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Ali Haffiz Vs. Abdur Rahaman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1915)ILR42Cal1135
AppellantAli Haffiz
RespondentAbdur Rahaman
Cases ReferredCarnes Congeladas v. Houlder Brothers
Excerpt:
parties - civil procedure code (act v of 1905) section 92, order i, rule section--public religious trust--snit, to remove a trustee and to recover possession of trust property in the, hands of a third party--joinder of parties--alienee of trustee. - .....mutawalliship on the ground that he has committed, a breach of trust by alienating a part of the trust property to defendant no. 2 who is alleged to have taken the property with the knowledge that it wan trust property. defendant no. 2 alleges that the property alienated is not trust property and that in any ease he had no knowledge of any trust. a preliminary objection was taken, on behalf of defendant no. 2 that he is not a necessary party and that he cannot be joined in the suit which is one under section 92 of the civil procedure code. in support of this objection two cases are relied on, namely, budh singh dhudhuria v. niradbaran roy (1915) 2 c. l. j. 431, 434. and badri dass mukim v. (sic)chooni lal johurry (1906) i.l.r. 33 calc. 789, 805. with regard to both cases i am quite in.....
Judgment:

Greaves, J.

1. In this suit the plaintiffs claim to remove defendant No. 1 from the mutawalliship on the ground that he has committed, a breach of trust by alienating a part of the trust property to defendant No. 2 who is alleged to have taken the property with the knowledge that it wan trust property. Defendant No. 2 alleges that the property alienated is not trust property and that in any ease he had no knowledge of any trust. A preliminary objection was taken, on behalf of defendant No. 2 that he is not a necessary party and that he cannot be joined in the suit which is one under Section 92 of the Civil Procedure Code. In support of this objection two cases are relied on, namely, Budh Singh Dhudhuria v. Niradbaran Roy (1915) 2 C. L. J. 431, 434. and Badri Dass Mukim v. (sic)Chooni Lal Johurry (1906) I.L.R. 33 Calc. 789, 805. With regard to both cases I am quite in agreement with them in so far as they decide that relief such as is asked here against defendant No 2, does not come within the purview of Section 539 of the Civil Procedure Code, Act XIV of 1882, which is now represented by Section 92 of the present Civil Procedure Code, but I see no reason why, having regard to the provisions of Order I, rule 3 of the present Civil Procedure Code, defendant No. 2 should not be made a party to the suit and, if my decision is against him, I see no reason why he should not in this suit be declared to be a trustee of the trust property and be directed to convey the property. I should add that I am fortified in the view that (sic) have expressed by a consideration of the provisions of Order XVI, rule 4 of the English Procedure Rules: see Compania Sansinena de Carnes Congeladas v. Houlder Brothers [1910] 2 K. B. 354. and the notes in the English Annual Practice for 1915, at p. 221. Order I, rule 3 of the Civil Procedure Code is very similar in terms, in fact almost, identical with Order XVI, rule 4 of the English Procedure Rules and is probably founded thereon and consequently the opinions expressed in Order XVI, rule 4, by the English Judges may well be considered in construing the provisions of Order I, rule 3. I accordingly overrule the preliminary objection.


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