ANARO DEVI v. SHANKER NATH — 1972 DIGILAW 252 (DEL)

PRITAM SINGH SAFEER ( 1 ) THIS is an appeal by defendant No. 1 to a suit instituted by respondent Shankar Nath on the 16th of August. 1961, and is directed against the lower appellate Court s decree dated the 9th of January 1963. ( 2 ) RESPONDENT No. 1, through his suit against the appellant and five others, sought a declaration that the mortgage deeds mentioned in para 10 (a) and (b) of the plaint and preliminary decree and the final decree passed on their basis in suit No. 380 of 1957 were void. ineffective and inoperative against property No. 674, Gali Ghanteshwar Maharaj Katra Neel, Chandni Chowk, Delhi, and the said property was not liable to be sold in execution thereof. The foundation of the suit filed by respondent No. 1 was that he along with the husband of defendant No. 2 and father of defendants 3 to 6 had been appointed a co-trustee in respect of the properties mentioned in paragraph 3 of the plaint the property in suit being house No. 674. Gali Ghanteshwar Maharaj, Katra Neel, Chandni Chowk, Delhi. In paragraph 2 of the plaint a pedigreetable was given showing that one Jagan Nath had two daughters Lachhmi Devi and Nikko Bibi. Nikko Bibi was shown to have died issueless. Lachhmi Devi, married to Behari Ji, had two sons, Bhola Nath father of respondent No. 1 and Shambhu Nath husband of defendant No. 2 to the suit and father of defendants 3 to 6. It was stated in the plaint that Smt. Nikko Bibi being the owner of the two properties mentioned in paragraph 3 of it had in the first instance made a will dated the 3rd of April, 1916, which was subsequently cancelled by her last will. made on the 19th of November, 1930, which was registered on the 20th of November. 1930. In paragraph 7 of the plaint it was stated that by her last will dated the 19th of November, 1930. Nikko Bibi provided that the previous will dated the 3rd of April. 1916, stood cancelled for all intents and purposes and that after her death both the houses mentioned in paragraph 3 of the plaint were to vest in God and the said properties were to stand dedicated as wakf properties. Nikko Bibi provided that the previous will dated the 3rd of April. 1916, stood cancelled for all intents and purposes and that after her death both the houses mentioned in paragraph 3 of the plaint were to vest in God and the said properties were to stand dedicated as wakf properties. It waslleged that the said will prescribed that Shambhu Nath and Shankar Nath would be trustees of the properties covered by the will and that in a part of house No. 674, Gali Ghanteshwar Mahara. i, Katra Neel, Chandni Chowk, Delhi, the family idol of shri Radha Krishan Ji, which she and her ancestors had been worshipping, would be installed and that the income derived from both the properties shall in the first instance be applied in the Bhog and Sewa etc. of the said "radha Krishan Ji and the balance would be used for repairs and the remainder, if any. would be appropriated by the trustees to their personal use. The trustees were not entitled to alienate any of the said properties In any manner whatsoever. It was stated in paragraph 8 of the plaint that Smt. Nikko Bibi died in the year 1932 and respondent No. 1 and the predecessor in interest of defendants 2 to 6 came in possession of the said properties as trustees. In the year 1931 during her lifetime Nikko Bibi was stated to have installed the idol of "shri Radha Krishan Ji" in the property at Delhi. It may be clarified that in paragraph 3 the property in Delhi was mentioned in clause (a) and the property in Banaras was mentioned in clause (b ). In paragraph 9 of the plaint it was stated that the properties covered by the will were mentioned as wakf properties in municipal records and respondent No. 1 and predecessors-in-interest of defendants 2 to 6 had acted as trustees of the said properties. It was then stated in paragraph 10 of the plaint that late Shambhu Nath, the husband of defendant No. 2 and the father of defendants 3 to 6 illegally and without any right, title or interest and against the express terms of the last will of Nikko Bibi dated the 19th November, 1930, and without the plaintiff s knowledge and for his personal use and gains illegally mentioning the property in Delhi as his own. had on the basis of the alleged title derived from the will made on 3rd April. 1916. by Nikko Bibi mortgaged without possession house No. 674. Gali Ghanteshwar Maharai, Katra Neel, Chandni Chowk. Delhi, with the present appellant and giving the details it was stated that the first mortgage deed "executed by Shambhu Nath in favour of the appellant was dated the 28th of July, 1954. registered on 9th August, 1954; while the second mortgage deed similarly executed by Shambhu Nath in favour of the present appellant was dated the 1st of June. 1955, and was registered on 4th October. 1955. The consideration in respect of each of the mortgage deeds was stated to have been Rs. 1,500. 00. In paragraph 11 the plaintiff stated that the impugned mortgages were absolutely void, inoperative and ineffective and it is remarkable that he enumerated grounds (a) to (e) in the said paragraph for supporting his assertion. In ground (a) it was asserted that the mortgages were void because Shambhu Nath had never acquired any right, title, or interest in the properties covered by the mortgages by virtue of the will, dated the 3rd of April. 1916. or otherwise. In clause (b) of paragraph 11 of the plaint respondent No. 1 asserted that the will dated the 3rd of April. 1916, had been cancelled by Smt. Nikko Bibi through her last will dated the 19th of November. 1930 which had been registered on 20th November, 1930. The two assertions contained in clauses (a) and (b) of para 11 stood apart from the rest of them and were of necessity to be adjudicated upon. In clause (c) of para 11 respondent No. 1 stated that the alienations covered by the mortgages were against the express terms of the will dated the 19th of November. 1930. That challenge was followed by the assertion that the alienations were for personal gain and were effected without the knowledge of the plaintiff. The courts below were attracted mostly to the controversy raised by clause (c) of para 11 of the plaint. ( 3 ) THE litigation, in my view, was concerned with all the grounds of attack enumerated in paragraph 11 of the plaint. Anaro Devi. The courts below were attracted mostly to the controversy raised by clause (c) of para 11 of the plaint. ( 3 ) THE litigation, in my view, was concerned with all the grounds of attack enumerated in paragraph 11 of the plaint. Anaro Devi. the appellant had obtained a decree, on the basis of the two mortgages executed in her favour by Shambhu Nath and the suit was for a declaration that thedecree based on those mortgages was void. inoperative and inexecutable against the property in suit. If the courts were to find that the mortgages were void or ineffective for any reason whatsoever, they were of necessity to hold that the decree obtained by the appellant on their basis was not executable against the property in suit. In paragraph 12 of the plaint it was mentioned that Shambhu Nath had died in the year 1956, leaving. behind defendants 2 to 6 as his heirs and legal representatives and in paragraph 13 it was stated that the present appellant had filed a suit for the recovery of Rs. 3716. 00 against defendants 2 to 6 on the basis of the mortgages mentioned in paragraph 10 of the plaint and had obtained the final decree on 25th February, 1960, in suit No. 380 of 1957. It was alleged in paragraph 14 that the appellant had applied for execution of the decree and in the course of the proceedings obtained an order for getting the property auctioned. In paragraph 15 of the plaint it was stated that the preliminary and the final decrees based on the "impugned mortgages were void. ineffective and inoperative against house No. 674 for two distinct reasons. Ground No. (a) urged through paragraph 15 of the plaint was: " (A) Because the basis of the said decree i. e. the mortgage deeds are void, ineffective and inoperative and ineffective against the said property No. 674, Gali Ghanteshwar Maharaj Katra Neel, Chandni Chowk, Delhi. "ground No. (b) was: " (B) Because the suit property is wakf property and could not legally be alienated or charged by any person in any mannerwhatsoever. ". Ground No. (a) was to be considered on its own merits. If the mortgage-deeds were to be found void and ineffective, the decree passed on their basis was as a matter of law to be declared inexecutable in respect of the property in suit. ". Ground No. (a) was to be considered on its own merits. If the mortgage-deeds were to be found void and ineffective, the decree passed on their basis was as a matter of law to be declared inexecutable in respect of the property in suit. The second ground was based on the assertion that the property was wakf property and could not have been legally alienated. In paragraph 16 it was stated that the disputed property was not liable to be sold in execution of the impugned decree. Paragraph 17 contained the clear assertion that the plaintiff (respondent No. 1 to this appeal) who was the trustee of the property bearing No. 674. Gali Ghanteshwar Maharaj, Katra Neel, Chandni Chowk, Delhi was in possession of the same and had been managing it and was neither a party to the mortgage deeds nor to the suit which had been decreed in favour of Anaro Devi. The plaintiff then stated that he was bringing the suit for a declaration as a trustee of the property in suit and was not bound by the mortgage deeds or by the decree made in a suit, to which, he had not been impleaded as a party. ( 4 ) IT is the written statement filed by defendant No. 1, who had obtained the impugned decree which all along required consideration and which I must notice. Before doing that it would be appropriate to mention that the certified copies of the mortgage deeds mentioned in paragraph 10 of the plaint were exhibited as P-19 and P-20 in the course of the litigation. Those mortgage deeds were executed by late Pt. Shambhu Nath, whose heirs and legal representatives had been impleaded as defendants 2 to 6 to the suit. out of which this appeal arises. In both the mortgage deeds it was stated by the mortgagor that he had derived the ownership in the concerned property on the basis of the will executed by Smt Nikko Bibi on the 4th of March, (sic) 1916. By her will made on 19th November. 1930, Nikko Bibi had cancelled the will dated the 4th of March, (sic) 1916, and it was not open to Shambhu Nath to cite any title allegedly derived from the will of 1916. By her will made on 19th November. 1930, Nikko Bibi had cancelled the will dated the 4th of March, (sic) 1916, and it was not open to Shambhu Nath to cite any title allegedly derived from the will of 1916. ( 5 ) A mortgage is the transfer of an interest in a specified immovable property and it is expected that the mortgagee would make ordinary diligent inquiries about the title of the mortgagor before accepting the mortgage. The principles on which statutory provisions have been enacted in the Transfer of Property Act apply to all cases. Even outside the statute it is unacceptable that when the two mortgages without possession were executed in favour of the appellant she never made the inquiries into the title of late Pt. Shambhu Nath to execute the mortgage deeds. As mentioned above, it was stated in the two mortgage deeds that Shambhu Nath s ownership was based on the will executed by Smt. Nikko Bibi on 4th March, (sic) 1916. In the written statement the appellant, however, stated in paragraph 3 : "3. That the contents of para 3 of the plaint are wrong. Smt. Nikko Bibi was not the owner of the property mentioned in para 3 of the plaint. in paragraph 4 the appellant again Stated: "4. That the answering defendant does not know whether Smt. Nikko Bibi executed any will mentioned in para 4 of the plaint. At any rate. Smt. Nikko Bibi was not the owner of the house as mentioned in para 3 of the plaint. "in paragraph 5 the appellant had the temerity to assert that Shri Shambhu Nath was the owner of the house and Smt. Nikko Bibi had nothing to do with it. I may at once observe that if Smt. Nikko Bibi had at no time been the owner of the house then no will made by her in respect thereof could have conferred any ownership on Shambhu Nath. The assertions in the written statement were ill-advised. To say the least, if Smt. Nikko Bibi was at no time the owner of the property in suit. she could not have made any will. could not have passed any title of any kind to Shambhu Nath and the present appellant could not have obtained any valid mortgage of the property in suit from Shambhu Nath. To say the least, if Smt. Nikko Bibi was at no time the owner of the property in suit. she could not have made any will. could not have passed any title of any kind to Shambhu Nath and the present appellant could not have obtained any valid mortgage of the property in suit from Shambhu Nath. She could not have brought any suit on the basis of such mortgages and if. any decree had been obtained on the basis thereof, it certainly remained unexecutable against the property in suit. Her assertions in the written statement were opposed to the very basis on which Shambhu Nath had claimed ownership in the property. She did not try to appreciate as to whether the property was a trust property or not. Shambhu Nath could have mortgaged it only if he had derived ownership from Nikko Bibi who, according to the assertions in the mortgage deeds was the previous owner and who had allegedly made the will on 4th March (sic ). 1916, in favour of Pt. Shambhu Nath. In paragraph 9 of her written statement the appellant asserted: "9. The property in suit is not a wakf property. The defendant does not know whether it is so recorded in the municipal papers. At any rate such municipal record is not at all admissible to prove the title. Shri Shambhu Nath was the owner of the house and not the trustee. " (Emphasis added) In paragraph 17 of the written statement it was stated: "17. The contents of para 17 are wrong. The plaintiff is not a trustee of the property nor the property is a trust property. The plaintiff is. not in possession of the property in suit nor has been managing the same * * * * taking into consideration the subject matter in controversy the trial Court framed the following issues: "1. Whether the house in dispute originally belonged to Smt. Nikko Bibi? 2. Whether the said Nikko Bibi executed a will dated 19-11-30. dedicating the house in dispute as wakf property? 3. Whether Sh. Shambhu Nath deceased was a trustee in respect of the house in dispute under the aforesaid will? 4. If above issues are proved, was Shambhu Nath deceased competent , to alienate the house in dispute? 5. Whether the suit is maintainable in the present form? 6. dedicating the house in dispute as wakf property? 3. Whether Sh. Shambhu Nath deceased was a trustee in respect of the house in dispute under the aforesaid will? 4. If above issues are proved, was Shambhu Nath deceased competent , to alienate the house in dispute? 5. Whether the suit is maintainable in the present form? 6. Whether the plaintiff sold the house mentioned in para 3 (b) of the plaint? If so, to what effect? 7. Whether the plaint is properly valued for purposes of court-fee and jurisdiction? 8. Relief. ( 6 ) THE parties adduced evidence. oral and documentary, and after hearing them the trial Court decided all the issues, except issue No. 5. in favour of respondent No. 1 to this appeal and dismissed his suit on the finding that he being out of possession could not have sued for a mere declaration. The decree made by the trial Court was set aside on appeal concluding that the suit was maintainable by respondent No. 1. " Defendant No. l to the suit has appealed and the counsel for the appellant has raised three contentions before me. . The first is that the will dated the 19th of November. 1930. did not createany endowment or trust which could be construed as binding on the property in suit. It was. in any case. an ambiguous endowment to God and could not affect any property. The second contention is that Exhibit P-3, the last will made by Nikko Bibi. was not admissible as it was insufficiently stamped. The third contention is that the court of first appeal was wrong in concluding that the suit for a mere declaration was maintainable. Out of the aforementioned contention" the second one has not been pressed on my pointing out that Exhibit P-3 was not a trust deed immediately affecting any immovable property and the counsel for the appellant is unable to controvert that a trust could have been created by a will, A will does not require to be stamped and it can operate to create a Hindu charitable trust or an endowment. No challenge to the operation of such a document is available on the basis that it is insufficiently stamped. While urging his first contention the counsel for the appellant has taken me through Exhibit P-3. No challenge to the operation of such a document is available on the basis that it is insufficiently stamped. While urging his first contention the counsel for the appellant has taken me through Exhibit P-3. It is stated in that will by Nikko Bibi that she was the absolute owner of the two properties mentioned therein and that she was cancelling the previous will made on 4th April. 1916. The date mentioned in Exhibit P-3 is on the basis that the will made on 3rd April. 1916, had been registered on 4th April. 1916. After recording the cancellation of the previous will Nikko Bibi again asserted that she was the absolute owner of the two properties and then stated that the said properties belonging to her were dedicated to God forever, and that Shambhu Nath son of Behari Ji and Shankar Nath son of Bhola Nath (respondent No. 1 to this appeal) would remain the trustees and that in a part of the house situated in Gali Ghanteshwar Mabarai (the property concerned in this litigation) an idol of Shri Radha Krishan Ji, which she and her ancestors had been worshipping, would be installed and that the income from the two properties would be spent on the Bhog and service of the said deity by the aforementioned two trustees and if anything was still to remain, that could be spent by the trustees on the parshad to be presented for Thakar Ji Maharai and the remainder on themselves. After having prescribed the purposes Nikko Bibi proceeded to state in her last will that none of the trustees individually or jointly would have any right of ownership in the two properties and would not be entitled to alienate them or any part thereof in any manner whatsoever. ( 7 ) THE learned counsel for the appellant has submitted that there could be no dedication to "thakur Ji Maharaj" as the words "thakurji Maharai" would apply to various deities. It is submitted that in case of a dedication the deity must be specified. The argument suffers from inherent fallacy inasmuch as the will clearly mentioned that the idol to be installed was that of Shri Radha Krishan Ji Maharai which Nikko Bibi and her ancestors had been worshipping. In order to support himself the appellant s counsel has firstly cited Phool Chand v. Puran Chand. ILR (1962) 1 All 671. The argument suffers from inherent fallacy inasmuch as the will clearly mentioned that the idol to be installed was that of Shri Radha Krishan Ji Maharai which Nikko Bibi and her ancestors had been worshipping. In order to support himself the appellant s counsel has firstly cited Phool Chand v. Puran Chand. ILR (1962) 1 All 671. The court in that case noticed that the first defect in the creation of the waqf was that it had not been created in favour of any particular idol but only in favour of "thakur Ji Maharai". It was then contended that the waqf in that case contained no provision requiring the managers to spend a single pie either on the worship of Shri Thakur Ji Maharaj or providing for its Bhog etc. In the present case Nikko Bibi clearly specified the idol. on the worship of which the trustees were to spend the money, only the remainder being available to them for personal expenses and that too, after providing for the Parshad. to be offered to the deity. In the case before the Allahabad High Court no provision had been made for expenditure on religious or charitable purposes. That is not the case here. It is not open to the appellant to urge that there was any uncertainty which could be fatal to the creation of the trust. The second citation on behalf of the appellant is Phundan Lal v. Arva Prithi Nidhi Sabha, (1911) ILR 33 All 793. In that case it was held that a dedication not to any particular deity but to "thakurji in his thakurdwara" without mentioning the particular Thakurji to whom the property was dedicated was void for uncertainty. In this case Nikko Bibi having prescribed that the idol would be that of Shri Radha Krishan Ji the appellant cannot derive any sustenance from the citation. The third case cited is chandi Charan Mitra v. Haribola Das, 46 ILR (CAL) 951 = (AIR 1919 Cal 199 ). There the court was concerned with the proposition that under the Hindu Law a general endowment for the worship of God without giving the name of the deity tor whose benefit the endowment is to take effect, is void for uncertainty. That case too does not sustain the contention raised on behalf of the appellant. There the court was concerned with the proposition that under the Hindu Law a general endowment for the worship of God without giving the name of the deity tor whose benefit the endowment is to take effect, is void for uncertainty. That case too does not sustain the contention raised on behalf of the appellant. ( 8 ) THE counsel for the appellant has given me fair assistance in referring to particular passages in Hindu Law of Religious and Charitable Trusts by B. K. Mukherjea, J. The first reference is: "so far as the Hindus are concerned. there is no restriction on their powers to create a charitable or religious trust by a will. "this occurs at page 76 of the Third Edition of the book published in 1970. It supports me in the view already expressed that where a will is to operate so as to create a charitable or religious trust it cannot be assailed on the basis of being unstamped and that a private Hindu charitable or religious trust can result from a will. At page 79 in the same volume it is observed: "on the other hand it is quite open to him to create an endowment merely by renouncing his rights in specific property and indicating the particular religious or charitable purpose for which the property is to be used. "i have been referred to other observations also made by the eminent author of the treatise relied upon and after giving considerable thought I conclude that: (A) There are different types of ceremonies prevailing in different parts of the country for installation of the idols and as the ages have progressed, where the intention of the creator of a private Hindu religious charitable trust stands established, themere want of proof of a particular ceremony pertaining to the installation of an idol will not stand in the way of concluding that a valid private Hindu religious charitable trust had been created; (b) It is important that there should be a person having absolute ownership in specific immovable property. Such a Person can for a specific religious or charitable purpose create a private Hindu religious charitable trust. Such a Person can for a specific religious or charitable purpose create a private Hindu religious charitable trust. Where it is established that a particular person having absolute power of disposition over specified immovable property owned by him had for a specific purpose created a private Hindu religious charitable trust and had prescribed the mode in which the trustees were to function, then it will not be necessary to find whether particular prescribed ceremonies by reciting any particular kind of Sankalpa Mantras had been performed or not; (c) Even in. the absence of the proof of religious ceremonies establishing the installation of a deity a disconcerned and independent Hindu Religious Charitable Trust may still be proved to have been validly created. Having gone through, the evidence, oral and documentary. I affirm the view that respondent No. 1 had been appointed as a co-trustee by Exhibit P-3. It must be appreciated that the suit which he had brought was for a declaration that the mortgages being ab initio void the impugned decree was inoperative, ineffective and inexecutable against the property in suit. Even within the scope of Section 42 of the former Specific Relief Act applicable on the date of the institution of the suit. which was filed on 16th August. 1961, respondent No, 1 could have sued for a mere declaration. ( 9 ) APART from Exhibit P-3. leaving aside Exhibits P-16 and P-17, which pertain to the year 1931, there are other documents which show that Shankar Nath respondent No. 1 did possess the status of a co-trustee in respect of the property in suit. In Exhibit P-7 dated the 25th September. 1935. a demand notice issued after the demise of Nikko Bibi for collecting the house tax, respondent No. 1 was described as a cotrustee along with late Pt. Shambhu Nath. In similar notices Exhibit P-8 dated the 23rd of September 1941 and in Exhibit P-ll dated the 14th of January, 1946. respondent No. 1 was mentioned as a co-trustee. ( 10 ) THE counsel for the respond ents has cited Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436 . wherein it was held that Section 42 of the Specific Rebel Act was not exhaustive of the cases in which a declaratory decree might be granted and the courts had the power to make declaratory decrees independent of the impositions of the said section. wherein it was held that Section 42 of the Specific Rebel Act was not exhaustive of the cases in which a declaratory decree might be granted and the courts had the power to make declaratory decrees independent of the impositions of the said section. As an instance. a declaration could be granted to the effect that a compromise decree would not bind the deity. THE Supreme Court laid down that the legal position was well established that a worshipper of a Hindu temple was in certain circumstances entitled to bring a suit for a declaration that the alienation of the temple properties by the de jure Shebait was invalid and not binding upon the temple. Since late Pt. Shambhu Nath on the basis of an alleged title derived from the will made on 3rd April, 1916. by Smt. Nikko Bibi registered on 4th April. 1916 which had been subsequently cancelled, executed the two mortgage deeds without possessing ownership rights, the decree based upon them could certainly have been declared as being inoperative and inexecutable in respect of the pro perty in. suit. The court below was right in holding that the trial Court had recorded a wrong rinding on issue No. 5. The learned counsel for the appellant has brought to my notice the recent pronouncement by the Supreme Court reported as S Shanmugham Pillai v. K. Shanmugham Pillai. (1972) 2 SCWR 80 = ( AIR 1972 SC 2069 ). The observations made therein support the conclusions arrived at by me. THE Supreme Court observed that in order to determine whether a dedication is complete or not. it would have to be determined in each case on the interpretation of the terms of the particular document whether the dedication was complete or partial. IN every case the true intention has to be gathered on a fair and reasonable interpretation of the document construed as a whole. THE Supreme Court in the aforementioned judgment observed that if the income of the property was substantially intended to be used for the purpose of charity and only an insignificant and a minor part of it was allowed to be used for maintenance of the worshippers or the manager, then it would still be possible to hold that the dedication was complete. ( 10 ) IN this case. ( 10 ) IN this case. Nikko Bibi indicated that the idol of Shri Radha Krishan Ji Maharaj was to be installed and the two trustees, named in the will were to spend the income derived from the properties on the worship of the specified idol and the remainder was first to be applied to Prashad and if still something was left over that could be used by the trustees personally, I come to the conclusions that: (I) On appraisal of oral evidence along with Exhibit P-3 it stands established that during her lifetime Nikko Bibi got the idol of Shri Radha Krishan Ji installed in the property in dispute. (ii) She appointed respondent No. 1 and late Pt. Shambhu Nath for the purpose of acting as trustees. (iii) She clearly prescribed in Exhibit P-3 that the trustees mentioned therein would in no manner be entitled to alienate the properties which were not owned by them. (iv) In terms of Exhibit P-3 the trustees could reside in the properties mentioned in the document and that defendants 2 to 6. heirs of late Pt. Shambhu Nath, were residing in the property in dispute. (v) The property in dispute was not in possession of the appellant and respondent No. 1 was not required to sue either the appellant or defendants 2 to 6 to the suit for possession. (vi) The suit filed by respondent No. 1 for a declaration that the decree obtained by the ^appellant was inexecutable against the property in dispute, was maintainable withqut seeking any further relief. I find no merit in this appeal, which is dismissed but without costs.