Grover, J. - (1.) THIS is an appeal under clause 10 of the Letters Patent against a judgment of a learned Single Judge who decreed the plaintiff's suit so far as it related to a declaration to the effect that the gift in favour of Arya Samaj Gurukul, Shahabad, of the property in dispute was invalid but who dismissed the suit so far as the other reliefs were concerned.
(2.) THE property, which is the subject -matter of litigation, consisting of two houses belonged at one time to the descendants of one Mula Ram. In the year 1931 an Arbitrator was appointed to decide the dispute relating to the partition of the family property. By an award dated 17th July, 1931, the Arbitrator while portioning the property among the various descendants of Mula Ram declared one house which was described as a dharamsala to be property which was to remain dedicated for the general benefit of the Hindu Public. According to the directions in the award, this property was to be administered by Surjan Mal, Beni Pershad and Ram Pershad, who were some of the members of the family. Later on, in 1943 one Mst. Raja Devi widow of the brother of Bishambar Dass, who owned a house adjacent to the property known as dharamsala dedicated the same for the benefit of the trust and empowered those trustees to use its income for the benefit of the trust and if necessary, to transfer it to the members of the founder's family etc. It was not contested at any previous stage that the purpose of this dedication by Mst. Raja Devi was the same as the purpose of the trust which had been incorporated in the award. The trustees accepted this dedication by her. In October 1949 Beni Pershad and Ram Parshad, who were the surviving trustees, purported to gift these properties to the Arya Samaj Gurukul, Shahabad, with a stipulation that a girls' school would be run in these buildings on certain lines which were stated to be consonant with the purposes of the dedication of the properties. A girls' school was started and is still functioning there. In August 1952 the plaintiff -appellants filed a suit in representative capacity for a declaration that the gift made in 1949 was void and would not be binding on the general Hindu public of Shahabad and for an injunction restraining the defendants from alienating the dharamsala and the house attached to it and for using the properties for any purpose other than those which were mentioned in the plaint. The main plea on which the suit was founded was that these properties could be used only for the purposes of a dharamsala for accommodating travellers and marriage parties and for no other purpose and that the running of a girls' school was not one of the purposes for which dedication had been made. Only two issues were framed which were as follows : 1. Was the property in dispute dedicated to charitable and public purposes as alleged ? 2. If issue No. 1 is proved, is the gift in dispute valid and binding on the plaintiffs ? The trial Court decided both the issues in favour of the plaintiffs and decreed the suit. The lower appellate Court decided the first issue against the plaintiffs but dismissed the suit without deciding the second issue. On second appeal, the learned Single Judge held that the document executed in 1949 was void and, therefore, granted a declaration that the gift in favour of the Arya Samaj Gurukul, Shahabad, was invalid. He, however, dismissed the suit so far as the prayer regarding the injunction was concerned. Against that judgment, the present appeal has been brought.
(3.) Mr. Baldev Singh, who appears for the appellants, contends that the injunction asked for should have been granted inasmuch as it had been found by the trial Court, which finding had not been disturbed by the lower appellate court or by the learned Single Judge, that the property in dispute which was wakf had been used as a dharamsala where travellers and marriage parties were accommodated for the last about 40 years and that being the purpose of dedication it could not be used for a different purpose, namely, a school. He has relied on Jai Dayal v. Dewan Ram Saran Das, A. I.R. 1938 Lah. 686, wherein it was observed that if the dedicator had declared in unequivocal terms that the house in question was to be used as a resting place for marriage processions of the Khatris of the locality, it could not be used later on by the son of the dedicator partly for residential purposes and partly for running a girls' school as that would be contrary to the wishes of the settler and would constitute a breach of trust. The facts of that case are quite distinguishable as there the house was apparently used by the son of the dedicator partly for his residential purposes. As has been noticed by the learned Single Judge, in the award the dedication was in the following words : "Brae rafe i -am ahal -i -hanood";