1870 IN THE MATTER OF the Charter, of which it has been held, in the case of Roy Nandipat Mahata v. Alexander Shaw Urquhart (1), that the ordinary RAMSEBAK rules of appeals do not apply to them, but they are confined to the point on which the Judges differ. MISSER. Mr. Ingram in reply.-Section 73 gives an appeal to the Supreme Court, now the High Court; but on appeal the cases are to be governed by the procedure under Act VIII of 1859. [NORMAN, J., referred to the wording of Rule 2, on page 92 of the Appendix to Broughton's Act VIII of 1859, in which the Insolvent jurisdiction is not mentioned (2).] That shows that the Insolvent jurisdiction was the same as that under Act VIII, and that the others mentioned there were different. NORMAN, J.-It appears to me that Mr. Woodroffe's argument is unanswered. The appeal from an order of a Commissioner is given by section 73 of the Insolvent Act, and no law or practice of the Court has been shown which qualifies that right, or which brings such an appeal under section 342 of Act VIII of 1859. It appears to me that that section does not apply to appeals from a Commissioner of the Insolvent Court. The costs of this application to be those of the appellants if they succeed in the appeal. (1) 4 B. L. R., A. C., 181. (2) "The procedure in civil cases, which shall be brought before the Court in the exercise of its admiralty, Vice-Admiralty, or Matrimonial Jurisdiction, shall be regulated so far as the circumstances of the case will admit by Act VIII of 1859 and Act XXIII of 1861." [APPELLATE CIVIL.] Before Mr. Justice Bayley and Mr. Justice Mitter. MUSSAMAT JAI BANSI KUNWAR (one of the Dependants) v. CHATTAR DHARI SING (PLAINTIFF.)* Hindu Law-Gift-Religious Endowment-Trustee with Power of Appointment-Deed of Endowment-Failure to appoint new Trustee-Reversion to the Heirs of the Endower. A., a Hindu, by a deed of wukfnama (deed of endowment), after reciting that he had" erected and prepared a thakurbari (temple) and the image of thakur (idol) and also a sadavart (alms-house) and had, in way of wukt (endowed property) dedicated certain property for the performance of the puja (worship) of the said thakur and repairing of the house, flower garden and thakurbari, and appointed his sister B., the manager and matwali (trustee) of the same, authorised B. to spend the profits in the performance of the puja, &c. As for the future she (B.) should appoint such person to be the manager and matwali as may be found by her to be fit, &c., and in like manner all successive matwalis should have right of appointing successively matwalis. To these his heirs should not have right to prefer any claim, &c." B. died without having appointed any matwali (trustee) to succeed her in the management of the trust. On a suit by the heir of B. to obtain possession of the property covered by the deed against the heirs of A., Held, that the managership, on failure of appointment of a trustee, reverted to the heirs of the person who endowed the property. ONE Baboo Harprasad Sing, by the following deed of wukfnama, dated 14th March 1851, conveyed to his sister Mussamat Deojani Kunwar certain parcels of property for certain religious and charitable purposes: "I am Baboo Harprasad Sing, son of Baboo Bunyad Sing, by "caste Brahmin, zemindar, inhabitant and owner, mokurraridar "of Mauza Amuna, Pergunna Arwal, Zilla Behar. "Whereas there is no certainty in the life of man, I, there"fore, having, with the view of obtaining the blessings of "the future world, erected and prepared a thakurbari in the "said mauza and the image of Thakur Jankinathji and also *Special Appeal, No. 2426, from the decree of the Officiating Judge of Gya, dated the 21st June 1869, reversing the decree of the Principal Sudder Ameen of that district, dated the 20th August 1867. 1870 April 26. 1870 MUSSAMAT JAI BANSI v. CHATTAR DHARI SING. 1870 March 7. We now come to the deed of wukfnama of the same date. That is a deed which makes Deojani matwali (trustee) of certain properties allotted for the maintenance of the worship of thakur (idol), and thakurbari (its temple). One of the conditions in that deed is, that each successive matwali shall have the power of appointing each his successor, but it makes no provision, in case there should be failure in such nomination. It so happens in this case that Deojani died without nominating any successor, and the plaintiff sues, as heir of Deojani, to enforce his right of succession. Now the real test of the plaintiff's right in this matter is to see how Deojani received the property. Now Deojani did not receive the property by any right of inheritance, purchase, or co-parcenary; but as the property of the idol, endowed by Harprasad, of which she was by the terms of the deed and the nature of the endowment, simply made a matwali. As before observed, one of the provisions of the trust failed, so far as it regarded the nomination by Deojani as matwali of a successor to that office, but the property is always the property of the idol under the management of the matwali; and in that view, the managership must revert to the heirs of the person who endowed the property. In this view we hold that, as regards so much of the property, as is concerned by the wukfnama, the judgment of the lower Appellate Court must be reversed, and the plaintiff's suit dismissed. Before Mr. Justice L. S. Jackson and Mr. Justice Glover. Act VIII of 1859, s. 7—Cause of Action. At a sale for arrears of rent, A. became the purchaser of a certain patni talook. B., whose patni right had been sold, sued for and obtained a decree for reversal of the sale on the ground of irregularity. In the meantime, A. had committed default, and the patni was again sold for arrears of rent. The zemindar drew out from the Collectorate the amount due to him. C., who had bought B.'s * Regular Appeal, No. 87 of 1869, from a decree of the Subordinate Judge of Nudden, dated the 25th February 1869. right, title, and interest in his decree, now sued A. for recovery of the surplus Held, that the suit was barred by section 7, Act VIII of 1859. THIS was a suit for recovery of damages. The plaint stated that a patni mehal, called Pergunna Plassey and Dehi Mogulparra, was, on the 2nd Jaisti 1265, B. S. (15th May 1858), sold for arrears of rent due to the zemindar, and purchased by the defendant; that in a suit by the patnidars to set aside the sale for irregularity, the sale was, by a decree of the Judge of Nuddea, set aside, which decree was confirmed by the High Court on the 30th June 1863; that pending these proceedings, the defendant, although he had collected the rents from the ryots, failed to pay rent to the zemindar, and the patni mehal was, on the 2nd Jaisti 1269 B. S. (15th May 1862), again sold and purchased by one Rakhaldas Mookerjee, for rupees 98,000; that the zemindar drew out rupees 36,111-2-8 in satisfaction of rent and interest due to him, and a sum of rupees 980 was deducted on account of fees due to Government; that there was a balance of rupees 60,908-13-4 out of the proceeds of sale of the said mehal; that the right, title, and interest of the said decree-holders of and in the decree setting aside the sale being sold in execution of another decree which had been passed against them, the plaintiff had become the purchaser thereof. And the plaintiff claimed that, inasmuch as the defendant, having collected the rent due from the ryots had fraudulently withheld payment of rent to the zemindar, she (the plaintiff) was entitled to recover from the defendant the amount of rent and fees which had been deducted from the proceeds of sale as a special loss to him. The defence was that the plaintiff had brought a suit against the defendant to obtain the surplus proceeds of sale of the patni talook which remained in the hands of the Collector after (1) 1 W. R., 199. 1870 TARINI PRA SAD GHOSE KHUDUMANI 1870 MUSSAMAT JAI BANSI v. CHATTAR DHARI SING. 1870 March 7. We now come to the deed of wukfnama of the same date. That is a deed which makes Deojani matwali (trustee) of certain properties allotted for the maintenance of the worship of thakur (idol), and thakurbari (its temple). One of the conditions in that deed is, that each successive matwali shall have the power of appointing each his successor, but it makes no provision, in case there should be failure in such nomination. It so happens in this case that Deojani died without nominating any successor, and the plaintiff sues, as heir of Deojani, to enforce his right of succession. Now the real test of the plaintiff's right in this matter is to see how Deojani received the property. Now Deojani did not receive the property by any right of inheritance, purchase, or co-parcenary; but as the property of the idol, endowed by Harprasad, of which she was by the terms of the deed and the nature of the endowment, simply made a matwali. As before observed, one of the provisions of the trust failed, so far as it regarded the nomination by Deojani as matwali of a successor to that office, but the property is always the property of the idol under the management of the matwali; and in that view, the managership must revert to the heirs of the person who endowed the property. In this view we hold that, as regards so much of the property, as is concerned by the wukfnama, the judgment of the lower Appellate Court must be reversed, and the plaintiff's suit dismissed. Before Mr. Justice L. S. Jackson and Mr. Justice Glover. Act VIII of 1859, s. 7-Cause of Action. At a sale for arrears of rent, A. became the purchaser of a certain patni talook. B., whose patni right had been sold, sued for and obtained a decree for reversal of the sale on the ground of irregularity. In the meantime, A. had committed default, and the patni was again sold for arrears of rent. The zemindar drew out from the Collectorate the amount due to him. C., who had bought B.'s * Regular Appeal, No. 87 of 1869, from a decree of the Subordinate Judge of Nuddea, dated the 25th February 1869. |