FA/163/2013 of M. Sunder Dass Vs Prem Shankar Pandey AND OTHERS on 29 December 2017

RESERVED ON : 09.08.2017 DELIVERED ON: 29.12.2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 163 of 2013

……..…Appellant

Sunder Dass

Versus

Prem Shankar and others ………Respondents

Mr. Siddhartha Singh, Advocate for the appellant. Mr. Nikhil Singhal, Advocate for respondent nos. 1, 10 and 13 to 15. Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Bharat Singh, Advocate for respondent no. 7. Mr. Chandramauli Sah, Advocate for respondent no. 9

Hon’ble Lok Pal Singh, J.

First appeal is arises out of the judgment and decree dated 22.11.2013 passed by I Additional Civil Judge (Sr. Div.) Haridwar in Original Suit No. 305 of 2001 Prem Shankar Pandey Vs. Mahant Bhagwandas whereby suit of plaintiff for declaration and perpetual prohibitory injunction has been decreed.

2. Facts in brief, are that plaintiff Prem Shankar Pandey (herein respondent no. 1) filed a suit for injunction and declaration in regard to the property in dispute with the averment that plaintiff is the trustee of Swami Madhwacharya Charitable Trust and plaintiff has a right to file suit on behalf of the trust. It is contended that Late Swami Madhwacharya had purchased the property in dispute, and registered the same in the year 1974, thereafter raised construction over it and property was renowned as Manas Mandir. It is further contended that Late Swami Madhwacharya was the resident of Village Mirjapur, Tehsil Jalalabad, District Shahjanpur and his birth name was Umashankar Pandey, but he deserted the house in his young age and became saint. In the meantime, Swami Madhwacharya @ Uma Shankar re-connected with his family members and, thereafter developed relationship with each other. Plaintiff is the son of elder brother of Late Swami Madhwacharya. Late Swami Madhwacharya executed the unregistered will on 16.10.2000 in regard to the property in dispute and created a trust known as Swami Madhwacharya Charitable Trust and bequeathed his all property to the trust. For proper management of the Trust, plaintiff and defendants no. 10 to 17 were appointed as trustee. Apart from the movable and immovable property, the amount has been deposited with the banks i.e. defendant nos. 3 to 9. According to the unregistered will dated 16.10.2000, executed by Swami Madhwacharya, after his death, Swami Madhwacharya Trust is the legal heir of said movable and immovable property. It is also contended that defendant no. 1 and 2 are the influential person and they are trying to illegally grab the property of Late Swami Madhwacharya and also the amount deposited in the banks and they are claiming the property of a particular community (sampradaya). Since, defendant no. 1 and 2 are claiming right over the property in dispute, therefore cause of action arose to the plaintiff to file suit for declaration and injunction against defendant no. 1 and 2.

3. Defendant nos. 10, 11, 13, 14 and 15 filed their written statements and admitted the plaint averments. Defendant no. 6 and 8 also filed their written statements but they also not specifically denied the plaint’s averments. The suit was filed by Sri Vipin Goel, Advocate. The plaintiff also filed the alleged will dated 16.10.2000, notarized by Rajendra Prasad and witnessed by Chandra Bhushan Bishnoi and Sandeep Sharma, both resident of Sanyas Road, Kankhal.

4. On the pleadings of the parties, the trial court framed the following issues:-

(i) Whether plaintiff and defendants nos. 10 to 17 are the trustees of Swami Madhwacharya Charitable Trust?

(ii) Whether the plaintiff has a right to institute a suit as a trustee?

(iii) Whether the disputed property mentioned at the end of the plaint and the amount deposited with defendant nos. 3 to 9 is the property of Swami Madhwacharya Trust in view of the Will dated 16.10.2000?

(iv) Whether the plaintiff and defendant nos. 10 to 14 are entitled to manage the affairs of the Trust and also entitled to receive the amount deposited in the name of the Trust with defendant nos. 3 to 9?

(v) Whether defendant no. 1 and 2 are interfering in the management of plaintiff and defendant nos. 10 to 17 and also want to transfer the property in dispute. If so, its effect?

Whether no. 6 and 8 are (vi) defendant unnecessarily impleaded as a party to the suit?

(vii) Whether plaintiff is entitled for any relief. If yes then what relief?

5. On behalf of the plaintiff, Prem Shankar Pandey examined himself as P.W. 1, Chandrabhushan (witness of the alleged will) examined as P.W. 2 and Sandeep Sharma (witness of the alleged will) examined as P.W.3 and they filed their affidavit of examination in chief. P.W. 1 Prem Shankar Pandey, P.W.2 Chandrabhushan and P.W. 3 Sandeep Sharma were cross-examined by defendant no. 2 and 3. On behalf of the defendants, Mahant Sundardas and Mahant Bhagwandas were examined as D.W.1 and D.W.2 and Ashok Tandon was examined as D.W. 3 and all of them were cross examined. Ashok Tandon is impleaded as defendant no. 16 / trustee of the Trust, but he stated that he has wrongly been shown as a trustee and he never participated in the meetings of the alleged trust.

6. Learned trial court recorded its finding on issue no. 1, 3 and 4 and arrived to the conclusion that since defendant no. 1 and 2 have not filed their written statements and plaintiff has proved the creation of Charitable Trust through the will dated 16.10.2000 and according to the will the trustees are having the management and control over the Trust property, decided issue nos. 1, 3 and 4 in the favour of the plaintiff. The trial court recorded its finding on issue no. 2 and held that on the findings recorded on issue nos. 1, 3 and 4 Prem Shankar Pandey has been shown as trustee, thus decided issue no. 2 with the findings that plaintiff has a right to file suit as a trustee. The trial court while recording its finding on issue no. 5 has mentioned that plaintiff has stated in the plaint that defendant no. 1 and 2 have no concern with the property in dispute and are trying to grab the property by illegal act. From the findings, recorded on issue no. 1, 3 and 4 it is made clear that property in dispute is of Swami Madhwacharya Charitable Trust and under the management and control of its trustees and held that defendant no. 1 and 2 have no concern over the property in dispute and decided issue no. 5 accordingly. On issue no. 6, the trial court arrived to the conclusion that since banks are the necessary party, therefore they have not been impleaded unnecessarily. On issue no. 7, the trial court recorded its findings that Late Swami Madhwacharya has executed the will dated 16.10.2000 and created Swami Madhwacharya Charitable Trust and the management and control has been given to the Trust after his death on 28.07.2001, in such circumstances, the trustee of the charitable trust has the right to manage the affairs of the trust. Hence, suit of the plaintiff is liable to be decreed.

7. Heard learned counsel for the parties and perused the record.

8. The plaintiff in his plaint has nowhere asserted that Late Swami Madhwacharya died on 28.07.2001. From the perusal of the plaint description, it would reveal that plaintiff has been arrayed as under:-

Prem Shankar Pandey,S/o Shyamcharan Pandey R/oVillage Mirzapur, District Shahjanpur, presently R/o Manas Mandir, Sanyas Road Kankhal, Haridwar, Tehsil and District Haridwar, Trustee Swami Madhwacharya Charitable Trust Manas Mandir Kankhal, District Haridwar.

9. From the perusal of the plaintiff’s description, it would reveal that suit has not been filed in the name of the alleged Charitable Trust rather it has been filed in the name of Prem Shankar Pandey. The suit is not maintainable by the trustee without implicating the alleged trust as a party. The suit has been filed by the plaintiff Prem Shankar Pandey on the strength of the alleged will dated 16.10.2000, allegedly executed by Late Swami Madhwacharya in regard to the property in dispute. The scribe of the will was Mr. Vipin Goel, Advocate and it was notarized by Mr. Rajendra Prasad, Advocate/Notary. To prove the will, P.W.2 Chandrabhushan and P.W. 3 Sandeep Sharma have been examined, but none of the witnesses have proved execution and attestation of the will. The necessary ingredients to prove the will has been defined under section 68 of Indian Evidence Act. Section 68 is extracted hereunder:- “68. Proof of execution of document required by law to be attested:- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence:

[provided that it shall not be necessary to call an attesting witness in proff of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.]”

10. The trial court while recording its finding on issue nos. 1, 3 and 4 has held that the will dated 16.10.2000 was executed by Late Swami Madhwacharya, and a Trust in the name of Swami Madhwacharya Charitable Trust has been created, but the learned trial court has lost its site of the fact that the alleged will has not been proved by so called attesting witnesses in view of section 68 of the Indian Evidence Act, as none of the witnesses has stated that late Swami Madhwacharya had executed the will in their presence. Thus, in view of section 68 of the Indian Evidence Act, will is not proved. The trial court has committed illegality in recording its finding that P.W.2 and P.W.3 have proved the execution of the willand by way of will dated 16.10.2000, late Swami Madhwacharya has created the trust known as Swami Madhwacharya Charitable Trust. Since, finding recorded by the trial court on issue no. 1, 3 and 4 are perverse, therefore same are set aside, and it is held that plaintiff and defendant nos. 10 to 17 are not the trustees of the alleged Swami Madhwacharya Charitable Trust. It is also held the disputed property and the amount, so deposited with defendant nos. 3 to 9 is not the property of Swami Madhawacharya Charitable Trust, and property mentioned at the end of the plaint is not the property of Trust in view of the alleged will dated 16.10.2000.

Conclusion

11. Findings on issue no. 2 has been recorded to the effect that whether the plaintiff institute a suit as a trustee or not. From the perusal of the memo of the plaint, it would reveal that the suit has not been filed in the name of the Trust rather it has been filed in the name of Prem Shankar Pandey. Plaintiff without impleading the alleged Trust has got no authority to institute the suit. Thus, trial court has illegally recorded its finding on issue no. 2 in favour of the plaintiff. Thus, finding recorded by the trial court on issue no. 2 is hereby set aside and decided against the plaintiff/respondent no. 1.

12. Issue no. 5 has been framed to the effect that whether defendant no. 1and 2 are illegally interfering in the management of plaintiff and defendant nos. 10 to 17. On the basis of the findings, so recorded on issue nos. 1, 3 and 4, the trial court has decided issue no. 5 in the favour of the plaintiff. Since, findings on issue nos. 1, 3 and 4 has already been set aside, therefore it is held that trial court has illegally decided issue no. 5 in the favour of the plaintiff. Thus, findings on issue no. 5 also set aside.

13. Issue no. 6 has been framed in regard to the impleadment of unnecessary parties. Since, claimant has claiming its right on the amount deposited with defendant nos. 3 to 9, therefore findings recorded by the trial court on issue no. 6 is not interfered.

14. Issue no. 7 pertains to the relief. Learned trial court on the basis of the findings recorded on issue no. 1, 3, 4

and 5 has decreed the suit for declaration of rights and injunction in the favour of the plaintiff/respondent no. 1. Since, findings on issue nos. 1, 2, 3, 4 and 5 has been reversed and set aside by this Court, therefore, finding on issue no. 7 is also set aside and it is held that the suit filed by the plaintiff/ respondent no. 1 has illegally decreed by the trial court. The suit has been filed by the plaintiff on the basis of the will dated 16.10.2000 which has not been proved by the attesting witnesses.

15. Mr. Siddhartha Singh, counsel for the appellant submitted that the written statements have been filed before the trial court but same is missing from the record, therefore, case of the appellant has not been considered by the trial court. He further submitted that suit filed by the plaintiff is not maintainable as it was filed on behalf of the Trust. He further submitted that Swami Madhwacharya died on 28.07.2001, leaving behind his personal property in the name of Manas Mandir and defendant nos. 2 and 3 who belongs to the Sampradaya, are managing the affairs the Manas Mandir, property left by Swami Madhwacharya and plaintiff has not sought any declaration of rights over the property in dispute.

17. Per contra, Mr. Nikhil Singhal, Advocate appearing on behalf of the plaintiff submitted that suit was filed as per the advice of the counsel and fairly conceded that Trust has not been impleaded as a party. He further submitted that since Trust has not been impleaded, it would not be proper to allow the appeal and dismissed the suit at the appellate stage without affording an opportunity to the plaintiff to cure the defects in filing the suit, as the suit has been filed in the name of the individual instead of trust.

18. The arguments advanced on behalf of the plaintiff/ respondent no. 1 has substance. It would reveal that plaint has been filed in a cryptic manner without disclosing the necessary facts.

19. Mr. Siddhartha Singh, counsel for the appellant submitted that the written statement has been filed before the court below but same is not available on record. It is further submitted that copy of the written statement has been filed at the time of filing of the present appeal. Considering the facts that the appellant could not contest the case in the absence of written statement missing from the record, photo copy of the written statement, filed by the appellant before this Court made available to the respondents.

20. From the perusal of the averments of plaint, it would reveal that plaintiff/ respondent no. 1 has not disclosed the correct facts and it might be the case with collusion of defendants. Since, alleged will is not registered and deceased died, leaving behind no legal heirs, in such contingencies, the property would vests to the State. Therefore, the Administrator General of Uttarakhand, who look after the property in case of non testamentary cases, is necessary and proper party to contest the case, so the parties of the sit in connivance of each other may not succeed to obtain the decree in regard to the property, left by the deceased, leaving no legal heir.

21. In view of the findings recorded above, the impugned judgment and decree dated 22.11.2013 passed by I Additional Civil Judge (Sr. Div.) Haridwar in Original Suit No. 305 of 2001 Prem Shankar Pandey Vs. Mahant Bhagwandas is hereby set aside. Appeal is allowed. Matter is remanded to the court below to permit the appellant to file the written statement in accordance with law, and direct the plaintiff to implead the alleged Trust as party/plaintiff and Administrator General of Uttarakhand as party/ respondent. Learned trial court after giving fully opportunity of hearing to the parties and inviting written statements of Administrator General of Uttarakhand shall decide the suit in accordance with law. Parties shall appear before the court below on 15[th]January 2018.

22. In the facts and circumstances, parties shall bear their own cost.

Parul

(Lok Pal Singh, J.)

29.12.2017