JAFARKHAN JATBARKHAN PATHAN Vs. DAUDSHAH MAHOMEDSHAH FAKIR

JUDGEMENT

(1.) This was a suit filed under Section 539 of the Civil Procedure Code of 1882, corresponding to Section 92 of the present Code. The plaintiffs sued as persons interested in the alleged public religious trust known as Pir Khatib Sayad's Dargah in the town of Nadiad. They alleged that that Dargah was wakf property over which the first three defendants had no right of ownership; that the first defendant had mismanaged the trust property and had alienated part of it to one Chaturbhai who in turn had sold it to the fourth defendant. The plaintiffs prayed, therefore, that the first three defendants should be removed from management of the property; that new trustees should be appointed; that accounts should be taken and a scheme should be framed.

(2.) The principal defence offered was made by the first defendant who claimed that the property was not trust property at all but was private property belonging to himself. The learned Joint Judge by whom the suit was decided held that the suit was unmentionable in its present form, and also that the property in question was not proved to be public religious property. Upon both these grounds, therefore, he dismissed the claim. These are the grounds upon which his judgment has been attacked in this appeal and upon both points we are unable to take the view which commended itself to the learned Judge below.

(3.) As to the point of the form of the suit, the learned Judge relying upon Jamal Udain V/s. Mujtaba Husain, (1903)I.L.R. 25 All. 631, thought that this suit could not be referred to Section 92 of the Civil Procedure Code, because the trust alleged by the plaintiffs was not admitted by the defendants. in our opinion, however, that is no reason for taking the suit outside the scope of Section 92. Jamal Uddin's case, as we understand it, is not an authority for more than it decides, and all that it decides is that a suit asking for a mere declaration that certain property is trust property does . not lie under the old Section 539. It will be seen that that proposition is incontestable if reference be made to the Sub-clauses of Section 539 which prescribe the particular purposes for which such a suit may be brought under that section, which purposes do not include the purpose of obtaining a mere declaration ; but in this present suit there are prayers which bring the case within the ambit of Section 539. We think that no difficulty is caused by the use of the words "any alleged breach of any trust" occurring in Section 539, for we do not read those words as equivalent to any alleged breach of any admitted trust. The construction which we put upon the section in this respect has, so far as we are aware, been consistently followed in these Courts, and the case of Chinchwad Savasthan, Chintaman Balaji Dev V/s. Dhondo Ganesh Dev, (1888) I.L.R. 15 Bom. 612 is an illustration of that. Reference being made to p. 616 of the report, it will be seen that the defendants there pleaded that the Savasthan was not a public religious or charitable institution and that they were not the trustees but owners of the property in that suit. The same defence was also set up in the Dakore case: Manohar Ganesh Tambekar V/s. Lakhmiram Govindram, (187) I.L.R. 12 Bom. 247, but it was not suggested in either of these cases that the existence of that particular plea in defence took the case out of the scope of Section 539.