9911796707
TMI Blog1977 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referred to as 'the Settlor') do hereby constitute and creat a Trust te be called as Sri Guman Bihari Ju Ram-pur Temple Trust : Whereas arising out of Article 11 of the covenant for the formation of the former United State of Vindhya Pradesh, an inventory of private properties of His Highness the Maharajadhiraja of Charkhari was settled between the Government of India and His Highness Maharajadhiraja Jahendra Singh Ju Deo Bahadur of Charkhari and in that connection it was decided that the temple of Sri Guman Bihari Ju, Rainpur and its attached properties, should be managed as a pub-lic trust; And whereas in consequence of the promulgation by the Governor-General of the Provinces and States (Absorption of Enclaves) Order, 1950, the management of the Rainpur Temple which formerly vested in the Ruler of the former Charkhari State, devolved on the Government of Uttar Pradesh (hereinafter called 'the State Government') as the authority in succession, and the Government of India has, after informing the said Maharaja-dhiraja authorised the State Government to settle and create a Trust for the management of the said Temple and its attached properties; And whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Board, including decisions reached at a meeting presided ever by his highness shall be the responsibility of the permanent Chairman. 16. The Chairman may with the approval of the State Government appoint a Secretary to the Board of Trustees and such Secretary shall carry out such duties under the direction, supervision and guidance of the Chairman as the Chairman may, with the approval of the Board of Trustees, assign or entrust to him from time to time." 3. On 1-2-1963 an application for exe-cution of the decree obtained by the Idol against the judgment-debtor was filed in which the decree-holder applicant was described as follows :-- "Sri Guman Bihari Ju Deo, Mandir Rainpur Charkhari, Dwara Pt. Krishna Chandra Dwivedi, 1-2-63 Advocate Sd/- Gopi K. Arora District Magistrate, Hamirpur President, Rainpur Temple Trust, Charkhari." 4. The judgment debtor filed an objection dated 21-9-1960 which was dismissed in default on 22-4-1961. Subsequently, the judgment debtor filed another objection which has led to this appeal. 5. The objection was dated 21-10-1963 and ran as follows :-- "1. That the Collector as administrator had no right to file the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken under Order 21 Rule 16, the creation of the trust would have no effect. The basic finding is that the decree is being sought to be executed by the original decree holder Sri Guman Bihari Ju Deo Birajman, Rainpur Mandir through the Administrator, The lower appellate court, however, held that the execution could not be allowed to proceed without mentioning the fact of the formation of the trust in the execution application and also without mentioning the names of the trustees and the Chairman of the Board of Trustees in the execution application. It accordingly allowed the appeal in part and directed that the execution court should order the decree holder to amend the execution application in the light of the observations in its judgment, and thereafter dispose of the execution application. 8. Aggrieved by the order of the lower appellate court the judgment debtor has filed the present appeal. 9. The first argument on behalf of the judgment debtor appellant is that the decree was a nullity as the suit had been instituted by the Collector, Hamirpur cum Administrator of the Idol, when the Maharaja of Charkheri who was the Shebait was there. It was submitted that it was only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranger." The aforesaid statement of the position by Mr. Mukherjea answers the defendant's objection fully. In our Court it has been held that a suit can be brought in the name of an idol by a de facto manager. See Gopal Dett v. Babu Ram, (1936 All LJ 515) : (AIR 1936 All 653). Also it has been held in B. Mahadeo Pd. Singh v. Karia Bharthi, (1935 .All LJ 678) : (AIR 1935 PC 44), by their Lordships of the Privy Council that a de facto mahant is entitled to maintain a suit. It has also been held in Darshan Lal v. Shibji Maharaj Birajman, (20 All LJ 977) : (AIR 1923 All 120), that a person claiming a mere benevolent interest in the fortunes of an idol cannot be permitted to sue in the name and as next friend of the idol. No doubt a shebait has authority to institute a suit in his own name to recover property belonging to the deity. See Jagadindra v. Hemanta Kumari Debi, (1904) 31 Ind App 203 at p. 210 (PC). It has been held in Administrator General of Bengal v. Bal-kissen, (ILR 51 Cal 953) : (AIR 1925 Cal 140), that after the appointment of She-bait the right to sue for possession of the property with which the idol is endowed belongs to the Shebait and not to the idol. But t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Instrument of Trust otherwise provides. Section 47 of the Trusts Act provides for the special circumstances in which a trustee may delegate his duties. Such delegation is only permissible where (a) the instrument of Trust so provides or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or (d) the beneficiary being competent to contract consents to the delegation. None of these conditions are asserted to have existed when Shri K. Arora, District Magistrate, Hamirpur in his capacity as President, Rainpur Temple Trust filed the execution application; hence the decree could not be executed on the basis of the application as all the trustees had not joined in the application. 11A. The law in regard to the application of the English law of Trusts to public trusts in India was explained by the Bombay High Court in Phulchand v. Hukumchand, (AIR 1960 Bom 438), in the following words : (at p. 441) "It is true that by Section 1 the previsions of the Indian Trusts Act are not made applicable to public trusts. Even so, the provisions of the Trusts Act are founded on general principles, and Rules of English Law. In matters which are not provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.'' Vide also Kisan Das v. Rachappa, (1909) ILR 33 Bom 644." 14. He thereafter referred to another decision of the Supreme Court in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, (AIR 1957 SC 363), where the Supreme Court quoted with approval the remarks of the Privy Council in the case of Charan Dass v. Amir Khan, (AIR 1921 PC 50), which were to the following effect : (at p. 52) "though there was full power to make the amendment, such power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case." 15. The question now before the court is whether the lower appellate court was justified in directing the amendments to be made. When the amendments were made a fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of the parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding or in a subsequent execution proceeding. (2) Where an objection is taken but is dismissed or struck off, even though not on the merits, and the application for execution becomes fructuous, the judgment debtor is debarred from raising the question of the invalidity of that application, but (3) Where an objection to execution is taken but it is not dismissed on the merits or is dismissed for default, and the application for execution does not become fructuous, the judgment debtor is not debarred from subsequently raising the question that that application was not within limitation, lastly, (4) Where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment is debarred by the principle of res judicata from raising question that that application was not within limitation." 17. The third proposition fully covers the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
