GHELABHAI GAVRISHANKAR Vs. UDERAM ICHHARAM

JUDGEMENT

(1.) The dispute in this case relates to a house, which originally formed part of the property belonging to one Ambaram Bhikariram. He by his will made in the year 1849 bequeathed the property to his wife for life, and, on her death, to Bai Ganga, his widowed daughter-in-law, also for life; and he further directed that on their death his four executors, named in the will, should make shivarpana of the property, that is to say, they should make a public religious trust of it by devoting it to the worship of the Hindu deity, Shiva. On his death, his widow took under the will. On her death, his daughter-in-law succeeded to the estate and she sold the house now in dispute. The present respondents claim to be in possession in virtue of that sale.

(2.) The executors, charged with the duty of making a public trust of the property, predeceased the daughter-in-law. She herself died in the year 1898. The trustees, named by the testator for the purpose of making and completing the trust at the point of time fixed by him, having died, and the object of the trust, as named by him, being specific and definite, the case falls within the rule of law, laid down by Lord Eldon in the leading case of Moggridge v. Thackwell (1803) 7 Ves. Jr. 36, that "where the execution is to be by a trustee with general or some objects pointed out, there the Court will take the administration of the trust." See also In re Pyne: Lilley v. Attorney General [1903] J CH, 83. It is for such cases that the Indian Legislature provided a remedy by means of Section 539 of the old Code of Civil Procedure (Act XIV of 1882), reproduced, with some alteration, in the new Code, (Act V of 1908), as Section 92.

(3.) In the present case, the suit was brought by the appellant in the Court of the Second Class Subordinate Judge at Surat independently of Section 539 of the old Code, which was then in force. In his plaint he sought to eject the respondents as trespassers and prayed for possession of the property, for the appointment of a trustee by the Court, for the settlement of a scheme for the administration of the trust, and for such other relief as the Court might think fit to grant. All the relief s claimed, except the prayer for possession, fell within the purview of Section 539, and to that extent the suit was outside the jurisdiction of the Subordinate Judge s Court, having regard to the law that the provisions of the section are mandatory, not enabling or permissive: Tricumdass Mulji v. Khimji Vullabhdass (1892) I.L.R. 16 Bom. 626.