JAMBOODAS DEVIDAS CHAWRE Vs. CHAWRE DIGAMBAR JAIN BOARDING

JUDGEMENT

(1.) 1. Seven persons belonging to the Chawre family of Karanja agreed to contribute Rs. 35,000 for the purpose of constituting a trust named "The Chawre Digambar Jain Boarding Fund, Karanja" and constituted four of them as trustees of this fund, viz. (1) Jinwar Gangasa, (2) Gopal Ambadas, (3) Motilal Onkarsa and (4) Balchand Devidas. The terms and conditions of this trust fund are embodied in a document executed by these four trustees on 18th March 1923 and styled as trust deed (Ex. P-l). Excepting three of the subscribers including the defendant the others paid down their subscriptions in cash and the others who did not pay their subscription immediately executed promissory notes in favour of the trust fund. The defendant promised Rs. 5,000 as his subscription and executed a promissory note on 21st March 1923 (Ex. P-3) and agreed to pay interest thereon at Rs. 6 per cent, per annum, After making certain repayments the defendant renewed the original promissory note for the balance of Rs. 5,003-5-0 on 16th February 1926 (Ex. P-2). The suit out of which this appeal arises was filed in the name of Gopal Ambadas, Secretary of the Chawre Digambar Jain Boarding, Karanja, to recover from the defendant Rs. 5,901-6.0 due on the aforesaid promissory note. Among other defences raised by the defendant was one in which he challenged the right of the plaintiff to institute the suit in his own name. The lower Court overruled this plea as also the other pleas and decreed the plaintiff's claim in full against the defendant, who has therefore filed the present appeal.

(2.) THE second promissory note (Ex. P-2) on the basis of which the present suit is brought, was executed by the defendant in favour of Motilal Onkarsa, Secretary of the Chawre Digambar Jain Boarding, Karanja. It was therefore contended by the appellant that the promissory note in favour of institution, which was admittedly not registered under the Registration of Societies Act (21 of 1860), being not in favour of a juristic person the contract was void and unenforceable and also that the present secretary of such an institution could not enforce it by way of a suit. Reliance was placed for this contention on Thakardwara Pheru Mal v. Ishar Das AIR 1928 Lah 375 where it was held that while an idol, as well as a math, has a judicial status in the sense of being a juridical person by reason of the judicial recognition of Hindu religion and custom on the point a temple (Thakardwara), in which the idol is deposited and which is merely a religious building or a building for the performance of religious ceremonies, is not a juridical person and that therefore the suit instituted on behalf of the temple was not maintainable. The present objection as to the maintainability of the suit was not specifically raised in the lower Court, but being purely a question of law the appellant was permitted to raise it in the course of the arguments in the present appeal.

(3.) I therefore accept the appeal on this preliminary point, set aside the decree of the lower Court, and dismiss the plaintiff's suit. Having regard however to the fact that the point which proved fatal to the maintainability of the present suit was not specifically put forward by the defendant in the lower Court I order that the costs both in the lower Court and in this Court be borne by the parties as incurred.