GOPAL KRISHNAJI KETKAR Vs. MAHOMED JAFFARMOHAMED HUSSEIN

JUDGEMENT

(1.) This is an appeal by the second plaintiff who is the adopted son of the first.

(2.) The suit is for a declaration that the second plaintiff is the guardian and 'vahivatdar' of the Darga in suit known as Haji Malang and that he alone is entitled to look after the Darga and manage it and control direct and perform its rites and rituals; also for a declaration that the second plaintiff is entitled to take the offerings placed before the tomb of Haji Malang throughout the year, as also the cash and other offerings now lying in the Kalyan Treasury under the orders of the District Magistrate of that place. A perpetual injunction is also asked for restraining the defendant from disturbing the second plaintiff in the exercise of those rights.

(3.) The suit has certain curious features. The plaintiffs are Brahmins while the Darga which they have the right to manage is a Muslim Shrine, and beside the tomb of the Muslim saint is the tomb of a Hindu princess. Offerings are made at both tombs by persons of all faiths. The first plaintiff died during the pendency of the suit and the defendant died during the pendency of the appeal. He laid no claim to the Darga but only claimed to be its rightful manager and Mutawalli. As he claimed no hereditary rights that a portion of the dispute died with him. The only dispute which remains outstanding against the defendant's legal representatives, and that only in an indirect way, relates to the past offerings which were deposited in the Kalyan Trusury and which had accumulated to a sizeable figure during the pendency of litigation, and to a house claimed by the defendant. And even that only arises indirectly for this reason. In view of the dispute between the parties, the authorities stepped in under Ss. 145 and 147, Criminal P. C. and attached the offerings and on 24-2-1946 the District Magistrate of Kalyan ordered them to be kept in the Kalyan Treasury and directed that they should be handed over to whichever party would be found to be entitled to them by a civil Court. That is one of the plaintiffs' reasons for bringing this suit.