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2022 DIGILAW 1908 (ALL)

Meena Devi v. Babu Ram

2022-12-03

UMESH CHANDRA SHARMA

body2022
JUDGMENT : UMESH CHANDRA SHARMA, J. 1. This civil revision has been instituted against the order dated 15.9.2016 passed by Additional District and Sessions Judge/Fast Track Court, Court No. 2, Kannauj, in Original Suit No. 01 of 2014, Smt. Meena Devi vs. Babu Ram. 2. By the impugned order, the learned Court below allowed the application 25 C2 and directed the plaintiff to implead the applicants as defendants. 3. In brief, facts of the case are that Meena Devi filed an original suit no. 1 of 2014 under Section 74 of the Indian Trust Act in the Court of District and Sessions Judge Kannauj stating therein that one Ram Prasad, who was the trustee and occupant of the properties A, B and C mentioned in the foot of the plaint, constructed a Shiv Mandir in village Balarpur, District Kannuaj, over the land of list “A” which was known as Mahadev Mandir. He also constructed Thakur Gi Temple and some other temples over the land of list B and vested the land of list “C” for the maintenance of temples made over the land of list A & B. He also constructed one room in the plot A & B. In this regard he executed a deed on 2.12.1959 and appointed Swami Ram Charan disciple Bhagwandas as the Sarvarakar (priest). The aforesaid Ram Charan died during the life time of Ram Prasad, therefore, he executed another deed on 29.4.1982 appointing Jageshwar Prasad (plaintiff's husband) as the Sarvarakar of the temple and also authorized him to appoint Sarvarakar of his choice. Apart from being appointed by Jageshwar Prasad the plaintiff is also his legal representative being his wife. Thus she has become Sarvarakar of the impugned trust. Jageshwar Prasad executed a will deed dated 8.2.2014 appointing the plaintiff as Sarvarakar and after their death their heirs by way of inheritance for the time immemorial. 4. After death of Jageshwar Prasad on 5.4.2015, on the basis of deed executed by him, the plaintiff became Sarvarakar. She was also given right to appoint Sarvarakar being legal representative of Jageshwar Prasad. Jageshwar Prasad had also constructed Dharmshala over the land of list A & B from the income of the property of list “C” and with his own income. She was also given right to appoint Sarvarakar being legal representative of Jageshwar Prasad. Jageshwar Prasad had also constructed Dharmshala over the land of list A & B from the income of the property of list “C” and with his own income. The defendant has no concern with the property of list A, B & C. The defendant saying himself to brother of Jageshwar Prasad is not ready to get the name of the plaintiff mutated. The defendant Babu Ram, is not ready to get the name of the plaintiff recorded in the revenue record, therefore, it was prayed to appoint the plaintiff as Sarvarakar of the temple through Court. This Court has jurisdiction to try the suit hence it was prayed to appoint the plaintiff as Sarvarakar of the property A, B & C of the plaint. 5. During the pendency of the case, an application under Order 1 Rule 10 CPC was moved by Anil Srivastava and Shiv Nath stating that the suit is based on false and fabricated facts. The defendant is real brother in law (Devar) of the plaintiff. The temple was constructed by original trustee Ram Prasad and he had gifted his Bhumidhari property situated in the village Sahajhapur and Balarpur vide registred deed dated 2.12.1959. He had also executed an amendment agreement dated 29.4.1982 and appointed Jageshwar Prasad Katiyar his manager and trustee of the trust and also authorized him to appoint manager and trustee during his lifetime. 6. During lifetime of Jageshwar Prasad, he neither appointed any manager nor executed alleged deed dated 8.2.2014 in favour of the plaintiff. The alleged unregistered deed is forged and fictitious which bears no signature of Jageshwar Prasad. The plaintiff is not the sarvarakar of the impugned trust nor she can be. 7. Jageshwar Prasad had jointly executed an affidavit dated 8.9.2012 whereupon his original signature are present. Apart from that he had also signed on declaration as guarantor. The original signature is totally different from the signature that has been made on the alleged deed dated 8.2.2014. The plaintiff has no concern with the trust. She is not in possession over the trust property. Apart from that he had also signed on declaration as guarantor. The original signature is totally different from the signature that has been made on the alleged deed dated 8.2.2014. The plaintiff has no concern with the trust. She is not in possession over the trust property. In fact the trust is a public trust and the defendant/applicants who are the residents of village Balarpur, perform worship in the temple and look after its property and they are the beneficiary and necessary party to the suit, therefore, plaintiff be directed to implead the applicants as defendants so that the correct facts through the written statement/objections may be presented. Plaintiff and defendants are in collusion and have concealed the facts. They want a decision from the court to grab the trust property. 8. After hearing both the parties the learned Additional District and Sessions Judge allowed the application and directed the plaintiff to implead the applicants as defendants on the ground that it is true that the plaintiff and defendants are the real Devar and Bhabhi, the facts of the suit were admitted by the defendants and they wanted the case to be decided accordingly. There is apprehension of grabbing the property of the trust and hence the Court below found that applicants must be impleaded as defendant to bring the true facts before the Court. 9. Being aggrieved by the aforesaid order, the present revision has been preferred by the revisionist-plaintiff on the ground that the Court below has exercised its jurisdiction illegally and has allowed the application under Order 1 Rule 10 CPC after recording the finding that the papers relied upon by the plaintiff is forged and fictitious without giving an opportunity to prove its genuineness which will cause failure of justice and irreparable loss to the revisionist. The Court below has failed to consider that the trust is a private trust and not a public trust. The Court has also failed to consider that the applicants have no connection with Ram Prasad, the creator of the trust or with Jageshwar, the trustee appointed by Ram Prasad. The Court below has also failed to consider that the document dated 8.2.2014 is a will deed and need not be registered and is a valid document unless its execution appears to be in suspicious circumstances. The Court below has also failed to consider that the document dated 8.2.2014 is a will deed and need not be registered and is a valid document unless its execution appears to be in suspicious circumstances. The Court below has also failed to consider that the conditions under Order 1 Rule 10 CPC are not satisfied. 10. Heard learned counsel for the revisionist, learned counsel of opposite party and perused the record. 11. Learned counsel for the revisionist submits that the impugned trust is a private trust and after death of revisionist's husband, Jageshwar Prasad, she moved an application under Section 74 of the Indian Penal Code making her brother-in-law (Devar) as defendant to appoint her as Sarvarakar on the basis of alleged will deed executed by her husband Jageshwar Prasad on 8.2.2014 and also on the basis of being legal representative of the deceased Jageshwar Prasad. 12. The facts of the case have already been mentioned earlier. The deed executed by Ram Prasad is annexed as annexure no. 1 with the revision wherein he admits that there is a temple of Shri Shiv Ji built on the Thatiya road in his village for which there is no land for the arrangement of worship, yoga etc. 13. From the perusal of the aforesaid documents it transpires that the Shiv Ji Mandir in Thathiya road in the concerned village was not built by Ram Prasad. Later on he being issueless, wished to dedicate his property, details of which have been mentioned in the deed, for all kinds of expenses, repair and colour, yoga etc of the said temple. Accordingly he had dedicated his property to the said temple and also imposed the condition that he will be manager of the said temple and attached his property to it and after his death Shri Swami Ramcharan Chela Bhagwandas will be the priest of Shivji temple. It has also been mentioned that during lifetime of Ram Prasad, Swami Ramcharan Chela Bhagwanadas died and later on another deed was executed by Ram Prasad on 29.4.1982 in which contrary to the averments of the previous deed, he has stated that Shiv Ji Mandir was built by him at Thatia road and he had gifted his property for the purposes of worship, Arti, Yoga, festival and repair etc. He has also admitted that he has become very old and now he is unable to perform the work of the temple. Jageshwar Prasad Katiyar son of Ram Das Katiyar, does help him in his work and also keeps proper arrangement for his food and lodging etc. Thus he amended initial waqfnama dated 2.12.1959 and appointed Jageshwar Prasad as manager and trustee and also given him right to appoint any person as manager and trustee in his lifetime. 14. As per the contention of the learned counsel for the revisionist, Jageshwar Prasad died in the month of April, 2014 and before his death he had executed will deed dated 8.2.2014 wherein he has referred the deed executed by Ram Prasad. He also mentioned that Ram Prasad had appointed him Sarwarakar through letter of authority dated 29.4.1982 and he was also given right to appoint Sarwarakar because there is no one in the family of Ram Prasad, therefore, under the right he appointed his wife as Sarwarakar after his death and also that after the death of his wife his sons will be Sarwarakar and after them, their sons shall be Sarwarakar and it shall be continued generation to generation. 15. In this case no proceedings under Section 73 of the Indian Trust Act has been adopted but an application has been filed for appointing the applicant-revisionist as Sarvarakar, under Section 74 of the aforesaid Act, making brother-in-law as defendant who has although denied the averments of the application in written statement but it is very precise wherein no complete facts have been mentioned. It has also been noticed that when in the year of 1959 initially the trust was created by Ram Prasad, Shivji Temple was already into existence at Thatiya Road. It appears that the temple was built for pubic at large and Dharmshalas were made for the benefit of public at large and for proper maintenance, properties of list C were donated to the temple. Admittedly Ram Prasad had no issue, therefore, it appears that his intention was to create the trust for the benefit of public in general and only maintenance right was provided to Jageshwar Prasad. It is also noteworthy that both the deeds of 1959 and 1982 were registered deeds. The question arises as to whether the Sarwarakary rights could be created by way of an unregistered will or any registered instrument is required. 16. It is also noteworthy that both the deeds of 1959 and 1982 were registered deeds. The question arises as to whether the Sarwarakary rights could be created by way of an unregistered will or any registered instrument is required. 16. Certainly the applicant Smt. Meena Devi and the opposite party Babu Ram are the family members. The trust was not created for the benefit of their family. Therefore, a burning question arises as to whether the said trust is private or public in nature. If the property in suit is a public property for public charities then Section 92 CPC would come into picture and the provisions of Indian Trust Act would not apply. 17. The opposite party has also denied the execution and signature of Jageshwar Prasad on the alleged will deed. According to the revisionist the alleged will deed had been executed by Jageshwar Prasad in the month of February 2014 and just thereafter in the month of April, 2014, Jageshwar Prasad had died. The question arises as to whether at the time of execution of the alleged will deed, Jageshwar Prasad was a person of sound mind and health or not. The burning question also arises as to whether the alleged deed is in consonance to the deed executed by initial trustee Shri Ram Prasad or not. It appears that it was not the intention of Ram Prasad that the property should go to a particular race or the family. No restriction was imposed by Ram Prasad regarding entry of any person of Hindu community in the aforesaid temples. The opposite parties have come with the case that the alleged will deed dated 8.2.2014 is forged and fictitious which bears no signature of Jageshwar Prasad. It is also a question that it is an unregistered deed on which basis whether the plaintiff can be appointed as Sarwarakar. Prima-facie the impugned trust appears to be a public trust and the applicants are the original residents of village Balarpur, they worship in the temple and according to them, they also look after its property, therefore, they are the beneficiary. According to the applicants both the parties are in collusion so they can usurp the trust property, therefore, applicants be arrayed as party to bring the correct fact before the Court. 18. The learned Court below considering the applicants to be necessary party, allowed the application. According to the applicants both the parties are in collusion so they can usurp the trust property, therefore, applicants be arrayed as party to bring the correct fact before the Court. 18. The learned Court below considering the applicants to be necessary party, allowed the application. Being aggrieved, the revisionist has preferred this revision: Order 1 Rule 10 CPC is as under: 10. SUIT IN NAME OF WRONG PLAINTIFF (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 19. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 19. Order 1 Rule 10 CPC enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions. 20. In Balasaheb vs. Venkat, (2006) SCC 530, it is held that: “In application for impleadment under Order 1 Rule 10 CPC, the only question that comes to be decided as whether the presence of the applicant before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle all the disputes involved in the proceedings.” 21. In Amit Kumar vs. Farida, AIR 2005 SC 2209 , it is held that: “a person can be added as a party in two cases, viz. (a) if he ought to have joined as a party to the suit and has not been so joined; (b) if the suit can not be decided without his presence.” 22. In Anil Kumar vs. Shiv Nath, (1995) 3 SCC 147 , it is held that: “out of several tests for deciding the question if a third person should be allowed to be added as a party in a suit, the important tests are: (1) whether the result of the suit will affect the third party applicant; (2) whether the court will be required to answer any issue other than those arising or would arise from the suit from the pleadings of parties to the suit; and (3) whether the presence of the party will facilitate effective and complete adjudication of all questions involved in the suit. A party may be added although no relief has been claimed against him. His presence is necessary for a complete and final adjudication. He is thus a proper party.” 23. In S.T.C. vs. Chittoor Co-operative, AIR 1990 Del. 142 , it is held that: “there may be cases when some person has to be impleaded as party defendant for proper adjudication of the dispute although no relief can be claimed against him.” 24. In Ratan Muni College vs. Additinal Civil Judge, AIR 1995 All. In S.T.C. vs. Chittoor Co-operative, AIR 1990 Del. 142 , it is held that: “there may be cases when some person has to be impleaded as party defendant for proper adjudication of the dispute although no relief can be claimed against him.” 24. In Ratan Muni College vs. Additinal Civil Judge, AIR 1995 All. 7 , it is held that: “theory of dominus litis should not be over stretched. The Court may order that a party be joined at any stage of the proceeding to completely and effectively adjudicate the dispute even if a party to the suit does not choose to implead.” 25. In Udit vs. Additional Member Board of Revenue, AIR 1963 SC 786 , it is held that: “Court can suo-motu or on the application of a party can add or implead a proper party for completely settling the dispute.” 26. In Kasturi vs. Iyyamperumal, AIR 2005 (6) SC 733, it is held that: “for determining whether a party is a necessary party or not, the following two facts are to be satisfied: (1) there must be a right to some relief against such party in respect of conditions involved in the proceeding. (2) no effective decree can be passed in the absence of such a party.” 27. In Basanligappa vs. Nagamma, AIR 1969 Mys. 313, it is held that: “the provisions of this rule shall be applicable in so far as they are not inconsistent with the provisions of a special statute.” 28. Thus it can be said that even in the proceeding of Indian Trust Act order 1 Rule 10 CPC is applicable. 29. On the basis of above discussion, this Court is of the opinion that the Court below has correctly allowed the application of the applicants and directed the revisionist to implead them as defendants. It is also noteworthy that several questions have been arisen out from the above discussions which could only be decided by impleading the applicants/opposite parties in the application moved by the revisionist under Section 74 of the Indian Trust Act. Thus, the impugned order does not suffer from any error or illegality and the revision is liable to be dismissed. 30. Accordingly, the revision is dismissed with cost. Stay order dated 5.10.2016 is hereby vacated. Let a copy of this order be sent to the Court below for proceeding further.