Allahabad High Court
Jagdish Narain Tandon vs State Of U.P. And Others on 27 June, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 05.05.2022 Delivered on 27.06.2022 Court No. - 10 Case :- SECOND APPEAL No. - 470 of 2003 Appellant :- Jagdish Narain Tandon Respondent :- State of U.P. and Others Counsel for Appellant :- Manoj Misra,Anjani Kumar Mishra,Ashwani K. Mishra,O.P. Lohia,Raghuvansh Misra,Rahul Agrawal,Vageesh Pandey,Vrindavan Mishra Counsel for Respondent :- S.C.,Narendra Mohan Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Anil Sharma, learned Senior Counsel, assisted by Sri R.M. Saggi, learned counsel for the appellant and Sri P.K. Giri, learned Additional Chief Standing Counsel for the respondents.
2. This case has a long chequered history. A brief narration of the case is necessary for better appreciation of the case, which are as under:-
3. On 06th June, 1946, Baijnath Tandon, Kedarnath Tandon and Rajnath Tandon sons of one Lala Lallumal created a trust named ''Tandon Trust' in memory of Smt. Hira Devi and Lala Lallumal consisting of immovable properties with the object of encouraging education, culture, study of Hindu Religion, Philosophy and Social Service in order to perpetuate the memory of the grand mother and father of the Authors of the Trust.
4. The Trust consisted of the original nine trustees who were to manage the properties of the Trust. Para 7 provided for the vacancy caused in case of a trustee is removed, the same was to be filled according to the provisions of Indian Trust Act, 1882.
5. On 29.01.1966, two of the trustees, Dr. Govardhan Das Agarwal and Manohar Lal Shahaney applied to the Court of District Judge, Jhansi under Section 3 of the Charitable and Religious Trusts Act, 1920 (hereinafter called as "Act of 1920") claiming the opposite parties, who were the other trustees, to furnish to the Court the full particulars as regards the nature and objects of the Trust, of the value, condition, management and application of all Trust properties, of the income that has arisen from the said property so far, directing Accounts of the Trust properties and money to be taken, examined and audited. The said case was registered as Case No.32 of 1966.
6. In the said Suit, opposite party no.8, Kailash Narain Shivpuri moved an application under Section 5 (3) of the Act of 1920 and gave an undertaking for instituting a suit for declaration before the Civil Court. The District Judge, on 17.08.1968, passed an order staying the proceedings of Case No.32 of 1966 and granted time for filing declaratory suit.
7. Kailash Narain Shivpuri, thereafter, filed an Original Suit No.1268 of 1968 in the Court of Munsif, Jhansi seeking a relief of declaration to the effect that the Trust in Suit (Misc. Case No.32/66-67 of the Court of District Judge, Jhansi) is not one to which the Act, 1920 applies. In the said Suit, both Dr. Govardhan Das Agarwal and Manohar Lal Shahaney, who were the plaintiffs in Case No.32 of 1966 were arrayed as the defendants. The said Suit was contested and the trial Court vide judgment and decree dated 17.05.1971 dismissed the Suit. Against the said judgment, First Appeal No.121 of 1971 was filed by Kailash Narain Shivpuri.
8. During the pendency of the said proceedings, six out of living eight trustees moved an application under Section 4 (1) of the Charitable Endowment Act, 1890 (hereinafter called as "Act of 1890") for including and declaring a trust as Charitable Trust. A Government Notification was made on 07.07.1972 through Treasurer, Charitable Endowment, U.P. including the trust as a Charitable Endowment. Scheme of Administration was drawn and Committee of Management was constituted which was headed by the District Magistrate. The notification was published in the Gazette on 15.07.1972. The Additional District Judge, Jhansi on 05.08.1974 dismissed the appeal filed by Kailash Narain Shivpuri.
9. Against the said judgment, a second appeal being Second Appeal No.2655 of 1974 was preferred. This Court vide judgment dated 21.10.1981 set aside the judgment and decree passed by both the Courts below while allowing the appeal and decreed the Suit filed by Kailash Narain Shivpuri, holding that the Tandon Trust was not the trust for charitable purpose so as to be governed by the provisions of Act of 1920.
10. The judgment rendered by this Court was not challenged by any of the trustee or the State. One of the trustees Kailash Narain Tandon moved an application on 20.09.1990, before the Collector, Jhansi along with copy of the judgment. The Collector, Jhansi sought written opinion of the District Government Counsel (DGC), who on 01.11.1990 opined that the judgment of this Court was final, once it was held that the Trust is not a Charitable and Religious Trust and was a private Trust and the Government Notification of 1972 needs to be amended.
11. Despite, the opinion of the DGC (Civil) when the order was not complied with by the defendants, notice under Section 80 of CPC was served on 01.11.1991 and thereafter, Suit No.11 of 1992 was filed by the present plaintiff-appellant seeking a relief for a decree for declaration to this effect be passed that the vesting order dated 07.07.1972 in respect of the properties of ''Tandon Trust', Jhansi vested in defendant no.2 is illegal and without jurisdiction, and the properties of ''Tandon Trust' stand divested from defendant no.2 and re-vested in old trustees and continued to be vested in old trustees and their successors as per terms of Trust deed before the Notification, and Trust Committee or Management formed under Scheme of Administration in consequence of vesting order presided over by the District Magistrate, Jhansi has no existence in the eye of law and should be dissolved.
12. Further, relief for permanent injunction restraining the defendant from transacting any business, or dealing with properties of ''Tandon Trust' in any manner whatsoever and non-interference in working of old trustees and their successors was also sought. The said Suit was contested by defendants-respondents no.1 to 3 who filed their written statement denying the plaint allegation. The trial Court framed the following issues:-
"1- क्या आदेश दिनांक 7-7-72 जिसके द्वारा टण्डन ट्र्स्ट की सम्पत्ति को प्रतिवादी संख्या-2 में निहित किया गया है, अवैध एवं बिना क्षेत्राधिकार है ?
2- क्या वादी की वाद अल्प मूल्यांकित तथा न्यायशुल्क अपर्याप्त है?
3- क्या माननीय उच्च न्यायालय इलाहाबाद द्वारा द्वितीय अपील संख्या-2655/74 में पारित किये गए आदेश प्रतिवादीगण पर बन्धनकारी नही है और राज्य सरकार का आदेश दिनांकित 7-7-72 इससे प्रभावित नही है?
4- क्या चैरीटैबिल एण्ड रिलीजियस ट्र्स्ट एक्ट के प्राविधान प्रतिवादी संख्या-3 पर लागू नही होते जैसा कि प्रतिवादपत्र के पैरा 24 में कहा गया है?
5- क्या दावा चैरिटैबिल एण्ड इन्डावमेंट 1890 के प्राविधान से बाधित है?
6- क्या दावे में दारा-80 सी०पी०सी० की नोटिस की कमी का दोष है?
7- क्या वादी के पूर्वज श्री बैजनाथ टण्डन अन्य ट्र्स्टियों के साथ टण्डन ट्रस्ट की सम्पत्ति को ट्रजरार चैरिटैबिल एण्डावमेंट एक्ट 1890 के तहत निहित करने की शासन से प्रार्थना की थी।? यदि हाँ तो प्रभाव?
8- क्या वादी ट्र्स्ट सम्पत्ति को क्षति पहुँचाने एवं ट्र्स्ट के उद्देश्यों को विफल करने का कार्य कर रहा है?
9- क्या वादी को राजाज्ञा एवं प्रशासन योजना को चुनौती देने का अधिकार नही है?
10- वादी किस अनुतोष को पाने का अधिकारी है?
11- क्या वादीगण का वाद स्टापेल के सिद्धान्तों से बाधित है?
12- क्या वादी कैलाश नारायण एवं उनके पिता श्री बैजनाथ टण्डन ने राजाज्ञा में वर्णित सम्पत्ति को ट्र्स्ट की सम्पत्ति स्वीकार किया है? यदि हां तो प्रभाव?
13- क्या वादी का वाद काल बाधित है?
14- क्या कैलाश नारायण टण्डन दावा दायर करते समय काफी वृद्ध थे एवं उन्हें दिखाई नहीं देता था?
15- क्या शासनादेश दिनांकित 7-7-72 के पूर्व वाद संख्या- 1268/68 दायर किया जा चुका था जिसकी जानकारी टण्डन ट्र्स्ट के समस्त ट्रस्टियों को थी, जैसा कि रेप्लीकेशन के पैरा-4 में वर्णित है? यदि हाँ तो प्रभाव?
16- क्या शासन द्वारा अनुमोदित प्रबन्ध के अन्तर्गत गठित ट्रस्ट कमेटी जो चैरिटेबिल इण्डावमेंट एक्ट के अन्तर्गत बनाई गई, उचित प्रकार से कार्य नहीं कर रही है और क्या शासन द्वारा ट्र्स्ट की समस्त चल अचल सम्पत्ति अपने अधिकार में नही ली गई? यदि हां तो प्रभाव?
17- क्या माननीय उच्च न्यायालय द्वारा निगरानी संख्या-1605/77 में दिए गए निर्णय दिनांक 23-4-80 से वादी पाबन्द है तथा प्रस्तुत वाद दायर करने से विवंधित है?
18- क्या उच्च न्यायालय को वाद की सुनवाई की अधिकारिता प्राप्त नही है?"
13. Issue no.1 was in regard to the fact that whether by Notification dated 07.07.1972, the properties of ''Tandon Trust' came within the purview of defendant-respondent no.2. Issue no.3 was in regard to the fact that whether the judgment rendered in Second Appeal No.2655 of 1974 by the High Court was binding and affected the Notification dated 07.07.1972 and further issue no.9 was framed to the effect that whether plaintiff can challenge the Government Notification.
14. Issues no.1, 3 and 9 were tried together by the trial Court and it was held that the Notification dated 07.07.1972 could not be challenged in a suit. The Court further held that no benefit of the judgment rendered in second appeal could benefit the plaintiff-appellant. The Suit was dismissed on 30.05.1998. Against the said judgment, Civil Appeal No.65 of 1998 was filed, wherein the lower appellate Court framed following points of determination:-
"मुख्य रूप से निर्धारण के लिए प्रश्न यह है की क्या टंडन ट्रस्ट चैरिटेबिल प्रयोजन का नहीं है और राजाज्ञा दिनांकित 07.07.72 अवैध व बिना क्षेत्राधिकार के है तथा माननीय उच्च न्यायालय की द्वितीय अपील संख्या-2655/74 के आदेश दिनांक 21.10.81का निर्णय उक्त ट्रस्ट पर लागू होता है?"
15. The lower Appellate Court held that the Scheme of Administration made under Section 5 (4) of the Act of 1890 cannot be challenged in the present proceedings and further held that judgment rendered in second appeal was not binding on the defendants-respondents as they were not the party and the said judgment was not in rem and therefore, dismissed the appeal on 17.01.2003. Hence, the present second appeal.
16. This Court, on 23.04.2003, admitted the appeal on following substantial questions of law:-
(i) Whether the Trust which is not Charitable can be governed by the provisions of Charitable Endowment Act, 1890 and,
(ii) Whether the Notification dated 07.07.1972 issued under Section 4 of Charitable Endowment Act, 1890 was void and without jurisdiction?
17. Sri Anil Sharma, learned Senior Counsel submitted that before the Notification dated 07.07.1972, two trustees, namely, Govardhan Das Agarwal and Manohar Lal Shahaney in the year 1966 had moved application under Section 3 of Act, 1920 seeking particulars as regards nature and objects of the Trust. In the said proceedings, another trustee Kailash Nath Shivpuri had objected and moved application under Section 5(3) of the Act of 1920 and the District Judge granted permission to file a suit for declaration. According to him, the suit filed in the year 1968 was categorical to the effect that a declaration was sought that the Trust in Suit/Case No.32/67 is not one to which Charitable and Religious Trusts Act, 1920 applies.
18. Once, the dispute as to the status of the Trust was raised before the Notification, it will have no effect as this Court in Second Appeal No.2655 of 1974 decreed the Suit holding Tandon Trust not to be Trust for charitable purpose on 21.10.1981, and the judgment so rendered was in rem and not in persona.
19. According to Senior Counsel, the declaration by this Court was to the status of the Trust which was in litigation since 1968. Once, it was held to be Trust not covered under the Act of 1920 or 1890, Notification dated 07.07.1972 will have no consequence.
20. He next contended that after the judgment of 1981, request was being made by the trustees to the Collector, Jhansi for divesting the properties of the Trust from the Treasurer and re-vesting it into the old trustees and for dissolution of the Trust Committee. The Collector has also sought the opinion of the DGC, who opined in favour of the plaintiff-appellant on 01.11.1990, but when no action was taken, plaintiff-appellant was left with no option, but to file a Suit for declaration for divesting the properties from defendant no.2 and re-vesting in the old trustees.
21. He further laid emphasis that both the Courts below were not correct to hold that the judgment passed in second appeal was not applicable upon the defendants-respondents in the present case as they were not the party to the Suit. According to him, as the Suit filed by Kailash Nath Shivpuri for the status of the Trust, which was declared to be not covered under the Act of 1920, was a judgment in rem and binding upon the present defendants.
22. Moreover, neither any appeal nor review was filed by the present defendants-respondents against the judgment of 1981 which became final, as it declared the status of the Trust. Further, on the question of limitation, he has relied upon Article 58 of the Limitation Act, which provides limitation for declaratory suit from the date of denial. Reliance has been placed upon the decision of Co-ordinate Bench of this Court in case of Natha Singh and Another Vs. Heet Singh and Ors. AIR 1980 All 358 and Booz-Allen & Hamilton Inc Vs. SBI Home Finance Ltd. and Ors. 2011 (5) SCC 532.
23. Sri P.K. Giri, learned Additional Chief Standing Counsel appearing for the defendants-respondents while defending the judgment passed by Courts below submitted that Suit filed by Kailash Nath Shivpuri was inter se between the trustees and the present defendants were not party to the same. According to him, once the application was moved under Section 4 of the Act of 1890 by six of the trustees and a Notification was made on 07.07.1972, the property of the Trust came within the purview of the Act of 1890 and the relief claimed by the plaintiff cannot be granted.
24. According to the State Counsel, the judgment rendered in second appeal is of the year 1981, while the plaintiff-appellant instituted the Suit in the year 1992 and the same was barred by limitation and no explanation has been afforded as to why there was such delay on his part. He then contended that both the Courts below had rightly recorded the findings that once the State Government notified on 07.07.1972, the said Notification cannot be quashed in a suit proceedings.
25. He lastly contended that the finding recorded in Second Appeal No.2655 of 1974 is not binding as the defendants-respondents were not the party in the Suit, nor the plaintiffs of that Suit, after the Notification, had either amended their Suit or appeal impleading the present defendants as the party. According to him, the said judgment was binding inter se between the parties and not upon the present defendants-respondents. Apart from this, no other argument has been raised from the State side.
26. I have heard learned counsel for the parties and perused the material on record.
27. Before proceeding to consider and decide the substantial questions of law framed above, it would be necessary to have a brief glimpse of Religious Endowments Act, 1863 (hereinafter called as "Act of 1863"), The Indian Trust Act, 1882 (hereinafter called as "Act of 1882"), The Charitable Endowments Act, 1890 (hereinafter called as "Act of 1890") and The Charitable and Religious Trusts Act, 1920 (hereinafter called as "Act of 1920") as well as the definition and meaning of the word "Trust", "Religious Endowment" and "Charitable Endowment."
28. Religious and Charitable Trust exists, in some shape or other, in almost all the civilized countries and their origin can be traced primarily to the instincts of piety and benevolence which are implanted in the human nature. The form and nature of these trusts undoubtedly defer according to spiritual and moral ideas of different nations, and even among the same people, ideas are seen to vary.
29. In Tagore Law Lectures, His Lordship Justice B.K. Mukherjea traced the concepts of Religious and Charitable Trust from the days of Roman Empire till the present time. He wrote that Imperial Rome under the Christian Emperors was dissimilar in many respects to Pagan Rome, and the religious and charitable institutions in England undoubtedly took a different shape when she abjured, Catholicism and became Protestant. The popular Hindu religion of modern times is not the same as religion of the Vedas though the latter are still held to be the ultimate source and authority of all that is held sacred by the Hindus.
30. Before proceeding further, it is necessary to have clear idea as to what is meant by the expression "Religious and Charitable Trusts" in its proper juristic sense. For this purpose, a little excursion into the yields of English and Roman law is necessary. A trust would obviously be denominated a religious or charitable trust if it is created for purposes of religion or charity. Two things, therefore, require to be considered in this connection, viz., (I) what are religious and charitable purposes? and (ii) what is a trust?
31. It is well known, "religion" is a matter of faith with individuals and communities, and it is not necessarily theistic (e.g., Buddhism). All that we understand by religious purpose is that the purpose or object is to secure the spiritual well-being of a person or persons according to the tenets of the particular religion which he or they believe in.
32. On the other hand, "Charity" means benevolence and in its wide and popular sense it comprehends all forms of benefit, physical, intellectual, moral, ethical or religious, bestowed upon persons who are in need of them.
33. The conception of word ''Trust' was devised by the Chancery Courts in England, which as Courts of Conscience attempted to supply the deficiencies of the English Common Law, by administering what were known as principles of equity and natural justice. These principles were imported to a large extent from the Roman Civil Law.
34. Lewin in his well-known treaties on the Law of Trusts defines "Trust" to be a "confidence reposed in some other, not issuing out of the land, but as thing collateral, annexed in privity to the estate of the land, for which cestui que trust has no remedy, but by Subpoena" (by which an unscrupulous defendant who could not be touched in the common law courts was compelled to appear before an Equity Judge and made to carry out his orders, the proceeding being entirely one in personam in the Chancery).
35. Trust as understood in English Law were unknown in both Hindu and Muslim jurisprudence. But, Hindus have also Religious Institutions which were governed by their own customs and rites, both public and private. Muslims have also evolved the concepts of Waqf. But, they were strictly governed by Muslims Personal Law.
36. Under the Hindu system, there is no line of demarcation between the religion and charity. On the other hand, charity is regarded as a part of religion. The Hindu religion recognises the existence of life after death and it believes in the law of Karma according to which good or bad deeds of a man produce corresponding results in the life to come.
37. Hindu Religious and Charitable Acts have been from the earliest time classified under two heads viz. Istha and Purtta. The two words are often used conjointly and they are as old as Rigveda.
38. During the British Rule, for the first time, Law relating to Religious Endowments was codified and the Religious Endowments Act, 1863 came into existence. The preamble of the Act is extracted hereasunder:-
"An Act to enable the Government to divest itself of the management of Religious Endowments.
Preamble.--Whereas it is expedient to relieve the Boards of Revenue, and the local Agents, in the Presidency of Fort William in Bengal, and the Presidency of Fort Saint George, from the duties imposed on them by Regulation XIX, 1810 (Ben. Reg. 19 of 1810), of the Bengal Code (for the due appropriation of the rents and produce of lands granted for the support of Mosques, Hindu Temples, Colleges and other purposes; for the maintenance and repair of Bridges, Sarais, Kattras, and other public buildings; and for the custody and disposal of Nazul Property or Escheats), and Regulation VII, 1817 (Mad. Reg. 7 of 1817), of the Madras Code (for the due appropriation of the rents and produce of lands granted for the support of Mosques, Hindu Temples and Colleges or other public purposes; for the maintenance and repair of Bridges, Choultries, or Chattrams, and other public buildings; and for the custody and disposal of Escheats), so far as those duties embrace the superintendence of lands granted for the support of Mosques or Hindu Temples and for other religious uses; the appropriation of endowments made for the maintenance of such religious establishments; the repair and preservation of buildings connected therewith, and the appointment of trustees or managers thereof; or involve any connexion with the management of such religious establishments."
39. Thereafter, need was felt for precise legislation relating to trust when the increasing number of European and Eurasian population had to face problems in administering the trust created by them, prior to which they were governed by the Indian Trust Act, 1866. The British Rule enacted the Indian Trust Act, 1882 which was introduced to amend the law relating private trust and trustees. The preamble of the Act of 1882 reads as under:-
"An Act to define and amend the law relating to Private Trusts and Trustees.
Preamble.--WHEREAS it is expedient to define and amend the law relating to private trusts and trustees."
40. Likewise, Section 3 defines "Trust" which is extracted as under:-
"3. Interpretation-clause--"trust":--A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:"
41. Subsequently, in the year 1890, it was found that an Act be enforced on the lines of the Act which was in existence in England, wherein an official was appointed who was capable of discharging the function as official trustee of charity lands and official trustee of charitable funds, with this objects, the Charitable Endowments Act, 1890 was enacted. Section 2 of the Act provides for the definition of the word "charitable purpose" which is extracted hereasunder:-
"2. Definition. --In this Act "charitable purpose" includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship."
42. Simultaneously, Section 3 provides for the appointment and incorporation of Treasurer of Charitable Endowment. Section 4 provides for the orders vesting property in the Treasurer so appointed under Section 3, whereas Section 5 provides for the Scheme for Administration of property vested in the Treasurer.
43. As the Government at that time found that Act of 1863 was the result of the decision of the Government to divest its officer of all direct Superintendence and control of Religious and Charitable Endowment in India, transferring their function to manager or managing committee and merely making provisions for intervention by the Civil Court on application made by any person interested in a particular institution. This policy, however, did not long remain unchallenged and there was consistent complaint.
44. The Government decided to enact a law, whereby any person interested in a trust may apply a petition to the District Judge for an order directing the trustee to furnish him with information as to nature and objects of trust and of the value, condition, management, and application of the subject matter of the trust, and of the income belonging thereto, or as to any of these matters, and also directing that the accounts of the trust shall be examined and audited.
45. Thus, it came into existence The Charitable and Religious Trusts Act, 1920. Section 3 provided the power to apply to the Court in respect of a trust of a charitable or the religious nature. Section 5 provided the procedure of the petition to be heard. Further, Section 12 provided that no appeal shall lie against any order passed or against any opinion, advice or direction given under the Act.
46. Thus, what culls out from the above is to the nature of a trust or a religious and charitable endowment created under the various statutory provisions of the Act enacted from 1863 to 1920.
47. In the present case, the dispute is in regard to "Tandon Trust" which is alleged to have been created by its Author on 06th June, 1946. The trust deed clearly defines the object, which is of Encouraging Education, Culture, Study of Hindu Philosophy and Social Service in order to perpetuate the memory of the grand mother and father of the Author of the Trust.
48. Clause 7 of the trust deed in clear terms provides that in case of removal of any trustee under the Indian Trust Act, the vacancy so caused will be filled by the provisions of the terms of the Clause No.3 and 4, meaning thereby that the trust under consideration is a private trust and its incorporation and functioning has to be considered under the scope of Act of 1882.
49. This Court in Second Appeal No.2655 of 1974 while deciding as to whether ''Tandon Trust' in question was a trust for charitable purpose, so as to be governed by the provisions of the Act of 1920 held it not to be a charitable trust and found it to be out from it's purview. The matter regarding declaring ''Tandon Trust' was initiated by one of the original trustee Kailash Narain Shivpuri in the year 1968 after having been granted permission by the District Judge on his application filed under Section 5 (3) of the Act of 1920 in Misc. Case No.32 of 1967.
50. This Court while allowing the appeal of one of the trustees had decreed the Suit No.1268 of 1968, declaring ''Tandon Trust' not to be a charitable and religious trust. Once, the character and status of the trust was declared by this Court, which remained unchallenged by the present defendants-respondents since 1981, cannot change the nature and hold the same to be guided by the Act of 1920 on the strength of Government Notification dated 07.07.1972 published in Gazette on 15.07.1972.
51. As this Court, on 21.10.1981, having decreed the Suit of 1968, the declaration as to the status will be from the date of institution of the Suit and not from the pronouncement of the judgment. Moreover, the judgment rendered on 21.10.1981 was a judgment in rem, as it declared the status of the trust, and not in personam as claimed by the defendants-respondents and held by the Courts below.
52. A declaration of the status is always in rem and not in personam. The relief of declaration is for the world to know about the status of the person in favour of whom the declaration has been made.
53. In Booz-Allen & Hamilton Inc. (Supra), the Apex Court held that a right in rem is a right exercisable against the world at large as contrasted from the right in personam which is an interest protected solely against specific individuals. Actions in personam referred to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem referred in actions determining the title of property and rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property.
54. Correspondingly, the judgment in personam refers to a judgment against a person as distinguished judgment against a thing, right or status and judgment in rem refers to a judgment that determines the status or conditions of property which operates directly on the property itself.
55. In the present case, the Court while decreeing the Suit of K.N. Shivpuri had declared the status of the ''Tandon Trust', not being a charitable and a religious trust covered under the Act of 1920. The declaration made by the Court as to the status of the trust is to the world at large and not to any particular party in a suit, as it affects people at large.
56. Once, the declaration was made of status and nature of the trust in 1981 decreeing the Suit of 1968, the subsequent Notification of 1972 lost its relevance and only needed a consequential order from the Collector for getting the same denotified.
57. The argument of the State counsel that the present Suit filed in the year 1992 was time barred and further, the State was not a party in the Suit of 1968 has no legs to stand, as once the declaration was made, the subsequent Suit filed claiming relief of divesting the property from the defendants cannot be said to be time barred as neither the State nor the defendants in the Suit of 1968 had challenged the judgment of this Court till date and the status declared by the Court stands as it is.
58. The claim for divesting the property from the realm of defendants cannot be said to be time barred, once the property has been declared to be non-religious and non-charitable and being a private trust. The defendants continue over the same as an illegal occupants and cannot claim right to continue on the ground of limitation.
59. Moreover, the DGC (Civil) had given his opinion on 01.11.1990 being Paper No.27-C-1/156/12 that the Notification of 1972 be amended, but still the defendants continued defying the judgment rendered in the second appeal on 21.10.1981.
60. Both the Courts below wrongly held that the Notification dated 07.07.1972 cannot be challenged and quashed in the present proceedings, as the only relief sought by the plaintiff-appellant was to the extent of divesting the property from the defendants and re-vesting the same in the plaintiff-appellant on the basis of the judgment dated 21.10.1981. Both the Courts below fell into error that once, it was notified in the year 1972 and the property was brought within the ambit of Act of 1920, the Suit was not maintainable at the behest of the appellant ignoring the judgment of this Court dated 21.10.1981.
61. The judgment and order passed by both the Courts below are illegal and arbitrary as they have failed to honour and comply the judgment of this Court dated 21.10.1981, declaring the status of the ''Tandon Trust'. Once, the declaration was there, the defendants nor the Courts below had the right to dishonour the same.
62. Considering the facts that the ''Tandon Trust' created in 1946 having been declared to be a non-religious and non-charitable trust and out of the scope of Act of 1920, the same cannot be governed by the provisions of the Charitable and Endowments Act, 1890, as there was no element of charity in the deed created/executed by the Author of the Trust.
63. Moreover, the distinction has been made clear as to which Trust will fall under the Act of 1863, 1882, 1890 and 1920. Thus, the first substantial question of law framed stands answered in negative i.e. in favour of the appellant and against the defendants-respondents.
64. Once, it is held that the ''Tandon Trust' is not a charitable and religious trust and the provisions of the Act of 1890 is not applicable in view of the judgment dated 21.10.1981, and the status of the trust having been declared by this Court decreeing the Suit of 1968, the Notification dated 07.07.1972 will not be applicable upon the trust bringing it within the ambit of the Act of 1920.
65. Once, the status of the trust having been declared by this Court and the same having been remained unchallenged by the defendants-respondents, the Notification of 1972 will have no bearing of it upon the status of the trust, as the trust has been declared out of the purview of the Act of 1890 and 1920 by a judicial order of this Court and will prevail over the Administrative Notification issued by the State on 07.07.1972 published in Gazette on 15.07.1972. Thus, the second substantial question of law stands answered i.e. in favour of the appellant and against the defendants-respondents. Thus, both the substantial questions of law as framed stand answered.
66. Having considered material on record, this Court finds that the judgments and decree passed by both the Courts below are illegal and arbitrary and cannot be sustained in the eye of law and are thus, set aside.
63. The Second Appeal stands allowed.
64. The Suit of the plaintiff-appellant being Suit No.11 of 1992 stands decreed.
65. Office to transfer back the records of the Courts below.
Order Date:- 27th June, 2022 SK Goswami [Rohit Ranjan Agarwal, J.]