Delhi High Court
Priti Pratap Singh vs Rani Prem Kumari (Deceased) Thr Lrs on 30 August, 2018
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 555/2018
% 30th August, 2018
PRITI PRATAP SINGH ..... Appellant
Through: Mr. Salman Khurshid and Mr.
Dayan Krishnan, Sr. Advocates
with Mr. Kirtiman Singh, Mr.
Prateek Dhanda, Mr. Waize Ali
Noor, Mr. Vikramadivya Singh,
Ms. Shruti Dutt and Ms.
Sanjeevi Seshadri, Advocates
(Mobile No. 9811700872).
versus
RANI PREM KUMARI (DECEASED) THR LRS ..... Respondents
Through: Mr. Vivek Raj Singh and Ms.
Ananttika Singh, Advocates for
R-1(a) and 2 (Mobile No.
9839019224).
Mr. R.K. Agrawal, Sr.
Advocate with Mr. S.S.
Rathore, Advocate for R-5
(Mobile 9829483671).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
RFA No.555/2018 Page 1 of 37
RFA No. 555/2018 and C.M. Appl. Nos. 28238-43/2018
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 12.3.2018 by which the trial court has dismissed the suit for partition and injunction filed by the appellant/plaintiff with respect to properties of her father Raja Pratap Singh. It may be noted that the impugned Judgment dated 12.3.2018 is a common judgment disposing of two suits. One suit is the subject suit for partition filed by the appellant/plaintiff, and the second suit was the suit for possession filed by the sister of the appellant/plaintiff, one Smt. Kiran Raj Bisaria with respect to barsati floor/second floor of the property bearing no. 113, Sunder Nagar, New Delhi, and which suit filed by Smt. Kiran Raj Bisaria was decreed in terms of the impugned judgment for possession and mesne profits, the RFA filed by the present appellant/plaintiff against the impugned Judgment dated 12.3.2018 to the extent of decreeing the suit for possession and mesne profits filed by Smt. Kiran Raj Bisaria, the same stands compromised in terms of the consent/compromise order recorded today separately in RFA No. 554/2018. The present appeal RFA No.555/2018 Page 2 of 37 is therefore concerned with the properties of Raja Pratap Singh, other than the property at 113, Sunder Nagar, New Delhi, and which disputed properties are stated in Annexure-A to the plaint filed by the appellant/plaintiff.
2. The facts of the case are that appellant/plaintiff pleaded that she is the daughter of late Raja Pratap Singh who was the Jagirdar of Kuchaman in Rajasthan. Besides the appellant/plaintiff, late Raja Pratap Singh had two other daughters, and who were sued as defendant nos. 2 and 3 in the suit, namely Smt. Kiran Raj Bisaria and Smt. Raj Laxmi Shah. The widow of Sh. Raja Pratap Singh was sued as the defendant no. 1 in the suit. Appellant/Plaintiff pleads that the registered Will dated 16.11.1992 relied upon by the respondent nos. 1 to 3/defendant nos. 1 to 3 being the widow and other daughters of late Raja Pratap Singh is not a valid or genuine Will, and consequently since late Raja Pratap Singh died intestate therefore all the properties of late Raja Pratap Singh have been inherited by his four legal heirs, namely three daughters and the widow, each of whom have 1/4th share in the properties of late Raja Pratap Singh. The appellant/plaintiff has also pleaded that late Raja Pratap Singh had become a Sanyasi in the RFA No.555/2018 Page 3 of 37 Dusshera of October 1993, and ultimately late Raja Pratap Singh had taken a Jal Samadhi, i.e he expired, on 24.12.1993. Therefore, the alternative case to seek intestacy of late Raja Pratap Singh by the appellant/plaintiff was that since Raja Pratap Singh had become a Sanyasi, therefore any Will made by late Raja Pratap Singh including the registered Will dated 16.11.1992, was of no force and effect. Partition was accordingly claimed with respect to the properties of late Raja Pratap Singh, to the extent of 1/4th share of the appellant/plaintiff, and which properties were stated in Annexure-A to the plaint.
3. Besides respondent nos. 1 to 3/defendant nos. 1 to 3 in the suit, and who were the widow and two other daughters of late Raja Pratap Singh, defendant no.4 in the suit was the son-in-law of late Raja Pratap Singh being the husband of respondent no.3/defendant no.3, a proforma defendant in the suit, as no reliefs were claimed against respondent no.4/defendant no. 4. Originally, there was no defendant no.5 in the suit. The defendant no.5 namely Shree Shree Maa Anandmayee Trust was pendente lite added as defendant no.5 in the suit through its trustees as defendants no. 5(a) to 5(e). Respondent no. 5/Defendant no. 5/Trust was added as defendant no.5 to the suit RFA No.555/2018 Page 4 of 37 during the pendency of the suit because the appellant/plaintiff claimed that the Kuchaman Fort and Palace/Mahal were the properties of late Raja Pratap Singh at the time of his death and not of the respondent no. 5/defendant no. 5/Trust and which Trust claimed that these properties being Kuchaman Fort and Palace/Mahal had vested in the respondent no. 5/defendant no. 5/Trust on account of the Trust Deed dated 24.2.1978 and registered Settlement Deed/Pranyas Patra dated 15.2.1979. Therefore the respondent no. 5/defendant no. 5/Trust pleaded that late Raja Pratap Singh was not the owner of Kuchaman Fort and Palace/Mahal at the time of his death on 24.12.1993, and hence whether late Raja Pratap Singh died leaving behind his Will dated 16.11.1992 or died intestate, yet it was only the respondent no. 5/defendant no. 5/Trust which was the owner of the Kuchaman Fort and Palace/Mahal. Respondent no. 5/Defendant no. 5/Trust also pleaded that the Trust Deed dated 24.2.1978 was registered under the Bombay Public Trusts Act, 1950 on 15.9.1978. Respondent no. 5/Defendant no. 5/Trust additionally pleaded that the Trust was again registered under the Rajasthan Public Trusts Act, 1959 in terms of the application Ex.DW1/3 dated 20.4.1979. Pursuant to the application RFA No.555/2018 Page 5 of 37 dated 20.4.1979 the Assistant Commissioner of Devasthan, Jodhpur on 18.12.1979 took out a notice under Section 18(2) of the Rajasthan Public Trusts Act, Ex.DW1/4 and thereafter on 27.3.1984 the respondent no. 5/defendant no. 5/Trust was registered with the office of the Assistant Commissioner, Bikaner, under the Rajasthan Public Trusts Act, vide Ex.DW10/1. Respondent no. 5/Defendant no. 5/Trust therefore prayed that the suit be dismissed so far as it seeks the relief with respect to the Kuchaman Fort and Palace/Mahal properties.
4. After pleadings were completed, the trial court framed the following issues as noted in paras 14 to 16 of the impugned judgment:-
"14. On 04.9.2004, on the pleadings of the parties following issues were framed, namely :-
1. Whether the deceased Raja Pratap Singh was competent to dispose off the properties by executing a Will? OPD
2. Whether the registered Will dated 16.11.1992 and the holographic Will dated 06.11.1992 have been validly executed by deceased Raja Pratap Singh? OPD.
3. Whether probate is not essential in respect of the Will and holographic Will? OPD
4. Whether the deceased Raja Pratap Singh left behind any properties other than those mentioned in the Will? If so, to what effect? OPP.RFA No.555/2018 Page 6 of 37
5. Whether the plaintiff is entitled to partition in respect of estates detailed in Annexure A to the plaint? OPP
6. Whether the suit is not maintainable against the defendant no. 5? OP
7. Relief.
15. Subsequently, an application under Order XIV rule 5 of CPC made on behalf of the plaintiff was allowed and following additional issue no. 6 (a) was framed on 02.11.2004, namely:-
6 (a) Whether the Kuchaman Fort and Palace have vested in defendant no.
5? OPD-5
16. Thereafter, by order dated 09.8.2017 on an application under Order XVI rule 5 of CPC made on behalf of the defendant no. 2 one more additional issued no. 6 (b)was framed, namely:-
6(b) Whether a suit for partition on the basis of succession can be filed for the property which is the subject matter of a registered Will without challenging the Will?"
5. After framing of issues, evidence was led by the parties, and these aspects are recorded in paras 17 and 18 of the impugned judgment, which read as under:-
"17. In support of her case the plaintiff got examined herself as PW1 and during her examination in chief tendered her affidavit dated 04.1.2005 Ex. X alongwith documents Ex. P-9 to Ex. P-12. The plaintiff also got examined PW2 Rajender Prasad Saraswati, PW3 Bafati Karigar PW4 Pradeep Kumar, Naib Tehsildar, Pushkar, Rajasthan (also examined as PW6), PW5 Sumer Singh and PW Manohar Lal (also mentioned as PW5). During the examination of PW Pradeep Kumar, PW Sumer Singh and PW Manohar Lal documents Ex. PW5/1 (two different documents tendered on 05.10.2007 and 20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/2 (two different documents tendered on 05.10.2007 and 20.8.2007 during RFA No.555/2018 Page 7 of 37 examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/3 (two different documents tendered on 05.10.2007 and 20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/4, Ex. PW5/5 to Ex. PW5/6, Ex. PW6/1, Ex. PW6/2 and Ex. PW6/3 were also tendered in evidence on behalf of the plaintiff. All the witnesses produced on behalf of the plaintiff were cross examined by counsel for the defendants and on 24.4.2008 evidence on behalf of the plaintiff was closed.
18. In their defence the defendants got examined DW1 Rani Prem Kumari, DW2 Smt. Kiran Raj Bisaria, DW4 Kanwar Narvir Shah, DW5 Hari Om, DW6 Dr. A.K. Srivastava, DW7 Sube Chander, DW8 Rakesh Kumar Sharma, Registration Clerk, Office of Sub- Registrar-II, Lucknow, DW9 Mangla Ram Punia, Sub-Registrar, Nagaur, Rajasthan and DW10 Ramesh Chand, Assistant Commissioner, Devasthan, Ajmer, Rajasthan and DW Raj Laxmi Shah (numbered as DW10). During the examination of the defendant's witnesses documents Ex. DW1/1 (two documents, out of which document entitled Pranyas Patra also brought on record as Ex. PW1/D2), Ex. DW1/2, Ex. DW1/3, Ex. DW1/4, Ex. DW1/5, Ex. DW1/8 (also brought on record as Ex. PW1/D1), Ex. DW1/9, Ex. DW1/10A, Ex. DW1/10B, Ex. DW1/10C, Ex. DW2/1A, Ex. DW2/1B, Ex. DW2/1C, Ex. DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5, Ex. DW2/6, Ex. DW2/7, Ex. DW2/8, Ex. DW2/9, Ex. DW2/10, Ex. DW2/11A, Ex. DW2/11B, Ex. DW2/11C, Ex. DW2/11D, Ex. DW2/11E, Ex. DW2/12A, Ex. DW2/12B, Ex. DW2/12C, Ex.DW2/12D, Ex. DW2/12E, Ex. DW8/1, Ex. DW9/1, Ex. DW10/1 (two different documents tendered on 22.02.2010 and 05.4.2010 during examination of PW Ramesh Chand and PW Raj Lakshmi Shah respectively) were also tendered in evidence on behalf of the defendants. All the defendants were cross examined by counsel for the plaintiff. Subsequently, through admission denial documents Ex. D- 5/P-1 to Ex. D-5/P-3 were also brought on record and defendant's evidence was closed."
6. The first issue which is called upon for decision by this Court is Issue no.6 (and related issue 6(a)) i.e whether or not late Raja Pratap Singh had or had not executed a Trust Deed dated 24.2.1978 and Pranyas Patra/Settlement Deed dated 15.2.1979 Ex.PW1/D2 RFA No.555/2018 Page 8 of 37 whereby a Trust was created and thereafter the Kuchaman Fort and Palace properties were transferred in favour of Shree Shree Maa Anandmayee Kuchaman Trust through its trustees.
7. Since the discussion by the trial court with regard to Issue no.6 is elaborated and exhaustive, I would seek to reproduce some of the paras which decide this Issue no.6 and these paras read as under:-
"46. Thus, the stand of the plaintiff is that Kuchaman Fort and Palace never vested in Ma Anandmayee Kuchaman Trust, whereas according to the defendants, on 24.02.1978 by way of a trust deed late Raja Pratap Singh created a public trust, namely Shree Shree Ma Anandmayee Kuchaman Trust with corpus of Rs. 1,000/- which was got registered under the provisions of the Bombay Public Trust Act, and subsequently, in the following year on 15.02.1979 by way of a document described as Pranyas Patra (Ex. DW1/1 and also Ex. PW1/D-2), the Kuchaman Fort and Palace etc. were transferred to the said Shree Shree Ma Anandmayee Kuchaman Trust and the said document, namely Pranyas Patra was got registered on 28.02.1979. According to the defendants, the said Shree Shree Ma Anandmayee Kuchaman Trust was subsequently got registered as a public trust under the provisions of the Rajasthan Public Trusts Act, 1959 also.
47. In this regard, it has been admitted by the plaintiff during her cross-examination that she was aware that on 24.2.1978 her father got registered a trust at Bombay. However, she expressed her ignorance about the registration of the said Trust in Rajasthan subsequently. During her cross examination PW1 Priti Pratap Singh also admitted that each page of Ex. DW1/1 bears signatures of her late father Raja Pratap Singh, but put rider that Ex. DW1/1 was never given effect. On the other hand DW1 Rani Prem Kumari during her examination unequivocally deposed that after registration of the Trust at Bombay, Kuchaman Fort and Palace were transferred to the said Trust.
48. Similarly DW4 Kanwar Narvir Shah during his examination deposed that after registration of the Trust at Bombay, by way of Pranyas Patra Ex. DW1/1 Kuchaman Fort and Palace were transferred to the said Trust and the Pranyas Patra was got registered in the office of Sub-Registrar, Kuchaman. DW4 Kanwar Narvir Shah, one of the RFA No.555/2018 Page 9 of 37 trustee of the defendant no. 5 also deposed that subsequently the said Trust was also got registered under the Rajasthan Public Trust Act, 1959, and pursuant to application Ex. DW1/3, before registration of the Trust under the Rajasthan Public Trusts Act, 1959, the Assistant Commissioner Devasthan, Jodhpur on 18.12.1979 took out notice under section 18 (2) of the said Act, the copy of which is Ex. DW1/4. DW4 Kanwar Narvir Shah further deposed that Shree Shree Maa Anandmayee Kuchaman Trust is a public trust within the meaning of section 92 of CPC, and therefore, the properties, of which the plaintiff is asking for partition, are not properties of late Raja Pratap Singh, but are the properties of Shree shree Maa Anandmayee Kuchaman Trust.
49. DW9 Mangla Ram Poonia, Sub-Registrar, Nagaur, Rajastahn, on the basis of the summoned record brought by him proved the registration of Pranyas Patra Ex. DW1/1 that was registered as 6/79, book no. IV, Volume no. VII, pages 77 to 83 on 28.2.1979. DW9 Mangla Ram Poonia also tendered Ex. DW9/1, a copy of the document registered in his office.
50. DW10 Ramesh Chand, Assistant Commissioner, Devastahan, Ajmer, Rajasthan, during his examination, on the basis of record brought by him deposed that on 27.3.1984 Shree Shree Maa Anandmayee Kuchaman Trust was registered with the office of the Assistant Commissioner, Bikaner, the then authority under the Rajasthan Public Trust Act, 1959. DW10 Ramesh Chand also tendered document Ex. DW10/1 from his record. DW10 Ramesh Chand also deposed that Shree Shree Maa Anandmayee Kuchaman Trust was duly registered without objection from any one whatsoever.
51. From the testimonies of PW1 Priti Pratap Singh, DW1 Rani Prem Kumari and DW4 Kanwar Narvir Shah and documents Ex. DW1/1 and Ex. DW1/8 it has been proved that on 24.02.1978, by way of an instrument in writing (Ex. DW1/1) late Raja Pratap Singh, with corpus of Rs. 1,000/- created a Trust, namely Shree Shree Maa Anandmayee Kuchaman Trust for charitable purpose, and the said Trust was got registered under the provisions of the Bombay Public Trust Act. From the testimonies of DW1 Rani Prem Kumari and DW4 Kanwar Narvir Shah and the contents of Will Ex. DW1/8 it has been proved that after creation of Shree Shree Maa Anandmayee Kuchaman Trust in writing and its registration at Bombay under the Bombay Public Trust Act, on 15.02.1979 Raja Pratap Singh executed document entitled Pranyas Patra Ex. DW1/1, which, after english translation, reads as follows:
SHRI GANESHAY NAMAH RFA No.555/2018 Page 10 of 37 TRUST DEED This Deed of Trust is made today on 15th day of February, 1979 accordingly Miti Phalgun Krishna 3 Thursday Samvat 2035 Vikram by me Raja Pratap Singh Ji by caste Rajput Mertia residence of Kuchaman City, Tehsil Nawa, District Nagaur, Rajasthan that I had executed on 24.02.1978 a Trust Deed at Bombay through which I established a Trust by name of Shree Ma Aanandmayee Kuchaman Trust, where as I myself is a devotee and servant of Ma Anandmayee and, therefore, I established a Trust in the name of Shree Shree Anandmayee Kuchaman Trust for fulfilling the objects of Public and Charitable purposes. Through this Trust I had given my own sum of money to the Trustees of the Trust and I had appointed Four Trustees for managing the Trust and in which I myself was also a Trustee and with me my wife Rani Prem Kumari Ji and Rajkumari Raj Lakshmi Shah, wife of Rajkumar Shri Narvir Shah residing at present in New Delhi and Babu Bhai Shri Kasturchand Shah at present residing at Bombay were appointed Trustees and the object of that Trust were described in para no. 5 of the Trust Deed dated 15.2.1978 and for fulfilling and achieving those objects I had established aforesaid Shree Shree Ma Anandmayee Kuchaman Trust and after executing the deed of Trust the same had been registered under Bombay Public Trust Act and in order to fulfill and for achieving the aims and objects of the Trust through this deed I hereby transfer and assign my self acquired and self owned immovable properties situated at Kuchaman City (more fully detailed in the schedule (A) of this deed) to the aforesaid Trust Shree Shree Ma Anandmayee Kuchaman Trust whereas I am also a Trustee of the aforesaid Trust, therefore, all the immovable properties belonging to me as rightful owner and in my possession and given in schedule (A) now through this Deed of Trust shall vest in the said Trust Shree Shree Ma Anandmayee Kuchaman Trust, and all the Trustees I myself and Shrimati Prem Kumarie Ji Rani Sahiba Kuchaman, Shrimati Rajkumari Raj Lakshmi Shah at present residing at New Delhi and Shri Babu Bhai Kastur-Chand Shah resident of Bombay shall exercise their rights as Trustees of the Trust in the immovable properties, Palaces and Fort situated in Kuchaman City and described in schedule (A) and its income shall be utilized in the programs for fulfilling the objects of the Trust initiated by me earlier. And with the effect of this day I relinquish all the rights as owner vested in me in respect of said immovable properties more fully described in schedule (A), in favour of the said Trust through this Deed of Trust. And from this day Shree Shree Ma Anandmayee Kuchaman Trust aforesaid shall have all the rights in the immovable properties described in schedule (A).
In the schedule (A) attached with this Deed of Trust my own Palaces which are situated below to my Fort and My Fort situated on the hill RFA No.555/2018 Page 11 of 37 are included and all the surrounding to these two are also mentioned in the schedule. Both the two immovable properties were in my ownership and rights till today. I am and was ex-Jagirdar of the Thikana of Kuchaman and only son and heir of Late Shri Hari Singh Ji and the immovable properties described in the schedule (A) has been my own and personal property and estate after the death of my father Late Shri Hari Singh Ji. I remain in possession of this property as absolute owner and there is no other person having any right or title over the aforesaid property except me. As I have no son I am desirous that the aforesaid properties be utilized for public charitable and endowment purposes and the general public to get benefitted by it by fulfilling the objects of the Trust earlier executed by me. Therefore, I have surrendered and transferred all my properties described in schedule (A) through this Deed of Trust. Shree Shree Ma Anandmayee Kuchaman Trust in which I am also a Trustee and the same has been created by me the properties shall vest with and shall remain in possession of the Trustees in my place from this day. Now from this day the executant nor his heir have any right or title over the property. Now from this day the aforesaid Trust Shree Shree Ma Anandmayee Kuchaman Trust shall have all the proprietary rights with all the amenities which were vested in me up till this day and the same shall be utilized for the attainment of the objects of the said Trust Shree Shree Ma Anandmayee Kuchaman Trust. Some part of the Palaces situated below the Fort as described in schedule (A) has been given on rent to the education department for S.T.C. School. Now from this day all the rent payable by the education department for the said building the Trust will be entitled to receive the rent and the said rent shall be utilized by the Trustees for the purposes of the said Trust. The Trustees can also let or hire the other Palaces and buildings situated below the Fort and the rental income shall be utilized for fulfilling the objects of the said Trust. Now from this day I shall have no personal right in the income of the immovable property described in schedule (A) and from today the Trust shall be responsible for the upkeep, maintenance, security and management of the property given in the schedule (A) which is part of the Deed.
In witness whereof with my own and free Will and consent without any undue influence I the settler execute this Trust Deed in writing and the immovable property by this Trust Deed is now transferred to the other Trustees with me as Trustee of the Trust. Today 15.2.1979 accordingly Miti Phalgun Krishna 3 Thursday Samvat 2035. Typist Kanhaiya Lal Sharma. After typing on 3 non judicial stamps of Rupees 30, 10 and 5 total Rupees 45 and two plain papers total five papers read over to the settler Raja Shri Pratap Singh Ji Sahib which he acknowledge as correct.
RFA No.555/2018 Page 12 of 37
Settler
sd/
Pratap Singh
Witness 1.
Witness 2.
52. From a perusal of document Ex. DW1/1 it can be
discerned that although the said document purports to be a Pranyas Patra (Instrument of Trust), but it is not a fresh trust deed, and instead the same is only a conveyance deed to transfer the immovable properties, inter vivos, in favour of the Shree Shree Maa Anandmayee Kuchaman Trust, already created and registered under the Bombay Public Trusts Act.
xxxx xxxx xxxx
55. In so far raising adverse inference against the defendants due to non production of the original register in respect of the affairs and the properties of the Trust by DW Raj Laxmi Shah is concerned, the said witness gave explanation that the original register could not be brought as the same was with Devasthan. DW Raj Laxmi Shah further explained that the register was sent to the Devasthan as the plaintiff was making repeated inquiries and as such on demand it was sent there. In the opinion of the court the witness has properly explained the reason for non production of original register, therefore, no adverse inference can be drawn against the defendants due to non production of the register. The learned counsel for the plaintiff has not brought to the notice of this court any provision under the Bombay Public Trusts Act, 1950 or the Rajasthan Public Trusts Act, 1959 or any other law to suggest that the transfer of the Kuchaman Fort and Palace by way of Ex. DW1/1 to Shree Shree Maa Anandmayee Kuchaman Trust, created and registered at Bombay was illegal or invalid and was not permissible under the provisions of the Bombay Public Trusts Act. On the contrary, in the light of judgment of Hon'ble Supreme Court in Nautam Prakash DGSVC, Vadtal and others v.
K.K. Thakkar and others, (2006) 5 SCC 330 it appears to this court that a public trust created and registered under the Bombay Public Trusts Act, 1950 may own property outside the State of Maharashtra.
56. From the contents of Ex. DW1/1, Ex. DW9/1 and Will Ex. DW1/8 it has been proved that from 15.02.1979 Palace and Fort situated in Kuchaman City and described in schedule (A) to Ex. DW1/1 RFA No.555/2018 Page 13 of 37 vested in Shree Shree Maa Anandmayee Kuchaman Trust and its income is to be utilized in the programmes for fulfilling the objects of the said Trust initiated by Raja Pratap Singh. From the testimony of DW4 Kanwar Narvir Shah and DW10 Ramesh Chand and documents Ex. DW1/3, Ex. DW1/4 and Ex. DW10/1 (copy of registration certificate under the Rajasthan Public Trusts Act, 1959) it has also been proved that Shree Shree Maa Anandmayee Kuchaman Trust was also registered under the provisions of the Rajasthan Public Trusts Act, 1959. In these circumstances, there remains no doubt that since 15.02.1979 onwards Palace and Fort situated in Kuchaman city and described in schedule (A) to Ex. DW1/1 vested in Shree Shree Maa Anandmayee Kuchaman Trust, which was subsequently also got registered under the provisions of the Rajasthan Public Trust Act, 1959, and hence Raja Pratap Singh ceased to be the owner of the said properties comprised in schedule (A) to Ex. DW1/1. Issues no. 6 (a) is decided against the plaintiff and in favour of the defendant no. 5." (emphasis is mine)
8. I completely agree with the discussion, reasoning and conclusions of the trial court that the Kuchaman Fort and Palace/Mahal properties stood vested in the respondent no. 5/defendant no. 5/Trust inasmuch as the Trust Deed has been proved and exhibited as Ex. DW1/1 and the Settlement Deed/Pranyas Patra has been proved and exhibited as Ex.PW1/D2. In fact, as noted by the trial court in para 47 of the impugned judgment that the appellant/plaintiff in her cross-examination admitted that she was aware that her father had got registered a Trust at Bombay and she admitted the signatures on each page of the Trust Deed Ex.DW1/1 as the signatures of the father though with the rider that the Trust Deed RFA No.555/2018 Page 14 of 37 Ex.DW1/1 was not given any effect. DW-9 was a witness summoned by the Trust from the Sub-Registrar at Nagaur in Rajasthan and this witness DW-9 Sh. Mangla Ram Punia has proved the factum of registration of Pranyas Patra Ex.DW-1 (and also exhibited as PW1/D2) at 6/79, Book No. IV, Volume No.VII, Pages 77 to 83 on 28.2.1979. A copy of the Pranyas Patra Ex. DW9/1 as found in the office of the Sub-Registrar was tendered by DW-9 and which was proved as Ex.DW9/1. In my opinion, therefore, the trial court has rightly held that the Pranyas Patra was executed, whereby late Raja Pratap Singh had transferred Kuchaman Fort and Palace/Mahal properties to Shree Shree Maa Anandmayee Kuchaman Trust. It is also relevant to note that in this Pranyas Patra Ex.PW1/D2 it is specifically stated by the Settler Raja Pratap Singh, that the properties given in Schedule A to the Pranyas Patra Ex.PW1/D2 will vest in the Trust-Shree Shree Maa Anandmayee Kuchaman Trust, with the Fort and Palace/Mahal being the properties specified in Schedule-A of the Trust Deed and therefore it is held that there is no doubt as to the fact that by the Trust Deed the Kuchaman Fort and Palace/Mahal properties were transferred to the Trust. I need not reproduce the RFA No.555/2018 Page 15 of 37 Settlement Deed/ Pranyas Patra as it has already been reproduced in entirety in para 51 of the impugned judgment which is reproduced above.
9. In law, transfer of an immovable property is by a registered document as per Section 17(1)(b) of the Registration Act, 1908. Since the Pranyas Patra is a document which is duly registered before the concerned Sub-Registrar at Nagaur, Rajasthan, therefore, I hold that by means of the Pranyas Patra the Kuchaman Fort and Palace/Mahal properties became vested in Shree Shree Maa Anandmayee Kuchaman Trust. Once the Kuchaman Fort and Palace/Mahal properties were vested in the Trust, the same could not have been subject matter of any Will executed by late Raja Pratap Singh including the Will dated 16.11.1992, and also even if Raja Pratap Singh died intestate, the Kuchaman Fort and Palace/Mahal properties would not be available to the legal heirs for being partitioned because the ownership of Kuchaman Fort and Palace/Mahal properties stood vested with Shree Shree Maa Anandmayee Kuchaman Trust much prior to the actual death of Raja Pratap singh on 24.12.1993 ,as already discussed and concluded RFA No.555/2018 Page 16 of 37 above. I also affirm the finding of the trial court that a suit filed in the year of 1994 to challenge the trust deed and Pranyas Patra of the year 1978/1979, would be time barred.
10. Learned senior counsel for the appellant/plaintiff firstly sought to argue that the Kuchaman Fort and Palace/Mahal properties are not validly transferred to the respondent no. 5/defendant no. 5/Trust inasmuch as in view of the provisions of Sections 22(C) and 36(B) of the Bombay Public Trusts Act. This argument of the appellant/plaintiff however is of no substance because there is no provision in the Bombay Public Trusts Act which states that if the details of the trust properties are not forwarded/given to the Charity Commissioner under the Bombay Public Trusts Act, then a transfer of a property to a trust is void and of no effect. The provisions of the Bombay Public Trusts Act, like the provisions of the Rajasthan Public Trusts Act, provide, certain privileges and disadvantages on account of registration of the Trust Act under the said Local Acts which extend with the boundaries of the respective States of Maharashtra and Rajasthan, however there is no provision in the Bombay Public Trust Act that if the property of the Trust is not informed to the Charity RFA No.555/2018 Page 17 of 37 Commissioner as required by Section 22(C) within a period of three months, that will cause a result that there is no property which would be vested in the Trust simply because of not giving this information to the Charity Commissioner under the Bombay Public Trusts Act. Learned senior counsel for the appellant/plaintiff could not point out to this Court any such provision in the Bombay Public Trusts Act, and in fact it was ultimately conceded by the learned senior counsel that there is no provision under the Bombay Public Trusts Act that simply because the trust does not inform the Charity Commissioner under Section 22(C) of the Bombay Public Trusts Act of an immovable property vesting in the public trust which is registered under the Bombay Public Trusts Act, and with respect to which immovable property mention will be made in the Register of the properties of the Trust under Section 36(B) of the Bombay Public Trusts Act, then the transfer of the immovable property to the Trust would become invalid and void simply because of necessary information not being transmitted to the Charity Commissioner under the Bombay Public Trusts Act. I therefore reject the argument urged on behalf of the appellant/plaintiff that there is no valid transfer of the Kuchaman Fort RFA No.555/2018 Page 18 of 37 and Palace/Mahal properties to the respondent no. 5/defendant no. 5/Trust simply because of the Trust not giving such information to the Charity Commissioner under the provision of Section 22(C) of the Bombay Public Trusts Act.
11. At this stage, I would like to note that under the provision of Section 18(2) of the Bombay Public Trusts Act, a Trust can be registered under the said Act in case even if the trust property or substantial trust property is not located within the local limits of jurisdiction of the operation of the Bombay Public Trusts Act, provided that the trustee has an office of administration of the Trust within the local limits of the jurisdiction of the Bombay Public Trusts Act. It is possibly for this reason that late Raja Pratap Singh and the trustees of the respondent no.5/defendant no.5/Trust had applied for registration of the Trust in Mumbai and which is also got registered in Mumbai, however as already discussed above, the Trust was also subsequently got registered under the Rajasthan Public Trusts Act. However, registration of a public Trust either under the Bombay Public Trusts Act or under the Rajasthan Public Trusts Act, will not have any effect with respect to vesting of a property in a Trust by a RFA No.555/2018 Page 19 of 37 Settlement Deed by any person including the Settler of the Trust, inasmuch as there is no provision either in the Bombay Public Trusts Act or in the Rajasthan Public Trusts Act that on not informing the respective authorities under the two Acts of a particular immovable property vesting in the Trust, only for the such reason the Trust will not be the owner of the immovable property, which has otherwise been validly vested in the Trust by means of a duly registered document in terms of Section 17(1)(b) of the Registration Act. 12(i) Learned senior counsel for the appellant/plaintiff then sought to argue that Kuchaman Fort and Palace/Mahal properties could not be said to have vested in the respondent no. 5/defendant no. 5/Trust, and this so argued by placing reliance upon the language contained in the Will dated 16.11.1992/Ex.DW1/8 of late Raja Pratap Singh. On the basis of the relied upon language in the Will where it is stated that the Kuchaman Fort and Palace/Mahal properties which are already vested in the respondent no. 5/defendant no. 5/Trust "are in the process of being registered before the Deputy Commissioner of Greater Bombay region", i.e it is argued that since it is written in the Will that the factum with respect to the Kuchaman Fort and RFA No.555/2018 Page 20 of 37 Palace/Mahal properties are only in the process of being registered before the Deputy Commissioner of Greater Mumbai under the Bombay Public Trusts Act, i.e since they were not registered till the time the Will was made by late Raja Pratap Singh on 16.11.1992, hence for this reason it has to be held that Kuchaman Fort and Palace/Mahal properties do not stand vested in the respondent no. 5/defendant no. 5/Trust.
(ii) In order to understand this argument urged for the appellant/plaintiff, this Will dated 16.11.1992 of late Raja Pratap Singh in its entirety is reproduced as under:-
"THIS IS THE LAST WILL AND TESTAMENT:-
of me (Raja) PRATAP SINGH of KUCHAMAN (Nagaur) Rajasthan, son of Late Raja Hari Singh Ji Sahib of Kuchaman (At Nagaur) Raj. in the state of RAJASTHAN made on the 6th November, 1992 in the year of our Lord one thousand Ninety two -
I hereby revoke all wills made by me at anytime heretofore particularly last Will Registered before the Chief Sub-Registrar Lucknow made on the 20 th November, 1979, Register No. III file 404 entered 5/11 No. 621. I also revoke my subsequent WILL made on the 5th June, 1987 at 16, Rana Pratap Marg, Lucknow 226001 (U.P.) I now appoint
(a) RAM JI DAS Advocate, son of Late Suraj Bux Singh alias Chaudhary Virender Singh, Chaudhari Building, Murtaja Hussain Road, Yahiyaganj, Lucknow (U.P.) AND RFA No.555/2018 Page 21 of 37
(b) Kunwar Narvir Shah, s/o M.K. Shardul Bikram Shah of Tehri- Garhwal, 16, Rana Pratap Marg, Lucknow (U.P.) 226001.
The above two will be my executors and direct that all my debts and most modest funeral expenses shall be paid as conveniently possible after my death. If possible my funeral preferably held at Vrindavan or Kankhal as they find convenient.
This WILL revokes all previous WILL Made by me, specially last one made by me on the 5th June, 1987 at Lucknow and codicil made on the 8th February, 1989.
I bequeath and give into (1) I had owned and possessed my Kuchaman Fort, And Mahals-But on the 26th day of February, 1978 I created a PUBLIC & CHARITABLE TRUST which was registered before the Deputy Charity Commissioner, Greater Bombay region, Bombay on the 15th September, 1978. The Fort of Kuchaman and Mahals of Kuchaman are already vested in the Trustees which include myself, my wife Rani Prem Kumari, Shree B.K. Shah, Chairman of Shree Shree MA ANANDMAYEE TRUST, Shreemati Raj Lakshmi Shah, my youngest daughter and Swami Bhaskaranandji Maharaj C/o Shree Mata Anand Mayee Ashram, Kankhal (U.P.) which are in process of being registered before Deputy Charity Commissioner, Greater Bombay Region. The fifth trustee being myself whose place will be filed as directed in the Trust. If the trustees agree then I would recommend Kunwar Narvir Shah to take my place as TRUSTEE but I would prefer to make my wife Rani Prem Kumari as Chair person in my place.
Further Shree Shree MA ANANDMAYEE KUCHAMAN TRUST registered at Bombay and have also been registered on the 25th February, 1979 and registered deed also registered on 25th February, 1979 at Kuchaman by Tehsildar Nawa (Dt. Nagaur) Rajasthan. In order to maintain Trust property of Fort and Kuchaman I have entered in a lease agreement on the 10th October, 1992 on behalf of the Trustees with M/s. RATHORE HOTELS & TOURS private Ltd. and have handed over possession of the place except certain places enumerated in the lease for 48 years with provision of further being extended to 41 years on yearly rent Rs.1,00,000/- (One Lakh) per annum payable in advance to the TRUST. Rent to be increased regularly as provided in lease deed. (2) I bequeath the Building No. 113, Sundar Nagar, New Delhi which is on leased land from Government of India has two flats, two garages and 4 Servant quarters. Out of this Bungalow I have already made ground floor flat, one garage and two quarters to my second daughter PRITI SINGH RFA No.555/2018 Page 22 of 37 where she is at present residing. After my demise she will have to pay half ground rent, half of the House Tax and other taxes subsequently imposed. (3) I bequeath first floor flat at present on rent at 113, Sunder Nagar which I am receiving but I bequeath the first floor flat to my eldest daughter Kiran Raj Bisaria, Lalbagh, Lucknow. This flat has one garage and two servant quarters. Further I also bequeath terrace with one room and bathroom also to her. She too will have to pay half ground rent, half of house tax and other taxes subsequently imposed.
(4) I bequeath the full amount derived from the Govt. of India for acquisition of my Kuchaman Bungalow, Jodhpur now to be received and subsequently received to my third daughter Raj Lakshmi Shah absolutely as she and her husband Narvir Shah have taken all the pains and trouble to procure this amount. I would however request them to give two Llacs 2,00,000/- out of this amount to their son Master Vivek Shah who is minor at present. It is my ardent wish that he be made chairman of of Shree Shree Anadmayee Kuchaman Trust on attaining majority first by Rani Prem Kumarie and latter by Raj Lakshmi Shah. Further, they will provide one Lac 1,00,000/- to my wife Rani Prem Kumaree if none of my liquid assets left are available.
(5) From the liquid assets left in Banks I would like to give after clearing all dues of Income Tax, Wealth Tax and other Taxes as follows:-
(a) A sum of Rupees Thirty thousand to my rear sister Rani Chain Kumaree, 51, Gaurav Nagar, Civil Lines, Jaipur.
(b) A sum of Rupees Ten Thousand to all my personal servants like Mr. & Mrs. Nathu Singh, Narendra Singh, Murari Upadhya and other deserving servants whom my wife Rani Prem Kumaree and Raj Lakshmi Shah deed fit and deserving.
(6) All my books whether at Kuchaman or at Lucknow should be preserved in some library provided by Shree Shree Ma Anandmayee Kuchaman Trust.
(7) All my other personal belongings lying in safe, or in stores will be at the disposal of Rani Prem Kumarie and subsequently by my daughter Raj Lakshmi Shah but request them to make good use or be fitting donations to my sentiments.
(8) All the ARMS lying at Kuchaman under licence and one 6 m.m. Pistol in my possession with ALL INDIA Licence should be disposed of gradually through my son-in-law K. Narvir Shah in consultation with my wife Rani Prem Kumaree.RFA No.555/2018 Page 23 of 37
(9) All the few valuable swords which should be preserved in store and eventually pass to Master Vivek Shah when he attains majority. Till then they be kept under supervision of Rani Prem Kumarie, Raj Lakshmi Shah and her husband Narvir Shah who is also one of the executors of this WILL. (10) It is also my pious wish that out of assets left in my Bank like State Bank of India, Ashok Marg, Lucknow and also at United Commercial Bank-
Kuchaman will be available to my wife Prem Kumarie as she also has a joint account with me. I pray that she will pay as my loving gift of Rupee fifteen thousand to each of my grand children like Rajina Raj Bisaria, Indritta Singh, Pia Singh and Smriti Shah.
In WITNESS WHEREOF I, the said (Raja) PRATAP SINGH hereto this my WILL set my hand the16th November, 1992 at 16, Rana Pratap Marg, Lucknow-226001 (U.P.) Signed by the said Testator in presence at the same time, who at his request in his presence of such other have subscribed our names as witnesses.
Sd/-
EXECUTANT WITNESSESS :-
1. ______Sd/-________ Dr. A. K. Srivastava
2. _______Sd/-_________ (R.K. Gupta) AS (Retd.)" (emphasis mine)
(iii) In my opinion, this argument urged on behalf of the appellant/plaintiff has already been effectively dealt with while rejecting the argument of there allegedly existing a requirement as per the case of the appellant/plaintiff of information being given to the RFA No.555/2018 Page 24 of 37 Charity Commissioner under the Bombay Public Trusts Act, inasmuch as it has already been held by this Court that merely because the properties of the Trust are not informed to the Charity Commissioner under the Bombay Public Trusts, the same would not mean that the public Trust will not be the owner of the properties which are otherwise transferred to the Public Trust by complying with the requirement of Section 17(1)(b) of the Registration Act. Also in my opinion, merely mentioning in the Will dated 16.11.92 of Raja Pratap Singh that Kuchaman Fort and Palace/Mahal properties "are in the process of being registered before the Deputy Charity Commissioner of Greater Bombay region", i.e under the Bombay Public Trusts Act, will not take away from the earlier part of the language of this paragraph which states that Raja Pratap Singh had owned the Kuchaman Fort and Palace/Mahal i.e ownership being of the past with the further fact that in the next paragraph it is specifically mentioned that Kuchaman Fort and Palace/Mahal properties already stand vested in the trustees of the respondent no. 5/defendant no. 5/Trust, Shree Shree Ma Anandmayee Kuchaman Trust .RFA No.555/2018 Page 25 of 37
(iv) It is also relevant to note that the argument urged on behalf of the appellant/plaintiff of properties of the respondent no. 5/defendant no. 5/Trust not being registered under the Bombay Public Trusts Act, and hence ownership not vesting with the respondent no. 5/defendant no. 5/Trust is a meaningless argument merely because in the Will dated 16.11.1992 late Raja Pratap Singh has mentioned about the process of registering of the properties in the name of the Trust, because by the Pranyas Patra/Settlement Deed which was registered on 28.2.1979 Kuchamal Mahal/Palace and Fort already in accordance with law stood vested with and ownership transferred to the respondent no. 5/defendant no. 5/Trust and thus in my opinion writing of a subsequent document with respect to a transaction which already stands legally completed i.e of the respondent no. 5/defendant no. 5/Trust becoming owner of the Kuchaman Fort and Palace/Mahal properties in terms of the registered Pranays Patra dated 15.2.1979 Ex.PW1/D2, will not mean that a legally completed transaction can in any manner is nullified because of a mentioning by a narration in a subsequent document being the Will of late Raja Pratap Singh dated RFA No.555/2018 Page 26 of 37 16.11.1992 of the aspect process of registering (i.e informing the factum of Pranyas Patra) under the Bombay Public Trust Act.
(v) For all the aforesaid reasons, the arguments urged on behalf of the appellant/plaintiff that Kuchaman Fort and Palace/Mahal properties have not been vested and did not fall in the ownership of the respondent no. 5/defendant no. 5/Trust, are absolutely without substance and are therefore rejected.
13. The only argument which now remains to be dealt with by this Court is as to what is the effect of late Raja Pratap Singh taking Sanyas in the Dusshera days of October, 1993 and he thereafter on 24.12.1993 taking a Jal Samadhi as a Sanyasi.
14(i) On behalf of the appellant/plaintiff it is argued that since late Raja Pratap Singh had become a Sanyasi, neither his Will dated 16.11.1992 will operate and also that the properties which vested with the respondent no. 5/defendant no. 5/Trust would also stand de-vested.
(ii) I have however completely failed to understand this argument urged on behalf of the appellant/plaintiff because firstly the fact that a person has become a Sanyasi will only result in his civil RFA No.555/2018 Page 27 of 37 death from the date he became a Sanyasi. Therefore by a person becoming a Sanyasi and consequently there being a civil death of Sanyasi will only mean civil death on the particular date of a person who becomes a Sanyasi. This in law doesn't mean that all acts done by a person when he was not a Sanyasi would stand invalidated and would become void simply because a person has become a Sanyasi. No such law was cited before this Court that acts done by a person will become void or stands invalidated simply because that person has become a Sanyasi subsequently. I therefore reject this argument urged on behalf of the appellant/plaintiff. Also by the Sanyasi/Raja Pratap Singh taking a Jal Samadhi (going to his death by Jal Samadhi) will not have any effect on these properties of which he was not the owner of at the time of his death.
15(i) Reliance was placed by the learned senior counsel for the appellant/plaintiff upon the judgment of a Division Bench of the Madras High Court in the case of Avasarala Kondol Row and Anr. Vs. Iswara Sanyasi Swamulavaru Alias Avasarala Kamarazu and Ors. 40 Ind. Cas. 535 MANU/TN/0261/1917 to argue that in para 3 of this judgment it is mentioned that if at the time of making of a Will it RFA No.555/2018 Page 28 of 37 is not anticipated that a person will become a Sanyasi, then, a Will does not operate.
(ii) I have found no such ratio in the case Avasarala Kondol Row (supra) as is sought to be argued by the appellant/plaintiff. The relevant observations of the Division Bench of Madras High Court were only to determine that defendant no. 1 in the suit had or had not become a Sanyasi. The facts of the judgment in the case of Avasarala Kondol Row (supra) are peculiar because during the lifetime of a person who had become a Sanyasi the Will of such Sanyasi, and who was defendant no.1 in the said suit, was sought to be enforced, and the Court consequently concentrated in the said judgment as to whether at all the defendant no.1 in the said suit had become Sanyasi for his Will executed few days prior to becoming a Sanyasi to become operative. The Division Bench of the Madras High Court has held that it was not adequately proved in evidence that the person had become a Sanyasi and once that is so there is no question of the Will of a person who was living operate for giving rights in the property to the plaintiff to whom rights were given by the person/defendant no.1 in the said suit. RFA No.555/2018 Page 29 of 37
(iii) I have also completely failed to understand this argument urged on behalf of the appellant/plaintiff because nowhere in the judgment in the case of Avasarala Kondol Row (supra), it has at all been held that on a person becoming a Sanyasi, and therefore having a civil death, any action taken by such a person when he was not a Sanaysi would become invalidated. Obviously this could not be so held in that judgment in the case of Avasarala Kondol Row (supra), or any other judgment for that matter, because a person during his life as a non-sanyasi and an ordinary citizen may have entered into Sale Deeds or Gift Deeds or so many any other contractual transactions and it is not and cannot be the law that all such contractual transactions would become invalidated simply because at a subsequent point of time, the person who has entered into contractual transactions had become a Sanyasi.
(iv) Clearly therefore, either on facts or on law, the judgment in the case of Avasarala Kondol Row (supra) in no manner helps the appellant/plaintiff to successfully contend that simply because late Raja Pratap Singh had become a Sanyasi, only because of this reason the properties at Kuchaman Fort and Palace/Mahal which were vested RFA No.555/2018 Page 30 of 37 with the respondent no. 5/defendant no. 5/Trust around 14 years prior to late Raja Pratap Singh becoming a Sanyasi, would no longer vest with the respondent no. 5/defendant no. 5/Trust, and that too once the ownership of the Trust is legally complete by means of a duly registered document as required by Section 17(1)(b) of the Registration Act.
16(i) Finally, it was argued on behalf of the appellant/plaintiff that if the appellant/plaintiff is not entitled to the partition of two of the suit properties being Kuchaman Fort and Palace, appellant/plaintiff is yet entitled to partition of various other properties as stated in Annexure-A to the plaint and which properties include immovable properties as also moveable properties in the form of gold, silver jewellery and idols etc.
(ii) In my opinion this argument has been rightly rejected by the trial court by stating that appellant/plaintiff has failed to prove that the immovable properties or moveable properties including the gold and silver jewellery and idols etc which are claimed by the appellant/plaintiff for being partitioned were owned by late Raja Pratap Singh. In fact I would like to add another reason to the RFA No.555/2018 Page 31 of 37 discussion and reasoning of the trial court that the so called moveable properties, jewellery and idols are so vague that in view of the vagueness it is impossible to direct partition of the same. In order to understand this aspect, para 42 of the impugned judgment which reproduces these properties of which partition is claimed is reproduced as under:-
"Re: Issue no. 4.
42. Onus of proof qua this issue has been on the plaintiff. The plaintiff in the plaint has sought partition of the properties as mentioned in Annexure-A, made part of the plaint. The said Annexure-A lists the following properties:
IMMOVABLE PROPERTIES Kuchaman Fort Kuchaman Mahal (Palace) All shops existing in Kuchaman Market Bhairon ka talav (Lake) Vacant land in :-
Kharia approximately 570 Bighas Panwali Shambagh Palade Fort,property some adjoining land.
Kuchaman Bungalow house in Jodhpur.
Sunder Nagar House, New Delhi RFA No.555/2018 Page 32 of 37 Valuable books and manuscripts with paintings.
In the Fort Glass room with old gilding work and paintings (Kaach Mahal). In the Fort Gold Painted room with old Frescoes (sunehri Burj).
MOVABLE PROPERTIES
1. GOLD AND SILVER JEWELLERY
(i) Gold jewellery studded with diamonds, emeralds, pearls, pukhraj and rubies.
(ii) Gold bricks, sovereigns and guineas.
(iii) Gold jewellery studded with diamonds, emeralds etc. worn by servants for ceremonial occasions.
(iv) Ceremonial jewellery including sarpechas to be worn on turbans and emeraldkantas.
(v) Gold jewellery worn by camels, elephants & horses on state occasions and festivals.
2. Arms, guns and armour, muskets with gilded ceremonial swords.
3. Ceremonial Gold, musnads, gaddis, gilded, carpets etc.
4. Old and valuable antiques.
5. Old valuable moghul textiles, brocades etc.
6. Valuable paintings.
7. Frescoes and gildings.
8. Chandeliers.
9. Silver and wooden furniture.
10. Household effects such as very valuable silver crockeries, cutlery, gold and silver utensils.
11. Valuable carpets.
12. Baba's effects, Kharoos, his iron, artefacts. RFA No.555/2018 Page 33 of 37
13. Gangeur statues and the jewellery of Gangeur Mata which is in gold, emerald.
14. Jhoolas.
15. Antique carved doors.
16. Palkis.
17. Temple effects.
18. Religious idols :
(i) Idols of Shiva, Parvathi, seven stones of Shivalingas, the statue of papu Rathore, Ganesh, Nandis, Parvathi Statues, Hanuman statue which are in the Fort.
(ii) The statue of Natwarlalji and temple effects in the Palace.
(iii) Kalimatha statue in the house with her gold and silver jewellery studded with diamonds, pukhraj, emeralds, rubies, pearls and strings of emerald pearls.
(iv)Old statues made of black stones in the Palace.
(v) Family deity of Nag Necha made of spatile, and its silver throne and all its other possessions.
(vi) Original Meerabhi statue in the private temple of charbhuja and Satyanarayan in the city of Kuchaman."
(iii) Trial court has rightly rejected the claim of partition of these properties by holding, and as stated above, the appellant/plaintiff has failed to prove that such properties were owned by late Raja Pratap Singh and also on account of vagueness of the properties, and RFA No.555/2018 Page 34 of 37 this is so held by the trial court in para 44 of the impugned judgment, and this para 44 reads as under:-
"44. From a reading of Will Ex. DW1/8, which has been duly proved as valid Will of Raja Pratap Singh, it can be discerned that properties, namely, Fort and Mahals of Kuchaman, property no. 113, Sunder Nagar, New Delhi and the flats, garages, servant quarters and terrace etc. existing thereon, amount derived from the Government of India for acquisition of Kuchaman Banglow, Jodhpur, liquid assets left in the banks, books, personal belongings of Raja Pratap Singh lying in safe or in stores, Arms lying at Kuchaman, swords and assets left at banks like State Bank of India and United Commercial Bank have been specifically dealt with by Raja Pratap Singh in his last will Ex. DW1/8 and have been bequeathed. In so far as other properties mentioned in Annexure-A are concerned, the defendants in their written statement have denied the same being owned by Raja Pratap Singh at the time of his death. The plaintiff during her evidence has merely asserted that the properties mentioned in Annexure-A were left by Raja Pratap Singh, but no evidence has been led to prove the existence of the said properties as belonging to Raja Pratap Singh at the time of his death. During her cross examination PW1 Priti Pratap Singh admitted that she had no documents or details with regard to the vacant land properties, Paladi Fort and Kuchaman bunglow at Jodhpur mentioned by her in Annexure-A to the plaint. As regards to the movable properties mentioned in Annexure-A to the plaint, PW1 Priti Pratap Singh during her cross examination deposed that she had photographs of some of them but she could not give the exact details of the same. During her cross examination PW1 Priti Pratap Singh admitted that the items no. 2 to 6 mentioned in Annexure-A to the plaint belong to a public charitable trust. No evidence has been led by the plaintiff to prove that at the time of his death Raja Pratap Singh left properties, namely, shops existing in Kuchaman Market, Bhairon ka talav (lake), vacant land in Kharia (approximately 570 Bighas), Panwali, Shambagh and Palade Fort and other movable properties. In the absence of plausible evidence led by the plaintiff, the plaintiff has failed to prove that Raja Pratap Singh left behind any properties other than those mentioned in Will Ex. DW1/8. Issue no. 4 is decided against the plaintiff and in favour of the defendants. "
(underlining added)
(iv). I would also like to observe that as per the provision of Order VII Rule 3 CPC when the subject matter of the suit is an RFA No.555/2018 Page 35 of 37 immovable property, the plaint has to contain sufficient description to identify the property such as by boundaries or numbers in a record of settlement etc, and it is seen that so far as the immovable properties are concerned of which partition is claimed, there are no details whatsoever as to what are the field numbers or municipal numbers of these properties, and what is the area of those properties etc. etc . Therefore in view of the provision of Order VII Rule 3 CPC, partition as claimed by the appellant/plaintiff in respect to the vague immovable properties, cannot be granted, and has rightly been rejected by the trial court.
17. In view of the aforesaid discussion, there is no merit in the appeal. In my opinion the claim of the appellant/plaintiff for partition of the vague properties, and especially of the properties being Kuchaman Fort and Palace which were already vested with the respondent no. 5/defendant no. 5/Trust; and that too to the knowledge of the appellant/plaintiff way back since the year 1979 with respect to the suit having been filed in the year 1994, the suit was therefore completely frivolous, vexatious and an abuse of process of law. Accordingly, this appeal is dismissed with costs of Rs.2 lacs, and these RFA No.555/2018 Page 36 of 37 costs shall be paid by the appellant/plaintiff to the respondent nos. 1 to 3/defendant nos. 1 to 3 and the respondent no.5/defendant no.5/Trust in the ratio of 50% each, within a period of six weeks from today. All pending applications also stand disposed of.
AUGUST 30, 2018/ib VALMIKI J. MEHTA, J
RFA No.555/2018 Page 37 of 37