KEKI PESTONJI JAMADAR Vs. KOHODADAD MERWAN IRANI

JUDGEMENT

(1.) CLAIMING to be a joint owner of a land, one Rodabai Khodadad Merwan Irani filed Civil Suit No. 56 of 1958 against her brother Jamshedji and her sister Baimai for partition and separate possession of her one-third share. She withdrew that suit on 3rd August 1959 in pursuance of an agreement dated 19th July 1959, under which Jamshedji agreed to convey the property to the "tarapur Parsee Zoroastrain Anjuman Trust" reserving a life interest to himself. Jamshedji did execute a deed of trust on 24th April 1960 but he created thereunder a life interest not only in favour of himself but also in favour of one Jerbai Irani. On the death of Jamshedji on 9th April 1962, the trustees took possession of the land. In the meanwhile, Baimai had died on 27th March 1960.

(2.) ON 4th August 1962, Rodabai brought this suit (No. 131 of 1962) in the Court of the Civil Judge, Junior Division, Dahanu, Impleading thereto the Trustees (defendants 1 to 7), the heirs of Baimal (defendants 8 to 13) and the Charity Commissioner (defendant 14 ). By her suit, Rodabai asked for partition and separate possession of her one-half share in the suit property, the other half, according to her, being of the ownership of defendants 8 to 13. Her case is that under the agreement dated, 19th July 1959, she and her sister were to get the property in equal shares on the death of their brother Jamshedji, unless he created a trust reserving no more than a life interest to himself and to himself only.

(3.) THE Charity Commissioner filed his written statement in the suit on 21st November 1962 contending that the Civil Court had no jurisdiction to decide the questions raised in the suit as defendant 1 had filed an application under Section 18 of the Bombay Public Trusts Act, 1950 (herein called "the Act") and as the inquiry into that application was pending before the Assistant Charity Commissioner under Section 19 of that Act. The application under Section 18 was filed by defendant 1 on 1st November 1962 for registration of the Trust in the name of "jamshed Baug Trust. " By their written statement dated 12th December 1962 the trustees raised several other contentions with which we are not concerned here. On a motion made by the Charity Commissioner the suit was stayed, pending the decision of the inquiry under Section 19.