THAKURJI MAHARAJ Vs. KAMTA PRASAD

JUDGEMENT

(1.) This is an appeal by two idols Sri Thakurji Maharaj and Sri Mahadeoji Maharaj through two of three persons who originally instituted the suit on behalf of the two idols. The Court below found that plaintiff 3 Sri Ram had not signed the plaint and thought that, on that account, he could not maintain the suit. Sri Ram has been made a pro forma respondent, in the appeal.

(2.) The plaintiffs case was as follows: The two sons of Saheb Rai: see genealogical table at p. 3 of the printed record, namely, Baldeo Prasad and Har Dayal created a wakf in favour of the two idols and, for the purposes of their worship and certain charitable purposes and for the performance of Ramlila, endowed the property in village Hasanpur Huryai. This was on 10 September 1866. On the death of the dedicators his descendants, who wore the defendants in the suit, carried on the objects of the trust, although they got their own names recorded in the village papers as the proprietors of the property endowed. During the last settlement these descendants of the dedicators did not admit the existence of the wakf. Shortly before the institution of the suit defendant 6 Mt. Mehda, having obtained a decree for money against some of the other defendants, proceeded to attach and to bring to sale a part of the wakf property, as the private property of her judgment-debtors. The two persons Mal Chand and Mata Din, who belonged to the same caste as the dedicators, brought the suit on behalf of the idols to obtain a declaration that the idols are the owners of the property, that the profits arising out of the property are meant to be spent over charitable objects, Ramlila, etc., and that the property is not liable to be attached and sold in execution of the decree.

(3.) The defendants contested the suit, but some of them, later on, by a petition made in the Court below, admitted the correctness of the claim: see pp. 12 and 13 of the record. The contesting defendants pleaded, inter alia, that Mul Chand and Mata Din (as also Sri Ram) had no connexion with the trust property, (which the plaintiffs described as a private trust) and were, therefore, incompetent to maintain the suit, that the trust was of a public nature that the suit was barred by Section 92, Civil P.C. and that the plaintiffs, being out of possession, could not maintain a suit for a pure declaration and the suit was barred by Section 42, Specific Relief Act. They denied the existence of the wakf.