Delhi District Court
Swami Kapil Muni vs M/S. Panna Lal & Sons (Huf) 1/15 on 4 August, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 11/11
Unique ID No. 02401C0015482011
MEMO OF PARTIES
1. Swami Kapil Muni,
C/o Hare Ram Ashram Trust,
Post Gurukul Kangri, Kankhal, Hardwar, U.P.
2. Swami Yogindra Nand Ji Maharaj,
R/o Muni Mandal Ashram,
Kankhal, Hardwar, U.P.
3. Mehant Gopal Dass Ji,
Udasin Panchayati Bara Akhera, Rajghat,
Kankhal, Hardwar, U.P.
4. Mehant Pancham Dass Ji,
C/o Udasin Panchayati Bara, Akhara, Rajghat,
Kankhal, Hardwar, U.P.
5. Swami Anand Muni Ji,
C/o Hare Ram Ashram Trust,
Post Gurukul Kangri, Kankhal, Hardwar, U.P.
6. Swami Raghava Nand Ji,
C/o Guru Ram Dass Udasin Ashram,
Aram Bagh Lane, Panchkuiyan Road, New Delhi55,
Plaintiff No. 1 to 5 through their duly constituted
General Attorney Swami Raghava Nand Ji, Plaintiff No. 6.
7. Shri Onkar Mal Saraf,
R/o 4514, Daiwara, Roshanpura, Nai Sarak, Delhi, through his duly
constituted General Attorney Shri Banwari Lal Saraf
...........Plaintiffs
Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 1/15
VERSUS
M/s. Panna Lal & Sons (HUF)
Through its Karta Shri Ashok Kumar Arora
S/o Shri Panna Lal Arora
R/o 6/39, JungpuraB, New Delhi,
Also to be served C/o Amar Dye Stuff Co.
186,Tilak Bazar, Delhi6
..........Defendant
Date of institution of the Suit: 10.09.1987
Date on which judgment was reserved: 17.07.2014
Date of pronouncement of Judgment: 04.08.2014
SUIT FOR DECLARATION
JUDGMENT:
1. This judgment shall decide the suit of the plaintiffs seeking declaration to the effect that the plaintiffs are the owners of the property bearing municipal no. 4796, 4797 and 4799 in Ward No. 3, Ram Bazar, Cloth Market, Delhi (hereinafter referred to as the suit property) and declaring the sale deed dated 12.09.1984 registered as document no. 3312 in Additional Book No. I, Vol. No. 4352 on pages 165 to 172 on 13.09.1984 with the SubRegistrar, Delhi as null and void. The plaintiffs contend in the plaint that Hare Ram Ashram Trust (hereinafter the Trust) is a Trust created under a registered Trust Deed dated 25.06.1958 with its principal office at Jagjitpur, Pargana Jawalapur, P.O. Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 2/15 Gurukul Kangri, Tehsil Roorki, District Saharanpur, U.P. The plaintiffs contend that they are the Trustees in the Trust. It is contended that the Trust is covered under the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties Act, 1962). The Trust inter alia, owned a four storeyed house constructed on a plot of land bearing municipal no. 4796, 4797 and 4799 in ward no. 3, Ram Bazar, Cloth Market, Delhi. The plaintiffs contend that the property was acquired by the Trust under a registered sale deed dated 23.11.1962.
2. The plaintiffs aver that according to the Trust Deed dated 25.06.1958 none of the Trustees was entitled to sell, mortgage, donate or raise loan by creating charge in respect of the Trust property. However, in case of need in the interest of the Trust it was permitted to sell the property of the Trust in extraordinary circumstances provided other properties would be purchased with the help of the said proceeds for the furtherance of the purposes of the Trust. It is averred that on 12.09.1984 one Swami Sukhdev Muni one of the Trustees of the Trust alleged to have sold the suit property in favour of the defendant for a total consideration of Rs. 48,000/ by sale deed dated 12.09.1984 purported to have been registered as well. The plaintiffs aver that the said Swami Sukhdev Muni was never authorized by the plaintiffs to enter into any such transaction or execute a sale deed in favour of the defendant. It is averred that on or about 15.12.1983, the said Swami Sukhdev Muni sent a Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 3/15 notice calling a meeting of the Trust to be held on 15.01.1984 disclosing the agenda for the business to be conducted for the said meeting however the said meeting was not held for want of necessary quorum and the same was thereafter held on 15.04.1984.
3. It is averred that in the said meeting dated 15.04.1984 the Trustees present considered various matters relating to the Trust and passed resolution no. 1 to 6. However, after conclusion of the said meeting the said Swami Sukhdev Muni without any right or authority and without the consent of the Trustees added a resolution no. 7 there by transferring to himself the right to sell the properties of the Trust including the suit property. It is averred that the aforesaid resolution was added by the said Trustee who was also at that time the President of the Trust in collusion and conspiracy with the defendant without any right or authority and without any consent and knowledge of the plaintiffs.
4. It is stated that when the facts came to the notice of one of the Trustees Sh. Onkar Mal Saraf he immediately filed a suit titled 'Onkar Mal Saraf Vs. Hare Ram Ashram Trust' which was pending in court. The said Onkar Mal Saraf gave a public notice to this effect in the newspaper 'Hindustan Hindi' on 11.09.1984. It is averred that when the fact of registration of the sale deed dated 12.09.1984 came to the knowledge of the Trustee Sh. Budhram Kapoor he filed suit titled 'Budhram Kapoor Vs. Hare Ram Ashram Trust and Ors'. Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 4/15 Including against the alleged purchasers. The plaintiffs state that however the fact clearly came to the notice of the plaintiffs and other Trustees of the Trust on or about 13.06.1985 in the next meeting of the Trust and immediately when the plaintiffs noticed the said interpolation in the proceedings it was decided not to confirm the said resolution no. 7 of the proceedings of the last meeting and after confirming the resolution no. 1 to 6 passed in the last meeting it was resolved to expunge the resolution no. 7 dated 15.04.1984. It was agreed and declared by Swami Sukhdev Muni in the meeting dated 13.06.1985 that he had passed the said resolution on account of the pressure exerted by Swami Poornanand Kothari and Sh. Ram Chander Gupta and under that pressure he had entered resolution no. 7 in the minutes books unauthorizedly. It was further resolved in the said meeting that the Trust never authorized any person or Trustee to sell, transfer, mortgage or otherwise dispose off the Trust properties to any person.
5. The plaintiff avers that it seemed that during this period the said Swami Sukhdev Muni illegally and unauthorizedly without any right or authority in conspiracy with the defendant executed the sale deed dated 12.09.1984 in favour of the defendant without any consideration. It is contended by the plaintiffs that as per the allegations in the sale deed the defendant purportedly paid a sum of Rs. 5,000/ in cash and balance Rs. 43,000/ by pay order dated 11.09.1984 but none of the said amount has been deposited in the Trust Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 5/15 account. The Trust had no bank account in Delhi except with the Allahabad Bank, Chandni Chowk, Delhi. It is averred that even otherwise the Trust in question was governed by the provisions of the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962 and according to the provisions of the said Act no property of the Trust could be transferred except with the prior permission/written sanction of the Commissioner. The provisions of Section 7 of the said Act have been reproduced in the plaint. It is also averred that in spite of the alleged sale deed the plaintiffs as Trustees of the Trust are in complete control, possession or enjoyment of the said property and have been recovering the rent in respect thereof from the tenants and as such are in legal possession of the property. It is averred that the defendant was requested to desist from claiming any title to the suit property under the impugned sale deed dated 12.04.1984 but the defendant had failed to do so which has cast a cloud over the rights of the plaintiffs. Hence the plaintiffs has file the present suit.
6. The written statement was filed on behalf of the defendant. Preliminary objections were taken. It was contended that the suit was bad for misjoinder of parties since the plaintiffs no. 1 and 5 were not necessary parties or even proper parties as they were not the Trustees of the Trust. The court did not have the territorial jurisdiction to entertain the suit as the Trust was situated at Haridwar and the cause of action if any giving rise to the present suit Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 6/15 challenging the sale of the property on the ground that the resolution no. 7 was never passed by the Trustees also arose at Haridwar. The plaintiff had no locus standi to file the present suit. The suit for declaration without consequential relief was not maintainable. The suit had not been properly valued for the purpose of court fees and jurisdiction as per the market value of the suit property which was more than Rs. 2 Lacs. The suit of the plaintiff was barred by limitation. The plaintiffs had knowledge of passing of the resolution no. 7 in the meeting of Board of Trustees dated 15.04.1984. The plaint had not been properly verified and signed. The suit was barred U/o 2 R 2 CPC since the plaintiffs had filed other suits challenging the resolution no. 7 in several courts and some of which were still pending.
7. It was further the preliminary objection of the defendant that the plaintiffs were estopped from agitating the validity of the resolution no. 7 dated 15.04.1984 since they themselves were signatories to the proceedings of the meeting except the plaintiff no. 1 and 5 who were not the Trustees and the plaintiff no. 6 who was coopted on that day as a Trustee. There was no valid and proper power of attorney in favour of the plaintiff no. 6 and Sh. Banwari Lal Saraf. Sh. Banwari Lal Saraf could not be appointed as attorney by the plaintiff no. 7 as a Trustee was not entitled to delegate his powers.
8. On merits, it was admitted that the Trust was a registered Trust but it was contended that the plaintiffs no. 1 and 5 were not the Trustees. It was Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 7/15 averred that the Trust was registered under the Indian Trust Act and the provisions of U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act 1962 were not applicable and at present the defendant was the owner and in actual and physical possession of the property having purchased the same vide sale deed dated 12.09.1984. It was contended that the resolution no. 7 dated 15.04.1984 was passed by the then Trustees of the Trust unanimously whereby it was resolved that the properties of the Trust situated at Delhi could be sold and it was in the interest of Trust and beneficial for the same. The plaintiffs no. 2, 3, 4 and 7 were signatories to the said resolution and plaintiff no. 6 was coopted on that date.
9. It was submitted that the President of the Trust Late Swami Sukhdev Muni and the plaintiff no. 2 categorically admitted for themselves and on behalf of the said Trust in a case pending before the Hon'ble Delhi High Court filed by Smt. Bimla Devi against the Trust and in a suit filed by Smt. Priyamvada about having passed the resolution no. 7 in the meeting held on 15.04.1984. It was contended that Swami Sukhdev Muni the President of the Trust was duly authorized by the Board of Trustees at that time. It was contended that the plaintiffs had no authority on behalf of the Trust to challenge the sale deed. The defendant further submitted that Sh. Onkar Mal Saraf had filed the suit when he himself was unsuccessful to purchase the properties and the public notice given by him was only an act in frustration. It was admitted that a suit Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 8/15 was filed by Sh. Budhram Kapoor however the said suit had since abated. It was prayed that the suit be dismissed.
10. The present suit came to be dismissed in default on two occasions, once on 03.09.1992 and was restored on 27.07.1994 and thereafter on 19.03.1997. Therefore the plaintiff moved an application for restoration of the suit U/o 9 R 9 CPC on 02.11.1998 which also came to be dismissed in default on 07.12.2001. Finally, thereafter the plaintiff's application U/o 9 R 9 CPC for restoration of the suit came to be allowed vide order dated 10.01.2011. The defendant was served by way of publication however none appeared on behalf of the defendant and vide order dated 08.10.2013 the defendant was proceeded ex parte.
11. In exparte evidence the plaintiffs examined PW1 Swami Kapil Muni the President of the Trust who relied on the following documents:
1. Ex. PW1/1 (OSR) i.e. Trust deed dated 25.06.1958.
2. Mark A i.e. the copy of sale deed dated 13.09.1984.
3. Ex. PW1/3 (OSR) i.e. the copy of resolution dated 15.04.1984.
12. On 09.04.2014 the application of the plaintiff U/o 18 R 17 r/w Section 151 CPC was allowed thereby the plaintiff was allowed to put the exhibit mark on the documents mentioned as Ex. PW1/4 i.e. the proceedings of the meeting dated 13.06.1985. Thus in total PW1 relied on four documents and thereafter closed exparte PE.
Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 9/15
13. The counsel for plaintiff then addressed final arguments. I have heard the final arguments advanced by counsel for plaintiff and perused the record.
14. It is surprising that the plaintiffs have not sought to even file the certified copy or to summon from the SubRegistrar's Office the copy of the impugned sale deed which has only been marked in evidence by the plaintiffs as Mark A. Be that as it may it is the case of the plaintiffs that the then President of the Trust Sh. Swami Sukhdev Muni was not authorized to enter into the sale transaction on behalf of the plaintiffs and counsel for plaintiffs took me through the provisions of the Trust Deed. Clause 12 of the Trust deed Ex. PW1/1 provides that in ordinary circumstances the Trustees would not have the right to sell the Trust properties however in the interest of the Trust the Trustees with unanimous consent could sell the Trust properties but it would be extremely necessary that in lieu of the property sold another property should be purchased by the Trust. Apparently, the provisions in the Trust deed thus envision a situation where the Trustees in the interest of the Trust with unanimous consent can sell the Trust properties and there is no absolute bar imposed on the Trustees against selling the suit properties. Further the defendant had raised a specific plea that the trust in question was governed by the provisions of the Indian Trust Act and not the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act 1962. The plaintiffs though have proved through PW1 the registered Trust Deed Ex. PW1/1 Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 10/15 however no cogent documentary evidence has been produced by the plaintiff to prove that the trust is governed by the provisions of the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act 1962 and even the Trust Deed Ex. PW1/1 nowhere mentions as to which law it is governed by, whether it is Indian Trust Act or U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties). In absence of cogent documentary evidence in this regard the plaintiffs have failed to establish that the trust is governed by U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act 1962. The minutes of the meeting dated 15.04.1984 of which were exhibited as Ex. PW1/3 prima facie show that vide the resolution no. 7 apparently with the unanimous consent of the Trustees Swami Sukhdev Muni was granted the authority to sell the suit properties. To be entitled to any such declaration that the sale deed is null and void the plaintiffs were required firstly to seek a declaration that the resolution no. 7 had been subsequently incorporated by Sh. Swami Sukhdev Muni who was in fact admittedly the President of the Trust at the relevant time. The plaintiffs have not placed on record any judgment passed by any court of law declaring the Resolution No. 7 being null and void. It must be presumed in fact that no such judgment has any ever been passed in favour of the Trust. The plaintiffs for reasons best known to them have not chosen even vide the present suit to seek a declaration as regards the resolution no. 7. Without challenging the Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 11/15 said resolution which apparently seems to clearly authorize the said Swami Sukhdev Muni for executing the sale deed and the minutes show the presence and consent of all the Trustees present, the plaintiffs in my opinion can not be entitled to seek the relief of declaration of the sale deed being null and void. Perusal of Ex. PW1/3 i.e. Minutes of the meeting wherein the resolution no. 7 was also purportedly passed shows that the document has running numbering from 33 to 35 and the resolution no. 7 is on the running page no. 35. The plaintiffs contend that the fact regarding the registration of the Sale Deed came to the knowledge of the plaintiffs and other Trustees only on or about 13.06.1985 which was the date of the next meeting of the plaintiffs however this is contradictory to the earlier plaint averments as the plaintiffs in the plaint have themselves contended that the plaintiff no. 7 filed a suit titled 'Onkar Mal Saraf Vs. Hare Ram Ashram Trust' when he came to know about the resolution in question (though no date of knowledge is given) and that he gave a public notice to this effect in the newspaper on 11.09.1984. At the stage of clarifications counsel for plaintiffs was asked regarding fate of the suit and he submitted that the litigation had been dismissed in default. The important fact is that the knowledge can and must be imputed on the plaintiffs about the Resolution in question much prior to the date of the next meeting.
14. In fact Ex. PW1/3 the minutes of the said meeting records the presence of the plaintiffs no. 2, 3, 4 and 7 and while it has come on record that plaintiff Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 12/15 no. 7 expired and the application of the LRs U/o 22 R 3 CPC was dismissed on 28.04.1992 but the other plaintiffs i.e. 2, 3 and 4 who were apparently present in the meeting in question, have not bothered to grace the witness box and depose regarding the date when they obtained the knowledge of the resolution no. 7 being allegedly passed behind their backs. These persons or any of them would have been the best persons to depose regarding the issue as to whether or not the Resolution no. 7 was passed in their presence. Adverse inference must be drawn against the plaintiffs for not producing any of these persons in evidence to depose regarding the fact that the resolution no. 7 was not passed in the meeting and that it was subsequently added. Only PW1 has been examined who apparently was not even present in the meeting in question and is thus not competent to depose in regard to the facts and circumstances of the meeting in question. Counsel for plaintiff had contended that there was no requirement for the plaintiff to seek declaration regarding the resolution as in the next meeting i.e. meeting dated 13.06.1985, the resolution no. 7 was withdrawn. This argument is fallacious because the next meeting was held on 13.06.1985 however the impugned sale deed is apparently dated 12.09.1984 and was registered also prior to the meeting of 13.06.1985. The sale deed having been executed in the interregnum period of the two meetings and having also been registered in the said period, since a purported right in the suit properties were created by way of a registered Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 13/15 document based on the resolution no. 7 as is mentioned in the sale deed Mark A the plaintiffs were under a duty in law to seek a declaration regarding the Resolution no. 7 being null and void on the ground purportedly of it having been executed by the President of the Trust under pressure or coercion etc. but they have not chosen to do so. Without such a declaration in their favour the plaintiffs can not possibly be entitled to the equitable relief of declaration, especially without proving through cogent evidence that the resolution no. 7 was passed at the back of the Trustees and also was passed by the then President of the Trust under alleged coercion. The allegation of coercion must be proved by the party so alleging which the plaintiffs have failed to do.
15. As there is no document on record to show that ever any declaration was granted in favour of the Trustees of the Trust regarding the suit property having been sold without their consent and as no such declaration was sought vide the present suit regarding the resolution no. 7 being null and void, since the sale deed was executed by none other than the then President of the Trust on behalf of the Trust and under the colour of authority granted to him vide the resolution no. 7 passed apparently unanimously as is clear vide the minutes of the meeting Ex. PW1/3 which is quite in consonance with the terms of the Trust deed the appropriate remedy for the plaintiff should have been to seek cancellation of the sale deed in question and not a mere declaration that the sale deed was null & void since it was on behalf of the Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 14/15 Trust that the sale deed had been executed.
16. It is true that the defendant is exparte in the present suit however the well settled law is that the plaintiff's case must stands on its own legs. The plaintiffs were thus required to seek a declaration regarding resolution no. 7 passed in the meeting of the Trustees dated 15.04.1985 being null and void in order to challenge the sale of the suit property or atleast they should have sought cancellation of the sale deed in stead of declaration but they have chosen to do neither. The plaintiff's present suit for declaration of the sale deed being null and void without seeking the relief of declaration qua the resolution authorizing the then President of the Trust to sell the suit premises or alternatively seeking the relief of cancellation of the sale deed is not maintainable. The suit of the plaintiff is thus dismissed being not maintainable and without merit. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 04.08.2014 Civil Judge - 10 (Central)
04.08.2014
Suit No.11/11 Swami Kapil Muni & Ors. Vs. M/s. Panna Lal & Sons (HUF) 15/15