GANGESHWAR PRASAD, J. - (1.) THIS appeal arises out of a suit for possession and mesne profits with respect to three houses situated in Allahabad. The suit was instituted by the Kayastha Pathshala (Prayag) Allahabad (hereinafter called the Pathshala), which claimed to be a society registered under the Societies Registration Act (XXI of 1860), through Dr. Narain Prasad Asthana as its president. The persons against whom the suit was brought were Baleshwar Lal defendant No. 1 and Krishna Kumar Sinha defendant No. 2 Baleshwar Lal died during the pendency of the suit and his widow Smt. Surja Kuar was thereupon substituted in his place. A decree for possession of the houses in suit has been passed by the trial Court against both the defendants and a decree for Rs. 222/- as past mesne profits has been passed against defendant No. 2 only Pendente lite and future mesne profits have also been made payable by defendant No. 2. This appeal has been preferred by Krishna Kumar Sinha defendant No. 2.
(2.) THE case of the Pathshala was that one Munshi Nawal Kishore was the owner of the houses in suit, which were his self-acquired property. He bequeathed all his movable and immovable property to the Pathshala by means of a registered will dated 16th July 1943 and thus the Pathshala became the owner of the houses after the death of Munshi Nawal Kishore which took place on 7-4-1945. It was stated that the will had not been delivered to the Pathshala by the testator and for some time the institution had absolutely no knowledge about it. On coming to know of the will the Pathshala succeeded in tracing it out by making enquiries and then moved an application in the court of the District Judge of Allahabad for the grant of letters of administration of the property and credit of Munshi Nawal Kishore. The application was opposed by defendants Baleshwar Lal and Krishna Kumar Sinha. On account of a technical objection raised by Krishna Kumar Sinha to the maintainability of the application the Pathshala applied for its withdrawal and the District Judge granted permission to withdraw the application with liberty to file a regular suit. The defendants were said to be in wrongful possession of the houses in suit and a decree for possession and mesne profits past, pendente lite, and future was claimed against them. The defendants filed separate written statements. Baleshwar Lal defendant No. 1, who was admittedly the brother of Munshi Nawal Kishores wife, denied that Munshi Nawal Kishore had executed the will under which the Pathshala claimed the property in suit and stated that Munshi Nawal Kishore had bequeathed all his property to him by a will executed in November 1942. He alleged that Munshi Nawal Kishore remained ailing for several years before his death and that during this period he used to live with Munshi Nawal Kishore and to look after him. He had also to go to Ballia on several occasions to bring medicines for Munshi Nawal Kishore and it was in his absence on one of such occasions that the plaintiff managed to get the will dated 16th July 1943 executed in its favour while Munshi Nawal Kishore was on sick bed and was not in a sound state of mind. It was also stated that during the illness of Munshi Nawal Kishore the appellant Krishna Kumar Sinha who belonged to the same village as the deceased came to Allahabad and began living with him. Upon the death of Munshi Nawal Kishore the appellant put forward a claim to the property of the deceased and it led to a dispute between him and the appellant about mutation of names in the municipal records with respect to the houses in suit. An agreement was, however, reached between them by which the names of both of them were entered. It may here be mentioned that it has been observed by the learned Civil Judge in his Judgment that Suit. Surja Kuar, who was substituted in place of Baleshwar Lal, did not put In appearance to contest the suit or to substantiate the defence put forward by Baleshwar Lal and it was only Krishna Kumar Sinha who contested the suit at the hearing.
(3.) THE appellant Krishna Kumar Sinha defended the suit on a variety of grounds. He pleaded that the Pathshala is not a juristic person because the society registered under the Societies Registration Act (XXI of 1860) is not the Pathshala but the Governing Council of the Kayastha Pathshala (Prayag) Allahabad and the Pathshala was consequently not entitled to sue. It was also pleaded that Dr. Narain Prasad Asthana through whom the suit had been instituted was not the duly elected President of the Governing Council of the Kayastha Pathshala (Prayag) Allahabad and no suit could, therefore, be brought through him. It was denied by the appellant that Munshi Nawal Kishore executed the will under which the plaintiff claimed and he put the plaintiff to strict proof of it. It was pleaded by the appellant that Munshi Nawal Kishore formed a joint Hindu family with him and the houses in suit were joint family property belonging to him and Munshi Nawal Kishore and as such the latter was incompetent to bequeath them and the will was invalid and ineffective. Further, the bequest, being in favour of the students of the Kulbhaskar Ashram, was vague and indefinite, and the Kulbhaskar Ashram was also not in existence at the time of the execution of the alleged will. On these grounds as well, according to the appellant the will failed to take effect. Lastly it was pleaded that the bequest was not in favour of the Pathshala and the property comprised in the will did not, therefore, vest even in the Governing Council of the Kayastha Pathshala and the Governing Council too could not maintain a suit with respect to it. As to mesne profits claimed by the plaintiff the appellant alleged that some of the tenants of the houses in suit were not paying rent since the death of Munshi Nawal Kishore, some others were paying rent to Baleshwar Lal and only a sum of Rs. 18/8/- per month was being realised as rent by the appellant himself. The claim of the plaintiff for mesne profits was said to be excessive. The issues framed by the trial court were as follows :- (1) Whether the plaintiff Pathshala is a juristic person and has it been validly registered under the Societies Registration Act ? (2) Is the suit as framed not maintainable ? (3) Did Munshi Nawal Kishore duly execute any valid will dated 16-7-1943, or was the same obtained during his illness when he was not In a sound state of mind ? (4) Was Munshi Nawal Kishore joint with the defendant No. 2 and was the property In dispute the joint family property of Munshi Nawal Kishore and defendant No. 2 ? If so, to what effect ? (5) Is the will invalid for the reasons given in paragraph 22 of the written statement or defendant No. 1 ? (6) To what amount of past and future mesne profits, if any, is the plaintiff entitled ? (7) To what relief if any, is the plaintiff entitled ? (8) Is Dr. Pyare Lal Srivastava duly and legally elected President of the Kayastha Pathshala (Prayag) Allahabad, if so, has he any rights to sue ? ;