Sudhir Kumar Mehta & Others vs Suresh Mehta & Another

Lok Pal Singh, J

1) Civil Revision under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), is directed against the judgment and order dated 24.01.2018, passed by District Judge, Haridwar in Misc. Case no. 123 of 2013, Sudhir Kumar Mehta & others Vs Suresh Mehta & others, whereby the application filed by the applicants / revisionists has been rejected and permission to institute suit under Section 92 of the Code was declined.

2) Facts leading to filing of present civil revision are that the applicants (revisionists herein) moved an application before the trial court for permission under Section 92 of the Code to institute a suit in regard to the trust property seeking following reliefs in the plaint annexed with the application:

(i) That the possession of the trust property and its management be handed over to the new trustees after framing a scheme of administration for the management of the trust property in question.

(ii) That defendant nos. 1 to 6 be removed from the trust property in question and new trustees be appointed in their place.

(iii) That the possession of the trust property in question be taken from defendant nos. 1 to 6 and the same be handed over to the new trustees.

(iv) That defendant nos. 1 to 6 be asked to furnish the complete details of expenses.

(v) That the expenses of litigation be ordered to be paid by defendant nos. 1 to 6 to the plaintiffs.

3) An application seeking permission to institute a suit under Section 92 of the Code filed by the applicants was registered as Misc. Case no. 123 of 2013. The said application was accompanied with the plaint of the suit. Following averments were made in the plaint:

(a) That the owner of the property detailed hereunder was Jawahar Singh Mehta, who during his lifetime, has dedicated the said property for public charity i.e. baraatghar / Dharamshala and for this purpose he executed a registered document dated 15.01.1908 through trust deed.

(b) That by means of said document Shri Jawahar Singh Mehta appointed himself an Administrator of the property in question during his lifetime and has appointed Lala Banwari Lal, Lala Ramchandra, Lala Khairali Lal and Lala Shadi Ram as trustees for the management of property in question after his death.

(c) That after formation of the trust Shri Jawahar Singh Mehta had no personal interest in the property in question and all the trustees appointed by Shri Jawhar Singh Mehta have died.

(d) That in the settlement of the year 1935 of Nagar Palika, Haridwar, the property in question was registered as Khasra no. 3656 in the name of Waqf Dharamshala Mehta Jawahar Singh which is still continuing.

(e) That in the trust deed executed by Shri Jawahar Singh Mehta rights have been granted to the father and other legal heirs of any trustee on his death, but besides Lala Ram Chandra none of the legal representatives of any trustee has taken interest in the trust and only Lala Rikhiram Mehta, legal representative of Lala Ram Chandra, was managing the affairs of the trust property in question and the said property was used continuously as a Dharamshala.

(f) That after the death of Rikhiram Mehta on 28.01.1994, his son / legal representative Shri Madan Lal Mehta moved an application dated 19.06.2000 for getting names of his four brothers recorded as legal heirs in the tax assessment account of the Nagar Palika, on the basis of which their names were entered in the account of the property in question in the individual capacity which is wrong and is still continuing.

(g) That defendant nos. 1 to 6 are trying to show their individual rights over the property in question on the ground that they are the legal heirs of late Shri Rikhiram Mehta, whereas defendant nos. 1 to 6 neither ever had any concern nor had any concern in regard to ownership of trust property in question at present.

(h) That in the trust deed executed by Shri Jawahar Singh Mehta the property in question was dedicated for public use, as such, no question of any personal interest of defendant no. 1 to 6 arises in the said property.

(i) That the property in question has continuously been used as a Dharamshala and consists of 16 shops on the east, west and southern side of the road, most of which are let out.

(j) That the public property in question has been shown illegally by defendant nos. 1 to 6 as their personal property and they had also stopped the public use of the property in question and recently, after his retirement, defendant no. 1 had illegally taken possession of the building in question for his personal family residence and the income from the shops constructed on the property in question is also being misappropriated for which he had no right.

(k) That the trustees mentioned in the trust deed were the ancestors of the plaintiffs and the interest of the plaintiffs were continuing in the trust in question and they are interested in the Trust. Plaintiffs used to manage the property in question for marriage celebrations and religious functions and the intention of the plaintiffs is to safe guard the interests of common public and to save the public religious property in question from destruction, therefore, the plaintiffs are instituting the present suit in the representative capacity and in the interest of common public.

(l) That defendant nos. 1 to 6 are misappropriating the income of the trust property in question, therefore, it is necessary to remove them and to frame rules for new management in respect of property in question and new trustees be appointed for proper management of the property in question, in order to safeguard the interest for the fulfillment of which the founder of the trust had formed the trust.

(m) That when the plaintiffs enquired from defendant nos. 1 to 6 in regard to the management of the trust property in question, they straight away refused to give any information and claimed that the property in question is an individual property, on which the plaintiffs gathered information and made enquiries from the competent departments and offices and the entire facts came to his knowledge.

(n) That the property in question is situated within the jurisdiction of the court, as such, the court has jurisdiction to hear the present suit.

(o) That the valuation of the suit is assessed at rupees five crores on the market value of the property in question for which prescribed court fee has been paid.

4) The learned District Judge before granting leave to institute the suit under Section 92 of the Code invited objections from the respondents / defendants. Defendants filed their objections against the application for leave to institute the suit. In paragraph 2 of their objections, defendant nos. 4 and 5 (respondent nos. 4 and 5 herein) showed the lineage of the father of executer of the alleged trust deed Vazeer Singh and stated that Jawahar Singh died issueless and was not the only owner of the property in question and his brother late Lala Biharilal was also the owner of the property in dispute whose son was Ramchandra and Rikhiram Mehta was the son of Ramchandra. That defendants no. 1 to 3 are the sons of Rikhiram and defendant nos. 4 to 6 are the sons of late Om Prakash, fourth son of late Rikhiram. Thus, Shri Jawahar Singh had no right to execute the trust deed in individual capacity, as such, said document dated 15.01.1908 is only a vague and sham document which was never acted upon. In paragraph 13 of the objection, the averment made by the applicants was denied that the property in question was continuously being used for public dharamshala which consists of 16 shops situated on the east, west and southern side of the road. It was stated that all the shops were constructed by their grandfather late Rikhiram Mehta by his own earning, some of which were let out and some are being used for personal use of the family. It was also stated that only one hall with verandah was dedicated for waqf purpose in the trust deed and not the entire property. It was also stated that the electricity, water and house tax were in the individual name of late Shri Rikhiram Mehta since long and not in the name of alleged dharamshala or trust. A objection has been raised by defendant nos. 4 and 5 that in paragraph 12 of the application it has been stated by the applicants that new trustees be appointed in place of the defendants, but Section 92(1) of the Code speaks about the relief in regard to the removal of the trustee and not any third party, therefore, the proposed relief is beyond the purview of Section 92 of the Code and misc. case as well as proposed original suit are barred by limitation.

5) Objections have also been filed by defendant no. 1, wherein it has been stated that the property in question as mentioned in the trust deed has never been dedicated to waqf and as such the said document is a sham document and no right has been accrued to Jawahar Singh Mehta in respect of property shown in the document. In paragraph 11 of the objection it has been stated that the property in question is recorded in the records of Nagar Palika since 1946 and name of Shri Rikhiram Mehta, father of defendant no. 1, is recorded as owner of the property and after his death names of his legal heirs were recorded in the records of the Nagar Palika in respect of the property in dispute which is still continuing and the statement of the applicants that the property in dispute has been continuously used as public dharamshala is baseless. Rest of the contents raised in the objection filed by defendant nos. 4 and 5 have been reiterated. Defendant nos. 2 and 3 have also reiterated the averments made by defendant nos. 2, 3, 4 and 5 in their objections.

6) In support of their case, applicants filed following documents, viz., certified copy of trust deed dated 15.01.1908; certified copy of assessment of khata no. 259/239 of Nagar Palika Parishad, Haridwar, Mohalla Lodhamandi from 1st April 2001; copy of khevat khasra abadi Haridwar of 1343 Fasli (year 1935) along with Hindi translation; certified copy of application dated 03.09.1985; certified copy of O.S. no. 124/ 71 Rikhiram Vs Jeevandas; certified copy of the decree of the said O.S.; certified copy of O.S. no. 282/74, Jeevandas VS Lala Rikhiram and certified copy of written statement of said suits.

7) Defendant nos. 4 and 5 filed following documents in support of their objections, viz., certified copy of assessment Nagar Palika April 1956 to March 1964; certified copy of assessment Nagar Pakika April 1964 to March 1971; certified copy of assessment Nagar Palika April 1971 to March 1987; certified copy of assessment Nagar Palika April 1987 to March 1994; certified copy of assessment Nagar Palika April 1994 to March 2001; certified copy of assessment Nagar Palika April 2001 to till date; 8 receipts of house tax water tax; 5 electricity bills and 5 electricity bill receipts.

8) Learned District Judge relying on the judgment of Hon'ble Apex Court rendered in Kuldeep Chand & others Vs Advocate General, Government of Himachal Pradesh, AIR 2003 SUPREME COURT 1985, has recorded a finding that in the trust deed there is a reference of one hall and verandah, apart from that 16 shops have also been referred as the property of public Dharamshala. The applicants are coming with the case that the entire property is a trust property. Further finding has been recorded that the legality of the trust deed and its admissibility is to be examined by the competent court of civil jurisdiction. With these findings, learned District Judge rejected the application of the applicants seeking permission to institute the suit.

9) It is apt to note there that along with the application under Section 92 of the Code, the applicants have also annexed the copy of the plaint.

10) Heard learned counsel for the parties and perused the material available on record.

11) A perusal of the record would depict that in support of their contention, the applicants (revisionists herein) filed the registered trust deed dated 15.01.1908, whereby a public trust has been created. The execution of the trust deed dated 15.01.1908 has not been denied. The defendants have neither challenged the validity of the trust deed dated 15.01.1908 nor had filed any suit for cancellation or declaration that the trust deed dated 15.01.1908 was executed by Shri Jawahar Singh Mehta without being the absolute owner of the property. It is also not denied that Lala Banwari Lal, Lala Ramchandra, Lala Kharali Lal and Lala Shadiram were appointed trustees. It is proved on record that the suit property was dedicated for the public charity through registered trust deed dated 15.01.1908. Later on, sons of one Rikhiram Mehta, legal heir of late Lala Ramchandra, one of the trustees, started to use the property for their own use.

12) It is settled position in law that once a property is dedicated for public charities it will always remain a public charitable property. The trustees or the devotees have no infeasible rights to use the same for their personal use or to destroy the trust property.

13) Before further discussion it will be apt to quote Section 92 of the Code of Civil Procedure, 1908. The same reads as under:

"92. Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the court, may institute a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction whole or any part of the subject matter of the trust is situate to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee 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 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.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any responding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

(3) The Court may alter the original purposes of an express or constructive trust created for purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypress in one or more of the following circumstances, namely:-

(a) where the original; purposes of the trust, in whole or in part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust arid other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spire of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since, they were laid down, -

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

14) In exercise of its jurisdiction under Section 92 of the Code, the District Judge is empowered to pass a decree -

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee 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 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.

Meaning thereby, Section 92 of the Code stipulates a very wider scope in regard to the public charities.

15) The reliefs sought in the suit filed by the applicants under Section 92 of the Code would depict that the suit filed by the applicants along with application for leave to institute the suit comes within the purview of Section 92 of the Code. The provisions contained in Section 92 of the Code are in regard to the dispute of public charities. Being a specific proviso under the Code, this Court is of the firm view that the District Judge has wrongly applied the ratio of law laid down in the case of Kuldeep Chand's case (supra). Learned District Judge did not consider the other case laws cited by the applicants.

16) Hon'ble Apex Court in the case of B.S.Adityan Vs B. Ramachandran Adityan, 2004 (9) SCC 720 has held that court should normally give notice to the defendants before granting leave under Section 92 of the Code to institute a suit. However, the court is not bound to do so, if a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The court can grant an ex parte leave to institute the suit. The defendants may file an application for revocation of the leave if the leave has wrongly and illegally been granted.

17) In the present case, the trial court though invited the objections but has not taken note of the fact that the defendants have admitted the execution of registered trust deed through which the property in question has been dedicated for public charities. It is mere assertion of the defendants that Jawahar Singh Mehta alone was not the owner of the property in question bequeathed for the public charities and their grandfather was also the co-owner, who was appointed as one of the trustees. However, no proof has been provided by the defendants that their grandfather was having any title over the property vested through the trust deed dated 19.01.1908. It is apt to note here that Ramchandra, grandfather of defendant no. 1, was appointed as one of the trustees in trust deed dated 15.01.1908. Had he been the co-owner of the property in question, he should certainly have raised his objection that his property has been dedicated as a public charitable property. One part of the property is being used for Dharamshala. The legal heirs of one of the trustee late Ramchandra have started using the remaining part of the property for their personal use. Once a property is dedicated for public charity and merely for the reason that the same is being used by one of the trustees or his legal heirs for personal use it will not become their own property and will remain a public property. Since the defendants have started to use a part of the property for their personal use, application has been filed before the court below to institute the suit under Section 92 of the Code to remove the defendants and for obtaining management of the trust property. Learned District Judge without having considered the case of the applicants / revisionists has straight away considered the objections filed by the defendants / respondents which has no force in law.

18) It is settled position in law that mere mutation in the Nagar Palika records is not a proof of title. It is worth mentioning here that at the time of grant of leave to institute the suit under Section 92 of the Code, prima facie satisfaction is necessary to arrive to the conclusion that permission has been sought to institute the suit under Section 92 of the Code in regard to the public charities, as also the fact that the Trust is a public trust and the persons who want to institute the suit are interested in the Trust. The applicants have successfully proved the fact that they are seeking permission to institute the suit in regard to the public Trust. The defendants though have tried to deny the fact that the suit property is not public trust, however, they themselves admitted the execution of the trust deed dated 19.01.1908. The contention of the respondents that they are using this property for their own use and some shops have been let out and their names are recorded in the Nagar Palika record does not confer any right or title on them. Since at the stage of grant of leave, prima facie satisfaction was required but the learned District Judge instead of recording its satisfaction has discussed the merit of the case while hearing the application seeking permission to institute the suit. The impugned judgment and order, whereby the leave to institute the suit under Section 92 of the Code has been declined and the observations that the validity of the trust deed only can be examined by the civil court is apparently illegal and foreign to law. This Court has no hesitation in arriving to the conclusion that the learned District Judge has not only committed illegality in passing the impugned order, but for the reasons best known to him, had passed such an order which is not permissible in law.

19) Therefore, the civil revision deserves to be allowed. The same is hereby allowed. Impugned judgment and order dated 24.01.2018 is quashed being unsustainable in the eyes of law. The application filed by the applicants / revisionists for grant of leave to institute the suit is allowed. The District Judge is directed to register the misc. case as a regular suit filed by the applicants / revisionists under Section 92 of the Code and shall proceed to decide the suit expeditiously in accordance with law. Parties shall appear before the District Judge, Haridwar on 28th October 2020.