The court emphasized the jurisdiction of the District Judge under the Charitable and Religious Trusts Act and clarified the limitations of seeking remedies under the Act.

Sen—This is an application in revision under Section 115, Civil P. C., to set aside the order, dated 29th June 1942, passed by the Court of the District Judge, Nagpur, in Misc. Jud. case No. 64 of 1941. Seth Shuberati, a worshipper in Bapu Miya mosque situate at Nagpur, filed an application in the Court of the District Judge, Nagpur, under Section 3, Charitable and Religious Trusts Act, 14 of 1920. One of the reliefs claimed was for rendition of accounts for three years prior to the application. The persons against whom he applied were Hyder Khan, the mutwalli of the mosque, and Asgar Hussain, the predecessor-in-title of the present applicants. Asgar Hussain denied that there was a trust created for public purposes. In order to appreciate his claim it is necessary to give his relationship with Bapu Miya:

Bapu Miya

Idu Miya |

Hussain Miya |

Md. Akbar Miya (Akbar Hussain) |

Asgar Husain

2. The case of Seth Shuberati was that there was a gift by Bapu Miya of the property in dispute on 27th October 1889, in favour of the mosque. Bapu Miya died on 31st October 1889, and the deed of gift was registered on 5th November 1889. Hyder Khan, the mutwalli, sued to recover Rs. 290 on account of rent from Mt. Janabai who was a tenant of a part of the property in dispute. The claim was dismissed on 31st July 1939, in Civil Suit No. 1499, of 1938, by the Court of the Additional Judge, Small Causes, Nagpur. This decree of the lower Court was maintained by the order, dated 7th October 1940, in Civil Revn. No. 646 of 1939. The claim of Asgar Ali was based on a will, dated 14th January 1916, executed by Idu Miya in favour of Akbar Miya his grandson. Akbar Miya died in 1923 leaving behind him his son Asgar Hussain in possession of his property inclusive of some of the items of property in dispute. Asgar Hussain claimed that the mosque was the private property of the family, that some of the property in dispute was in his possession as his personal property. He denied the existence of a public trust and asserted that he was in adverse possession for over 12 years from 1916 to 1st December 1941, the date of the application and that the right of the applicant, if any, as a beneficiary, was lost by reason of the property ceasing to be wakf property.

3. The Court of the District Judge by the order, dated 29th June 1942, directed Asgar Hussain to furnish particulars of that part of the mosque property which was in his effective possession with its value, conditions, management, income and any other matters relevant thereto and to render accounts of the income received from such property and expenditure in relation thereto, or in relation to the trust property as a whole, for a period of three years ending with the date of presentation of this petition. It is against this order that Asgar Hussain filed civil Revn. No. 286 of 1942 on 18th July 1942 in this Court. After the filing of the application Asgar Hussain died on 17th February 1948. After his death an application was put in by his wife and daughters, the present applicants, for a declaration that the proceedings have come to an end and that the right does not survive as against them. They wanted the question to be decided first and that if the right to sue survived they might be brought on the record as legal representatives of the deceased. This Court, however, by the order, dated 30th July 1943, brought the applicants as legal representatives in place of Asgar Hussain, the deceased, and reserved the question regarding the survival of the right of Seth Shuberati to continue the proceedings against them for consideration on the date of the hearing of the revision application.

4. Dr. Kathalay for the applicants has attacked the order of the lower Court on the following grounds: (1) that the application should have been under the Mussalman Wakf Act, 1923, Act 42 of 1923, and not under the Charitable and Religious Trusts Act, Act 14 at 1920; (2) that the lower Court had no jurisdiction to decide the qu