GHASI GIR Vs. JAMUNA PROSHAD

JUDGEMENT

(1.) This is an appeal from an order of the officiating Subordinate Judge of Muzaffarpur, directing the plaint in the action to be returned for presentation to the proper Court, the learned Judge having held that the action was one contemplated by Section 92, Civil Procedure Code. The short facts which it is necessary to mention for the purpose of understanding the points argued are these. A certain temple or asthal, with shops appertaining thereto, in Muzaffarpur was at one time owned by one Harihar Babu who, on December 13, 1894, made a gift of the temple and shops to Girnar Gir his chela, and who according to the plaintiff was his son. This deed of gift was Ex. 6 in the case, and it will be necessary to refer to that for the purpose of considering one of the arguments raised by the learned Advocate on behalf of the appellants. In this deed there was a provision that a monthly allowance should be made of Rs. 5 to the grantor Harihar Babu. On January 23, 1918, Girnar Gir gave a lease for five years of the entire asthal property, but in December of 1922, just prior to the end of the term, Girnar Gir executed a deed of trust and sebaitship in favour of Jamuna Prasad. The two clauses in that trust deed which are necessary to construe are Clause 6 and 7, Clause 6 was as follows: I the trustee am and shall be competent that when I shall like to remove myself from the part of the shebait trustee, I shall select some capable and able person in my stead and relinquish claim after taking the advice and opinion.

(2.) of certain persons named in the clause. Clause 6 is an ordinary clause entitling a trustee to relinguish the office of trustee and to appoint a person in his stead. For the purpose of this case, however, Clause 7 is of more importance, for it was under that clause that the plaintiff or the predecessor-in-title of the plaintiff purpoted to act and in the events which happened gave rise to this action, Clause 7 provided: If I, the declarant, and my representatives and successors do not see any improvement and good of the said asthal at the hands of the said trustee shebait then in such circumstances I and they shall appoint another trustee shebait who be thought capable, able and honest for the improvement and good of the asthal, by cancelling and revoking this deed Of trust by a written one month's notice or shall bring the same under my and their khas (direct) management, if so desired.

(3.) It appears that notice was given under Clause 7 on July 25, 1929, terminating the trusteeship of Jamuna Prasad. In the meantime on April 30, 1927, Girnar died leaving two sons and one disciple. The two sons are plaintiffs Nos. 1 and 2 in the action and are the appellants before us. The notice of July 25, 1929, was given by the sons and disciple of Girnar Gir. I should have stated that on November 25, 1927, there was a mutation proceeding, under which the eldest son of Girnar Gir got his name recorded. As a result of the notice of July 25, 1929, Jamuna Prasad, the trustee, retired, that is to say on August 5, 1929. There was a further notice on December 10, 1922, as it would appear that Jamuna Prasad had changed his mind with regard to the matter, as the plaint alleges in para. 12, and, as I have stated, purported to continue in the position of trustee. There were certain proceedings under Section 114, Criminal Procedure Code by reason of the fact that one of the persons named in the deed of trust, Sat Narain Chaudhury under whose advice and opinion a new trustee was to be appointed if the opinion was exercised under Clause 6, had gone into possession. It was under those circumstances that the action was brought, and it was under those circumstances that the learned Judge in the Court below has dismissed the action and ordered the plaint to be returned to the proper Court by reason of the provisions of Section 92, Civil Procedure Code. Now it is contended by the learned Advocate appearing for the appellants, first, that the property, which is subject-matter of the suit, was private property and not property subject to a public trust, and secondly, that the action was brought against a trespasser and not against a trustee and therefore it was not an action contemplated by Section 92, Civil Procedure Code. The first ground, in my judgment, is clearly untenable. The trust deed to which I have referred was a deed of gift by Harihar Babu, and any contention that the property was not trust property seems to fall to the ground on that deed wording of the alone. Harihar Babu described himself as the disciple of Mahanth Bhawani Gir, deceased, by caste Sanayasi Fakir, asthaldar of Mohalla Islampur.