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2014 DIGILAW 2654 (ALL)

Bhagwan Laxmi Narain Virajman, Laxmi Narain Mandir v. Surendra Kumar Dikshit

2014-08-28

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya, J. Heard Shri D.C. Mukharji, learned counsel for the revision applicants, Shri J.P. Mathur and Shri S.K. Rastogi, learned counsel for the respondents. 2. In these proceedings instituted under Section 115 of the Code of Civil Procedure (herein after referred to as 'the Code'), under challenge is an order dated 10.02.2000, whereby the application moved by the petitioners before the court below seeking revocation of the leave granted on 17.12.1990, under Section 92 of the Code has been rejected. 3. The facts of the case as culled out from the pleadings on record and also from the perusal of the record of the learned court below are that one late Shri Mathura Prasad Seth, S/o Lala Ramdhan Seth, resident of District Lakhimpur, executed a will in his life time on 21.04.1982, whereby he bequeathed all his moveable and immovable properties to the deity of Laxmi Narayan Mandir, a temple constructed by Shri Mathura Prasad Seth from his own funds. For the management of the properties bequeathed in favour of the deity, the will deed created a trust and one Ram Kishore Seth, the nephew of late Shri Mathura Prasad Seth, was appointed as Sarvarakar of the said trust. Under the will-deed, a Committee of Management to manage the properties of the deity was also constituted. 4. After the death of testator of the will deed dated 21.04.1982, the Committee of Management took over the charge of the properties vested in the deity of the temple. However, it appears that some dispute was attempted to be raised by two persons, namely, Shri Surendra Kumar Dikshit and Shri Suresh Chandra Misra, and on 17.12.1990 an application by these two persons was made before the learned court below seeking leave of the court as contemplated under Section 92 of the Code. In the said application, it was stated by these two persons that they are members of Hindu Community and they offer prayer in the temple and further that they interested to institute a suit under Section 92 of the Code in the interest of Laxmi Narayan Temple, which has been constructed for public religious purposes for Hindu Community. They further stated that the opposite parties in the proposed suit are attempting to destroy the properties of the deity and they are also not following the terms mentioned in the trust created under the will deed dated 21.04.1982. They further stated that the opposite parties in the proposed suit are attempting to destroy the properties of the deity and they are also not following the terms mentioned in the trust created under the will deed dated 21.04.1982. Along with the said application dated 17.12.1990, these two persons also annexed the copy of proposed suit to be filed under Section 92 of the Code. The said application was allowed on the same day i.e. on 17.12.1990 by the learned District Judge. The order dated 17.12.1990 granting leave to Shri Surendra Kumar Dikshit and Shri Suresh Chandra Misra to institute a suit under Section 92 of the Code passed by the District Judge is quoted below: - "Heard. Counsel for the applicant cited AWC 1988 page 124, Mahant Sita Ram Das Vs.Ram Chandra Arora. I have considered. It is allowed. Munsrim to report and put up on 19.12.1990." 5. The aforesaid order dated 17.12.1990, passed by the District Judge permitting Shri Surendra Kumar Dikshit and Shri Suresh Chandra Misra to institute the suit under Section 92 of the Code was challenged by one Shri Radhey Shyam Seth before this Court by way of filing a Civil Revision No. 40 of 1991. In the said civil revision, initially an interim order was passed by this Court, however, the said civil revision was dismissed for non-prosecution on 16.08.1999. It appears that unmindful of the order dated 16.08.1999, whereby the civil revision was dismissed for non-prosecution, an application for withdrawal of the civil revision was moved by Shri Radhey Shyam Seth without mentioning the fact that the civil revision already stood dismissed for non-prosecution. The application moved by Shri Radhey Shyam Seth for withdrawal of the civil revision was allowed and hence, this Court by means of an order dated 14.01.1999 ordered the revision petition to be dismissed as withdrawn. 6. It is in the aforesaid circumstances that the applicant no.2-R.K.Seth, who is one of the members of Committee of Management constituted to run the affairs of the property of the deity under the will deed dated 21.04.1982, moved an application on 04.09.1999 with the prayer that leave to institute the suit granted earlier on 17.12.1990 be revoked. The said application moved by the present applicant was rejected by the learned Additional District Judge (In-Charge District Judge) by means of order dated 10.02.2000. The said application moved by the present applicant was rejected by the learned Additional District Judge (In-Charge District Judge) by means of order dated 10.02.2000. It is this order passed by the learned Additional District Judge, Lakhimpur Kheri, which is the subject matter of challenge in this revision petition. 7. Learned counsel appearing for the revision applicants has made elaborate arguments challenging the impugned order dated 10.02.2000. His submission, primarily, are that the learned District Judge while granting the leave by means of the order dated 17.12.1990 passed the order in absence of any material whatsoever before him and further that the said order is absolutely cryptic and bald and does not contain any reasons for granting the leave, which warranted the order dated 17.12.1990 to be set aside and the application moved by the revision applicant dated 04.09.1999 to be allowed. In support of his submission, learned counsel for revision-applicants has further stated that the Additional District Judge by passing the impugned order dated 10.02.2000 has given a finding that the order dated 17.12.1990 was passed after application of mind by the District Judge which is completely erroneous and the error is apparent from a bare perusal of the order dated 17.12.1990. 8. The second limb of the argument advanced by learned counsel for the revision-applicants is that the Trust in question created under the will dated 21.04.1982 is not a Private Trust, rather it is a Private Trust, which was created by late Shri Mathura Prasad Seth for the purposes of management of the properties bequeathed under the will by him to the deity installed in Laxmi Narayan Mandir, which was constructed by Shri Seth out of his own funds. Thus, in view of these undisputed facts, the Trust in question cannot be termed to be a Public Trust, rather it is a Private Trust and hence, in respect of said Private Trust, the question of granting leave as contemplated under Section 92 of the Code did not arise at all. 9. I have considered the arguments made by learned counsels appearing for the respective parties and have also perused the record of the learned court below. 10. To decipher as to whether the Trust created under the will by late Shri Mathura Prasad Seth is a Public Trust or a Private Trust, it is necessary to refer to the will executed by him on 21.04.1982. 10. To decipher as to whether the Trust created under the will by late Shri Mathura Prasad Seth is a Public Trust or a Private Trust, it is necessary to refer to the will executed by him on 21.04.1982. The arrangement made in the will for movable and immovable properties belonging to late Shri Mathur Prasad Seth is that till his life time Shri Seth would be the owner in possession of the entire property and after his death, it is his wife, Smt. Brij Rani Devi, who will succeed the properties. However, the condition is imposed in the will that if Smt. Brij Rani Devi succeeds the property, she will have no right to transfer or alienate the same. A perusal of the recitals made in the will further reveals that the testator desired that after the death of his wife, Smt. Brij Rani Devi, the owner of the entire movable and immovable property including the bank accounts will be Shri Laxmi Narayan Bhagwan, the deity installed in temple constructed by the testator and his wife, situate in Mohalla Bhuiphorva Nath Nagar, Lakhimpur, Pargana and District Kheri. Thus, the aforesaid recitals made in the will dated 21.04.1982 clearly establish that the movable and immovable property belonging to late Mathura Prasad Seth devolved in the deity of the temple which was already constructed by the testator and his wife. It is to note that the entire movable and immovable properties, the testator desired, will devolve on the deity installed in temple. According to the will dated 21.04.1982, the properties, thus, devolved on the deity already installed in the temple which was built by late Shri Mathura Prasad Seth in his life time. 11. For the purposes of managing the property, which was devolved on the deity of the temple, a Committee of Management was also constituted under the will deed dated 21.04.1982, which comprised of various persons, many of whom were family members of the testator, Shri Mathura Prasad Seth. Another distinguishing fact, which needs to be taken into note of while examining as to whether the trust created under the will is a Public Trust or a Private Trust is that the will under which the Trust has been created also makes provision for appointment of Sarvarakar of the temple. Another distinguishing fact, which needs to be taken into note of while examining as to whether the trust created under the will is a Public Trust or a Private Trust is that the will under which the Trust has been created also makes provision for appointment of Sarvarakar of the temple. The first Sarvarakar, as per the will, would be Shri Ram Kishore Seth, who is the nephew of the testator. The Sarvarakar has also been entrusted to chair all the meetings of the Committee of Management. The recitals made in the will also elaborate that after the death of the first Sarvarakar, Ram Kishore Seth, a person belonging to the family of the testator alone shall be appointed as the next Sarvarakar. It is only in absence of any member of the family of the testator that someone outside his family could be appointed as Sarvarakar. Thus, the lineage set up in the will deed for assuming the charge of the Sarvarakar of the temple itself would suffice to establish that the trust created is not a Public Trust. Various responsibilities entrusted to the Sarvarakar to be appointed from amongst the members of the family of the testator himself also suggest that the nature of the Trust sought to be created under the will is not a Public Trust; rather a Private Trust. 12. Hon'ble Supreme Court in the case of Kuldip Chand and another vs. Advocate General, Government of Himachal Pradesh and others; reported in, [2004(22) LCD 5], has, following various earlier of judgments of Hon'ble Supreme Court has laid down certain guidelines to determine as to whether a trust or endowment is of a public nature or private nature. 13. Para 47 of the said judgment in the case of Kuldip Chand (supra) runs as under: - "This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature : (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. " 14. If the facts of the case as stated above, are taken into consideration and the test as laid down by Hon'ble Supreme Court in the case of Kuldip Chand (supra) is applied, the only irresistible conclusion which can be drawn is that the Trust created under the will dated 21.04.1982 is a Private Trust. Hon'ble Supreme Court in guideline (3) in the aforesaid judgment of Kuldip Chand (supra) has observed that where, a document is available to establish the nature and origin of the Trust and the recitals of the documents show that the control and management of the temple is retained with the founder or his decendants, and that extensive property are dedicated for the purposes of maintenance of the temple belonging to the founder himself, it will be a conclusive proof to establish that the Trust or endowment is of a private nature. 15. In the instant case, as discussed above, the recitals made in the will dated dated 21.04.1982, by which, the Trust has been created to manage the property bequeathed upon the deity of the temple under the same will, clearly reveals that the management of the temple has been entrusted to the descendants of the testator of the will, Shri Mathura Prasad Seth. The recitals made in the will further establish, without any doubt, that the entire property including the immovable property in the form of Bank Accounts and Fixed Term Deposits were dedicated to the deity for the purposes of maintenance of the temple, which was constructed by the testator of the will during his life time. 16. The trust, thus, in my considered opinion, was formed by executing the will dated 21.04.1982 for the purposes of maintenance of the temple, which belonged to and was constructed by the founder of the Trust, namely, Shri Mathura Prasad Seth. In this view, if the guideline no.3 has given in the judgment of the Hon'ble Supreme court in the case of Kuldip Chand (supra) is applied to the facts of the present case, I have no doubt in my mind that the Trust in question is a Private Trust. 17. Submission of learned counsel for the revision-applicants that the Trust in question is not a Public Trust is, thus, accepted. 18. It may further be noticed that Section 92 of the Code contains a provision where two or more persons having some interest in a Trust created for public purposes of a charitable or religious nature can institute a suit in case of breach of the express or constructive Trust so created. The phrase, for the purposes of this case, which assumes importance is "public purposes of a charitable or religious nature". 19. As discussed above, the Trust under the will dated 21.04.1982 was created, though for religious purpose but the said purpose, as per the recitals in the will deed, cannot be said to be a public in nature for the simple reason that the property devolved upon the deity is to be utilized for the purposes of maintenance of a temple which was constructed by the testator of the will himself. The recitals made in the will deed which created the Trust, thus, clearly establish, keeping in view the guideline no.3 in the judgment of Hon'ble Supreme Court in the case of Kuldip Chand (supra) that the Trust in question is a Private Trust. 20. The recitals made in the will deed which created the Trust, thus, clearly establish, keeping in view the guideline no.3 in the judgment of Hon'ble Supreme Court in the case of Kuldip Chand (supra) that the Trust in question is a Private Trust. 20. In view of the above discussion, though the revision petition deserves to be allowed on the aforesaid ground alone and the impugned order dated 10.02.2000 deserves to be set aside, but in the facts and circumstances of the case, the order dated 17.02.1990 also can not be permitted to be sustained. 21. The other argument raised by the learned counsel for revision-applicants also needs consideration by this Court. The order granting leave to the two gentlemen for instituting the suit under Section 92 of the Code has been reproduced in one of the foregoing paragraphs of this judgment. Learned Additional District Judge while rejecting the application moved by the revision-applicants seeking revocation of the leave granted on 17.12.1990 has observed that the leave granted under Section 92 of the Code being a judicial order should indicate application of mind. He further says in the impugned order that the order dated 17.12.1990 seems to be concise but it appears that the learned Judge did apply his mind to the application and accompanied memo of petition for arriving at such a finding that the learned judge while passing the order dated 17.12.1990 applied his mind. The court below has relied upon the following words used in the order dated 17.12.1990, "Heard. I have considered." The learned Additional District Judge further observes in the impugned order that the order dated 17.12.1990 does not mention the description of the parties, cause of action, or the relief but when the learned District Judge considered the application with the accompanying plaint, it would be deemed that he did apply his mind. 22. I am afraid, I cannot agree with the aforesaid findings and reasons given by the learned Additional District Judge while passing the impugned order dated 10.02.2000. The learned District Judge while passing the order dated 17.12.1990 has not even discussed the plaint allegations mentioned in the proposed plaint. He has not even discussed the reliefs clause of the plaint. 22. I am afraid, I cannot agree with the aforesaid findings and reasons given by the learned Additional District Judge while passing the impugned order dated 10.02.2000. The learned District Judge while passing the order dated 17.12.1990 has not even discussed the plaint allegations mentioned in the proposed plaint. He has not even discussed the reliefs clause of the plaint. He has also not discussed the issue as to whether the facts and circumstances of the case put forth by Shri Surendra Kumar Dikshit and Shri Satish Chandra Misra warranted institution of the suit under Section 92 of the Code. The order, thus, it is absolutely bald and cryptic. At this juncture, regard may be had to a judgment of this Court in the case of Devendra Kumar Mishra vs. Ramendra Kumar and others, reported in [ 2005 (23) LCD 1572 ], wherein while dealing with an order passed by the learned District Judge in respect of the application moved for leave of the court to institute the suit under Section 92 of the Code, the Court has held that to invoke Section 92 of the Code, three conditions have to be satisfied, namely,(i) the Trust is created for public purpose of a charitable or religious nature; (ii) there was a breach of Trust or direction of a Court necessary in the administration of such a Trust and; (iii) the relief claimed as one or the other of the reliefs enumerated under Section 92 of the Code. 23. The proceedings under Section 92 of the Code in respect of breach of Trust created for public purposes of a charitable or religious nature can be instituted for a decree for: - (a) Removing any trustee; (b) Appointing a new trustee; (c) Vesting any property in a trustee; (cc) Directing a trust who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and and inquiries; (e) Declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust; (f) Authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged; (g) Settling a scheme; or (h) Granting such further or other relief as the nature of the case may require. 24. 24. Thus, in view of the aforesaid judgment in the case of Devendra Kumar Mishra (supra), it was incumbent upon to the learned District Judge while considering the application seeking leave to institute the proceedings under Section 92 of the Code to have given a finding on the aforesaid three conditions. The order dated 19.12.1990, thus, fails if tested on the touch stone of the law laid down by this Court in the case of Devendra Kumar Mishra (supra) and by Hon'ble Supreme Court in the case of Kuldip Chand (supra). 25. There is yet another aspect, which, I would like to go into Hon'ble Supreme Court in the case of Vidyodaya Trust vs. Mohan Prasad R. and others, reported in [ 2008 (26) LCD 1768 ] has held that a suit under Section 92 of the Code is a suit of a special nature which presupposes the existence of a Public Trust of a religious or charitable character. It has further been held by Hon'ble Supreme Court that a suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under Section 92 of the Code. It has further been held by Hon'ble the Apex Court that if in a given case notice has not been given and leave has been granted, it is open to the Court to deal with an application for revocation and pass necessary orders. 26. In the instant case, as observed above, initially the order granting leave dated 17.12.1990 was challenged before this Court by way of filing Revision Petition No.40 of 1991 by one Radhey Shyam Seth, which was, though subsequently dismissed for non-prosecution, withdrawn on an application made by Shri Radhey Shyam Seth. In these circumstances, the possibility of Surendra Nath Dikshit and Suresh Chand Misra conniving with Radhey Shyam cannot be ruled out. 27. It may be noted that every suit claiming reliefs specified under Section 92 of the Code which can be brought under that Section; but it is only a suit, which besides claiming any of the reliefs, is brought by individuals as representatives of the public for vindication of public right that will fall under Section 92 of the Code. 28. It may be noted that every suit claiming reliefs specified under Section 92 of the Code which can be brought under that Section; but it is only a suit, which besides claiming any of the reliefs, is brought by individuals as representatives of the public for vindication of public right that will fall under Section 92 of the Code. 28. The Court while considering an application seeking leave under Section 92 of the Code is thus legally bound to go into the aforesaid aspects in a given case and give its finding to the effect that leave to institute the proceedings under section 92 of the Code is warranted. The learned Additional District Judge while considering the application moved by the revision-applicants for revocation of the leave dated 17.12.1990 has completely failed to address itself on the aforesaid issues which renders the impugned order dated 10.02.2000 vitiated. 29. In view of discussion made and reasons given above, the order dated 10.02.2000 is not sustainable. 30. At this juncture, I may further observe that Shri Surendra Kumar Dikshit and Shri Suresh Chandra Misra, who sought leave of the court to institute the proceedings under Section 92 of the Code have died, as such, there is no reason at this point of time that the order dated 17.12.1990 should be maintained. 31. In the aforesaid view of the matter, the revision petition is allowed and the orders dated 10.02.2000 passed by the IVth Additional District Judge, Lakhimpur Kheri in Civil Suit No.1/1990, Surendra Kumar Dixit vs. Lakshmi Narain Mandir, etc. and the order dated 17.12.1990 passed by the learned District Judge in the said case are hereby set aside. 32. However, there will be no order as to costs.