Rajasthan High Court - Jodhpur
Surja Das vs Bhanwar Lal on 22 March, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.Civil Misc. Appeal No. 232 / 2000
Surja Das (Dead) through his L/Rs. -
(a) Smt. Rukma W/o. Late Surja Das Swami, aged 75 years,
(b) Sau Lal S/o. Late Surja Das Swami, aged 45 years,
(c) Dharmeshwar S/o. Late Surja Das Swami, aged 42 years,
(d) Pawan Kumar S/o. Late Surja Das Swami, aged 33 years,
(e) Smt. Bhagwati Devi (Dead) D/o. Late Surja Das Swami,
through her legal representatives -
(i) Arjun S/o. Chaina Ram (son), aged 12 years, (minor)
through his father natural guardian Chaina Ram.
(ii) Chaina Ram (Husband) S/o. Mangilal, aged 45 years,
All residents of - Kuchaman City, District - Nagaur (Raj.).
(f) Bhagwati Prasad S/o. Late Surja Das Swami, aged 40 years,
residents of - Kuchaman City, District - Nagaur (Raj.).
----Appellants
Versus
Bhanwarlal S/o. Tulchi Ram Swami, R/o. Deep Pura, at present
Kuchaman City, District - Nagaur (Raj.).
----Respondent
_____________________________________________________
Counsel For Appellant(s) : Mr. M.L. Panwar.
Counsel For Respondent(s) :
Mr. B.K. Bhatnagar.
Mr. Suresh Kumbhat
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 22/03/2017 This appeal under Section 299 of the Indian Succession Act, 1925 ('the Act') was filed by the appellant Surja Das aggrieved against the order dated 10.08.1999 passed by the District Judge, Merta, whereby application filed by the respondent Bhanwarlal under Section 276 of the Act has been accepted and based on the (2 of 14) [CMA-232/2000] Will dated 03.04.1984 executed by Ram Jeewan Das, 'letter of administration' has been ordered to be issued in his favour.
During the pendency of the appeal Surja Das died and his legal representatives were brought on record.
The respondent filed petition for granting 'letter of administration' with the averments that a temple of Narsinghji is situated in ward No.4 of Kuchaman City, whose Mahant and Pujari was Ram Jeewan Das; since 1978, the applicant was assisting Ram Jeewan Das in worshiping etc; Ram Jeewan Das died on 01.02.1985 at Village Panchwa; late Ram Jeewan Das was satisfied with his service and, therefore, he executed a Will qua the temple on 03.04.1984 and got it registered. It was indicated that Surja Das, respondent in the petition became annoyed by the Will and filed a suit for cancellation of the Will, which is still pending; Ram Jeewan Das during his life time filed application for registration of the Trust with the Assistant Commissioner, Devsthan, Bikaner, wherein also Surja Das objected. It was claimed that Will has been legally executed and is the last Will of the deceased, based on the Will, the applicant has become Pujari and Manager of the temple, however, as several litigations have been filed pertaining to the Will, the application seeking grant of 'letter of administration' is being filed. It was prayed that 'letter of administration' be issued.
The petition was resisted by Surja Das. It was, inter alia, contended that though the temple of Narsinghji does exist, however, deceased Ram Jeewan Das was not its Mahant and (3 of 14) [CMA-232/2000] Pujari, the applicant Bhanwarlal did not either in year 1978 or any point of time assisted in the worship at the temple; the date of death of Ram Jeewan Das was accepted. It was alleged that the applicant conspired to got execute the Will dated 03.04.1984, the Will could not have been legally executed, Ram Jeewan Das was not Mahant and Pujari of the temple and he had no right to execute the Will. It was admitted that the suit filed by the respondent seeking cancellation of Will was pending. It was also alleged that Ram Jeewan Das despite havng no right, had approached the Assistant Commissioner, Devsthan, which was opposed by him. It was submitted that the applicant was not entitled to any relief.
In additional pleas, it was submitted that temple of Narsinghji was being looked after by the respondent for over five generations, the temple was public religious property and the offerings are used for Bhog of Thankurji and repairs of temple; Patta of temple was executed by Jagirdar in Samvat 1932, which was executed in favour of late Bhagwan Das Pujari; whereafter, family tree was given and it was claimed that the respondent was the sole Trustee and Manager of the temple and was getting annuity from Devsthan Department. It was claimed that as respondent became weak, he employed Ram Jeewan Das, his brother-in-law as servant in the temple, however, Ram Jeewan Das claiming himself to be Mahant and Pujari, executed Will pertaining to the temple when in fact he was only a servant. It was claimed that the temple was under another temple of Bihariji, (4 of 14) [CMA-232/2000] whose Mahant was Tansukh Das, who has taken the respondent as his Chela and, therefore, only he has a right to the temple.
Based on the pleadings of the parties, the trial court framed five issues. On behalf of the applicant, five witnesses were examined and two documents were exhibited and on behalf of the respondent, six witnesses were examined and seven documents were produced.
After hearing the parties, the trial court came to the conclusion that the Will was valid that that applicant therein was entitled to 'letter of administration'. Regarding issue No.3 and 4 pertaining to the right of the respondent as sole Trustee and Manger and invalidity of the Will, it was held that qua the said rights, the parties are free to initiate proceedings before the competent court. Consequently, as noticed hereinbefore, it was ordered that 'letter of administration' be issued.
It is submitted by learned counsel for the appellants that the District Judge, Merta had no territorial jurisdiction to deal with the matter and, therefore, the impugned order deserves to be set aside. It was submitted that vide notification dated 19.05.1999 published in Gazette on 27.05.1999, the powers under Section 388 of the Act, were conferred on Additional District & Sessions Judge, Parbatsar (District - Nagaur) within the area of his jurisdiction and as admittedly the disputed property falls within the jurisdiction of Additional District Judge, Parbatsar and the order was delivered subsequent to the notification dated 19.05.1999, the District Judge, Merta had no jurisdiction. It was (5 of 14) [CMA-232/2000] further submitted that a bare look at the document in question i.e. the Will dated 03.04.1984 would reveal that the same only deals with the right to manage the temple and the duties as its Mahant and, therefore, the document in fact cannot be termed as a Will in terms of provisions of Section 2(h) of the Act and, therefore, the petition under Section 276 of the Act itself was not maintainable. Further submissions were made that the trial court committed error in not deciding issues No.3 and 4, which were relevant for reaching to an appropriate conclusion. Further submissions were made that there were contradictions in the statements of AW-3 Govind Puri, AW-4 Udaram and NAW-1 Rajkumar Jain, the scribe and on that count also the Will was surrounded by suspicious circumstances and the probate could not have been granted by the trial court.
Reliance was placed on Ram Nath Das v. Ram Nagina Choubey & Ors.: AIR 1962 Patna 481; Madan Mohan Singh & Ors. v. Rajni Kant & Anr.: AIR 2010 SC 2933 and Girja Datt Singh v. Gangotri Datt Singh : AIR 1955 SC 346.
Opposing the submissions made by learned counsel for the appellants, learned counsel for the respondent submitted that there is no substance in the appeal filed by the appellant. It was submitted that the objection pertaining to the territorial jurisdiction is not open to be raised at this stage, which stage is ex-facie barred by provisions of Section 21 CPC. Further submissions were made that a meaningful reading of the Will dated 03.04.1984 clearly indicates that the said Will deals with the (6 of 14) [CMA-232/2000] property, which was owned by the executant Ram Jeewan Das as Mahant of the temple and, therefore, it cannot be said that the Will does not deal with 'his property' and outside the scope of Will as defined under Section 2(h) of the Act. Further submissions were made that the trial court has dealt with all the contentions raised by the respondent while dealing with the issues No.1 & 2 and issues No.3 & 4 have been rightly decided by it in context of its finding on issues No.1 & 2. It was further submitted that the appellant had filed a suit for cancellation of the Will during the life time of Ram Jeewan Das, which suit was dismissed and even the appeal filed by the appellant herein was also dismissed and, therefore, there is no substance in the arguments sought to be now made on behalf of Surja Das. The submissions made regarding there being any suspicious circumstances in execution of the Will have no basis and, consequently, the appeal filed by the appellant deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the objection regarding lack of territorial jurisdiction of the District Judge, Merta is concerned, admittedly, no such plea was raised before the trial court, when during the pendency of the proceedings before the District Judge, Merta, the powers under the Act were conferred on Additional District Judge, Parbatsar and the District Judge, Merta decided the proceedings on 10.08.1999.
Section 21(1) CPC reads as under:-
"S.21(1) No objection as to the place of suing shall be (7 of 14) [CMA-232/2000] allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice."
A bare reading of the above provision indicates that it is imperative for an appellant to take objection regarding the territorial jurisdiction in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice, objection as to place of suing cannot be allowed. Admittedly in the present case, neither the objection was raised in the court of first instance nor the appellant has pointed out any consequent failure of justice on account of matter being prosecuted and decided at Merta w.e.f. 27.05.1999 till the date of decision i.e. 10.08.1999 as the notification dated 19.05.1999 was published on 27.05.1999 in Gazette though the proceedings under the Act were pending before the District Judge, Merta since the year 1986.
In view of the above, there is no substance in the argument pertaining to territorial jurisdiction and, consequently the same is rejected.
So far as the issue raised by counsel for the appellant regarding the nature of disposition by the Will and whether the same would fall within the definition of Will as defined under Section 2(h) of the Act is concerned, at the outset, it would be appropriate to quote the relevant portion of the Will in question:-
"eSa jke tho.k nkl iq= Jh x.ks'knkl tkfr Lokeh vk;q djhc 75 o"kZ fuoklh dqpkeu flVh rglhy ukoka ftyk ukxkSj (8 of 14) [CMA-232/2000] jktLFkku dk gwaA eSa dqEgkjksa dk eksgYyk okMZ ua- 4 dqpkeu flVh esa fLFkr efUnj ujflag th dk egUr gwaA ;g efUnj x`gLFkh lk/kqvksa dh xÌh dk gh gS rFkk eSa Hkh x`gLFkh gwaA esjs ,d iq= gS ftldk uke jkedqokj gS tks ukSdjh djrk gSA eSaus mDr efUnj dh lsok iwtk gsrq jkedqokj ls vkxzg fd;k exj mlus euk dj fn;kA vc pwafd eSa o`) gks pqdk gwa rFkk esjk vfUre le; djhc gS blfy, eSa ;g O;oLFkk dj nsuk pkgrk gwa fd mä ujflag th dk efUnj dh lsok] iwtk o O;oLFkk lwpk# :i ls pyrh jgs blesa fdlh izdkj dh ck/kk u iM+sA vr% eSa ;g ohl;r ukek fy[k jgk gwa rFkk ;g ?kksf"kr dj jgk gwa fd blls igys eSaus dksbZ olh;r ugha fy[kh gS rFkk bl olh;r ukek ds tfj;s ;g ?kksf"kr djrk gwa fd mä efUnj ujflag th dk ds egUr dk p;u djus dk eq>s iwjk vf/kdkj gS vkSj ;g ?kksf"kr djrk gwa fd esjh e`R;q ds ckn Jh Hkaojyky iq= Jh rqylhjke tkfr Lokeh fuoklh nhiiqjk gk-eq- dqpkeu flVh rg- ukoka ftyk ukxkSj jkt- mä ujflag th dk efUnj dh lsok iwtk o O;olFkk djsaxs rFkk bl efUnj ds egUr ds leLr dk;Z djsaxsA bl efUnj o bldh leLr py&vpy lEifÙk dh lEiw.kZ O;oLFkk oks gh djsxkA Jh Hkaoj yky gh bl efUnj dk egUr gksxk rFkk egUr ds leLr vf/kdkj] nkf;Roksa dk ogu djsxk blesa fdlh Hkh O;fDr dks dksbZ mtz ,rjkt ugha gksxkA Jh Hkaojyky vHkh Hkh djhc 6 o"kZ ls esjs lkFk gh jgrk gS rFkk efUj dh lsok&iwtk O;oLFkk esa esjk iwjk lg;ksx dj jgk gSA"
Will under Section 2(h) of the Act has been defined as under:-
"2(h). "will" means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death."
A bare look at the definition would reveal that the Will has been defined as legal declaration of the intention of the testator with respect to 'his property', which he desires to be carried into effect after his death.
The concomitant issue, which arises for consideration is the nature of right, which a Mahant has in the property. Hon'ble Supreme Court in The Commissioner, Hindu Religious (9 of 14) [CMA-232/2000] Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.: AIR 1954 SC 282, inter alia, laid down as under:-
"11. As regards the property rights of a Mathadhipati, it may not be possible to say in view of the pronouncements of the Judicial Committee, which have been accepted as good law in this country ever since 1921, that a Mathadhipati holds the Math property as a life-tenant or that his position is similar to that of a Hindu widow in respect to her husband's estate or of an English Bishop holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the Privy Council (Vide Vidya Varuthi v. Batusami, 48 I.A.
302.) says, a manger or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be right describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. It was held by a Full Bench of the Calcutta High Court (Vide Monahai v. Bhupendra, 60 Cal. 452.), that Shebaitship itself is property, and this decision was approved of by the Judicial Committee in Ganesh v. Lal Behary (63 I.A.
448.), and again in Bhabatarini v. Ashalata (70 I.A.
57.). The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasis the proprietary element in the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu law from an early date view was adopted in its entirety by this court in Angurbala v. Debabrata ([1951] S.C.R. 1125.) and what was said in that case in respect to Shebaiti right could, with equal propriety, be applied to the office of a Mahant. Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply."
(10 of 14) [CMA-232/2000] It was laid down by Hon'ble Supreme Court that the right of Mahant or a Shebait, who has a beneficial interest in the endowment attached to the Math 'is a property' within the meaning of Article 19(1)(f) of the Constitution of India.
In view of the above, the submission made by counsel for the appellant that as the executant Mahant Ram Jeewan Das was not the owner of the property, he could not execute the Will treating the same as 'his property' so as to bring the document within the definition of Will has not substance.
Further submissions made by counsel for the appellant based on judgment in the case of Ram Nath Das (supra) that as the purported Will does not contain any disposition of property and, therefore, also the document in question cannot be treated as Will requires consideration.
In this regard, the Division Bench in the case of Ram Nath Das (supra) while considering the disposition made in the Will before it without indicating the specific reasons for it reaching such a conclusion indicated that there was no disposition of the property of the Math by the said document and the document provided for his successor and what was indicated in the Will would legally follow on the applicant's assuming the Mahanthship and, therefore, it was held that the document was not a Will. With utmost respect to the judgment in the case of Ram Nath Das (supra), it may be observed that issue was dealt with in a very narrow manner for reaching the conclusion that the disposition did not amount to execution of a Will.
(11 of 14) [CMA-232/2000] In Bai Zabu Khima v. Amardas Balakdas : AIR 1967 Gujarat 214, P.N. Bhagwati, J. (as he then), dealing with Shebaitship of a temple and Will purporting to convey such Shebaitship, inter alia, laid down as under:-
"(3) Mr. Padia next urged that what was sought to be disposed of by the deceased under the instrument dated 5th November 1947 was not properly and that the instrument was, therefore, not a will of which probate or letters of administration with a copy of the will annexed could be granted. This contention is also in our opinion fallacious and cannot be sustained. "Will"
is defined in Section 2(h) of the Indian Succession Act to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is, therefore, indisputable that the instrument which is sought to be propounded as a will must contain the legal declaration of the intention of the testator with respect to his property. If what is sought to be disposed of by the deceased by the instrument in question is not property, the instrument in question is not property, the instrument cannot be regarded as a will. It, therefore, becomes necessary to inquire whether the right which was sought to be disposed of by the deceased by the instrument sought to be propounded as a will was property. Now we turn to the instrument we find that the deceased did not purport to dispose of either the temple or the land on which the temple stood. The recitals contained in the instrument showed that both the temple and the land on which the temple stood were dedicated by the deceased to Thakorji and that they were, therefore, properties belonging to Thakorji as a deity. The deceased was merely a shebait having the right to worship the deity, to manage and look after the temple and to appropriate to himself the income of the endowed property consisting of rent and offerings. The deceased declared by the instrument his intention that after his death this right of a Shebait should go to the applicant, his disciple, and that the applicant should have the right to manage the temple, to worship the deity and to maintain himself from the rent and other income of the temple. What was bequeathed by the deceased by making the instrument, was therefore, the Shebatiship of the temple. The question is whether the Shebaitship of the temple could be said to be property. If it was property then clearly the instrument executed by the deceased would be a will for it would contain the legal declaration of the intention of the deceased with respects to his property, namely, the Shebaitship which he desired to be carried into effect after his death. But if it was not property, then that being the only subject matter of the instrument, the instrument would not be a will. Mr. Padia on behalf of the opponent strongly contended (12 of 14) [CMA-232/2000] that the Shebaitship of the temple could not be regarded as property but it was merely an office and the instrument was therefore at the highest no more than an instrument appointing the applicant to the said office after the death of the deceased. We cannot accede to this contention. The Shebaitship of the temple, we think, was not merely a religious office which could not be regarded as property for the purpose of civil law. The Shebaitship no doubt involved the performance of religious deities such as performing the worship of Thakorji but it also carried with it as an inalienable incident the right to appropriate the income of the temple. The Shebaitship was an office which brought income to the holder as a necessary concomitant of the office and it was, therefore, as much property as any other property known to law. If the shebatiship were merely a religious office without any beneficial interest in the endowed property and not producing any income, it might not have been possible to regard Shebaitship as property, but when it entitled the holder of the office to the income of the endowed property as also to the offerings which might be made to the deity, the Shebaitship must be regarded as property."
Whereafter relying on judgment in the case of Angurbala Mullick v. Debabrata Mullick : AIR 1951 SC 293, it was further held as under:-
"Having regard to these observations of the Supreme Court it is clear beyond doubt or dispute that the Shebaitship of the temple in the present case was property and the deceased himself being the founder of the temple was entitled to dispose the Shebaitship by making a will. The instrument sought to be propounded as a will of the deceased, therefore, comes within the definition of "will" as given in Section 2(h) of the Indian Succession Act and if the due execution of the will can be said to be established by the applicant the grant of letters of administration with a copy of the will annexed must be made to the applicant."
From the judgment in the case of The Commissioner, Hindu Religious Endowments (supra) of Hon'ble Supreme Court and the judgment of Bai Zabu Khima (supra), it is apparent that the Mahantship is a property and the successor can be appointed by Will, which in the present case has been done by Mahant - Ram Jeewan Das. Consequently, there is no substance in the submissions made by learned counsel for the appellant in this (13 of 14) [CMA-232/2000] regard.
The trial court while dealing with the issue held that there were no suspicious circumstances surrounding the Will and in view of the fact that the suit filed by Surja Das seeking cancellation of the Will, had already been rejected by the trial court on 23.10.1996, held the issues in favour of the respondent.
It was emphasized by counsel for the appellant with respect to statement of NAW-1 Rajkumar Jain, scribe of the Will, who appeared as witness of Surja Das that the said Rajkumar Jain, though admitted scribing the Will at the instance of Ram Jeewan Das, gave statement that he signed the Will without reading it. The said statement of scribe is on its face incorrect and appears to have been made as he was got produced by Surja Das, the challenger to the Will. The signatures of Ram Jeewan Das appears on the Will appropriately, whereafter the names of the attesting witnesses have been indicated in the handwriting of the scribe himself and bears the thumb impression/ signatures of the attesting witnesses.
In view thereof, no credence can be given to the plea raised based on the statement of the said NAW-1 Rajkumar Jain. The very fact that the appellant had filed suit seeking cancellation of Will during life time of deceased Ram Jeewan Das, which fact is fortified from the suit No.22/1984 and as Ram Jeewan Das died on 01.02.1985, which suit has been dismissed by the trial court and it is submitted by learned counsel for the respondent that the appeal arising there from has already been dismissed by the first (14 of 14) [CMA-232/2000] appellate court and no second appeal was preferred by the appellant herein, clearly shows that the appellant has failed to point out any suspicious circumstance in so far as the execution of the Will is concerned.
So far as the plea sought to be raised by the appellant regarding the ownership of the property forming subject matter of the Will is concerned, it is well settled that the probate proceedings are confined to a declaration regarding the last Will of the testator and that the testator was in valid disposing state of mind and the same by itself does not confer any title on the beneficiary, if the appellant had any cause, he was free to have taken proceedings qua the ownership or title to the property comprised in the Will, which was apparently taken by Surja Das by filing suit seeking cancellation of the Will, however, the trial court was justified in coming to the conclusion that the said aspect cannot form subject matter of the present proceedings.
No other issue was pressed by the appellants. In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed.
(ARUN BHANSALI)J. PKS