Failure to adequately prove a will's validity precludes claims to trust property under the Bombay Public Trust Act, confirming defendants' inheritance rights.

JUDGMENT :

This appeal is directed by original defendants in Regular Civil Suit No. 2 of 2004 against the judgment and decree, passed by the District Judge-2, Dhule for declaration and possession.

2. Respondents in this appeal are original plaintiffs.

3. Facts leading to institution of this appeal, in brief, are :

Seth Kasturmal Dalsukh Dharmashala, registered trust under P.T.R. No. A-235,Dhule through its two trustees filed Civil Suit for declaration that Old Plot No. 30 of C.T.S. No. 597 to 600 and 1184 to 1186, admeasuring east-west 98 Feet and north-south 40 feet, situated at Dondaicha, Taluka Sindkheda, District Dhule is trust property of plaintiff trust and for perpetual injunction as well as for decree for possession of the suit property against the defendants. This suit was filed under Section 50 of the Bombay Public Trust Act (hereinafter referred to as, 'the Trust Act') after obtaining permission under Section 51 of the said Act from the Charity Commissioner. Contention of the plaintiffs, in brief, is that late Kasturmal Dalsukh Agrawal, under his registered will, dated 13.7.1936 created the above said trust, which came to be registered on 30.5.1956 under P.T.R.No. A-235 Dhule, in the name of Kasturmal Dalsukh Dharmashala. On the trust property, specious building was constructed by Seth Kasturmal Dalsukh Agrawal. The plaintiffs are legal heirs of Seth Kasturmal Dalsukh Agrawal. The suit property was in possession of the plaintiff trust and it was used for public purpose. The defendants illegally obtained possession of the trust property and started denying the right of plaintiff trust. Therefore, the plaintiffs were constrained to file this suit for declaration of title, perpetual injunction and for possession of the trust property.

4. By filing written statement, defendant nos. 1 to 5 opposed the suit and denied that plaintiff trust is the owner of suit property. They have denied that under the will, dated 13.7.1936, executed by Kasturmal Dalsukh Agrawal, the trust was created and suit property was given to the trust. Contention of defendants, in brief, is that being legal heirs of Kasturmal Agrawal, they have acquired title to the suit property by inheritance. Contention of the defendants is that Regular Civil Suit No. 26 of 1997 filed by the present plaintiff against the defendants was disposed of, and therefore, the present suit is barred under Order 2 Rule 2 of the Civil Procedure Code . Even Inquiry Application No. 151 of 1997 filed by plaintiffs before the Assistant Charity Commissioner, Dhule was dismissed and Appeal No. 56 of 1999 preferred against that order was subsequently transferred to Nashik office. That Appeal No. 30 of 2001 was also dismissed on 15.1.2002. Even the application filed by plaintiffs under Section 41(e) of the Bombay Public Trust Act bearing No. 7 of 1997 was dismissed by the Charity Commissioner on 3.4.1998 and in that proceeding it was held that the suit property is not trust property. That order is upheld by the appellate Court. Even Civil Revision Application No. 646 of 1997 filed by the plaintiffs before the High Court was dismissed on 9.10.1998. Writ Petition No. 2419 of 1998 filed by the plaintiff before the High Court, Bench at Aurangabad, was subsequently withdrawn. Therefore, the present suit is not tenable. Defendants have specifically denied the will executed by Kasturmal Dalsukh Agrawal. According to the defendants, the suit is barred by limitation. It was filed after more than 12 years from the date of cau