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2012 DIGILAW 183 (HP)

Vir Vikram Sen v. Parvati

2012-04-11

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. This is an appeal filed by the original appellant/defendant No.1 Shri Hitendra Sen against the judgment and decree, dated 12.7.1999, passed by the learned District Judge, Shimla, against the respondents, hereinafter also referred to as the plaintiffs. The suit was filed by the plaintiffs under Section 92 of the Civil Procedure Code, wherein it was alleged that since they are the residents of Keonthal State and a trust known as Ram Dharam Kosh Trust was created by late Smt.Rani Indumati Ji on 4.8.1944, therefore, they have locus standi to file the suit. They alleged that the properties mentioned in the trust deed are the properties belonging to the trust and defendants No.1, 4 and 6 have no personal interest in the trust property including the funds of the trust. The plaintiffs had prayed that a new trust be constituted in place of the old trust and defendants No.1, 4 and 6 may be directed to render the accounts of the trust property to the court. 2. It was further alleged that the said trust was created for religious and charitable purposes including for the benefit of the subjects of Keonthal State in particular and public in general. The details of the properties dedicated to the trust were alleged in the plaint, which included amounts in cash and security, building known as Ganga Banita Asharam alongwith building known as Atur Asharam. It was also alleged that there was another property known as Keonthal Bhawan Dharamshala, Haridwar, which was situated on the bank of river Ganga near Harki Pauwari, Haridwar and this building has been recorded as Keonthal Bhawan. Defendant No.1 succeeded to the Gaddi of Keonthal State in 1944 after the death of Raja Vijay Sain. 3. It was further alleged that even the ancestors of defendant No.1 had dedicated the building known as Keonthal Bhawan to the people of Keonthal State and public in general for being used as dharamshala. Defendant No.1, who succeeded to the Gaddi of Keonthal State in 1944 never interfered with the rights of the people of Keonthal State and public in general. It was alleged that the building at Haridwar used to be repaired out of the funds raised by the people of Keonthal State. It was also provided in the trust deed that the trust would also provide for the expenses of cremation etc. It was alleged that the building at Haridwar used to be repaired out of the funds raised by the people of Keonthal State. It was also provided in the trust deed that the trust would also provide for the expenses of cremation etc. of all persons who died while residing at Atur Asharam. It was further alleged that the following persons were nominated to the Board of Trustees by Raj Mata Indumatiji : 1. Raja of Jubbal State, 2. Raja of Keonthal State, 3. Raja Bahadur Jodha Mal Kuthiala, Timber Merchant, Shimla. It was provided in the trust deed that Raja of Jubbal would be the Chairman of the Board of Trustees and the powers would be exercised by the majority of trustees. Defendant No.1 who succeeded to Keonthal State never showed this property as his personal property at the time of accession to the Union of India. A sum of Rs.65,000/- as compensation was also awarded by the Land Acquisition Collector in favour of defendant No.1, but this amount was collected by defendant No.2 on behalf of defendant No.1 and is a trust fund. Thus, it was alleged that the property mentioned in the plaint belongs to Ram Dharam Kosh Trust and defendants No.1, 4 and 6 are not rendering accounts and they are using income for their personal use, hence the suit filed by the plaintiffs. 4. In written statement filed by defendant No.1, he pleaded that the suit is not maintainable and that the suit is bad for mis-joinder of parties. It was also pleaded that Smt.Rani Indumati Ji never executed the deed nor she had acted as a trustee nor managed the trust property. He also pleaded that the Keonthal Bhawan at Haridwar is his personal and private property and has never been used as dharamshala. The allegations made in the plaint were denied in full. 5. On the pleadings of the parties, the followings issues were settled by the learned trial Court, on 27.4.1993: "1. Whether the suit properties are the properties of a public trust, as alleged? OPP 2. Whether the trust deed dated 4.8.1944 was executed by Rani Indumati, the settler of the trust in respect of the properties stated therein? OPP 3. If issue No.2 is proved, whether the trust deed dated 4.8.1944, was not acted upon as alleged (Objected to)? OPD 4. OPP 2. Whether the trust deed dated 4.8.1944 was executed by Rani Indumati, the settler of the trust in respect of the properties stated therein? OPP 3. If issue No.2 is proved, whether the trust deed dated 4.8.1944, was not acted upon as alleged (Objected to)? OPD 4. Whether the defendants have committed a breach of the conditions mentioned in the trust deed dated 4.8.1944 and have mis-utilized the trust properties and/or their usufruct as a whole or any part of them, as alleged? OPP 5. Whether the plaintiffs are entitled to get a scheme formulated for the management of the suit properties under Section 92 C.P.C.? OPP 6. Whether the suit is not maintainable under Section 92 C.P.C., as alleged? OPD 7. Whether this court has no jurisdiction to try the present suit? OPD 8. Whether the suit is bad for mis-joinder of parties as well as for mis-joinder of causes of action? OPD 9. Whether the constructive trust was created in respect of Keonthal Bhawan at Haridwar, as alleged, or it was a personal property of defendant No.1? O.P. Parties. 10. Relief." 6. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.1 to 3, 4 partly and 5 as against the plaintiffs, issues No.6, 7 and 8 in favour of the plaintiffs and accordingly decreed the suit by removing the existing trustees and new trustees were appointed. A decree for a sum of Rs. 3,12,000/- was also passed in favour of the trust and as against defendant No.1. Being aggrieved by the said judgment passed by the court below, original defendant No.1 (now represented by his legal representatives) had filed the present appeal against the said judgment and decree. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. In so far as the first question, which is a material question, is concerned, it has to be considered as to whether the trust was created by the erstwhile ruler Rani Indumati Ji and whether it was a public trust and not the individual property of defendant No.1, as claimed by him. 9. 8. In so far as the first question, which is a material question, is concerned, it has to be considered as to whether the trust was created by the erstwhile ruler Rani Indumati Ji and whether it was a public trust and not the individual property of defendant No.1, as claimed by him. 9. To substantiate his plea, the learned Senior Advocate, appearing for respondent No.14, had relied upon the decision in Kuldip Chand and another v. Advocate General to the Government of Himachal Pradesh and others, AIR 2003 SC 1685 , wherein the following observations were made : "A Hindu is entitled to dedicate his property for religious and charitable purposes even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity." This decision does apply to the facts of the present case as shall be discussed below. 10. The plaintiffs had claimed that two trusts were created vide trust deed dated 4.8.1944, named as Ram Dharam Kosh Trust and another trust in regard to the property at Haridwar. It has been clearly held and rightly so by the learned trial Court that in so far as the constructive trust at Haridwar is concerned, suffice to say that on account of the acquisition of the said property for a public purpose by the Government of Uttar Pradesh, the very purpose of this trust stands frustrated. These findings were not challenged by the learned counsel for the parties. This building was constructed for the people of Keonthal State, while staying at Haridwar in connection with religious visits. These findings were not challenged by the learned counsel for the parties. This building was constructed for the people of Keonthal State, while staying at Haridwar in connection with religious visits. In view of the acquisition of the land, the building cannot be used as dharamshala. The findings of the learned trial Court have also not been challenged wherein it was held that there was no question of payment of compensation money to the trust since the purpose for which the trust had been created was frustrated and defendant No.1 being the legal representative of the authors of the trust i.e. rulers of Keonthal State was entitled to seek the compensation money which findings are not under challenge. The trust deed has been proved in evidence as Ext.PW-14/A by PW-14 G.D. Sethi, Registration Clerk from the office of Sub Registrar, Sahranpur. The document being more than 30 years old did not require formal proof by examination of scribe or attesting witnesses. The document is also registered. The objects and purposes of the trust also find mention in clause 3 of the deed. The other purposes also mentioned therein. As per clause 6 of the instrument, the trust was to be administered by the author herself during her life time and after her death by the Board of Trustees, as mentioned above. According to the trust deed, the man holding the office of the Raja of Jubbal State, at the time of death of Rani Indumati Ji, was to become the Chairman of the Board of Trust. According to the admission made by defendant No.1 himself in Ext.PX, which is the record of the minutes of the meeting of Board of Trustees held on 24.5.1959, Raja Rana of Jubbal, Raja Sahib of Junga and Rai Bhadur Jodha Mall are recorded as trustees. The document is signed by all the three trustees including defendants No.1 and 4. Another document Ext.PY, dated 24.5.1959, refers to the discussions at the meeting of Board of Trustees. It is also signed by defendants No.1 and 4 and by late Rai Bhadur Jodha Mall in the capacity of trustees. The next document is Ext.PZ, which refers to the two trusts created by Rani Indumati Ji in respect of the properties at Junga and Haridwar. It is also signed by defendants No.1 and 4 and by late Rai Bhadur Jodha Mall in the capacity of trustees. The next document is Ext.PZ, which refers to the two trusts created by Rani Indumati Ji in respect of the properties at Junga and Haridwar. There is another letter Ext.PZ/1 written by defendant No.1 to Commandant General Home Guards, H.P. on 15.5.1963, which shows that he had agreed to let out the building known as Shree Ram Atur Ashram at Junga to Home Guards Department on behalf of the trust and not in his individual capacity. Ext.PZ/2 is another letter, dated 30.12.1951, written by defendant No.1 to defendant No.4 asking for a meeting of trustees to be convened so that orphanage at Junga was property maintained. Ext.PZ/3 is a letter dated 12.1.1978 written by defendant No.1 to defendant No.4 asking for the copy of the trust deed. Defendant No.1 examined on commission had admitted that all such letters, except Ext.PZ/5, were written by him to defendant No.4 and he also admitted his signatures on Exts.PX and PY. A combined reading of all the documents clearly proves that defendants No.1 and 4 had been acting as trustees of the trust created by Rani Indumati Ji and that the property in question was a trust property, which was let out to the Home Guard Department and it was not a self acquired property of defendant No.1. As per Ext.DZ, which is jamabandi for the year 1996-97, defendant No.1 is recorded as owner in possession, but his name figures in the jamabandi since he was one of the trustees. 11. Accordingly, a combined reading of the documents in question clearly rebuts the presumption of correctness attached to the revenue record in which the name of defendant No.1 appears but he was a trustee of the said property, as admitted by him in various documents referred to above, which have been proved according to law. 12. Under issue No.4, it has been clearly held that defendant No.1 had received the rent and he was liable to refund the said amount to the trust. Accordingly, the learned trial Court had rightly ordered that the amount of rent for three years should be ordered to be refunded to the trust. 12. Under issue No.4, it has been clearly held that defendant No.1 had received the rent and he was liable to refund the said amount to the trust. Accordingly, the learned trial Court had rightly ordered that the amount of rent for three years should be ordered to be refunded to the trust. However, there was no specific proof in regard to the mis-appropriation while managing the property and, therefore, this fact does not stand proved that there was mis-appropriation by defendant No.1 or other trustees and those findings do not call for an interference by this Court. No challenge was laid to any specific findings recorded as against the defendants, except as mentioned above. 13. In view of the above discussion, I accordingly hold that the final findings recorded by the learned trial Court, whereby defendants No.1 and 4 have been removed as trustees and new trustees in their place have been appointed and a sum of Rs. 3,12,000/- was ordered to be recovered from defendant No.1, are liable to be affirmed, which are affirmed accordingly. 14. I according hold that there is no merit in the appeal filed by the appellants, which his dismissed.