KASHINATH MAHADEV MAHAJAN Vs. GANGUBAI KESHAV NAGARKAR

JUDGEMENT

(1.) One Gopal Vyankatesh died in 1892 leaving behind him his widow Radhabai and some daughters of whom the plaintiff is the surviving one. He made a will, Exhibit 57, in the year 1883, and directed his widow to make an adoption, and in case she did not, he directed that all his property should be utilized in trust for a religious purpose. After his death the widow did not take anybody in adoption and made a will, Exhibit 58, in 1898, by which excepting one house given absolutely to her daughter, the present plaintiff, she gave the remaining property in trust for a religions institution and appointed two executors, Vinayak Thakar and Gangabai Barde. In 1904 there was a compromise and an award decree between the plaintiff and the executors by which the plaintiff was not to urge her claim as heir to the plaint property, that she was to get one house and had to give back the other house which she had obtained under the will of her mother, and after the death of the trustees the management of the trust was to revert to the present plaintiff. The plaintiff applied for execution of the award decree and obtained possession of the house which was given to her by the award decree, but did not hand over possession of the other house which she had obtained under the will of her mother. Gangabai Barde, one of the executors, died in July 1919, and the other executor Vinayak Thakar died on March 26, 1921. Defendants Nos. 1 and 8 are the sons of Mahadev, the divided nephew of Gopal.

(2.) The plaintiff filed the present suit for possession of the plaint property on two grounds, firstly, basing her claim on the award, decree under which she was to get the management of the trust property after the death of the executors, and, secondly, as the heir of the original founder entitled to manage the property on the death of the appointed trustees. The defendants on the other hand claimed that defendant No. 1 was appointed trustee by Vinayak and had taken possession of the property from the nephew of Vinayak in March 1921.

(3.) The learned Subordinate Judge held that defendant No. 1 was validly appointed trustee, and therefore the plaintiff's right to manage the trust property did not arise, and further that in virtue of her conduct in denying the endowment and asserting her personal right to the trust property, she was disqualified to be appointed a trustee, and therefore dismissed the suit.