N.J Wadia, J.:—

This is an application for revision of an order passed by the District Judge of Broach on an application made by the opponent Saiyad Gulam Mohiuddin alias Mirasaheb Bavasaheb against the petitioners under section 3 of the Charitable and Religious Trusts Act (XIV of 1920) praying that the petitioners should be directed to furnish accounts of the trust properties belonging to the Dargah of Halimsha Pir of Ankleshvar, and for examination and audit of the accounts for three years. The opponents in the lower Court contended that the villages were their private property, only one survey number measuring three acres and four gunthas being wakf, and also that they had become owners of the villages by adverse possession for the statutory period. The learned District Judge found after inquiry that the properties mentioned in the application, viz., the villages of Dadhal and Amboli in the Ankleshvar taluka of the Broach District, were wakf properties of the Dargah of Halimsha Pir, and directed the opponents (the present petitioners) to furnish accounts for three years.

The petition has been argued before me on four grounds, three of which relate to the jurisdiction of the Court. It is urged that the learned District Judge had no jurisdiction to entertain the application because, firstly, the opponents (petitioners) had raised a question of title contending that the villages were their private property and not wakf and that in any case they had been in adverse possession for of the statutory period; and, under section 5, sub-section (6), of the Act, the District Judge had no jurisdiction to try or determine any question of title between the petitioner and any person claiming title adversely to the trust. The contention does not appear to me to be a sound one. I am unable to agree with the view that it was the intention of the legislature that the moment the opposing party in an application made under section 3 of the Act puts forward a claim of title adversely to the trust the jurisdiction of the Court is ousted. Where such a claim is put forward, it amounts in effect to a denial of the existence of the trust. The Act provides that if any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which the Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings, and, if such suit is so instituted, shall continue the stay until the suit is finally decided. If the undertaking is not given, or if after the expiry of the three months a suit is not filed, the Court is bouud to decide the question in a summary way and for the limited purposes of the Act only, i.e, to decide whether a trust exists, and, if so, whether accounts for three years should be directed to be filed. In doing so, the Court is precluded by sub-section (6) of section 5 from trying or determining any question of title between the petitioner and persons claiming adversely to the trust. But it does not appear to me to be the intention of sub-section (6) of section 5 that the moment a claim adverse to the trust is advanced, the jurisdiction of the Court should be ousted. If that were so, it would be possible in every case for the opposing party to oust the jurisdiction of the Court. If a person claims to hold adversely to the trust, it is open to him to take advantage of the concession given to him by section 5, sub-section (3), and to get the question determined by a regular suit. If he does not claim this concession, or if, having claimed it, he does not avail himself of it, the Court must decide for itself whether a trust exists. The opposing party has his remedy still open by a regular suit, even if the District Judge has decided against him on the question of existence of the trust. The question whether a person who had not given the undertaking mentioned in section 5, sub-section (3), of the Act, could, after the District Judge had decided that there was a trust to which the Act was applicable, file a regular suit for a declaration that the property was his personal property and not subject to any trust to which the Act applied, was very fully considered in Mahadeo Bharthi v. Mahadeo Rai.(1) There was a difference of opinion between the two learned Judges, Niamut-Ullah J. holding that Act XIV of 1920 nowhere provided expressly or impliedly that the order of the District Judge passed under section 5 was conclusive as to the existence of a trust falling within the scope of the Act and that it could not be challenged in a regular suit before a Court of competent jurisdiction, and that the order of the District Judge did not fulfil all the requirements of the rule of res judicata so as to be a bar to a subsequent suit, while Mukerji J., on the other hand, held that such a suit was not permissible. I am, with respect, of opinion that the view taken by Niamat-Ullah J. is the correct one, and that an order passed by the District Judge under section 5 of the Act does not debar the opposing party from filing a regular suit afterwards to establish his title.

It may be noted that in the Allahabad case referred to above, the opposing party had denied the existence of the trust and, as would appear from the suit subsequently filed by him, had claimed that the property was his private property. It was not contended in the course of the proceedings in the High Court that the opposing party having claimed title adversely to the trust, the District Judge had no jurisdiction to try the matter at all.

Apart from this, in my opinion, the denial of the petitioners in the present case fell under section 5, sub-section (3) of the Act. What they denied primarily was the existence of the trust, or of a trust to which the Act applied. They did not deny the original grant but contended that it was for the maintenance of the grantee and his family, and not for a public, religious or charitable purpose. This being so, it was open to them to take advantage of the provisions of section 5, sub-section (3) of the Act. If they did not do so, the Court clearly had jurisdiction to decide the question. It is true that the Court had no power to decide a question of title. But it did not do so in the present case. The learned District Judge said in paragraph 8 of his judgment that if, as claimed by the opponents, they had become the owners of the properties by adverse possession for the statutory period, they would have an opportunity of substantiating their plea in a regular suit instituted for the purpose.

It is next contended that the document, Exhibit No. 21/9, which was produced by the petitioner in the lower Court, and which was the principal evidence in support of the grant, itself showed that there was no public, religious or charitable trust, and that this being so, the learned District Judge had no jurisdiction to try the application. This contention and the fourth contention of the petitioners that the Court had acted in the exercise of its jurisdiction with material irregularity or illegality are closely connected and I will deal with them together.

It was alleged by the petitioner in the lower Court that the original grant to Pir Halimsha had been, made during the time of the Emperor Jehangir, and in support of his allegation he put in a sanad or Firman, Exhibit No. 21/9. The exact date of this document is not ascertainable, nor does the document show anywhere by which emperor the grant was made. The document shows, however, that one of the Moghul Emperors settled the two villages of Dadhal and Amboli upon one Sayed Abdul Kader “to remain exclusively settled upon and to be conditionally heretofore in possession and occupation (of and) to be for the Madad-e-Maash of the Farzandan (i.e, sons, daughters, children, etc.) of the late Sayed Abdul Kader as set out herein, so that they should utilise for their maintenance the income which may be derived therefrom from season to season and from year to year and they are to occupy themselves in praying for the perpetuity of the eternal government”. From the genealogy put in it appears that this Sayed Abdul Kader was the son of the original grantee Pir Halimsha. The learned District Judge does not refer to this document at all in his judgment, and there is nothing in the judgment to suggest that he had considered it at all. It was a document which the petitioner had put in. It is true that it does not appear to relate to the original grant to Halimsha Pir but refers apparently to a confirmation of the original grant in favour of Pir Halimsha's son Abdul Kadar. However, it is admittedly the oldest document relating to the grant and a document about the genuineness of which there is no dispute. The terms of the document show that the grant to Abdul Kader at least was for a private purpose, viz., the maintenance of the grantee and his descendants and not for any public, charitable or religious purpose.

It was argued by Mr. Jayakar for the opponent that the words “Madad-e-Maash” used in this grant are not clear and unambiguous terms and may mean a grant to individuals for their personal maintenance and for religious and charitable purposes connected with the Mahomedan religion. In the present case the language of the grant appears to make it clear that the grant was not coupled with any condition that it was to be used for any specific religious or charitable purposes such, e.g, as the expenses of fairs and langar expenses for travellers visiting the Dargah. On the contrary, the grant expressly says that the grantee and his descendants were to utilise the income of the villages for their maintenance. In Sayad Mahomed Ali v. Sayad Gobar Ali the terms of a similar grant by the Emperor Shah Jehan were considered by this Court. The grant in that case was in the following terms:—

“Let the whole village above mentioned as well as the land above mentioned be hereby settled and conferred as above, manifestly and knowingly as a help for the means of subsistence for the children of the above mentioned Sayad Hasan, without restriction as to names, in order that, using the income thereof from season to season and from year to year for their own maintenance, they may engage themselves in praying for the perpetuity of this ever-enduring Government.”

It was held that this grant did not constitute a wakf, or religious endowment, and that the direction that the donee and his issue were to pray for the perpetuity of the then existing Government meant no more than an inculcation of gratitude for the gift. In Dosibai v. Ishvardas Jagjivandas(2) it was held that where a jaghir, is granted in indefinite terms, it is taken to be for the life only of the jaghirdar; but when it is to the grantee “and his heirs”, and there is nothing to control the ordinary meaning of the words, he takes an absolute interest. Under the terms of Exhibit No. 21/9, therefore, the grantee took an absolute interest.

The learned District Judge has, as I have already stated, not referred to this document at all in his judgment. In order to arrive at the nature of the grant, he has relied on two documents, Exhibits Nos. 21/13 and 21/14, put in by the petitioner in the lower Court (the present opponent). These are statements made by certain members of the family in 1862 and 1864 in connection with the appointment of mutawalli of the Dargah of Pir Halimsha. Both these statements contain the following words:—

“Whereas one-fifth part of Amoli village and one-fifth part of Dadhal village Pargana Kasba Ankleshwar in Broach Government, Amhedabad Province, were settled upon the family, children and grand-children of the deceased Sayed Abdul Kadir under the Royal Firman for the expenses of fairs and langar expenses for travellers' visiting the Dargah of the said holy saint Miran Shah Abdul Kadir the beloved of God”, etc., etc.

The learned District Judge has relied on these two documents as showing that the original grant was for a public, charitable and religious purpose. He has also relied on a sanad relating to the grant by the Emperor Jehangir of the village of Tarkeshvar. Admittedly, this document has nothing to do with the grant of the villages of Dadhal and Amboli. But in the recitals to this document there is a reference to the fact that when the Emperor Jehangir was camping at a place called Sunkhia Bow, i.e, at Ankleshvaf, Halimsha performed a miracle by feeding the whole army from a single cooking pot, and the Emperor being very much pleased by the miracle shown, gave two villages and some money to Halimsha for a spacious langarkhana. These three documents, the sanad relating to Tarkeshvar and Exhibits Nos. 21/13 and 21/14, admittedly form the sole basis of the order passed by the learned District Judge holding that there was a public, charitable and religious trust.

It has been contended for the petitioners in this Court that the action of the learned District Judge in completely ignoring the most material evidence in regard to the grants viz., Exhibit No. 21/9, and in relying upon a mere recital in the sanad relating to another village Tarkeshvar, and upon statements made long after the original grant by members of the grantee's family in 1862 and 1864, amounted to such material irregularity as would justify this Court in interfering with the order in revision. It appears to me that there is considerable force in this contention. The sanad relating to Tarkeshvar, on which the learned District Judge has relied, makes no mention of the grant of these two villages of Dadhal and Amboli at all, but only refers vaguely to two villages without mentioning their names. It was laid down by the House of Lords in North Eastern Railway v. Hastings (Lord) that where the words in a deed are plain and unambiguous, the fact that the parties had interpreted the words in a sense different from that which the words themselves plainly bore cannot affect the construction of the deed. Similarly, in Balkishen Das v. Ram Narain Sahu it was held by their Lordships of the Privy Council that the legal construction or legal effect of an ikrarnama could not be controlled or altered by evidence of the subsequent conduct of the parties. If the learned District Judge had expressly ref erred in his judgment to the deed of grant (Exhibit No. 21/9) and had then referred to the language used in the two subsequent documents (Exhibits Nos. 21/13 and 21/14) for the purposes of interpreting the original document, he would, in my opinion, have clearly been acting in disregard of a well-established rule of evidence. The fact that he has not referred to the original deed of grant at all cannot make his action any the less open to criticism. On the contrary it strengthens the case of the petitioners in asking for revision by this Court, since it appears that the learned District Judge has disregarded what was really and admittedly the most important piece of evidence, and has relied on documents, one of which proves absolutely nothing with regard to the grant, and the other two of which, according to a thoroughly well established rule of evidence, could not have been referred to at all for interpreting the terms of the original grant. I am unable to accept Mr. Jayakar's contention that the terms of the original grant were not clear and unambiguous.

In Shields v. Wilkinson(3) it was held that a Judge has no jurisdiction to pass, in a contested suit, a decree adverse to the defendant where, there is no evidence or admission before him to support the decree, and that if he passes such a decree, it is liable to be set aside in revision. It was argued that in the present case there was evidence for the learned District Judge to go upon. But, as I have already shown, the only evidence on which he relied was in effect no evidence at all. The deed relating to the Tarkeshvar grant proved nothing with regard to the two villages with which we are now concerned, and the statements of the parties in 1862 and 1864 could not be referred to for interpreting the terms of the original grant which was evidenced by the deed Exhibit No. 21/9.

There is, moreover, another reason also why the two documents (Exhibits Nos. 21/13 and 21/14), on which the learned District Judge has relied, cannot be considered as sufficient to support the order. Even these two documents do not show that the whole of the two villages of Dadhal and Amboli had been granted for a public, religious or charitable purpose. The documents themselves expressly say that only one-fifth part of each of these villages was settled upon the family for such a purpose. Even, therefore, if this evidence were to be accepted, it could not support the order which the learned District Judge has passed directing the opponents to furnish accounts regarding the income of the whole of the two villages. With regard to four-fifths of each of these villages, therefore, there was no evidence whatever in support of the learned District Judge's order even if the most favourable construction is put upon the case of the opponent.

The action of the learned District Judge in disregarding entirely the most important piece of evidence in the case, viz., Exhibit No. 21/9, and in basing his order upon three documents, one of which was irrelevant and two of which could not properly have been referred to for interpreting the terms of the original grant, and which, even if relied on, could not establish a trust of a public, religious or charitable nature with regard to four-fifths of the property, amounted, in my opinion, to an illegality or material irregularity such as would justify this Court in interfering in revision under section 115 of the Civil Procedure Code. The fact that there may be other remedies open to the petitioners is not in itself sufficient reason for refusing to exercise the powers vested in this Court by section 115 of the Code, if the necessity for the exercise of such powers is clearly established. The present case appears to me to be a fit one for interference in revision.

I, therefore, allow the application and set aside the order passed by the learned District Judge. The application filed by the opponent before the District Judge will be dismissed with costs in both Courts.

Order set aside.

Y.V.D