MADAN MOHAN SINGH Vs. NARAIN SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of immovable property by avoidance of a decree passed in terms of an award in 1922. The grounds on which the decree is sought to be avoided are set forth in para. 16 of the plaint, the first four being to the effect that the award itself was contrary to an earlier waqfnama and was invalid in law, and the last one that the decree was fraudulently obtained. The plaintiff and the defendant are both grandsons of Sukha Singh from his sons Bija Singh and Bhajja Singh respectively. It was the plaintiff's case that Sukha Singh had made a valid waqf in 1887 under which the management of the entire dedicated property would come to the plaintiff and the defendant was wrongfully in possession of half of that property. The defendant denied that Sukha Singh had any power to make a valid waqf and pleaded that the arbitration award and the decree were binding on the plaintiff and that no fraud had ever been practised.

(2.) The learned Subordinate Judge has come to the conclusion that the plaintiff has failed to establish any fraud or misrepresentation which would entitle him to avoid the decree of 1922. But his finding is that the waqf of 1887 was really valid, and as it was a public waqf the arbitrators had no power to direct that the two branches should manage portions of the dedicated property separately. In his opinion the award was ultra vires and the decree passed upon it was a nullity. The learned Subordinate Judge has not gone on to hold that the effect of a subsequent litigation of 1925 which also resulted in an award was to create any bar of res judicata against the defendant. He has, however, relied on this subsequent pronouncement as being worthy of greater reliance on the question of fact whether there had been a valid dedication in 1887.

(3.) The facts are that on 11 July 1887 a registered tamliknama was executed by the grandfather of the parties, viz. Sukha Singh, under which shares in several villages were dedicated and set apart for the expenses of a temple in Sabalpur. Mutation of names as trustee was duly effected. After the death of Sukha, his eldest son Bija's name was entered and when Bija died, the name of his younger brother Bhajja was entered. At this time the present plaintiff was a baby in arms, being a few days old. In 1922 Bhajja applied for a partition of the property covered by the tamliknama in the revenue Court and objection was raised by Narain Singh, the present plaintiff. The revenue Court referred the objector to the civil Court. Accordingly Narain Singh instituted a suit in the civil Court against Bhajja Singh on 1 May 1922 (p. 59). He claimed a declaration that the plaintiff was a mutwalli of the endowed property and asked for possession, if necessary. Before the time for the filing of the written statement arrived, the parties agreed to refer their dispute to certain arbitrators, and an application dated 15 May 1922 was presented before the Court. The matter was referred to the arbitrators named, and the Court directed that the defendant do file his written statement before the arbitrators. Bhajja Singh filed an elaborate written statement on 10th June 1922 before the arbitrators. In this he challenged the validity of the tamliknama and denied the creation of any valid endowment or the right of the plaintiff to take possession of the entire estate as manager. It is not necessary to refer to the other numerous pleas taken by him. On 19 June 1922 the arbitrators framed no less than seven issues, the first one of which was whether the property in question formed part of the joint ancestral property of the family of Thakur Sukha Singh and his sons, and whether Thakur Sukha Singh had a right to make a waqf of it or not. The last issue was whether Madan Mohan Singh (Bhajja's son) should necessarily be made a party to the suit or not.