Decided on March 28,1929



- (1.) [After setting out the facts the judgment proceeded:] At the hearing of the suit Mr. Vakeel on behalf of defendant No. 1 raised a preliminary issue, viz., whether the suit as framed was maintainable. He has contended that the present suit would fall under Section 92 of the Code of Civil Procedure and as the plaintiffs have not filed it with the consent of the Advocate General it cannot be maintainad. Prayer (g) of the prayers of the plaint is that defendant .No. 1 may be ordered to render a complete account of the income and offerings of the said temple and the rents and profits of the said shop. That relief along with the relief claimed under prayer (b) of the prayers to the plaint, namely, that it may be declared that the rents and profits of the shop opposite the said temple are dedicated for the use and benefit of the said temple, are abandoned by the plaintiffs. It is unnecessary therefore to consider the force of defendant No. 1 s objection relating to the maintainability of the suit so far as these two prayers are concerned.
(2.) Mr. Vakeel has contended that the remaining prayers of the plaint would fall under Clause (1) (h) of Section 92, namely, granting such further or other relief as the nature of the case may require. In Abdur Rahim v. Abu Mahomed (1927) 30 Bom. L.R. 774, P.C. their Lordships of the Privy Council have held that the words "further or other relief," contained in Clause (1) (h) of Section 9 2, must, on general principles of construction, be taken to moan relief of the same nature as clauses (a) to (g). In the same case their Lordships have held that a prayer for a declaration that the property in suit is wakf (public charitable) property and not the personal property of the defendants, is a prayer for relief not covered by Section 92. Our Courts are bound by this ruling. In Thackersey Dewraj v. Hurbhum Nursey (1883) I.L.R. 8 Bom. 432 Scott J. hold that any person interested in the proper observance of a religious endowment may sue in his own name to have the trust property administered and that Section 539 (now Section 92) did not prohibit a private suit or make the sanction of the Advocate General a condition precedent.
(3.) In Muhammad Abdullah Khan v. Kallu (1899) I.L.R. 21 All. 187 a Divisional Bench, of the Allahabad High Court held that a suit for a declaration that a certain piece of land was a grave-yard dedicated to the use of such persons as had no grave-yard of their own was not a suit which fell within the purview of Section 539 (now Section 92) of the Code of Civil Procedure. Similarly, in the later case of Jamal-uddin v. Mujtaba, Husain (1903) I.L.R. 25 All. 631, the same Court held that Section 589 (now Section 92) of the Civil Procedure Coda of 1882, presupposes the existence of a trust for the administration of which it is necessary to make provision; and that section cannot apply to a suit in which the object of the plaintiff is to obtain a declaration that certain property is endowed property, the fact of endowment being denied on the other side.;

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