JUDGMENT - Chandrachud, J.

1. Claiming to be a joint owner of a land, one Rodabai Khodadad Merwan Irani filed Civil Suit No. 56 of 1958 against her brother Jamshedji and her sister Baimai for partition and separate possession of her one-third share. She withdrew that suit on 3rd August 1959 in pursuance of an agreement dated 19th July 1959, under which Jamshedji agreed to convey the property to the "Tarapur Parsee Zoroastrain Anjuman Trust" reserving a life interest to himself. Jamshedji did execute a deed of trust on 24th April 1960 but he created thereunder a life interest not only in favour of himself but also in favour of one Jerbai Irani. On the death of Jamshedji on 9th April 1962, the trustees took possession of the land. In the meanwhile, Baimai had died on 27th March 1960.

2. On 4th August 1962, Rodabai brought this suit (No. 131 of 1962) in the Court of the Civil Judge, Junior Division, Dahanu, Impleading thereto the Trustees (defendants 1 to 7), the heirs of Baimal (defendants 8 to 13) and the Charity Commissioner (defendant 14). By her suit, Rodabai asked for partition and separate possession of her one-half share in the suit property, the other half, according to her, being of the ownership of defendants 8 to 13. Her case is that under the agreement dated, 19th July 1959, she and her sister were to get the property in equal shares on the death of their brother Jamshedji, unless he created a trust reserving no more than a life interest to himself and to himself only.

3. The Charity Commissioner filed his written statement in the suit on 21st November 1962 contending that the Civil Court had no jurisdiction to decide the questions raised in the suit as defendant 1 had filed an application under Section 18 of the Bombay Public Trusts Act, 1950 (herein called "the Act") and as the inquiry into that application was pending before the Assistant Charity Commissioner under Section 19 of that Act. The application under Section 18 was filed by defendant 1 on 1st November 1962 for registration of the Trust in the name of "Jamshed Baug Trust." By their written statement dated 12th December 1962 the trustees raised several other contentions with which we are not concerned here. On a motion made by the Charity Commissioner the suit was stayed, pending the decision of the inquiry under Section 19.

4. Rodabai was thereafter impleaded to that inquiry. She filed her objections in that proceeding, contending that the provisions of the trust deed executed by Jamshedji were in breach of the agreement of 19th July 1959 and therefore, the trust was invalid. She also contended that the Assistant Charity Commissioner had no jurisdiction to decide or deal with the questions raised by her and that those questions had to be decided in the suit which she had brought even before defendant 1 had made the application under Section 18. On the day of hearing, she filed an application stating that "the important question of title to the property is being litigated in a Court of competent jurisdiction", that "no useful purpose will be served by pursuing this application till the final decision in the suit" and therefore, she did not want to take further part in the proceedings. On Rodabais death her legal representatives filed a note stating similarly that they did not desire to take part in the inquiry.

5. On 14th September 1963, the Assistant Charity Commissioner concluded the inquiry, holding that the trust existed, that it was a public trust and that the sole property included in the trust deed survey No. 112/2 of Boisar, District Thana - was the property of the trust. Rodabais heirs took no notice of these findings.

6. Going back to Rodabais suit from which this appeal arises, after her heirs were brought on the record of the suit, the trial Court dismissed the suit holding on a preliminary contention that it had no jurisdiction to decide or deal with the questions raised in the suit by reason of the bar arising under Section 80 of the Act. This decr

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