UMADBHAI CHATURBHAI PATEL Vs. GOSWAMINI SHRIMATI RATNAPRABHA

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit is one under O.21 R.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 Ghanashyamlalji 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 plaintiffs 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.