LALA HEM CHAND Vs. LALA PEAREY LAL

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Lahore dated 27 January 1938, which reversed a decree of the Court of the Subordinate Judge of Delhi dated 30 November 1936, in favour of the defendant-the appellant before the Board. The appeal arises out a suit instituted by the plaintiffs, on behalf of the members of the brotherhood of the Digambar Jains, for recovery of possession from the defendant of a house described as "Jain Dharmasala," situate at Khatra Mashru in ward 4 of the town of Delhi, and entered as No. 48 in the municipal registers. The question for decision in this appeal is whether the plaintiffs have established their title to, and right to recover possession of, the suit property from the defendant. The parties to the suit are Jains, and are governed by the Mitakshara law. In the plaint, it was alleged that the house in dispute was purchased by one Lala Janaki Das, presumably with his own funds, that he "converted it" into a Dharmasala, that it was used as such and managed by him during his lifetime, that after his death in 1909 it remained under the management of his son, Ramchand, plaintiff 3, till it was handed over to the Jain Orphanage Society of Delhi, that the defendant got possession of it from him in January 1931, for temporary use during the occasion of the marriage of his daughter, and that he refused to vacate when he was asked to return it. The defendant traversed the allegations of the plaint, repudiated the dedication of the property as "Dharmasala," and pleaded as material facts that the house was owned and possessed "by him." He also questioned the right of the plaintiffs to maintain the suit.

(2.) In the course of evidence, the following facts were elicited: one, Sri Ram, "by occupation a pleader, resident of Delhi," executed a will on 23 March 1892. After appointing two executors, Lala Janaki Das (mentioned in the plaint) and Munshi Ramji Das, and setting out the details of his moveable and immovable properties, valued at Rs. 40,400 the testator expressed in para. 1 of the will his intention of creating a trust for charity in respect of Rs. 11,500 out of his properties as follows: "1. Out of the aforesaid property of the value of Rs. 40,400, property worth Rs. 11,500 . viz., one house situate in Khatramashru and valued at Rs. 6500.. and Rs. 5000 . in cash be given away in charity. That is, the money be given away in charity account and the house under reference be made wakf. I myself will manage the wakf house in my lifetime, and after my death managers shall be appointed and instructions shall be laid down for their guidance."

(3.) In paras. 2 and 3 of the will the testator made provisions in favour of his wife, Mt. Durgi Devi, and Mt. Bhugli, widow of his deceased son. In para. 4, after giving a legacy to a cousin of his, he left the residue for charity in the following terms: "As regards the remaining property of the value of about Rs. 12,000 (twelve thousand), I make the following will: The property which is left unbequeathed at the time of my death be included in the charity account."