(SAH) DHARAM NARAIN Vs. GUR SARAN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit by the reversioners of Sah Madhuri Saran for a declaration that the adoption of defendant 1 by defendant 2 his widow was invalid and that he has thereby acquired no right, nor can acquire any right in any waqf property under the management of the parties. The plaintiffs alleged that the widow had no authority from her husband to adopt a boy, that she had become a sanyasi and had no power left to adopt and lastly that under the custom of the family no outsider can be adopted. As the amended plaint stands, the plaintiffs case further appears to be that the adoption was not in accordance with the intention and directions of the creators of the endowment, and that the adoption of the defendant qua that property was invalid and he was not entitled to succeed as a mutawalli after the death of the widow. The defendants in their written statement did not allege that Gur Saran has become by virtue of his adoption entitled to succeed to the sebaitship immediately, but asserted that the adoption was in every way valid and legal. It was denied on behalf of the defendants that the plaintiffs had any cause of action or locus standi to maintain the suit.

(2.) The Court below has found that plaintiffs had no cause of action to maintain the suit and that the adoption of the defendant was in every way valid and in accordance with the directions contained in the deed of waqf. The Court has further found that even if those conditions were broken the widow of Madhuri Saran has by adverse possession acquired the rights of trusteeship and is now in a position to create a new line of succession and that therefore the plaintiffs can neither challenge the adoption of Gur Saran, nor can they deny his right to succeed to the sebaitship.

(3.) The pedigree is printed at p. 5 of the paper-book. Madhuri Saran was the surviving son of Kundan Lal and an uncle of his was Phundan Lal. On 17th September 1866, Kundan Lal and Phundan Lal executed a deed of waqf dedicating considerable property to Thakur Sri Radha Ramanji Maharaj installed in a temple at Brindaban, and laid down a number of conditions for the guidance of successive trustees. Under Clause 4 power was given to a trustee to appoint his successor in his lifetime. Under Clause 13 power was given to a trustee who had no natural born son to adopt a boy in his lifetime before attaining the age of 25. Under Clause 12 there were directions laid down for making a will authorizing the widow of a trustee to adopt a boy according to certain conditions. Clause 14 empowered the executants to make modifications and alterations in the terms and the conditions of the deed from time to time. Clause 17 laid down that if in future no mutwalli appointed according to the terms given in the document were alive and in existence, then in that case the proper authority (hakim-e-waqf) should have power to appoint as mutawalli and manager of the waqf property a person from the family of the executants.