ORAL JUDGMENT

1. On following substantial question of law framed on 21.07.1993, this second appeal under Section 100 of Code of Civil Procedure, 1908 (for short ‘CPC’) was admitted :

“Does Section 31 of the Bombay Public Trust Act, 1950 apply to a trust created under some testamentary document prior to coming into force thereof?”

2. To answer the above question, some facts are required to be noticed and as such they are taken up from the pleadings as under.

2.1 The plaintiffs – appellants herein had filed Regular Civil Suit No.210 of 1986 in the Court of the learned Civil Judge (S.D.), Amreli for declaration and for taking possession of the suit property, alleging that the suit property is a trust property. It was also contended that Pandya Jivram Mahashanker expired on Vaishakh Vad Amas of S.Y. 1990. He executed a Will on 27.04.1934, which was his last Will, pertaining to this property. According to the said Will, the suit house was given to the plaintiffs – appellants and the said house was to be used as ‘Mahajanwadi’. It was also contended that deceased Jivrambhai had given vessels and some cash amount to the trustees. At the time of filing of the suit, all the trustees were expired. Learned Trial Court dismissed the suit of plaintiffs and being aggrieved by the said judgment and decree, the appellants filed Regular Civil Appeal No.157 of 1983 before appellate Court, Amreli who confirmed the judgment and decree passed by the learned Trial Court vide judgment and order dated 30.09.1991. Hence, this second appeal.

3. For the sake of convenience, the parties are referred to as plaintiffs and defendants as referred in the regular civil suit.

4. In nutshell, it was the case of the Amreli Gadhiya Samvay Gnyati (Tad) that in the Will of the deceased Jivram Mahashanker dated 27.04.1934, they have been given a right of usage in disputed property and since the heirs of the deceased were preventing them from using the disputed property; which was bequeathed by way of Will to Amreli Gadhiya Samvay Gnyati, said Amreli Gadhiya Samvay Gnyati through its Vahivatdar unsuccessfully filed Regular Civil Suit No.210 of 1980 before the learned Trial Court. The Appellate Court does not find favour of the original plaintiffs in First Appeal No.157 of 1983. Hence, this second appeal on above substantial question of law.

5. Heard learned advocate Mr.Harsh Joshi appearing for the appellants – original plaintiffs and learned advocate Mr.Henil Shah appearing for the respondents.

6. Learned Trial Court had framed as many as 13 issues at Exhibit-20 on the pleadings of the party which are as under :

“1. Whether the plaintiffs prove that the suit property was originally of deceased Pandya Jivram Mahashankar as alleged?

2. Whether the plaintiffs prove that deceased Jivram Mahashankar executed a Will for his property as alleged?

3. Whether the plaintiff prove by the said Will deceased Jivaram Mahashankar gave the suit property to the Amreli Gadhiya Samvay Gnyati Tad as alleged ?

4. Whether the plaintiff proves that the plaintiff Amreli Gadhiya Samvay Ganati is the owner of a house mentioned in para 15 of the plaint as alleged?

5. Whether the plaintiff proves that defendant Nos.1 and 2 have no right or interest in the suit property as alleged?

6. Whether the plaintiff proves that defendant No.1 and 2 are trying to sell suit property to the defendant No.3 as alleged?

7. Whether the plaintiffs are entitled to get relief as prayed for?

8. Whether the defendant No.1 and 2 prove that the plaintiffs has no right to file the suit?

9. Whether the defendants prove that the plaintiff is not registered trust and hence the plaintiff has no right to file the suit?

10. Whether the defendants prove that the suit is time barred?

11. Whether the defendant No.1 and 2 prove that by virtue of adverse possession they have became the owner of the suit property as alleged?

12. Whether the defendant were never in possession of suit property as alleged?

13. What order and decree?”

7. Recording the evidenc