Panwarti Devi, Wife of Radha Kishun Sah, Resident of v. village
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.531 of 2011 ====================================================== 1. Murtiya Shri Ram Laxman Janki ,Sri Mahadeo Jee, Parbatee Jee, Ganesh Jee, Sri Mahabir Jee through. 2. Sudharkar Prasad Gupta, Son of Late Madan Prasad. 3. Smt Sona Devi, Wife of Late Madan Prasad. Both resident of village-Pakari, P.S.-Ara Nawada, District-Bhojpur. ------Plaintiffs-Appellants-Appellants. 1. Sitaram Sah (deceased)Son of Late Kawleshwar Sah Substituted. 2. Panwati Devi @ Panwarti Devi, Wife of Radha Kishun Sah, Resident of Versus village-Belwaria, P.S.-Behia, District-Bhojpur. 3. Lilawati Devi, Wife of Devendra Sah, at & P.O.-Maner, P.s.-Maner, District-Patna. 4. Kalawati Devi, Wife of Mahendra Sah, Resident of Mohalla-Lok Nath Bazar, P.O.-& P.s.-Danapur, District-Patna. 5. Gulsan Chawla, Son of Mohan Lal Chawla, Resident of Mohalla-Jail Road, P.S.-Ara Town, District-Bhojpur. 6. The Chairman, Hindu Religious Trust Board, Bihar, Patna. 7. Chandrama Pasad, Sonof Baldeo Prasad, Resident of Mohalla-Pakri, P.S.-Ara Nawada, District-Bhojpur.
Legal Reasoning
8. Awadh Kumar Tiwary, Son of Shri Bamdeo Tiwary,(Pujari)Resident of village-Porhan at present Maulabagh Ara, P.S.-Ara Nawada, District- Bhojpur.—(Defendants, Respondents 1st set)-Respondents 1st set. 9. Karnal Singh, Son of Uday Singh, Resident of Mohalla-Jail Road, P.S.- Ara Town, District-Bhojpur. 10. Abdul Gaphar, Son of Karamat Mian, Resident of Milki Mohalla, P.S.- Ara Town, District-Bhojpur.(Plaintiffs 2nd set, Respondents 2nd set). Respondents-2nd set. 11. Ayodhya Prasad, Son of Late Jaikumar Sah, Resident of village- Dhanupura, P.S.-Ara Town, District-Bhojpur. …(Plaintiff, Appellant)-Respondent 3rd set.
Legal Reasoning
====================================================== Appearance : For the Appellant/s : Mr. Bharat Lal For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 4 10-05-2013 Heard the learned counsel for the appellants. 2. The plaintiffs have filed this appeal against the judgment of affirmance by the appellate court below whereby the dismissal of the T.S.No. 21/82 has been upheld. Patna High Court SA No.531 of 2011 (4) dt.10-05-2013 2 3. The matrix of facts of the case would unveil that an endowment deed was executed on 14.12.1936 by Jagan Mistri whereby he dedicated the properties, besides other properties, mentioned in Schedule I of the plaint to the deities in the temple constructed by him. The endowment deed dated 14.12.1936 has been brought in evidence as Ext.B and from the perusal of the terms of the deed, it transpires that the hierarchy of the Mutawali of the trust has been clearly laid down. As per the terms of the deed Jagan Mistri himself became the first Mutwali and after his death his two wives namely Triveni Devi and Beradra Devi were to become Mutwalis and after their death Madan Prasad was to become Mutwali. After death of these persons, according to the prescribed term in the deed, the defendant no.1 Sitaram Sah (now deceased) was to become Mutwali. The plaintiffs filed the suit for declaration that the lease deed dated 08.12.1981 executed by defendant no.1 Sitaram Sah in favour of defendant no.2 was illegal, void and without jurisdiction and for removal of the defendant no.1 from Mutawaliship as well as defendant no.4 from being a Panch and in their place for appointment of the plaintiff no.1 as Mutawali for looking after the trust property. 4. The defendants contested the suit asserting that the trust in question was a private trust and the defendant no.1 became Patna High Court SA No.531 of 2011 (4) dt.10-05-2013 3 Mutawali of the trust in terms of the endowment deed. It had also been asserted that the defendant no.1 had been looking after the temple and trust property with care and ability and the lease deed in question had been executed for legal necessity. It had been further asserted that the plaintiff had got no concern with the trust property and the present suit was filed with false and frivolous allegations. 5. In view of the rival pleadings of the parties, the trial court framed issues out of which the issue no.4 was with regard to the nature of the trust being a public or private trust and issue no.5 was for determination of the validity of the lease deed in question. After evaluation of the evidence the trial court held that the trust in question was a private trust. It was further held that the lease deed in question executed by the defendant no.1 in favour of defendant no.2 was void and inoperative document. However, the trial court had also framed issue nos.6 and 7 relating to the reliefs for removal of defendant no.1 from Mutawaliship and appointment of plaintiff no.1 as Mutawali. These two issues were decided against the plaintiffs and it has been held that the plaintiff no.1 could not be appointed as Mutawali of the trust property and the defendant no.1 was not liable to be removed from Mutawaliship. The suit was, therefore, decreed in part in view of the findings as Patna High Court SA No.531 of 2011 (4) dt.10-05-2013 4 aforementioned. 6. The plaintiffs filed appeal assailing the part dismissal of the suit on the basis of findings on issue nos. 6 & 7 with regard to the removal of defendant no.1 from Mutawaliship and appointment of plaintiff no.1 as Mutawali of the trust in question. The appellate court below by the impugned judgment and decree has upheld the findings of the learned court below and dismissed the appeal. 7. The learned counsel for the appellant has submitted that both the courts below have erred in law by wrongly interpreting the terms of the deed of endowment (Ext.B). It has been urged that the appellant no.2 was the competent person to be appointed as Mutawali of the trust in terms of the deed but the appellate court below has wrongly held that no competent person from the family of the founder Jagan Mistri has come forward claiming Mutawaliship, and has wrongly referred the matter to the District Magistrate for protection of the trust property. It has been canvassed that the interpretation of the terms of the endowment deed is a substantial question of law, and therefore, this appeal be admitted for hearing. 8. After perusal of the impugned judgments of both the courts below and considering the submissions of the learned Patna High Court SA No.531 of 2011 (4) dt.10-05-2013 5 counsel for the appellants, it is manifest that the hierarchy of the persons to be appointed as Mutawali has been clearly mentioned in the endowment deed (Ext.B) which is an admitted document. Those terms have also been extracted in the memo of appeal and according to the prescribed hierarchy, the founder Jagan Mistri was to become first Mutwali and after his death his two wives namely Triveni Devi and Beradar Devi were to become Mutawali, and after their death, Madan Prasad who was the daughter’s son of the founder, was to become Mutawali and in his absence Sitaram Sah(defendant no.1) was to become Mutawali and failing Sitaram Sah, any competent person in his family was to become Mutawali. Madan Prasad, father of the appellant no.2, though had been nominated to become the Mutawali after the death of the wives of the founder Jagan Misri but it has been found by the learned court below that Madan Prasad died in the lifetime of the second wife of the founder and did never become Mutawali. The claim of the appellant no.2 on the ground that he is son of Madan Prasad, and therefore, entitled to become Mutawali has therefore been not accepted by the courts below. Admittedly, the appellant no.2 does not belong to the family of the founder as he is from the family of his daughter. According to the prescribed hierarchy of Mutawalis, in case of failure of Madan Prasad to become Mutwali, Patna High Court SA No.531 of 2011 (4) dt.10-05-2013 6 it was defendant no.1 Sitaram Sah who was entitled to become Mutawali. It has been found by the learned courts below that in case of absence of competent person from the family of the founder or the last Mutawali Sitaram Sah or any competent person of the Hindu community, the district magistrate of the district has been mentioned in the deed to function as Mutawali. As no such competent person came forward to become Mutwali, the learned appellate court below has decided to send the copy of the judgment to the district magistrate for protection of the trust property. In view of these facts and findings by the appellate court below, I do not find any ambiguity in the terms of the trust deed (Ext.B) providing the hierarchy of Mutwalis, and as such there is no need of interpretation of the terms of the deed. The issues arising between the parties have been concluded by the concurrent findings of fact. 9. I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)