranchodlalji were divided among the parties and the properties pertaining to the Guru Maharaja's Gadi were allotted to Vallabhlalji, as successor of his father Ranchodlalji to the Gadi. The proceedings evidenced by Exts. A-3 and A-4 do not in any way advance the plaintiffs' case that the properties are the personal and separate properties of Vallabhlalji.

14. Much reliance is placed by learned counsel for the appellants on Exts. A-5, A-7 and A-9. Ext. A-5 is the plaint in O.S. No. 660/1949 on the original side of the Madras High Court. It was a suit filed by the judgment-debtor Vallabhlalji for a declaration that the proceedings initiated by the Commissioners under the Madras Hindu Religious Endowments Act, 1927 for the levy of contribution under the Act from the properties attached to the Mandir at Calicut were without jurisdiction and for an injunction restraining the Commissioners from proceeding with an enquiry into the question as to whether the Mandir in question is a public temple liable to pay contribution under the Act. Ext. A-5 refers to an earlier decision of the Commissioners dated 25-5-1936 whereby they had held that the Mandir at Calicut and the properties attached thereto do not constitute a Public Trust and are not therefore liable to any levy under the Madras Act. In Ext. A-7 judgment Chandra Reddy, J., as he then was, held that the Commissioners under the Madras Hindu Religious Endowments Act had no jurisdiction to review their earlier decision and impose a levy of contribution under the Act on the properties involved in that suit.

Ext. A-9 dated 2-9-1958 is the decision of a Division Bench of this Court confirming Ext. A-7 judgment of the Madras High Court. (The letters patent appeal filed in the Madras High Court was transferred to this Court after reorganisation of States). In Ext; A-5 plaint there is an assertion by Vallabhlalji that the Mandir at Calicut and the properties pertaining thereto belong to him. The decision in Ext. A-7 does not however declare any such title of Vallabhalalji to the properties involved in that suit. The only question decided in Exhibit A-7 judgment was as to the jurisdiction of the Commissioners under the Madras Hindu Religious Endowments Act to review their earlier decision that a particular endowment is not a public endowment liable to the levy of contribution under the Act. As per Ext. A-9 judgment of this Court Ext. A-7 decision of Chandra Reddy, J. was confirmed. Except for the assertion of Vallabhlalji in Ext. A-5 plaint, there is nothing in these proceedings to indicate that the properties involved were the private and separate properties of Vallabhlalji. In fact Ext. A-5 plaint does not contain any schedule of properties. The suit itself is generally about the Balakrishna Haveli (Mandir), situated in Nagaram Amsom and Desom at Calicut and the properties attached to the same. It was with respect to all these properties that there were the earlier proceedings culminating in the scheme Ext. B-17 and any assertion to the contrary against a binding decision by Vallabhlalji in Ext. A-5 plaint will not confer title to the properties on him. The proceedings evidenced by Exts. A-5, A-7 and A-9 ape therefore of no avail to the plaintiffs in support of their contention that the plaint schedule properties are the separate and private properties of the judgment-debtor.

15. Learned counsel for the plaintiffs-appellants submits that the Calicut proper-tics are excluded from registration as a Trust under the Bombay Public Trust Act and therefore it should be held that those properties are not Trust properties. He refers to Ext. A-19 dated 3-7-1959 which is an application by the Trustees under the scheme Ext. B-17 for registration of the Trust under the Bombay Public Trust Act. The properties situated in Calicut and Ahmedabad are not included in Ext. A-19 application. Exhibit B-21 dated 21-11-1961 is the order of the Assistant Charity Commissioner registering the Trust under the Bombay Public Trust Act. Clause (7) of Ext. A-19 refers to the properties involved in the application for registration as those mentioned in the scheme, excluding the properties at Calicut and Ahmedabad. Ext. B-35 is an application dated 26-5-1960 for the registration of the Ahmedabad properties under the Bombay Public Trust Act and Ext. B-41 dated 14-11-1960 is the order registering the Ahmedabad properties as a Public Trust under the Act. The mere fact that the properties in Calicut including the Mandir had not been registered as a Public Trust under the Bombay Public Trust Act does not in any way alter the character of the properties as Trust properties and included as such in Ext. B-12 suit and Ext. B-17 scheme framed by the Bombay High Court for the administration and management of the Trust properties. As earlier noticed in this judgment Ext. B-17 scheme had been implemented and the decree-holder himself is one of the Trustees under the Scheme who had on several occasions affirmed the scheme and acted thereunder. We are not therefore impressed with the argument that for the reason of non-registration of the Calicut properties as a Public Trust under the Bombay Public Trust Act will make the same anything other than Trust properties, if otherwise the properties are Trust properties.

16. The lower Court has found that the suit is defective for non-joinder of all the Trustees under the scheme Ext. B-17. The defendant is only one of the Trustees appointed as per the provisions of the scheme. Admittedly there are other Trustees functioning under the scheme. The defendant had put forward a claim in execution that the properties belonged to the Trust and that the judgment-debtor has no saleable interest is the same. The claim was upheld as per Exhibit B-1 order of the execution Court. The burden is on the decree-holder to prove that the judgment-debtor has saleable interest ia the properties attached. As per Clause (3) of Ext. B-17 scheme the properties vest in the Trustees and as per Sub-clause (j) of Clause (9) the Trustees shall have full powers as if they are the owners of the Trust estate and they are the persons competent to represent the Trust in all suits and other proceedings relating to the same. The defendant alone is not competent to represent the Trust. She is only one of the Trustees among the five Trustees appointed under the scheme. The scheme does not authorise one among the Trustees to represent the estate and in the absence of all the Trustees any decision affecting the rights of the Trust will not be binding on the Trust or its estate. The other Trustees under the scheme are therefore necessary parties to the suit and in spite of the specific objection taken by the defendant in her written statement, the plaintiffs have not cared to implead the other Trustees as parties to the suit. The Court below was therefore perfectly right in holding that the suit is defective for non-joinder of necessary parties.

17. The lower Court bus found against the defendant's plea that the suit is barred by limitation. Ext. B-1 decision of the Execution Court on the claim petition is dated 17-12-1966. The present suit is filed on 3-10-1970. In para 16 of the plaint the cause of action for the suit is said to have arisen on 17-12-1966 when the Execution Court upheld the claim put forward by the defendant and on 5-2-1970 when the order of the Execution Court was confirmed by this Court in revision. Learned counsel for the defendant-respondent submits on the basis of the decision of a Full Bench of this Court reported in Thycattuseri Church v. Sicillyamma, (AIR 1963 Ker 137) that the period of limitation for a suit under Order 21, Rule 63 is to be reckoned with reference to the date on which the Execution Court had passed an order under Order 21, Rule 60, C.P.C. and not from the date of the order in revision confirming the order of the Execution Court. Learned counsel for the plaintiffs-appellants refers to the difference in language between Article 11 of the Limitation Act, 1908 and Article 98 of the Limitation Act, 1963. Under the earlier Act, the period of Limitation for a suit of this nature is to be reckoned from 'the date of the order' which expression has been construed by the Full Bench us relating to the order of the Execution Court upholding or rejecting the claim against attachment. Under Article 98 of the present Act the period of limitation is to be reckoned with reference to the date of the final order which, according to the learned counsel, is the order in revision in the present case. The difference in language in Article 98 is significant and there is force in the contention that the final order with respect to a claim raided in execution is the order in revision where there is such an order. However, in the view that we have taken on the merits of the case, it is unnecessary to decide whether the final order within the meaning of Article 98 of the Limitation Act of 1963 is the order in revision.

18. The documents of acquisition in regard to the plaint schedule properties had been produced in this case. Ext. B-4 dated 10-3-1871 is an acquisition in the name of Chimanlalji Ghanshyamlalji Maharaj, the father of Ghanshyamlaiji. The Mandir in Calicut is situated in the land acquired under Ext. B-4. Ext. B-5 dated 3-11-1894 relates to the acquisition of land on which the Gosala pertaining to the temple is located. Counsel on both sides admit that the lands on which the Mandir as well as the Gosala stand are not included in the suit and the plaintiffs have no case that the items covered by Exts. B-4 and B-5 are liable to be proceeded against in execution of the decree obtained by their father against Vallabhlalji. Hems 1, 4 and 5 in the plaint are acquired under Exts. B-7 to B-10. Exts. B-7 to B-9 are acquisitions in the name of one Thulasidas and it is not shown how the judgment-debtor gets rights in these items acquired by Thulasidas. It is not necessary for the purpose of this case to consider whether Thulasidas has endowed these properties to the Trust, as the burden is on the plaintiffs to show that the properties are liable to attachment and sale in execution of the decree against Vallabhlalji. Ext. B-10 recites the jenm title of the Samocham of Ranchodlalji Maharaj and it is a document of surrender of possessory rights to the Trustees of Goswami Shri (108) Ranchodlalji Ganashyamlalji Maharaj. The recitals in the document give no room for doubt that it is a surrender to the Trust represented by the lour Trustees. It is admitted by counsel on both sides that Ext. B-11 dated 23-5-1926 is the document of acquisition of Item 6. The document of acquisition is in the name of Ranchodlaiji as owner of the Balakrishna Mandir. The consideration for the acquisition is recited in the document itself as provided for by four persons belonging to the community. Ranchodlalji is described with reference to his succession to the Gadi of Ganashyamlalji in contradistinction to his description in Ext. B-18 with reference to his individual character as the son of Jiwanlalji and coupled with the fact that he is described as the owner of the Balakrishna Mandir, we have no doubt that the acquisition of Item 6 under Ext. B-11 is for and on behalf of the Balakrishna Mandir which is the Mandir at Calicut referred to in Exhibit B-17.

19. The defendant has no case that the land in T. S. Nos. 116 and 118 belongs to the Trust. Items 2 and 3 in the plaint are T. S. Nos. 116 and 118. The buildings described as Door No. 12/72A in Item 2 and door No. 12/73A in Item 3 according to the defendant, are not situated in Sy. Nos. 116 and 118, but are in T. S. Nos. 117 and 119 belonging to the Trust. The defendant has no objection in the plaintiff proceeding against T. S. Nos. 116 and 118, but on the pretext of proceeding against those items, the plaintiffs should not be allowed to proceed against the buildings Nos. 12/72A and 12/73A standing in T. S. Nos. 117 and 119. The plaintiffs have taken out execution of file decree against T. S. Nos. 116 and 118 on the basis that the lands covered by those survey numbers belonged to Vallabhlalji. The defendant, as already stated, has no claim to these survey numbers. We make it clear that it is open to the plaintiffs to execute the decree by attachment and sale of T. S. Nos. 116 and 118 and the question as to whether the buildings shown as standing thereon are actually in those survey numbers is a matter to be decided in further execution. We have not however considered or decided whether the judgment-debtor has any saleable interest in T. S. Nos. 116 and 118 shown as Items 2 and 3 in the plaint. Since the defendant does not set up any title in respect of those survey numbers except to point out that the buildings shown therein are standing in different survey numbers belonging to the Trust, it is unnecessary for us to consider whether the judgment-debtor has any saleable interest in T. S. Nos. 116 and 118 shown as Items 2 and 3 in the plaint. The question as to whether the buildings Nos. 12/72A and 12/73A are situated in T. S. Nos. 116 or 118 is also a question which we have not decided in this case. If the buildings do not stand in Items 2 and 3 as shown in the plaint, the plaintiffs will have no right to proceed against those buildings in execution of the decree.

Subject to the above modification relating to T. S. Nos. 116 and 118 and subject to the plaintiff's rights, if any, to proceed against those survey numbers in execution of the decree, we confirm the decision of the trial Court and dismiss the appeal. In the circumstances of the case both parties will suffer their respective costs in the appeal.


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