RATAN SEN ALIAS RATAN LAL Vs. SURAJ BHAN

JUDGEMENT

(1.) This is a first appeal arising out of a suit in which the plaintiffs, a father and son, alleged that the land in suit was the property of a trust or wakf which had been created in favour of a shivala and dharamshala. Defendant 1 was alleged to be the trustee, defendant 2 to be in possession under an alleged mortgage executed by defendant 1 and defendant 3 to be claiming the property as a grove- holder. Defendant 3 is the father of defendant 2. All three defendants set up a plea that there was no trust and that defendant 1 was the owner of the property. The reliefs were : (a) that defendant 1 might be removed from the office of trustee and manager of the wakf property and that another trustee or other trustees should be appointed, (b) that the new trustee or trustees should be put in possession of the wakf property and that the rights of all the defendants should be extinguished and (e) that the defendants should be required to render an account of the income and expenses and that the amount which might be found due by any particular defendant should be awarded to the new trustee against that defendant. The learned District Judge dismissed the suit against defendant 3 on the sole ground that the Advocate-General had given the plaintiffs permission to sue only the first two defendants. He removed defendant 1 from the office of trustee and directed that a scheme should be drawn up for the management of the trust. Against defendant 2 he granted only a declaration that the property in suit was the property of the trust.

(2.) The appellant before us is defendant 2. Before considering his grounds of appeal and the arguments which have been addressed to us on his behalf it will be convenient to set forth certain facts. It appears that one Bhagwan Das sold the property to Hargu Lal, the father of the plaintiff, Suraj Bhan under a deed of sale dated 21 June 1892. In 1895 Jiwan Das brought a suit against Hargu Lal in order to obtain a declaration that the property in dispute was the subject of a religious and charitable trust in favour of a shivala and that the sale deed was null and void. This suit was concluded by a compromise decree. Hargu Lal agreed that the deed in his favour should be set aside on the understanding that the property in suit was wakf property relating to a shivala and dharamshala, that Jiwan Das should be the trustee and manager of the wakf, that he should be succeeded by his disciples and that he should have no right to alienate the property. Jiwan Das was succeeded by his disciple, Mohan Das, who executed a deed of usufructuary mortgage in favour of defendant 2 in the year 1932. Defendant 1, Babu Hira Das, is said to be the disciple of Mohandas. He did not appear in the Court below after filing a written statement and he has acquiesced in the ex parte decree which was passed against him. Defendants 2 and 3, son and father, are in possession of the property.

(3.) As for the grounds of appeal I may take them in order. The first is that there was no wakf because none could be created without the execution of a registered instrument. The answer to this is that the predecessor-in-interest of the defendants admitted the existence of this trust and that the decree on the basis of the compromise is binding upon the defendants. There was no necessity to have the decree registered and there is no suggestion that a wakf was created at the time when the decree was passed. The second ground is that there was in fact no idol or temple in existence at the time of the decree and that for this reason there could be no wakf. It was suggested that one of the plaintiffs had admitted that no idol existed at the time of the compromise, but an examination of his evidence will show that his statement was to the contrary effect. It does not however seem to matter whether there was an idol or not at that time. The par-ties to the decree accepted the position that there had been a wakf in existence for some time and even if there was no idol, there is nothing to prevent any person creating a trust in favour of a temple or of a dharamshala. There might be some question whether the property vested in the idol or vested in the trustee, but that would be a question which could not in any way affect the result of this suit. The third and the fourth grounds appear to rest upon the contention that the trustees could appropriate the property and defeat the trust by failing to carry out its provisions and misappropriating the profits of the property for a period of years. This proposition has merely to be stated in order to be rejected. The fifth ground is that the compromise decree was fraudulent and was the result of collusion between the parties. It is not explained on whom the fraud was practised and no fraud or collusion was pleaded by any of the defendants.