MAHARAJ DHARAM NARAIN Vs. MAHARAJ SURAJ NARAIN

JUDGEMENT

(1.) This is an appeal by the defendant Dharam Narain. The plaintiff Suraj Narain brought a suit for "possession of the entire wakf property, moveable and immovable, and all the funds of the wakf created under a document dated 14th May 1900 executed by Mt. Bibi Sabitri and of the office of mutwalli and amin of the aforesaid wakf by dispossession of the defendant." It was also prayed that the defendant may be ordered to render all accounts of the funds and income of the property appertaining to the wakf from 1926 upto the institution of the suit and that a decree for the amount found payable by the defendant for the period of his possession with reasonable interest may be passed in favour of the plaintiff against the person and property of the defendant. The Court below decreed the plaintiff's suit "for possession over the office of trustee and over the property, moveable and immovable, belonging to the trust." A preliminary decree for account was also passed in favour of the plaintiff against the defendant directing the latter to render accounts relating to the trust from 1926 onwards upto the date of the judgment (17 September 1938) and the plaintiff was allowed full costs against the defendant. The allegations on which the plaintiff brought the suit may be stated, but in order to appreciate them it would be better to give the following pedigree:

(2.) The common ancestor of the parties was Mool Chand and one of his sons, Salig Ram, was possessed of considerable property. His two sons, Jagannath and Chotey Lal, died in his lifetime and Salig Earn on 7 January 1896 gifted his property absolutely to his widowed daughter-in-law Bibi Savitri and the latter on 14 May 1900 created an endowment of some of her properties in favour of three idols, Sri Savitri Swami Ram Chandra Ji, Sri Savitri Swami Janki Ji and Sri Savitri Lachhman Ji by means of a formal deed of gift and constituted herself as the first mutwalli of the waqf property during her own lifetime. She died on 17 April 1917 and then, according to the plaintiff, Lachhmi Narain as the heir of the founder became the mutwalli and remained in possession of the wakf property during his life time, although the endowed estate was managed by one Puttu Lal, the mukhtar-i-am of Bibi Savitri and an employee of Lachhmi Narain. Lachhmi Narain died on 30 September 1921 and then the plaintiff succeeded to the mutwalliship, but he was a minor and his estate was under the superintendence of the Court of Wards. Puttu Lal however continued to manage the endowed property up till 1926 on behalf of the plaintiff and then mutation was effected in favour of Dharam Narain in August 1926, but he had absolutely no title and his possession was the possession of a trespasser. During his time he was guilty of gross mismanagement and waste. The defendant was therefore liable to be dispossessed and was liable to render accounts. The plaintiff was entitled to obtain actual possession of the endowed property.

(3.) In defence it was pleaded that the plaintiff was not entitled to the mutwalliship and therefore he had no cause of action. The plaintiff's suit was said to be barred under Section 92, Civil P.C. and by the twelve year's rule of limitation. The defendant alleged that Lachhmi Narain never obtained possession over the waqf property, but, on the death of Bibi Savitri, the defendant and his brother Shiv Narain under an oral will became the mutwallis of the waqf property and, according to the same oral will Puttu Lal was authorized to carry on the management during the minority of Shiv Narain and Dharam Narain. The defendant took up the management in his own hands on attaining majority and his management throughout had been satisfactory and honest. The plaintiff was said to have attained his majority more than three years prior to the institution of the suit. The Court below decided every issue in favour of the plaintiff and decreed the suit in its entirety. It is not perhaps quite accurate to say that all the issues were decided in favour of the plaintiff because, although there is no definite finding of the Court below on the pointy the leaning of the Court is undoubtedly in favour of the defendant's contention on the question of the plaintiff's age, but that did not in any way have any effect, in the judgment of the Court below, on the ultimate decision of the case.