Judgement

Appeal (No. 87 of 1939) from a decree of the High Court (January 27, 1938) which reversed a decree of the, Court of the Subordinate Judge, Delhi (November 30, 1936), in favour of the defendant, the present appellant.

The following facts are taken from the judgment of the Judicial Committee The appeal arose out of a suit instituted by the respondents, on behalf of the members of the brotherhood of the Digamber Jains, for recovery of possession from the appellant of a house described as " Jain Dharamsala," situate at Khatra Mashru, in ward 4 of the town of Delhi, and entered as No. 48 in the municipal registers. The question for decision in this appeal was whether the respondents had established their title to, and right to recover possession of, the suit property from the appellant. The parties to the suit were Jains, and were governed by the Mitakshara law. In the plaint it was alleged that the house in dispute was purchased by one Lala Janaki Das, presumably with his own funds, that he " converted it" into a Dharamsala, that it was used as such and managed by him during his lifetime, that after his death in 1909 it remained under the management of his son, Ramchand, the third respondent, till it was handed over to the Jain Orphanage Society of Delhi, that the appellant got possession of it from him in January, 1931, for temporary use during the occasion of the marriage of his daughter, and that he refused to vacate when he was asked to return it. The appellant traversed the allegations of the plaint, repudiated the dedication of the property as " Dharamsala," and pleaded as material facts that the house was owned and possessed by him. He also questioned the right of the respondents to maintain the suit. In the course of evidence the following facts were elicited one, Sri Ram, "by occupation a pleader, "resident of Delhi," executed a will on March 23, 1892. After appointing two executors, Lala Janaki Das (mentioned in the plaint) and Munshi Ramji Das, and setting out the details of his movable and immovable properties, valued at Rs.40,400, the testator expressed in para. 1 of the will his intention of creating a trust for charity in respect of Rs.11,500 out of his properties as follows " Out of the aforesaid property "of the value of Rs.40,400, property worth Rs.11,500 .... "viz., one house situate in Khatramashru and valued at "Rs.6500 .... and Rs.5000 .... in cash be given away in " charity. That is, the money be given away in charity account "and the house under reference be made wakf. I myself "will manage the wakf house in my lifetime, and after my "death managers shall be appointed and instructions shall be "laid down for their guidance." In paras, ii. and iii. of the will the testator made provisions in favour of his wife, Mst. Durgi Devi, and Mst. Bhugli, widow of his deceased son. In para, iv., after giving a legacy to a cousin of his, he left the residue for charity in the following terms "As regards the remaining "property of the value of about Rs.12,000 (twelve thousand), "I make the following will The property which is left " unbequeathed at the time of my death be included in the "charity account." The testator did not carry out his intention of creating a charitable trust.

About a week before his death, by a codicil dated April 30, 1892, he amended the disposition for charity of the residue made in para. iv. of the will as follows ".... I now .... amend "the said wording of para. No. iv. of the will .... and make "the following will about the use of the unbequeathed sum of "about Rs.12,000 The said amount of money .... To be "deposited in the charity account, on account of the land "situate at Pahar Gang. ,"... Rs.7000 (Rupees 7000)." He applied the balance of the residue in legacies to certain specified persons and for the construction of an inner hall in a named temple in the name of his deceased son.

On May 7, 1892, the testator died leaving surviving him his widow Musammat Durgi, and Musummat Bhugl