1962 Supreme(P&H) 155

PUNJAB & HARYANA HIGH COURT
Mehar Singh and Shamsher Bahadur JJ.
Balkishan Dass
Versus
Parmeshri Dass Deceased Substituted By Madhuri Sharan Sharma
First Appeal No. 43 of 1955,
Decided On : OCTOBER 1, 1962

A suit under Section 92 of the Code of Civil Procedure presupposes three conditions and three alone; the first being that it must be a suit with regard to the existence of a public trust, secondly, it is based on the allegation that there is a breach of trust or the directions from the Court are necessary, and finally, that one of the nine reliefs mentiond in Sub-section (i) is asked for.

Headnote:

TRUST - VALIDITY - ACCOUNTABILITY - ESTOPPEL - LOCUS STANDI - FINAL DECREE - APPEAL - ABATEMENT - Bahawalpur Durbar acquired certain lands belonging to the temple. The compensation moneys were received by the first defendant. The plaintiffs, two of the trustees, instituted a suit for rendition of accounts against the first and second defendants. The trial Court decreed the suit. The first defendant appealed. HELD: (1) The suit was not barred by Section 92 of the Code of Civil Procedure. (2) The testator was competent to create a trust. (3) The first and second defendants were estopped from raising the question of competency of the testator to create a trust. (4) The plaintiffs had locus standi to bring the suit. (5) The trial Court was justified in passing a final decree for accounts. (6) The appeal was partially allowed and the decree against the first defendant was reduced. (7) The appeal did not abate.

Fact of the Case:

Gosain Brij Mohan Dass, gaddi nashin of Mandir Shri Namdev Kalla Dhari Ji Maharaj, at Bahawalpur, then sixty years old, made a testamentary disposition with regard to movable arid immovable properties of three Mandirs in Bahawalpur city known as Mandir Kalla Dhari Ji Maharaj, Sanwal Shah Ji and Mandir Gopi Nath Ji, one Mandir known as Kalla Dhari in Multan city and one Mandir known as Mandir Kalla Dhari in Bindra Ban, Mathura district; argicultural lands and shops in Bahawalpur city; agricultural and residential lands in Multan; residential houses situated in Amrit-sar and movable property like ornaments, clothes and utensils relating to Thakar Ji Maharaj. The testator did not long survive the exe cution of his will and died a few days later.

Finding of the Court:

The suit was not barred by Section 92 of the Code of Civil Procedure. The testator was competent to create a trust. The first and second defendants were estopped from raising the question of competency of the testator to create a trust. The plaintiffs had locus standi to bring the suit. The trial Court was justified in passing a final decree for accounts. The appeal was partially allowed and the decree against the first defendant was reduced. The appeal did not abate.

Issues: 1. Whether the suit was barred by Section 92 of the Code of Civil Procedure? 2. Whether the testator was competent to create a trust? 3. Whether the first and second defendants were estopped from raising the question of competency of the testator to create a trust? 4. Whether the plaintiffs had locus standi to bring the suit? 5. Whether the trial Court was justified in passing a final decree for accounts? 6. Whether the appeal was partially allowed and the decree against the first defendant was reduced? 7. Whether the appeal abated?

Ratio Decidendi: 1. A suit under Section 92 of the Code of Civil Procedure presupposes three conditions and three alone; the first being that it must be a suit with regard to the existence of a public trust, secondly, it is based on the allegation that there is a breach of trust or the directions from the Court are necessary, and finally, that one of the nine reliefs mentiond in Sub-section (i) is asked for. 2. The property of a math, is held by the mohunt as spiritual head of the institution, but the property may by the usage and custom of the institution vest in trustees other than the spiritual head. 3. A trustee, who enters into possession of property ostensibly on trusts subsequently ascertained to be void cannot however retain the property for himself when the claim of the settlor and his heirs has become statute-barred. 4. When there are more trustees than one, all milst join in the execution of the trust except where the instrument of trust otherwise provides.

Final Decision: The appeal was partially allowed and the decree against the first defendant was reduced from Rs. 1,87,123/8/3 to Rs. 1,82,623/8/3. The costs of the appeal would fall on the parties proportionately. In all other respects the decree is upheld. The decree against the second defendant who has not appealed will remain undisturbed.