BANSILAL MOTILAL Vs. GOVINDLAL BANSILAL

JUDGEMENT

(1.) This is a notice of motion taken out by the plaintiff for an order that a certain sum of money be set apart out of joint family funds for the maintenance and upkeep out of the interest thereon of a temple situate on a part of the property known as "Raghunath Baug" in the Residency Area, Hyderabad, Deccan, and that a further sum be also set apart sufficient to erect a small wall around the said temple in order to separate the land set apart for the temple from the rest of the land, The suit was filed by the plaintiff as far back as 1917 for partition of the moveable and immoveable properties in the hands of his late father Motilal Shivlal and for other reliefs. A consent decree was taken in this suit on October 12, 1922, and under one of its clauses there was a reference to the Commissioner to ascertain the joint family properties, and the Commissioner was authorised by the Court to sell the immoveable properties by public auction or by private contract with the consent of the parties. Under the last clause of the consent decree liberty to apply was reserved to the parties to the suit, and the plaintiff has presumably taken out this notice of motion by virtue of and under the said liberty to apply.

(2.) All the immoveable properties have been sold. Amongst the immoveable properties there is this property called "Raghunath Baug" which consists of 22,291 square yards together with the buildings standing thereon, and towards the rear of the property there is this temple in which the image of the deity Hanuman has been installed. This property has also been sold and purchased by the plaintiff himself save and except the portion of the land on which the temple stands and certain other land appurtenant thereto which have been excluded from the sale. The Commissioner made his report on May 11, 1931, and the last para, of the report runs as follows:- And I lastly certify and report that I have by consent of parties not sold a portion of the property known as Raghunath Baug at Residency Area at Hyderabad Deccan described in the Sohedule IV hereto and the same is set apart as having been dedicated to charity.

(3.) Plaintiff alleges that the temple was built by his late grand-father who dedicated the same to charity for the purpose of public worship, that it has been so used for the last nearly sixty years, and that throughout that period it has been maintained out of the joint family funds. The plaintiff accordingly now prays that provision should be made by setting apart three and a half per cent. Government Promissory Loan Notes of the nominal value of Rs. 7,000 out of the joint family funds for its maintenance and the payment of the expenses relating to it, and that a further sum be set apart for erecting a wall round the temple land so as to demarcate it from the remaining portion of the property which has been purchased by himself. Some of the defendants who appeared on the notice of motion before me contended in the first place that the notice of motion was misconceived and could not be brought under the liberty to apply which was reserved to the parties under the consent decree. They deny that there was any dedication to charity, and they contend that in any event no sum can be set apart out of the so call ad joint family funds, as there has been a severance of the joint family status on the filing of the suit which has proceeded up to the stage of decree, and that therefore there cannot be, strictly speaking, any joint family funds out of which such provision can be made.