1. The respondent obtained a decree for sale of certain property in a mortgage suit against the father of the appellants.
2. After decree, the defendant died and the respondent applied for leave to execute the decree against the appellants by sale of the land under Section 234, Civil Procedure Code. The appellants opposed the application' on the ground that the land ordered to be sold was wakf property of which they were in possession not as representatives of their deceased father but as hereditary trustees of the property.
3. The District Munsif held that he could not go into the question under Section 244, Civil Procedure Code, on appeal. The District Judge also held that Section 244 did not apply, and if it did, he dismissed the appellants' appeal.
4. This second appeal is brought from this decision.
5. It is contended before us, that no appeal or second appeal lies as the appellants' only remedy is by preceeding under Sections 278 to 283, Civil Procedure Code, and that Section 244 does not apply.
6. We think this contention is right. The appellants' objection is taken as trustees and in a different capacity to their position as representatives of their father, and in that capacity they are not within Section 244.
7. This is the result of the decision in Murigeya v. Hayat Saheb I.L.R. (1898) B. 237 where Ranade J. laid down the proper procedure as follows:
Where he asserts that he holds the property in trust for * * * some third person or body of persons or a religious charity or institution the claim must be investigated under the provisions of Sections 278 to 283, and the order passed therein cannot be challenged by an appeal, but must form the subject of a separate suit. See also Ramanatham Chettiar v. Levvai Marakayar I.L.R. (1898) M. 195 and Kumaretta Servaigaram v. Sabapathi Chettiar I.L.R. (1906) M. 26.
8. In this case there is no ground for holding that the decree is ultra vires. No question of public policy arises, for a decree for the sale of 'wakf' property may in certain circumstances be perfectly valid. The cases cited, viz., Lakshumanaswami Naidu v. Rangamma I.L.R. (1902) M. 31 and Raja of Vizianagaram v. Dantivada Chelliah I.L.R. (1904) M. 84 therefore, do not apply.
9. We dismiss the appeal with costs.