Allahabad High Court
Smt. Vidyawati And Another vs Ram Janki And Others on 24 April, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 10.04.2019) (Judgment delivered on 24.04.2019) Court No. - 59 Case :- FIRST APPEAL No. - 425 of 1978 Appellant :- Smt. Vidyawati And Another Respondent :- Ram Janki And Others Counsel for Appellant :- R.Dwivedi,Abha Gupta,Ashutosh Srivastava,R.C.Gupta,R.D. Dwivedi,V.S.Dwivedi Counsel for Respondent :- R.K.Pandey,Akhilesh Tripathi,J.B.Singh,S.K. Purwar,S.K. Shukla,S.K.Rai,V.K.S.Chaudhary,W.H.Khan Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ashuthosh Srivastava, learned counsel for the appellants-defendant Nos.6 and 10 and Sri R.K. Pandey, learned counsel for the plaintiffs-respondents Nos.1, 2, 3 and 4.
2. This first appeal under Section 96 of the Civil Procedure Code has been filed praying to set aside the judgment dated 29.09.1978 in O.S. No.23 of 1972 (partition suit) passed by the IIIrd Additional District and Session Judge, Banda.
3. Briefly stated facts of the present case are that one Sri Lal Man had purchased plot Nos.1628/1 and 1628/2, situate in Village Bhawani Poorva, Muhal Shekh Yusuf Ujjama, District Banda (hereinafter refer to as "suit property") by a registered sale deed dated 08.07.1924 from Shekh Madarazzami S/o Yusuf Ujjama for Rs.3600/- for construction of a Dharmshala at Railway Station Road.
4. The aforesaid Lal Man had the only issue as his daughter Smt. Sukhdei, who was married to one Ram Prasad. Smt. Sukhdei had three sons namely Sri Ram Krishna (married to Smt. Mahadeiya-defendant No.10), Mata Prasad (plaintiff) and Bhagwan Das (defendant No.1). Ram Krishna had three sons, namely Badri Prasad (defendant No.2), Kedar Nath (defendant No.3), Krishna Chandra (defendant No.4) and five daughters, namely Kamla Bai (defendant No.5), Vidyawati (defendant No.6), Munni Bai (defendant No.7), Chunni Bai (defendant No.8) and Vimla Bai (defendant No.9). The original plaintiff- Mata Prasad- the second son of Sukhdei, had only one issue, i.e. the daughter Smt. Ram Janki (plaintiff No.1/1). She was married to Harish Chandra Gupta. She had three sons, namely Akhilesh Chandra (plaintiff No.1/2), Dinesh Chandra (plaintiff No.1/3) and Rajendra Kumar (plaintiff No.1/4).
5. The third son of Smt. Sukhdei was Bhagwan Das who had four sons, namely Kailash Nath (defendant No.1/1), Dasharath Kumar (defendant No.1/2), Naresh Kumar (defendant No.1/3), Suresh Kumar (defendant No.1/4), and two daughters, namely Kumari Manjjoo (defendant No.1/5), and Smt. Santosh (defendant No.1/6).
6. The aforesaid Lal Man had filed a partition Suit No.42 of 1923 in the Court of Special Judge, Banda on 26.06.1923 for partition of family properties. During pendency of aforesaid Suit No.42 of 1923, he executed a registered Will deed dated 09.07.1923 (Exb.A11) in favour of his aforesaid three maternal grandsons, namely Sri Ram Krishna, Mata Prasad and Bhagwan Das, in respect of his entire properties in possession or which may be received in suit or by other means. The aforesaid registered Will deed dated 09.07.1923 is reproduced below:
"vly nLrkost LVkEi ew0 flyflyk ua0 & 6 lu~ 1923 bZ0 eufd ykyeu mQZ yYyw oYn jke izlkn dkSe oS'; iqjokj lkfdu 'kgj ckank eqgYyk dkyouxat dk gwaA feueqfdj o ckyd`".k tks fd iksrk feueqfdj ds fcjknj gdhdh dk gS o ds'kksnkl tks fd gdhdh Hkrhtk feueqfdj dk gS esEcjku fgUnw [kkunku eq'rdkZ ds Fks vkSj vlkZ feueqfdj bu yksxks ls rdlhe tk;nkn dh ckcr bljkj djrk jgk exj bu yksxks us ,d u lquh fcykf[kj feueqfdj us etcwj gksdj ukfy'k uEcjh 42 lu~ 1923 vnkyr lc tth ckank es ckcr rdlhe tk;nkn [kkunkuh crkjh[k 26 twu 1923 bZ0 nk;j dj nh gS vkSj eqdnek etdwj vHkh vnkyr ekSlwQ esa py jgk gS bl rjg ls feu eqfdj vius nwljs esEcjku ls dkuwuu vygnk gks x;k gS vkSj feueqfdj dks dkuwuu og v[kR;kjkr viuh tk;nkn dh ckcr tks feueqfdj ds dCtk esa gS ;k tks o eqdnes rdlhe eqrtfDdjk okyk feu eqfdj dks feysxh gkfly gS tks fd equQflek esEcj dks gkfly gksrs gS pwafd feueqfdj cgqr tbZQ gS vkSj rUnq#Lrh Hkh feu eqfdj dh vPNh ugh jgrh gS vkSj bl ftUnxkuh ik;nkl dk dqN Hkjkslk ugh ekyqe ugh fdl oDr [kRe gks tkos vkSj ckn cQkr feueqfdj Qtwy >xMs ckcr tk;nkn vtku feu eqfdj iSnk gks vkSj tk;nkn cjckn gks pqukfp feu eqfdj o lsgr rQl lokr vDy fcyk fdlh ncko ds viuh dqy tk;nkn tks feu eqfdj ds dCts esa gS ;k vkbUnk tks ctfj;s eqdnekr rdlhe eqrtfDdjk okyk feueqfdj dks feys ;k fdlh nwljs rjhdk ls feys mldks fuLor feu eqfdj gLo tSy fgnk;r crkSj olh;r djrk gSA 1- ;gfd tc rd feueqfdj ftUnk jgsxk feueqfdj dks iwjk v[kR;kj viuh tk;nkn ds bLrseky o eqUrfdy djus dk jgsxk 2- ;g fd ckn oQkr feu eqfdj ftl dnj tk;nkn feu eqfdj dh gksxh mlds ekfydku dkfey eqlfEEk;ku jked`".k o ekrk izlkn o Hkxoku nkl filjku jke izlkn vdoke oS'; iqjokj lkfduku 'kgj ckank uoklxku feueqfdj tks fd oSls Hkh dkuwuu ojlk feu eqfdj ds gS gksaxs vkSj mudks tk;nkn etdwj dh ckor iwjk bfUrdky oxSj% dk v[kR;kj gksxk 3& ;g fd feueqfdj ds usoklxku ij QthZ gksxk fd og esjh csQkr ij dqy jlekr eqrvfYyd QkSrh feueqfdj bl rjg ls vnk djs fd tk esjh o mudh gSfl;r ds eqrkfcd gks vkSj vxj esjs usoklxku dks esjs ckn es esjh dkQh tk;nkn feys rks mudks pkfg;s fd esjs uke dks ;knxkj dk;e j[kus ds fy;s dksbZ equkflc o eq#rfdy ;knxkj dk;e dj ns exj dtZ gk; eqUntsa nQk gktk dk ,[kyk dh Qjk;t gksxs budks vne rkehy esjs usoklxku dks muds gdwd ckcr ikus tk;nkn ls eg#e u djsxhA 4 & ;g fd feueqfdj c[;ky blds fd volj okn cQkr olh;r djus okys ds yksx tkyh olh;r cukdj is'k djrs gS ;g tkfgj djrk gS fd feu eqfdj dksbZ olh;r fcyk jftLVªh 'kqn% u djsxk vkSj vxj dksbZ olh;r fcyk jftLVªh 'kqnk dksbZ 'k[l is'k djs rks Qjth o tkyh e`rlhOoj dh tkos fygktk ;g olh;rukek rgjhj djk fn;k fd lun jgs vkSj oDr ij dke vkos rgjhj rkjh[k 9 tqykbZ lu 1923 bZ0 cdye guqeku flag ys[kd odhy n0 ykyeu c0 [kqn x0 ;l0 Mh0 Shri Phul Chand Seth ¼c[kr vaxszth½ x0"
7. The aforesaid Lal Man executed a registered supplementary Will deed on 22.05.1924 (Exb.A12) to supplement his Will deed dated 09.07.1923, whereby he excluded his grandson Mata Prasad (original plaintiff) from the Will. Paragraphs-1, 2 and 3 of the aforesaid registered supplementary Will deed dated 22.05.1924 (Ex.A12), are reproduced below:
"1& ;g fd eqlEeh ekrk izlkn uoklk feueqfdj us okn rgjhj olh;r ukek lkfod ds esjh flner o lsok djuk eSdwQ dj fn;k vkSj eqlE;ku ckyd`".k o ds'kknkl o oxSjk eq[kkfyQk eq0 ua0 42 lu~ 1923 vnkyr l= tth ckank ls cgqr esytksy ojlwe iSnk djds esjh dqN rdyhQ igqapk;k ftlls feufedqj dks ml ij Hkjks"kk o brokj okdh ugh jgkA jkefdz;ko Hkxokunkl esjs vkyes tbZQh ogkyr chekjh eS tc fd eS gj rjg ls etdwj o ykpkj gwWA fdLe dh esjh f[kner o lsok dj gS fygktk eS mudks gqLuf[kner ls fugk;r o lsok [kq'k o jkth gwW vkSj ;g fgnk;r djrk gwWA fd esjh tqeyk tk;nkn dks ekfyd o eq'rgSd okn oQkr esjh eqlfe;ku jkefd'kqu o Hkxokunkl eqLrgSd o fgLlsnkj o fgLlk eqlkoh gksxsA ekrk izlkn uoklk dks dksbZ gd o fgLlk esjh fdlh tk;nkn eudwyk o xSj eudwyk esa u gksxhA 2& ;g fd feueqfdj us nQk 3 olh;rukek lkfod esa eSlh vgSgqe dsk fgnk;r ,d eqLrfdy ;knxkj dk;e j[kus o djus ds fy, rgjhj fd;k gS pwukUps okn xkSj o e'kfojk ds eS ;g okcht djrk gwWA dh ftl dnj tk;nkn eqdnek ua0 42 lu~ 1923 bZ0 esa jkefd'kqu o Hkxokunkl dks gkfly gksos mlesa ls 40 gtkj :i;k rd dh ykxr dk ,d /keZ'kkyk o dqvk esjs uke ls rkehj djk ns vkSj eqcfyx rhl gtkj :i;k mlds ,[kjktkr o lnkojr dk;e djus ds fy, fdlh cSUd ;k ekroj ;k ljdkj xksjesUV es tek djk ns rkfd mldh egkfly o vkenuh ls /kje'kkyk ges'kk ds fy, dk;e jgs vkSj mlds bUrtke ds fy, ,d desVh gLo jk; [kqn djs ftlls ges'kk [kwch ds lkFk mldk bUrtke gksrk jgs vkSj /kje'kkyk dk;e jgsA 3& ;g fd okn oQkr esjh dqy jlwekr fdjk;k djr o frjNh o cjNh cxSjg dk jkefd'ku esjk uoklk djsxk vkSj gj nks fuokfl;ku etdwj gLo gSfl;r [kqn butke djsxsaA"
8. The aforesaid Lal Man executed another registered supplementary Will deed dated 30.06.1924 (Ex.A13) to supplement his Will deed dated 09.07.1923 (Ex.A11) whereby he excluded his another grandson Bhagwan Das and thus the Will remained only in favour of the grandson Ram Krishna. Relevant portion of the aforesaid supplementary Will deed dated 30.06.1924 (Ex.A13), is reproduced below:
"olh;rukek r`rh; 30-6-1924 eufd ykyeu mQZ yYyw cYn jkeizlkn dkSe iqjokj oS'; lkfdu 'kgj ckank eksgYYkk dkyouxat dk gwaA tks fdfeueqfdj us viuh tqeyk tk;nkn eudwyk o xSj eudwyk ds ckcr olh;rukek eqcjdk o eLVsdk jftLVjh 9 tqykbZ lu~ 1923 bZ0 o frrEEkk olh;rukek etdwj ekscj[kk o eqlnsdku jftLVjh 22&5&1924 bZ0 rgjhj dh gS exj ckn rgjhj frrEek olh;rukek etdwj eqlEeh Hkxokunkl uoklk feueqfdjds tkfuc ls ,slh gjdrs odw es vk;h ftlls eueqfdj dks Hkxokunkl etdwj dks Hkh dksbZ gd o fgLlk tk;nkn er#dk [kqn esa nsus dk bjknk tkrk jgkA vkSj pwafd flQZ jkefd'kqu gh gj rjg ls esjh f[kner o fuxkgnkLr es cljkspjke el#Q jgk gSA vkSj pawfd flQZ jkefd'kqu gh gj rjg ls esjh f[kner o fuxkgnkLr es cljkspjke el#Q jgk vkSj vc Hkh jgrk gSA vkSj feueqfdj dsk Hkxokunkl dh tkr ls dksbZ vlker vkSj csgrjh dh mEehn ugh gS vkSj u mlus esjh gkyr chekjh esa okn rgjhj frrEek olh;r ukek ds dksbZ [kvjgcjh ;k f[kner xqtkjh esjh dh ftlls feueqfdj dks iwjk ;dhu gks x;k fd og egst [kqnxjth dh otg ls is'krj dqN dke djrk Fkk vkSj mldks dksbZ fnyh vkSj lPph gennhZ o eksgCCkr eq>ls ugh gSA oj f[kykQ mlds rqlEeh jkefd'kqu cjkcj ,d gh rjg ij 'kq# ls vc rd esjh [kkfrj nkjh o f[kner xqtkjh djrk pyk vk jgk gS vkSj dg jgk gSA vkSj mldks eq>ls fnyh mUlc eksgCCkr gS vkSj eq>dks Hkh okn rgjhj iwjk ;dhu gks x;k fd flQZ jkefd'kqu gh esjk ,slk uoklk gS ftl ij eq>dks gj rjg dk Hkjkslk vkSj vrfeuu gS vkSj eq>dks Hkh mlls ,d [kkl mulfefr vkSj fnyh eqgCCkr gS il tqeyk ckrks ij xkSj djds eSus vkf[kjh rtcht ;g dk;e dh gS fd flQZ jkefd'kqu gh esjh tqeyk tk;snkn dk ekfyd o eqLrsns gd okn cQkr esjh gksxk vkSj ekrk izlkn o Hkxokunkl gj nks uoklksa dks esa dksbZ gd o fgLlk viuh tk;nkn er:dk esa ugh pkgrk fygktk ;g nwljk frrEek olh;rukek o cgkyr lsgn uQl o lokr vDy ccnq:Lrh gks'k o gokl cgqr xkSj ds ckn rgjhj djrk pwafd gLo olh;r ukek frrEek olh;r ukek lkfcd tks rtkcht dj pqdk gwWA mudk brykd flQZ jkefd'kqu ls gksxkA okdh nksuksa uoklks dks dksbZokLrk o rkyqYd okdh ugh jgk gSA fygktk ;g frrEek lkuh olh;rukek etdwj rgjhj dj fn;k fd okn oQkr esjh eqlEeh jkefd'kqu esjh tqeyk fgnk;r eqUnjtk olh;rukek o frrEek mCcy olh;rukek ij vey djs vkSj tqeyk tk;nkn eudwyk o xSj eudwyk ij dkfct o n[khy dj rwltQhn gksdj ftlls esjh :g dks [kyh vkSj vkauan gksxkA feueqfdj ;g Hkh tkfgj dj nsuk fd t:jh le>rk gwW fd feueqfdj us tks vius nks uoklks ekrk izlkn o Hkxokunkl dks viuh rjdk ls eg:e fd;k gS og fdlh 'k[l ds cjxykus o cgdkos o nckoks uktk;t Mkyus ls ugh fd;k gS cfYd egst viuh [kq'kh o jkth jD[kk gS blfy, vkSj vkf[kjh tekuk es esjh f[kner gdhdh yM+ls Hkh T;knk gS blfy, dqnjrh rkSj ij feueqfdj vkSj jkefd'kqu etdwj ls [kkl eksgCcr Fkh vkSj ;gh bl okLrs feueqfdj viuh dqy tk;nkn tks bl oDr feueqfdj viuh dqy tk;nkn tks bl oDr feueqfdj es dCtk es gS vkSj nhxj tk;nkn ftldh ckcr ukfy[k uEcj 42 o lu~ 1923 bZ0 lc tth ckank esa Hkh fgukst nk;j gS oknoQkr viuh eqlEeh jke fd'kqu etdwj dks eqLrgds vkSj ekfyd dkfey djkj nsrk gwW vkSj eq>dks mEehn gS fd okn oQkr esjh jkefd'kqu etdwj esjh fgnk;rksa ij mlh rjg ij vey djsxk tSlk fd og esjs gqdeksa vkSj fgnk;rksa ij rkehy esjh ftUnxh esa djrk jgk gS rkfd mldh Qjekonkjh vkSj usd vkekyh ls iqjdkjukeksa dks ns[kdj esjh :g vkdor esa vkuUn ekax dj ldsA"
9. By a registered sale deed dated 08.07.1924 registered on 10.07.1924, Sri Lal Man purchased from Madarujjami S/o Shekh Yusuf Ujjama, plot Nos.1628/1 and plot No.1628/2 measuring 1 bigha 19 biswas situate at Station Road, Banda in village Bhawani Purva, Mohal Shekh Yusuf Ujjama for Rs.3,600/- for construction of "Dharmshala". Relevant portion of the aforesaid sale deed dated 08.07.1924 (Ex.10) is reproduced below:
"eS vkjkth mQrknk eqn~nkfydk uEcj etdwj o [k'kh jtk o :dor [kqn fcyk bdjkj vtokj nhxjs o ,ot eqcfyx 3600@& : flDdk dyokj ftlds futk eq0 1800 :i;s flDdk ekslqQk gksrs gSA okLrs /keZ'kkyk o nLr ykyeu mQZ yYyw oYn jkeizlkn oS'; iqjokj lkfdu ckank dks caspk vkSj cfd;k vkSj n[ky dCtk ekfydkuk fefly ls eqvk;uk ij [kjhnnkj dks ns fn;kA "
10. The boundaries of the aforesaid suit property has been mentioned in the sale deed as under:
East: Railway Station Road West: Plot No.1624 of Hari Devi North: Railway Line Plot No.1626 South: Government Road
11. The aforesaid Lal Man died after few days of the execution of the sale deed dated 08.07.1924.
12. The aforesaid partition Suit No.42 of 1923 was filed by Sri Lal Man for partition of his family property. After his death, his three grandsons, namely Ram Krishna, Mata Prasad and Bhagwan Das, were substituted as plaintiffs. This suit was dismissed by the Subordinate Judge, Banda by judgment dated 03.04.1925 (Ex.12 and paper No.185ga/1). Against the aforesaid judgment, Ram Krishna and others filed First appeal being Case No.217 of 1925 (Lal Man and after his death Ram Krishna and others vs. Keshav Das and others), which was allowed by this court by judgment dated 31.03.1927 holding that Lal Man had one fourth share and his share shall be adjusted with all the sums of money taken by him from time to time with simple interest @ 6% and the landed properties gifted to Ram Krishna and his brothers by Lal Man and to other members of Lal Man's family shall be taken into account while making the partition. The proceeding was remitted to the trial court for preparation of a final decree. Properties were accordingly partitioned.
13. Thereafter, partition suit being O.S. No.2 of 1962 (Mata Prasad Vs. Ram Krishna and Bhagwan Das) was filed by Mata Prasad (grand-son of Lal Man), which was decreed on 31.05.1962 in terms of compromise dated 21.05.1962. In the compromise deed (Ex.15), the properties were classified in Schedule A, B, C and D. The properties specified in the compromise deed in Schedule A were given to Ram Krishna. The properties of Schedule B were given to Mata Prasad and the properties specified in Schedule C were given to Bhagwan Das. The immovable property (suit property) situate at Station Road, Banda specified in Schedule D purchased by Lal Man for construction of 'Dharmshala' by sale deed dated 09.07.1923 (Ex.10) was not partitioned rather it was stated to be joint property consisting of four shops, four motor-garages, two houses and a field. The aforesaid suit property was shown in the compromise deed (Ex.15) to be part of properties of the decree in O.S. No.42 of 1923. Relevant portion of the compromise deed (Ex.15), is reproduced below:
"vkSj og tk;nkn xSj eudwyk tks ge QjhdSu o ekftc fMxzh eqdnek ua0 42 lu~ 1923 flfoy tth caknk jkefd'kqu cxSj feyh gS tks gS ftldh futk bl eqdnesa esa gSA bl tk;nkn xSj eudwyk es pkj fdrk nqdkukr o pkj eksVj [kkuk o nks fdrk edkukr [kku o eSnku eRr fly LVs'ku jksM+ ckank Hkh 'kkfey gS ftudks Qjhdsu ds ukuk Jh ykyeu us 'ks"k en vn mTtek oYn 'ks"k ;qlqQ mTtek ls ctfj;s nLrkost cSukek eqo[ksZ 07&08&24 o 2 eq0 3600@ :i;k [kjhn fd;k Fkk vkSj ge QjhdSu ds ukuk Jh ykyeu dh [okfg'k Fkh fd ;g pkj fdrk nqdkukr o pkj eksVj [kkuk o nks fdrk edkukr[kkuk o eSnku eqLrfly LVs'ku jksM ckWnk eas ,d /keZ'kkyk cuok;k tk; ysfdu og viuh ftUnxh esa viuh /keZ'kkyk u cuok ldsa vkSj mudh fnyh [okfg'k iwjh u gks ldhA ge Qjhdsu bu pkj fdrk nqdkukr o pkj eksVj [kkuk o nks fdrk edkukr [kkuk o eSnku vjkth mQ oknk eqLrfly LVs'ku jksM ckWnk dks fQygky rQlhy ugha djuk pkgrs ;g tk;nkn xSj eudwyk fQjgky ge gjhdku dh eqLrQh jgsaxh ml tk;nkn ds vykok o fd;k tqeyk tk;nkn xSj eudwyk dks ge Qjhdku us vkil esa jkth [kq'kh ls [kqc lksp le> dj rilhe dj fy;k gS vkSj vius vius fgLlk tk;nkn xSj eudwyk ij tqnk dkuk dkfct o nkf[ky gks x;s gSA "
14. The aforesaid partition suit No.2 of 1962 was decreed in terms of the compromise and the decree was drawn on 07.07.1962 by the District Judge, Banda.
15. Thereafter, an application No.164 dated 13.11.1963 was moved in Municipal Board Banda, jointly by Ram Krishna, Mata Prasad and Bhagwan Das to obtain permission for construction of "Sri Lal Man Dharmshala, Station Road Banda" as evident from Ex.A-7. Rent receipts for realising rent from tenants of Dharmshala dated 08.08.1971, 24.07.1972, 08.03.1971 and 10.09.1972 (paper No.56C, 205C, 206C and 207C) were also filed in evidence. A copy of notice dated 30.05.1972 issued by the plaintiff Mata Prasad to his brothers Ram Krishna and Bhagwan Das was filed as Ex.32 in evidence in which plaintiff Mata Prasad mentioned that the period to construct Dharmshala was ten years from the date of compromise decree dated 07.07.1962 which would expire on 06.07.1972. It was further stated in the notice by the plaintiff Mata Prasad that he was authorised by his brothers Ram Krishna and Bhagwan Das to look after the construction of Dharmshala, to recover rent from tenants or to evict them and to manage Dharmshala. He also mentioned the amount contributed by the three brothers including himself (Rs.5000/- each) construction of Dharmshala and refusal to give further money by Ram Krishna and Bhagwan Das to complete construction of Dharmshala. He, therefore, gave notice for partition of suit property equally.
16. It further appears that allegedly the amount as agreed in the compromise in partition Suit No.2 of 1962 was not being provided, therefore, the plaintiff Mata Prasad issued a notice dated 25.05.1965 (Ex.35) to his brother Ram Krishna in which he specifically stated that construction of Dharmshala is going on and the money available with him on account of Dharmshala has been spent and he also invested his own money in its construction and, therefore, a notice is being given to give account of income from motor-garage and the houses and to furnish income thereof so that construction of Dharmshala may be completed.
17. Thereafter, on 07.07.1972, i.e. the day when the partition suit in question being O.S. No.23 of 1972 for partition of the suit property was filed, the plaintiff Mata Prasad died. According to the heirs of Mata Prasad, he died at about 2:30 P.M. after filing of the suit while according to the defendants he died at about 10:30 A.M. before filing of the suit which was presented in court at about 1:00 P.M. Mata prasad was succeeded by his successors, namely Ram Janki, Akhilesh Chand and Rajendra Kumar. The defendant No.1 Bhagwan Das died during pendency of the suit. The other defendants, i.e. defendant Nos.2 to 9 are the sons and daughters of Ram Krishna and the defendant No.10 was the wife of Ram Krishna. This suit was contested only by the defendant No.6 Vidywati daughter of Ram Krishna and defendant No.10 Smt. Mahadeiya, wife of Ram Krishna. The other defendants accepted the claim made in the partition suit. Accordingly, the suit was decreed by judgment dated 29.09.1978 passed by the 3rd Additional District and Sessions Judge, Banda with cost against defendant Nos.6 and 10 only. It was held that the property was not dedicated for charitable purpose and it belong to the parties jointly and they are entitled to claim partition.
18. Aggrieved with the aforesaid judgment and decree, the defendant Nos.6 and 10/ appellants herein have filed the present first appeal under Section 96 of the Civil Procedure Code. During pendency of this first appeal, the appellant Nos.1 and 2 died and they have been substituted by their heirs and legal representatives. Some other parties have also died and their heirs and legal representatives have been substituted.
Submissions of defendants-appellants:-
19. Learned counsel for the defendant Nos.6 and 10/ appellants herein submits, as under:
(i) The plaintiff Mata Prasad died on 07.07.1972 at about 10:30 A.M. while the suit was filed on the said day thereafter through power of attorney Sri Harish Chandra (son-in-law of Mata Prasad) and as such the suit itself was not maintainable.
(ii) The suit for partition of properties was not maintainable as the plaintiff Mata Prasad had no right over the suit property as he was excluded by registered Will deed of Lal Man dated 09.07.1923 as supplemented by Will deeds dated 22.05.1924 and 30.06.1924.
(iii) The compromise decree in Suit No.2 of 1962 cannot create a right in the individual properties of Ram Krishna which he received by way of the aforesaid Will. Therefore, the suit for partition was not maintainable at the instance of Mata Prasad, who was having no right or interest in the suit property.
Case Law Relied: Bhoop Singh vs. Ram Singh Major and others, (1995) 5 SCC 709 (Paras:16, 17 and 18).
(iv) Undisputedly, the suit property is not a family property of the plaintiff but it was acquired and owned by maternal grandfather Sri Lal Man. As per Will, it was succeeded by Ram Krishna (brother of the plaintiff). Therefore, the plaintiff cannot claim for partition of suit property inherited by Ram Krishna from his maternal grandfather- Lal Man.
Case Law Relied: (a) Mohd. Husain Khan and others vs. Babu Kishva Nandan Sahai, AIR 1937 PC 233, (b) Madanlal Phoolchand Jain vs. State of Maharashtra and others, (1992) 2 SCC 717 (paras:2 and 3).
(v) The erroneous admission made by plaintiff's brother in partition Suit No.2 of 1962 is the basis of filing the present suit. By the aforesaid compromise decree, the Ram Krishna relinquished his right in the suit property but the compromise was not registered as required under Section 17 of the Registration Act. Even if no issue on this point was framed or argued or pleaded, yet since it is a legal question, and therefore, it deserves to be decided and suit deserves to be dismissed.
(vi) The issue No.4 was framed to the effect that "whether the properties in suit are dedicated for charitable purpose as alleged, if so its effect?" The court below held that there has been no dedication of the properties for construction of Dharmshala on the ground that no ceremony for dedication of the properties was performed. There is no need for any ceremony for dedication of properties for charitable purpose. The recital in the sale deed dated 08.07.1924 itself evidences the dedication of properties for construction of Dharmshala. That apart, the Will of Lal Man dated 09.07.1923 as supplemented by Will deeds dated 22.05.1924 and 30.06.1924 also evidences dedication of suit property for charitable purpose. The construction of Dharmshala was also undertaken as evident from own notice of the plaintiff dated 25.05.1965. The funds were specifically earmarked for construction of Dharmshala as evident from the aforesaid Will deed and the supplementary deeds which all were registered. Ex.32 is the notice of Mata Prasad dated 30.05.1972 whereby he asked Rs.200/- per month for supervising the construction of Dharmshala. Ex.A7 was the application dated 13.11.1963 for construction of Dharmshala. Entries in bahikhatas were made in the name of Dharmshala and khatas were maintained and filed in evidence which have been conveniently brushed aside by the court below. Thus, the findings recorded by the court below while deciding the issue No.4 and other relevant issues, are not based on evidences rather findings are wholly erroneous and perverse. A legal duty was cast upon beneficiaries to construct Dharmshala for which the suit property was purchased.
Submissions of plaintiff-respondents:
20. Sri R.K. Pandey, learned counsel for the plaintiff-respondent submits as under:
(i) The compromise decree in Suit No.2 of 1962 will operate as estoppal by judgment against Ram Krishna and his heirs which includes defendants appellants.
(ii) The admission of Ram Krishna in the compromise deed is the best evidence that the suit property was a joint property and the plaintiff has a right and title equal to one third share, in view of the decree passed in O.S. No.42 of 1923 by which the plaintiff Mata Prasad also received one third share in the suit property of O.S. No.42 of 1923 despite there being a Will of Lal Man dated 19.07.1923 as supplemented by deeds dated 22.05.1924 and 30.06.1924. Thus, the Will dated 09.07.1923 followed by supplementary Will deed dated 22.05.1924 and 30.06.1924 were never acted upon and for this reason, in O.S. No.42 of 1923, the plaintiff got one third share in the properties left by Lal Man.
Case Law Relied: Shailendra Narayan Bhanja Deo vs. State of Orrisa, AIR 1956 SC 346 (para-8).
(iii) Hon'ble Supreme Court has held that a judgment by consent or default is as effective an estoppel between the parties as a judgment and the court exercises its mind on a contested case. Therefore, the compromise decree shall operate as an estoppal against the defendants-appellants.
(iv) A charitable or religious trust is created by dedication of property. Under the Hindu law, there are two essential conditions in every act of dedication, namely (a) the ''sankalp' or the formula of resolve and (b) ''Utsarga' (sankalp) or renunciation. In the present set of facts, neither there was any evidence of sankalp nor of utsarga. Even there was no pleading and evidence about uthsarga by the defendants. Therefore, it was not proved that any charitable trust was created by Lal Man. In Deoki Nandan vs Murlidhar, AIR 1957 SC 133 (Para:15), it was held that the performance of Utsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public. Sankalpa means determination, and is really formal declaration by the settlor of his intention to dedicate the property. Utsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. No evidence could be led by the defendants-appellants either documentary or oral to prove that any sankalp or utasarg took place. In the sale deed as well as in the Will deed Sri Lal Man only expressed desire to built Dharmshala but there was no dedication of the property for Dharmshala. Therefore, no legal duty was cast upon the successors of Lal Man to built Dharmshala.
(v) All the defendants except the defendants-appellants have admitted the claim made in the suit in question and consented for decree. Therefore, the suit has been rightly decreed by the court below.
21. The counsels for the parties have not argued any other point before me.
Questions:-
22. With the consent of the learned counsels for the parties, the following questions are framed for determination in this appeal:-
(a) Whether a partition suit was maintainable for partition of the suit property?
(b) Whether the suit property was dedicated for construction of Dharmshala by Lal Man?
(c) Whether stipulation in the sale deed of the suit property for construction of Dharmshala, dedication of Rs.40,000/- in the supplementary Will deeds for construction of Dharmshala, own consensus amongst all the three grandsons of Lal Man, i.e. the original plaintiff and his brothers and other surrounding circumstances brought on record by evidences, are sufficient to prove that the suit property was dedicated for Dharmshala?
(d) Whether the compromise decree in O.S. No.2 of 1962 would operate as estoppal against the defendants-appellants?
Discussion and Findings:-
23. I have carefully considered the submissions of the learned counsels for the parties and perused the record.
24. Since all the question are interlinked, therefore, these are being decided together.
25. Since legal arguments have been raised by the learned counsels for the parties with respect to the questions involved in this appeal, therefore, it would be appropriate to crystialize firstly the legal position.
Scope of First Appeal under Section 96 C.P.C. and Powers of First Appellate Court:
26. The scope of Section 96 C.P.C. and powers of the first appellate court are not res-integra. It is well defined in Section 96 and Order XLI Rule 31 of the Civil Procedure Code. In Shashidhar vs. Ashwini Uma Mathod (2015) 11 SCC 269 (Paras-11 to 16), Hon'ble Supreme Court referred to its earlier judgments on the point in the cases of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, H.K.N. Swami v. Irshad Basith,(2005)10 SCC 243, Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 and B.V. Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 and summarised the law on this point, and, held that an appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. It is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
Registration of compromise decree under Section 17 of the Registration Act 1908.
27. The circumstances in which a compromise decree of a court needs to be registered under Section 17 of the Registration Act, 1908 has been authoritatively explained by Hon'ble Supreme Court in Bhoop Singh Vs. Ram Singh Major and others (1995) 5 SCC 709 (paras 16, 17 & 18) and held as under:-
"16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or presented consent. If latter be the position, the document is compulsorily registrable.
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below :
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the "subject matter of the suit or proceeding", clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated."
(Emphasis supplied by me) Ancestral Property:
28. In Madan Lal Phulchand Jain Vs. State of Maharashtra and others (1992) 2 SCC 717 (paras 2 & 3), Hon'ble Supreme Court held that Excluding the property inherited from a maternal grandfather, the only property which can be characterised as ancestral property is the property inherited by a person from his father, father's father, or father's father's father. Property inherited by a person from any other relation becomes his separate property and his male issue does not get any interest therein by birth. Thus, property inherited by a person from collaterals such as a brother, uncle, etc., cannot be said to be a ancestral property and his son cannot claim a share therein as if it were ancestral property. A Hindu can have interest in ancestral property as well as acquire his separate or self-acquired property. If he acquires by inheritance separate property a birth of his son or adoption of a son will not deprive him of the power he has to dispose of his separate property by gift or Will. That means that a Hindu can own separate property besides having a share in ancestral property. Therefore, when a Hindu inherits a land left by his uncle that property shall come to him as a separate property and he shall have an absolute and unfettered right to dispose of that property in the manner he liked. If it is contended that his separate property got blended with his ancestral property and thereby acquired the character of ancestral property then it must be shown that he had thrown his separate property into the common stock with the intention of abandoning his separate claim thereon. Evidence must be led to show a clear intention on his part to give up his separate rights and allow the separate property to be treated as an ancestral property and be enjoyed by the coparceners.
29. In Shyam Narain Prasad vs. Krishna Prasad (2018) 7 SCC 646 (para-12), Hon'ble Supreme Court considered the essential features of "ancestral property" and held as under:-
"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship."
(Emphasis supplied by me) Factors to be determined by courts for proper disposal of partition suit:-
30. In Shashidhar vs. Ashwini Uma Mathad (2015) 11 SCC 269 (Para-20), Hon'ble Supreme Court reiterated the settled principle of law for disposal of partition suit and the factors to be determined therein, and held as under:-
"20. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separatepossession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co-owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547)."
Admission in compromise when not binding
31. Relying upon the law laid down in Nagubai Ammal Vs. B. Sharma Rao AIR 1956 SC 593, Rahmanul Hasan Vs. Zahurul Hasan AIR 1947 Alld. 281, Kishori Lal Vs. Mt. Chaltibai AIR 1959 S.C. 504, Mohd. Imam Ali Khan Vs. Sardar Ali Khan 25 Ind. Apps. 161 (P.C.), this Court held in Devi Shankar and others Vs. Deputy Director of Consolidation and others 1985 (11) A.L.R. 172 (para 7, 10 & 18 ) as under:
"7.It is well settled that an admission is not conclusive as to the truth in the matter stated therein. It is only a piece of evidence, the weight to be attached to it must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue so long as the person to whom it is made has not acted upon it to his detriment and it may become conclusive by way of estoppel. See Nagubai Ammul v. B. Shama Rao A.I.R. 1956 S.C. 593.
10. It was further held in para 20 of the report that:-
"If the facts are once ascertained, presumption arising from conduct cannot establish a right which the facts themselves disprove. (See Tayamal's Case,10 Moo Ind. App. 429 at page 433)."
18. ....... An admission of a party contained in a compromise or in any other deed or document, can no doubt be taken to be a substantive piece of evidence but the same has got to be scrutinised and considered on merits along with other evidence led by the parties in support of their respective cases. If the admission is shown to be factually incorrect on the consideration of evidence on record, the claim of the party relying on it cannot be upheld merely on its basis because an erroneous and untrue admission cannot confer title on a person if he has no title in the property in question."
(Emphasis supplied by me)
32. In Mohd. Kafeel and another Vs. State of U.P. and another 1997(3) ALR 579 (para 10), this Court relied upon a judgment of Hon'ble Supreme Court in Banarasi Das v. Kansi Ram, AIR 1963 SC 1165 (Para 12), and a judgment of Privy Council in Society Banque v. Girdhari, AIR 1940 PC 90, and held that an admission would bind the parties only in so far as facts are concerned but not in so far as it relates to a question of law. An erroneous admission on a point of law is not an admission of a thing, so as to make the admission a matter of estoppel and the court is not precluded from deciding the rights of parties on a true view of the law.
What is Dharmasala ?
33. A popular form of Hindu charitable trust is the institution known as Dharmasala. The expression primarily signifies a rest house and it corresponds to what is known as choultry in Southern India, the object of which is to provide rest and some times food to travellers and itinerant ascetics. Thus, dedication for Dharmasala is a charitable object.
Dedication of property for charity
34. In Pratap Singh Ji N. Desai Vs. Deputy Charity Commissioner Gujarat and another 1987 (supp) SCC 714 (para 8) Hon'ble Supreme Court held that "Endowment" is dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment. Dedication need not always be in writing and can be inferred from the facts and circumstances appearing. The property so dedicated to a pious purpose is placed extra-commercium and is entitled to special protection at the hands of the Sovereign whose duty is to intervene to prevent fraud and waste in dealing with religious endowments.
35. In Menakuru Dasaratharami Reddi and another Vs. Duddukuru Subba Rao and others, AIR 1957 SCR 797 (Para 5), Hon'ble Supreme Court considered the requirement of dedication to charity by instrument or grant and held as under:-
"5. The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the, private secular character of the property and its complete dedication to charity. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity. Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word "trust" or "trustee" is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. Is the private title over the property intended to be completely extinguished ? Is the title in regard to the property intended to be completely transferred to the charity ? The answer to these questions can be found not by concentrating on the significance of the use of the word "trustee" or "trust" alone but by gathering the true intent of the document considered as a whole. In some cases where documents purport to dedicate property in favour of public charity, provision is made for the maintenance of the worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole."
(Emphasis supplied by me)
36. In Kuldeep Chand and another Vs. Advocate General to Government of H.P. and others (2003) 5 SCC 46 (paras 21, 38, 40, 42) Hon'ble Supreme Court explained the dedication of property for charitable purpose and held as under:-
"21. It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contra-distinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity.(See Menakuru Dasaratharami Reddi vs. Duddukuru Subba Rao,AIR 1957 SC 797).
38. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be compete or partial. A right of easement in favour a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose.
40. Undoubtedly, bequests for construction of a Dharamsala will be for a charitable purpose. It is not necessary that the properties must be dedicated to any particular deity but what is essential is complete dedication for a charitable purpose. Such dedication may be made to an object both religious and of public utility.
42. When a dedication to a charity is sought to be established in absence of an instrument or grant, the law requires that such dedication be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. It must be proved that the donor intended to divest himself of his ownership in the dedicated property. The meaning of charitable purpose may depend upon the statute defining the same."
(Emphasis supplied by me) Creation of Trust by Will
37. In Malayammal vs. A. Malayalam Pillai, 1991 (supp.2) SCC 579 (paras 11, 15, 16 and 19) Hon'ble Supreme Court held, as under:
"11. In Hindu system there is no line of demarcation between religion and charity. On the other hand, Charity is regarded as a part of religion. But "what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions."
15. ..................... It is one of the cardinal principles of construction of Wills that wherever it is possible, effect should be given to every bequest of the testator unless it is opposed to law, custom or practice. If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law. Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved. ........................
16. ............................ in construing the validity of an endowment created under a Will, we cannot be guided merely by the acts of the manager or the manner in which the executor of the Will has understood the directions of the testator. We are required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will. ....................
19. .................... As observed by Patanjali Shastri, J., as he then was, in Veluswami Goundan vs. Dandapani, [(1946) 1 MLJ 354] where no deity is named in the deed of endowment, the court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained. We agree that these are the safe guides."
(Emphasis supplied by me)
38. In Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, 2009, 3 SCC 287 (paras 3, 11, 27, 29, 30, 32, 33 and 36), Hon'ble Supreme Court laid down the principles for construction of a Will and held as under:
"3. Controversy involved in this appeal centres around the construction of a Will executed by one Shri Bishan Sahai Vidyarthi on 21.11.1965. The said Bishan Singh Sahai died in or about 1973.
11. One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned Trial Judge answered the question in the affirmative. The same was reversed by the first appellate court. A finding of fact arrived at by the first appellate court is ordinarily final. Its correctness can be questioned if, inter aila, the same was based upon no evidence or is otherwise perverse or that correct legal principles were (sic not) applied.
27. This gives rise to two questions which are of some importance. When a sum is to be invested in the immoveable property and in the event, any further sum is necessary, the extent of title is required to be determined, does it demonstrate the intention on the part of the testator. In our opinion, it does. Wakf is a 'final dedication'. It goes out of the control of dedicator. The use of the said word may not be appropriate in a situation of this nature but that only goes to show that the testator intended to divest himself of the said property.
29. It may be true that the property was purchased in the name of the testator himself. The High Court commented that the same could have been done in the name of the appellant and his mother or at least the purchase could have been a joint one. But the Will is required to be construed on the basis of the terms used therein and not otherwise.
30. The answer to the question may be difficult one. Only because there does not exist any straight forward answer, the same would not mean that beneficiaries under the Will shall be deprived therefrom only because the property was purchased in his own name by the testator. The testator had a long wish to purchase an immoveable property. He even thought of acquiring a property, price whereof might exceed Rs.30,000/-. If he wanted to keep apart the said sum of Rs.30,000/- for the benefit of the appellant and his mother, we think he also wanted to bequeath the immoveable property purchased out of the said amount.
32. How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.
33. In Navneet Lal v. Gokul [(1976) 1 SCC 630] it has been held :
"8. From the earlier decisions of this Court the following principles, inter alia, are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal AIR 1951 SC 139) (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha Appa Row v. Parthasarathy Appa Row (1913-14) 41 IA 51) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar AIR 1951 SC 103) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das AIR 1963 SC 1703) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite (2003) 6 SCC 98)'." {See also Arunkumar & Anr. v. Shriniwas & Ors. [(2003) 6 SCC 98]}
36.In Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363], it is stated :
"Keeping in mind the aforementioned backdrop, the Will should be construed. It should be done by a Court indisputably placing itself on the armchair of the testator. The endeavour of the court should be to give effect to his intention. The intention of the testator can be culled out not only upon reading the will in its entirety, but also the backgrounds facts and circumstances of the case."
(Emphasis supplied by me)
39. In Dayal Chand Vs. Fifth Addl. Additional District and Sessions Judge, Saharanpur & others (1979) 5 ALR 97 (para 6):
"6.Section 5 of the Indian Trusts Act lay down that no Trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing, signed by the author of the trust or the trustee, and registered, or by the will of the author of the trust or the trustee. The Indian Trust Act applies to Hindus. But, Section 1 of the said Act clearly saves from its operation all religious and charitable endowments, either public or private. It is thus clear that except where a trust is created by a will, it is quite competent to a Hindu to dedicate for religious or charitable purposes, any immovable property without document in writing. For creating a trust, what is required is the unequivocal declaration of the intention followed by the dedication of the property. B.K. Mukerji in his book on Hindu Law of Religious and Charitable Trusts stated as follows:
"There are a large number of decided cases where it has been held, that to constitute valid dedication of property by a Hindu for religious or charitable purpose, no document in writing or registered is necessary."
(Emphasis supplied by me)
40. In K.S. Palanisami (Dead) through Legal Representatives Vs. Hindu Community in General and Citizens of Gobichettipalayam and others (2017) 13 SCC 15 (paras 42, 45 and 61):
"42. Justice B.K. Mukherjea J., speaking for this court in Gnambal Ammal Vs. T. Raju Ayyar and others, AIR 1951 SC 103, on construction of the will laid down the following in para 10:
"10. The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha Vs. Parthasarathy Appa Row, 1913 SCC OnLine PC 39:-
"[the Courts] are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. ''The Court is entitled to put itself into the testator's armchair'......But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions...... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."
44. General principles for construction of a Will have been reiterated by this court in a large number of cases. It shall be sufficient to refer to a three Judge Bench judgment of this court in Navneet Lal alias Rangi Vs. Gokul & Others, 1976 (1) SCC 630. After referring to judgment of Privy Council and several judgments of this court, certain principles were enumerated in paragraph 8 of the judgment, which is to the following effect:-
"8. From the earlier decisions of this Court the following principles, inter alia, are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered ; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.(Ram Gopal V. Nand Lal AIR 1951 SC 139).
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha V. Parthasarathy 1913 SCC OnLine PC 39) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. . . . But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha's case(supra) and Gnambal Ammal V. T. Raju Ayyar AIR 1951 SC 103) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expression but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh V. Thakurain Bakhtraj Kuer AIR 1953 SC 7) (4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal V. Rameshwar Das AIR 1963 SC 1703) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy V. Mrs. Hilda Brite AIR 1964 SC 1323)"
45. The High Court in the impugned judgment has elaborately considered whether a Will is a Joint Will or Joint and Mutual Will. High Court after referring to the large number of cases has come to the conclusion that it is a Joint and Mutual Will, since both the testator and testatrix agreed to devote their properties for carrying out charities, the High Court concluded that intention of both testator and testatrix to give property to charities is manifest from the reading of the Will in its entirety.
61. We, thus, are of the view that giving absolute right to the survivor during his lifetime to deal with the properties in no manner cannot be said to be right given in disregard of object of trust. The charitable purpose of the Will is not lost even if survivor is given absolute right. The obligation of survivor to act in furtherance of object as agreed by both the testators survives and binds the survivor. Although the Will was irrevocable after the death of survivor but the Will expressly granted absolute right to survivor."
(Emphasis supplied by me) Whether performance of ceremonies to dedicate a property for charitable purpose is necessary?
41. The ceremonies relating to dedication for charitable purpose are Sankalpa and Uthsarga. Sankalpa means determination, and is really a formal declaration by the settler of his intention to dedicate the property. Uthsarga is formal renunciation by the founder of his ownership on the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. If Uthsarga is proved to have been performed, the dedication must be held to have been to the public. In Deoki Nandan Vs. Murlidhar and others AIR 1957 SC 133 (paras 14 & 15) Hon'ble Supreme Court held that it is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.
42. In Tilkayat Sri Govindlalji Maharaj Vs. State of Rajasthan and others AIR 1963 SC 1638 Hon'ble Supreme Court laid down the law that "a dedication of private property to a charity need not be made by a writing: it can be made orally or even can be inferred from conduct".
43. In M. Appala Ramanujacharyula Vs. M. Venkatanarasimhacharyulu and others AIR 1974 (A.P.) 316 (para 4) a Division Bench of Hon'ble Andhra Pradesh High Court held that "an endowment can be created by the execution of a deed of dedication by the donor. But however, it must be noted that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid endowment. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated."
44. Having briefly summarised the principles of law laid down by Hon'ble Supreme Court and High courts on different points as above, now I proceed to examine the facts of the present case and rival submissions so as to answer the question framed in para 22 of this judgment.
FINDINGS:-
45. The partition suit in question was filed only for partition of the suit property which was purchased by Lal Man for construction of Dharmshala by a registered sale deed dated 08.07.1924. After few days Lal Man died on 16.07.1924. The cause of action and the basis of right shown in the plaint was that since as per compromise amongst the plaintiff and his two brothers in the earlier partition Suit No.2 of 1962, construction of Dharmshala could not be completed within ten years, therefore, the suit property, i.e. the Dharmshala is liable to be partitioned equally amongst the plaintiff and his two brothers.
46. The defendant No.6/ appellant has filed written statement (paper No.84ka1) and additional written statement (paper No.102ka) in which she took a clear stand that the suit property was purchased for Dharmshala by Lal Man by a registered sale deed dated 08.07.1924 and it was dedicated for Dharmshala. A sum of Rs.40,000/- for construction of Dharmshala and a sum of Rs.30,000/- for running Dharmshala was dedicated by Lal Man under his registered supplementary Will deed dated 22.05.1924 followed by another supplementary registered Will deed dated 30.06.1924. The suit property was dedicated Hindu endowment for a public charitable purpose and from the beginning the suit property was Dharmshala and it was always accepted as Dharmshala by the plaintiff-Mata Prasad and his two brothers namely Ram Krishna and Bhagwan Das. Therefore, its charitable nature can neither be changed nor it can be partitioned. The inclusion of the suit property in the compromise filed by the aforesaid three brothers in partition Suit No.2 of 1962 was collusive and fraudulent. Mata Prasad was looking after Dharmshala as Manager and during his life time, he has not questioned that character of the suit property as Dharmshala. After the year 1962-63, eight shops, verandas and eight rooms, were constructed as part of Dharmshala after getting the map sanctioned from Muncipal Board in the name of Sri Lal Man Dharmshala but its further construction was stopped by the plaintiff - Mata Prasad in collusion with his son-in-law and power of attorney holder Sri Harish Chandra Gupta who has occupied a big portion showing a very little rent.
47. In paragraphs-3 to 6 of the plaint, it was admitted that from Rs.15,000/-, contributed in equal proportion by each brother, construction of Dharmshala was carried and eight shops, verandas and eight rooms were constructed but since Dharmshala could not be fully constructed within ten years of the compromise dated 21.05.1962 in O.S. No.2 of 1962 and as such cause of action arose to file the suit for partition of the suit property in equal share. The suit was filed by Harish Chandra Gupta (PW-1), who was son-in-law and power of attorney holder of the plaintiff Mata Prasad. All the accounts and papers relating to Dharmshala were in possession of Mata Prasad and his power of attorney holder and son-in-law Harish Chandra Gupta as evident from the oral evidence of Harish Chandra Gupta. In his cross examination, he admitted new construction of eight shops, verandas and eight rooms for Dharmshala, the notice dated 30.05.1972 given on behalf of the plaintiff Mata Prasad by Sri Kali Charan, Advocate (Ex.32), the copies of cash-book and ledger of the year 1972-73 and 1973-74 (paper Nos.132ga-132/11ga2), copies of Dharshala Account of the year 1968-69 and cash book of the year 1969-70 (paper No.315ga1, 316ga, 317ga and 318ga), which are the books of account of the firm Mata Prasad Harish Chandra. In his cross-examination, Harish Chandra Gupta (PW-1) shown total ignorance about the registered sale deed dated 08.07.1924 for purchase of the suit property by Lal Man for Dharmshala but he admitted all the three registered Will deeds dated 09.07.1923, 22.05.1924 and 30.06.1924 and dedication of Rs.40,000/- by Lal Man for Dharmshala and Rs.30,000/- for maintenance of Dharmshala and Sadavrat out of the money to be received in Suit No.42 of 1923. In reply to the question as to whether he was aware of the dedication of the suit property for Dharmshala by Lal Man when compromise was made in the year 1962, he firstly denied but thereafter stated that he came to know about it by Ram Krishna, Mata Prasad and Bhagwan Das. He also admitted that the books of accounts were written by Sri Mata Prasad and by him in which in Dharmshala account entries of receipts and income of Dharmshala were made. He admitted that he took the shops and rooms of Dharmshala on rent. He admitted that rents were entered in Dharmshala account. He also admitted to have spent Dharmshala money to contest the suit and drawn money of Dharmshala income as evidenced by Paper No.132ga2/10 132ga2/11. He (PW-1) specifically stated in his cross-examination that "yah baat sahi hai ki is mukadme ki jaydad se Dharmshala banani thi".
48. The aforesaid Harish Chandra Gupta (P.W.-1) who is son-in-law of the plaintiff Mata Prasad was cross-examined in detail and several questions were put to him. During his cross-examination while he admitted entries in Dharmshala account regarding receipts of amount for construction of Dharmshala and income of Dharmshala, but shown ignorance that the suit property was purchased by Lal Man for Dharmshala. However, at the same time, he admitted that the rental income from the suit property was used to be entered by him in Dharmshala account and used to maintain tenants account. He admitted withdrawal on 16.11.1973 of Rs.4000/- from Dharmshala income account but allegedly its payment to the defendant No.1- Bhagwan Das. After going through, the original books of accounts, paper No.131ga and 132ga/11 relating to the year 1972-73, he admitted that he entered Rs.1100/- in Dharmshala account for payment of expenses to Kali Charan, Advocate on 25.06.1972 for filing the suit. He admitted withdrawal of amount by several entries from Dharmshala account from time to time. He admitted that in the books of accounts in Dharmshala account, a sum of Rs.6400/- was debited. On the one hand, he admitted Mata Prasad to be the Manager of the Dharmshala, i.e. the suit property but at the same time he alleged that he was also owner. Thus, from the oral evidence of P.W.-1, it is proved that even the plaintiff- Mata Prasad and thereafter the P.W.-1 himself have always treated the rental income of the suit property as income of Dharmshala. Thus, as per books of account maintained by the plaintiff, the nature and character of the suit property is proved to be Dharmshala.
49. In her oral evidence at the age of about 80 years, the defendant No.10 Mahadeiya (DW-1), w/o Ram Krishna clearly stated that the suit property was dedicated by Lal Man for Dharmshala and that the suit property is Dharmshala and its construction was entrusted to the plaintiff Mata Prasad. She narrated in detail the ceremony of sankalp and utsarg by Lal Man of the suit property for Dharmshala. She named several persons who were present in the ceremony of sankalp to the extent known to her.
50. In his evidence Ramesh Chandra (DW-2) deposed, that construction work of Dharmshala was entrusted to the plaintiff Mata Prasad. Sixteen rooms and verandas were constructed. He stated that an application was filed jointly by Mata Prasad and Bhagwan Das in Nagarpalika for sanction of the map (Ex.A7) and for that purpose on instruction of Mata Prasad, a bank draft of Rs.3400/- was prepared from Central Bank Banda (paper No.222ka and Ex.14), he was looking after construction work, Mata Prasad used to realize the rental income of Dharmshala and also used to keep its accounts and that partition suit No.2 of 1962 was filed as a conspiracy by Mata Prasad and his son-in-law Harish Chandra Gupta. In his detail cross-examination, nothing could be brought out which may indicate that either there was no dedication of the suit property by Lal Man or that the suit property is not Dharmshala property. The sankalp ceremony of Dharmshala was also proved by oral evidence of DW-1 Mahadeiya (defendant No.10) and DW-3 Jagannath Dixit who clearly stated that the sankalp ceremony of the suit property for Dharmshala took place in the year 1924 and after 7 or 8 days of the ceremony, Lal Man died.
51. It appears that Lal Man had made up his mind for purchase of the suit property and dedication thereof for Dharmshala. Therefore, in paragraph-2 of the supplementary Will deed dated 22.05.1924, as quoted in para-7 above, he made clear dedication that out of the properties which may be received after his death by Ram Krishna and Bhagwan Das in Suit No.42 of 1923, a Dharmshala and a Well shall be constructed with cost upto Rs.40,000/- and another sum of Rs.30,000/- shall be invested in bank or with Government and from income thereof, Sadavrat shall be run and Dharmshala shall be maintained. He gave a clear direction in his supplementary Will deed dated 30.06.1924 that Ram Krishna shall carry out the direction in the Will. He again emphasized subject matter of the properties of the Will to be the properties presently in his possession and also those which may be received in Suit No.42 of 1923. These facts are well evident from the registered Will deed dated 09.07.1923 (Ex.A11) registered supplementary Will deed dated 22.05.1924 (Ex.A12) and registered supplementary Will deed dated 30.06.1924 (Ex.A13). Relevant portions of these three Will deeds have been reproduced in paragraphs 6, 7 and 8 above.
52. The location and boundaries of the suit property purchased by Lal Man for Dharmshala also clearly indicates that he chosen to purchase the suit property for Dharmshala since it is situate at the Station Road and very close to the Railway Station so that travellers coming to Banda by train may be benefited by their stay in Dharmshala.
53. Thus, Lal Man was conscious enough to confine his Will to the properties in his possession at the time of execution of the Will as well as the properties which may be received in Suit No.42 of 1923. By the aforesaid Will deeds, he also dedicated a sum of Rs.40,000/- out of the money/ properties to be received in Suit No.42 of 1923, for Dharmshala. Subsequent to his last supplementary Will deed dated 30.06.1924, the suit property was purchased by Lal Man by a registered sale deed dated 08.07.1924, in which, purchase of the suit property for Dharmshala was clearly mentioned as evident from the relevant portion of the sale deed (Ex.10), reproduced in paragraph-9 above. Thus while dedicating a sum of Rs.40,000/- for construction of Dharmshala, purchase of the suit property was well in his mind/ under process and accordingly, after few days of the aforesaid dedication, he, by registered sale deed dated 08.07.1924, purchased and dedicated the suit property for construction of Dharmshala for public benefit. Few days thereafter, he died. Thus, the purchase and dedication of the suit property for Dharmshala and dedication of Rs.40,000/- for its construction and Rs.30,000/- for Sadavrat, are well proved by documentary and oral evidences on record as well as the surrounding circumstances but the trial court completely misdirected itself and arbitrarily and illegally passed the impugned judgment to decree the partition suit.
54. The dedication of the suit property for Dharmshala is further evidenced by the fact that after the plaintiff Mata Prasad along with his two Brothers Ram Krishna and Bhagwan Das obtained a compromise decree in partition Suit No.2 of 1962, they jointly moved an application No.164 dated 30.11.1963 in the Municipal Board, Banda for sanction of map/ permission for construction of Sri Lal Man Dharmshala, Station Road, Banda, as evident from Ex.A7. From the notice given by the plaintiff Mata Prasad dated 25.05.1965 (Ex.35) and notice dated 30.05.1972 (Ex.32) as discussed in paras-15 and 16 of this judgment, it is evident that a sum of Rs.5000/- by each of the three brothers was released for construction of Dharmshala and the construction was carried. The aforesaid sum of Rs.15,000/- released by the three brothers, namely Ram Krishna, Mata Prasad and Bhagwan Das, can easily be linked with the dedication of Rs.40,000/- made by the testator Lal Man in his aforesaid Will deeds. The description in Schedule-D of the compromise deed (Ex.15) in O.S. No.2 of 1962 shows that at the time of aforesaid compromise deed dated 21.05.1962, over the suit property there existed four shops, four motor-garages and two houses and a field. This shows that construction over the suit property, i.e. the Dharmshala was existing even prior to the year 1962. This supports the stand taken by the defendant No.6/ Appellant in her written statement that the suit property was Dharmshala from the beginning. Subsequent to the compromise decree in O.S. No.2 of 1962, certain construction was raised which the the pliaintiff Mata Prasad termed it as partly constructed Dharmshala building and shown letting of newly constructed substantial portion of the Dharmshala to his son-in-law or maternal grandsons. From own notice of the plaintiff dated 30.05.1972 (Ex.32), it is also evident that the plaintiff Mata Prasad was authorised by his brothers Ram Krishna and Bhagwan Das to look after the construction of Dharmshala, to recover rent from the tenants and to evict tenants and to manage the Dharmshala. Rent receipts dated 08.08.1971, 24.07.1972, 08.03.1971 and 10.09.1972 (paper No.56C, 205C, 206C and 207C) filed in evidence, also proved that rent was being realized from tenants of Dharmshala. Thus, dedication of the suit property for Dharmshala, further construction of Dharmshala after the year 1962-63 and letting out portion of Dharmshala on rent, are established on record on the one hand and on the other hand it appears that the suit property which was for public benefit, was mismanaged and misused by the plaintiff and his brothers and the son in law Harish Chandra Gupta (PW-1) in stages with calculated mind to usurp it and to convert it in their individual properties.
55. To sum up, I have no hesitation to hold that finding recorded by the court below while deciding issue No.4 that Lal Man merely expressed desire to construct Dharmshala and there was no dedication, is wholly perverse and is, therefore, set aside. The conclusions so reached by me is based on detailed discussion made in foregoing paragraphs of this judgment which clearly establishes that dedication of suit property for Dharmshala and dedication of Rs.40,000/- and Rs.30,000/- for construction and maintenance of Dharmshala, are evidenced by registered Will deeds dated 22.05.1924 and 30.06.1924 (Ex.12 and 13), the registered sale deed of the suit property dated 08.07.1924 (Ex.10), the notice given by plaintiff Mata Prasad dated 30.05.1972 (Ex.32), copies of books of accounts, paper No.131ga and 132ga/11 relating to the year 1972-1973 and 1973-1974, copies of Dharmshala account for the year 1968-69, cash-book of the year 1969-1970, (paper No.315ga, 316ga, 317ga and 318ga), application for sanction of map submitted to the Municipal Board (Ex.7 and Ex.14), oral evidence of DW-1- Mahadeiya, wife of Ram Krishna, DW-2 Ramesh Chand, DW-3 - Jagannath Dixit, PW-1- Harish chandra Gupta and rent receipts being paper No.56C, 205C, 206C and 207C, the surrounding circumstances, intention of the testator Lal Man and the law settled by Hon'ble Supreme Court in Pratap Singh Ji N. Desai (supra), Menakuru Dasaratharami Reddi and another (supra), Kuldeep Chand and another (supra), Malayammal (supra), Narendra Gopal Vidyarthi (supra), Dayal Chand (supra), K.S.Palanisami (Dead) through Legal Representatives (supra), Deoki Nandan (supra), Tilkayat Sri Govindlalji Maharaj (supra). The relevant portions of the aforesaid judgments have already been reproduced in foregoing paragraphs of this judgment. The alleged compromise decree in partition Suit No.2 of 1962 is not binding in view of the discussions made in foregoing paragraphs of this judgment as well as the law laid down by Hon'ble Supreme Court in Nagubai Ammal (supra), Kishori Lal (supra), Banarasi Das (supra), the judgment of Privy Council in Mohd. Imam Ali Khan (supra), and the judgments of this Court in Rahmanul Hasan (supra), Devi Shankar and others (supra), Mohd. Kafeel and another (supra). The partition suit for partition of the suit property amongst individuals was not maintainable being a public charitable endowment. The plaintiff alleged in the plaint that the suit property is not Dharmshala property but he could not lead evidence to establish that it is not Dharmshala property as against the evidences discussed above. The onus to prove that the suit property is not Dharmshala property, was upon the plaintiff which he completely failed to prove.
Conclusions:
56. In view of the above detailed discussion, on facts and legal questions, my conclusions are as under:-
i. Suit property was dedicated for Dharmshala by Lal Man and thus, an endowment for public charitable purpose was created. Lal Man also dedicated Rs.40,000/- for construction of Dharmshala and Rs.30,000/- for Sadavrat and maintenance of Dharmshala as per his registered supplementary Will deeds dated 22.05.1924 (Ex.A12) and dated 30.06.1924 (Ex.A13). The suit property being Dharmshala created for public charitable purpose, could not be partitioned by the plaintiff-Mata Prasad and his two brothers Ram Krishna and Bhagwan Das. They had no right, title or interest in the suit property. They had kept with them a sum of Rs.40,000/- and Rs.30,000/- dedicated for Dharmshala and Sadavrat under the aforesaid registered supplementary Will deeds and released merely Rs.15,000/- (Rs.5000/- by each brother) for further construction of Dharmshala after the year 1962-63.
ii. Since the suit property is Dharmshala created for public charitable purpose by Sri Lal Man as evidenced by documentary evidences on record and, therefore, the partition suit filed by the plaintiff Mata Prasad for partition of the suit property as joint property of three individuals (plaintiff Mata Prasad and his two brothers Ram Krishna and Bhagwan Das), was neither maintainable nor could have been decreed by the impugned judgment and decree.
iii. In view of my conclusions in paras 56(i) and 56(ii) above, the compromise decree in O.S. No.2 of 1962 between three brothers (Ram Krishna, Mata Prasad and Bhagwan Das) for partition of the suit property, would not operate as estoppal against the defendants in respect of the suit property.
iv. The law that a compromise decree of a court need not be registered under Section 17 of the Registration Act, 1908 which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards, is not applicable on the facts of the present case in respect of the suit property in which the parties to the compromise decree were not having any pre-existing right, title or interest.
v. Excluding the property inherited from a maternal grandfather, the only property which can be characterised as ancestral property is the property inherited by a person from his father, father's father, or father's father's father. Property inherited by a person from any other relation becomes his separate property and his male issue does not get any interest therein by birth. Thus, property inherited by a person from collaterals such as a brother, uncle, etc., cannot be said to be a ancestral property and his son cannot claim a share therein as if it were ancestral property. A Hindu can own separate property besides having a share in ancestral property. If it is contended that his separate property got blended with his ancestral property and thereby acquired the character of ancestral property then it must be shown that he had thrown his separate property into the common stock with the intention of abandoning his separate claim thereon. The suit property was neither ancestral property of the three brothers, namely Ram Krishna, Mata Prasad and Bhagwan Das, nor they had any right, title or interest therein, since it was dedicated by Lal Man for public charitable purpose, i.e. Dharmshala.
vi. An admission is not conclusive as to the truth in the matter stated therein. It is only a piece of evidence, the weight to be attached to it must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue so long as the person to whom it is made has not acted upon it to his detriment and it may become conclusive by way of estoppel. An admission of a party contained in a compromise or in any other deed or document, can no doubt be taken to be a substantive piece of evidence but the same has got to be scrutinised and considered on merits along with other evidence led by the parties in support of their respective cases. If the admission is shown to be factually incorrect on consideration of evidences on record, the claim of the party relying on it cannot be upheld merely on its basis because an erroneous and untrue admission cannot confer title on a person if he has no title in the property in question. An admission would bind the parties only in so far as facts are concerned but not in so far as it relates to a question of law. An erroneous admission on a point of law is not an admission of a thing, so as to make the admission a matter of estoppel and the court is not precluded from deciding the rights of parties on a true view of the law. In the facts of the present case, I have found, as already held; that the suit property is Dharmshala and thus a public charitable endowment and, therefore, the compromise entered between the plaintiff Mata Prasad and his brothers Ram Krishna and Bhagwan Das was an untrue and collusive admission. Therefore, it cannot confer title upon them as they had no right or title in the suit property.
vii. "Endowment" is dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment. Dedication need not always be in writing and can be inferred from the facts and circumstances appearing. The property so dedicated to a pious purpose is placed extra-commercium and is entitled to special protection at the hands of the Sovereign whose duty is to intervene to prevent fraud and waste in dealing with public charitable and religious endowments. In the present set of facts, it has been found that the suit property was dedicated for public charitable purpose, i.e. Dharmshala. Bequests for construction of a Dharamsala will be for a charitable purpose.
viii. Charity is regarded as a part of religion. It is one of the cardinal principles of construction of Wills that wherever it is possible, effect should be given to every bequest of the testator unless it is opposed to law, custom or practice. If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law. Attempt should be made to give effect to the provisions made for recognised charitable purposes even in cases where the entire scheme of the testator cannot be saved. In construing the validity of an endowment created under a Will, the dominant intention of the testator is required to be examined and that could be ascertained only by the terms of the Will. On facts I have found clear dedication by Lal Man as discussed above in detail which resulted in charitable endowment. Therefore, effect to the directions in the Will deeds have to be given.
ix. Even if the suit property was purchased by the testator in his name but a clear intention of dedication for charitable purpose was evident, from the sale deed and the Will deeds, then the same could not mean that the beneficiaries under the Will i.e. the public at large, shall be deprived therefrom only because the property was purchased by the testator in his own name. Intention of the testator must be ascertained from the words used in the deeds and the surrounding circumstances. While dealing with such a situation, the court will put itself in the armchair of the testator. The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions in the Will to be inoperative. The court would look at the circumstances under which the testator makes his Will such as the state of his property, of his family and the like. Where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. It is one of the cardinal principles of construction of a will that to the extent that it is legally permissible, effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Except where a trust is created by a will, it is quite competent to a Hindu to dedicate for religious or charitable purposes, any immovable property without document in writing. The Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. But all this is solely as an aid to arrive at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The true intention of the testator has to be gathered not by attaching importance to isolated expression as has been done by the court below in the present case but by reading the will and the sale deed as a whole with all its provisions and other evidences on record and ignoring none of them as redundant or contradictory.
57. The plaintiff-respondents have made themselves liable for exemplary costs due to their conduct as evident from the facts of the case discussed above and their malafide attempt to usurp the Dharmshala property. They obstructed use of the Dharmshala property for public benefit on one hand and on the other hand, dragged the defendant-appellants in litigation for more than 47 years. Therefore, I find the present case to be fit case to impose exemplary costs.
58. In result, the appeal is allowed with cost of Rs.11,00,000/- (rupees eleven lacs). The impugned judgment and decree dated 29.09.1978 passed by the court below in O.S. No.23 of 1972 (Mata Prasad vs. Bhagwan Das and others), is hereby set aside and the suit is dismissed with costs. The costs as aforesaid shall be deposited by the plaintiffs-respondents with the court below within a month. The court below may release a sum of Rs.1,00,000/- (rupees one lac) to the defendants-appellants herein. The balance amount of costs shall be kept by the court below in highest interest bearing fixed deposit in a nationalized bank in the name of "Sri Lal Man Dharmshala" renewable from time to time till the the amount on an application, is released for renovation/ further construction of "Sri Lal Man Dharmshala" over the suit property to the Committee of Management of the Dharmshala or in absence thereof, to a committee as may be constituted by a competent court for proper administration/ management of the Dharmshala. In the absence of committee of management in terms of the directions of the testator Lal Man in paragraph No.2 of the Will dated 22.05.1924 for management of the Dharmshala, it shall be open for the appellants to apply to a competent court for framing Scheme of Administration for proper and effective management of the Dharmshala in question so as to prevent further damage and misuse of Dharmshala property on one hand and on the other hand, to achieve the object and purpose of the Dharmshala.
Order Date :- 24.04.2019 NLY/VKG