TEJO BIBI Vs. SRI THAKUR MURLIDHAR RAJ RAJESHWARI

JUDGEMENT

(1.) The dispute in this case relates to a certain house situated in Benares city which comprises three sections in which the three deities now figuring as the plaintiffs are installed. The house belonged originally to a Madrasi Brahman named Jaipuran Krishna Aiyar, who had installed these idols in his life time in these sections and allowed the house to be used for the accommodation of pilgrims visiting the place. On the 7 of September 1886 he executed a Will by which he disposed of all his property, moveable and immovable, in Benares and Trichnopoly. A house situated in Benares city, not now in dispute, was bequeathed by him to his nephew Subba Rao, and a house and landed property situated in Trichnopoly were given to his two nephews, Ganpati and Subba Rao, in equal shares. In regard to the house in dispute, known as the Thakurdwara, he declared that his nephews Ganpati and Subba Rao shall as executors arrange to carry on the worship of the deities installed therein, celebrate the customary festivals periodically observed there and put up pilgrims in the house and attend to them. He further declared that the executors should reside in the house and look after its repairs and that whatever income was derived from the house or Thakurdwara should first be applied to the expenses of the worship of the said deities and the other religious ceremonials aforesaid and the balance was to be divided by the two executors between themselves in equal shares. He further stated that none of the executors shall in any way be entitled to transfer, mortgage, or sell the house, and that, if they did so, the sale would be utterly null and void. He then went on to declare that if either of those persons or his heirs at any time proceeded to sell the said house, the members of his community and everybody shall be entitled, whenever they come to know of any such transfer, to make an application immediately and to get the transfer set aside.

(2.) The testator died a few weeks later. On the 25 of August 1892 Subba Rao transferred his rights and interest under the said Will to his brother Ganpati. On the 8 of May 1908 Ganpati mortgaged the house in favour of Mohan Lal for Rs. 4,000 and on the 20 July 1909 under the cover of a loan for Rs. 2,000 he made a subsequent mortgage in favour of the same individual. Mohan Lal died on the 26 July 1914, leaving a widow Mt. Tejo Bibi. Ganpati died leaving a widow Mt. Lachhmi Amma. On the 22 July, 1916 Mt. Lachhmi Amma mortgaged the house with Mt. Tejo Bibi for Rs. 180.

(3.) In 1920 a suit was filed by Mt. Tejo Bibi for the recovery of the money due on the said mortgages by the sale of the mortgaged property making Lachhmi Amma, the widow of Ganpati, and the three idols represented by their guardian ad litem Bishunath, parties to the suit. Mt. Tejo Bibi subsequently exempted the idols from the suit, and contented herself with taking an ex-parte decree on those mortgages against Mt. Lachhmi Amma. In execution of that decree the house in dispute was proclaimed for sale. The present suit was then filed by the deities represented by the three idols for a declaration that the house in question was wakf property and not liable to sale in execution of the said decree. The Court below found that the house in dispute was wakf property dedicated to the idols installed therein, that Ganpati was only entitled to take the surplus of the profits, if any, during his life time, and had no right to mortgage the same, and that Bishunath had been acting as Shebait of the Thakurdwara since December 1909, and was entitled to institute the suit on behalf of the idols.