JAWAHAR LAL Vs. SRI THAKUR RADHA GOPALJEE MAHARAJ

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for recovery of Rs. 900, Rs. 720 principal and Rs. 180 interest. One Janki Prasad had four sons, Radha Ballabh, Kanahaiya Lal, Keshab Deo and Jagan Prasad, and a daughter Mt. Bibi Sukkho. Radha Ballabh's son is the appellant before us. The plaintiff, Sri Thakur Radha Gopalji Maharaj, brought the above suit through the manager, Madan Lal. The story with which the plaintiff came to Court was briefly this: Janki Prasad had, on 18 March 1893, executed a will whereby he dedicated permanently a sum of Rs. 12 per month for the expenses of an idol. He had himself purchased the property yielding the above amount. He died and so did his son Radha Ballabh soon after. The story further goes on to say that Radha Ballabh, before his death, directed his son, Jawahar Lal, to continue making payments in accordance with the terms of the will. This Jawahar Lal did for sometime, but later on he stopped the payments. The suit was brought on 13 September 1933. It might be mentioned that the sum claimed was for a period of five years. The defence, in the main, was that the family was a joint Hindu family, the property was ancestral property, the transaction in question amounted to a testamentary disposition beyond the powers of Janki Prasad and the suit was, therefore, not maintainable. It was also pleaded that it was beyond the competence of Janki Prasad to make any provision for the payment of Rs. 12 per month for all time in future without creating a charge upon the property. It was lastly pleaded that the suit was at any rate not maintainable for a period of more than three years.

(2.) The learned Munsif found that the family was a joint Hindu family, the property was ancestral property and the will was in consequence invalid. He arrived at some other findings, with which it is not necessary to deal at this stage, and finally dismissed the suit. On appeal, the lower appellate Court dismissed the suit on a technical plea that it had not been framed in accordance with the will. This decree was challenged in second appeal in this Court. A learned Judge of this Court held that the plaintiff should not have been nonsuited on such a technical point, when all the incidents of the case were present before the Court. The learned Judge, therefore, by his order, dated 27 April 1937 remanded the case for trial according to law. The learned Additional Civil Judge of Muttra has on remand passed a modified decree in favour of the plaintiff. He has held that on a true interpretation of the document the transfer amounted not merely to a transfer in future but a transfer in prsesenti. He held further that the claim for more than three years was barred by limitation. He, therefore, in this view of the ease, passed a decree for Rs. 457-14-0 with pendente lite and future interest at Rs. 3 per cent, per annum. Both parties are dissatisfied with this decree. The defendant has preferred the above second appeal whereas the plaintiff has filed a cross- objection. There were a number of issues framed in the case; the principal were: (1) Whether the plaintiff is not entitled to sue through Madan Lal? (2) Whether Janki Prasad was competent, to make a valid wakf of the property in the plaintiff's favour? (3) Whether the agreement relied upon by the plaintiff is void for want of consideration?

(3.) For the purposes of this second appeal these are the only material issues. The plea with regard to the maintainability of the suit through Madan Lal must fail. It is true that there were a number of trustees but they appointed Madan Lal a manager through whom this suit has been instituted. It was held in Ram Charan Das V/s. Naurangi Lal that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the Math. This case was followed in the later case in Mahadeo Prasad Singh V/s. Karia Bharthi . Both these cases were considered in a judgment of this Court reported in Gopal Date V/s. Babu Ram . Their Lordships have made the following observation: A suit can be brought in the name of the idol by a person who is a de facto manager of the temple.