Delhi District Court
Mahesh Narayan Sharma vs Pt. Ram Narayan Sharma on 20 September, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN
METROPOLITAN MAGISTRATE-07, WEST TIS HAZARI COURT, DELHI
Suit No. 391/10/77
Mahesh Narayan Sharma
S/o Pandit Ram Narayan Sharma
R/o 2354, Dharampura, Delhi
.............Plaintiff
vs
1. Pt. Ram Narayan Sharma
S/o Pt. Lakshmi Narayan
R/o 19, New Krishna Nagar
Near Radhey Puri, Delhi-51
& Also at
2354, Dharam Pura, Delhi
2. Sh. Raj Narayan Sharma
S/o Pt. Ram Narayan Sharma
R/o 2354, Dharam Pura, Delhi
3. Sh. Prakash Narayan Sharma
S/o Pt. Ram Narayan Sharma
R/o 2354, Dharam Pura, Delhi
4. Sh. Prem Narayan Sharma
S/o Pt. Ram Narayan Sharma
R/o 2354, Dharam Pura, Delhi
& C/o Punjab National Bank, G.T. Road, Panipat
5. Sarla Devi
W/o Sh. Radhey Mohan Sharma
R/o 1869, Gali Takhat Wali
Kucha Khiali Ram Bazar Sita Ram
Delhi-6
6. Pushpa Devi
W/o Shri Kishore Chand Sharma
R/o Qr. No. 118/4, Minto Bridge
Railway Colony, New Delhi
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 1/68
7. Suresh Narayan
S/o Pt. Ram Narayan Sharma
R/o 2354, Dharampura, Delhi
& AE (E & Q) Civil Department, Mecon HSL Bldg.
Doranda, Ranchi, Bihar.
8. Kanta Devi
W/o Pt. Ram Narayan Sharma
R/o 19, New Krishna Nagar
Near Radhey Puri, Delhi-51
& Also at
2354, Dharam Pura, Delhi
9. Mukesh Narayan
S/o Pt. Ram Narayan Sharma
R/o 19, New Krishna Nagar
Near Radhey Puri, Delhi-51
& Also at
2354, Dharam Pura, Delhi
10. Ajay Narayan
S/o Pt. Ram Narayan Sharma
R/o 19, New Krishna Nagar
Near Radhey Puri, Delhi-51
& Also at
2354, Dharam Pura, Delhi
........ Defendants
Date of institution of the Suit : 13.12.1977
Date on which order was reserved : 06.09.2014
Date of decision : 20.09.2014
SUIT FOR PERMANENT INJUNCTION AND RENDITION OF ACCOUNT
JUDGMENT
1. By this judgment, the court shall decide the the two consolidated suits having no. 391/10/77 & 385/10/78. While the first suit was filed for permanent injunction and rendition of accounts, the latter suit is filed for Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 2/68 a decree of declaration, permanent injunction and rendition of accounts.
2. Both these suits were transferred to the undersigned by the Order of Hon'ble High Court of Delhi dated 28.08.2012. By the said order, the Application under Article 227 of the Constitution filed on behalf of LRs of Raj Narayan (plaintiff in suit no. 385/10/78) was allowed and both the suits were transferred to the court of undersigned, who was then posted as MM-07, South East, Saket District Court, Delhi. The suits were transferred with direction to the undersigned for trial of the two suits as per law. Final arguments were re-heard and the matter was listed for Judgment.
3. Briefly stated facts of the present plaint are that the property no. 867 (old), 2353, 2354 & 2355 (New) situated at Dharam Pura, Delhi - 110006 and its adjoining property no. 868 (old), 2484 (New), Nai Wara, Delhi-110006 (hereinafter referred to as the Naiwara properties) were inherited by Pt. Lakshmi Narayan and his brother Pt. Jagan Nath from their ancestors. It has been averred that Pt. Ram Narayan (defendant no.
1), son of Pt. Lakshmi Narayan, had married thrice. From his first wife, six sons were born, i.e. the plaintiff and defendant no. 2 to 6. From his second marriage defendant no. 7 was born, and from his third wife, who is defendant no.8, two sons i.e defendant no. 9 and 10 were born. Defendant no. 5 and 6 are married sisters of the plaintiff and are residing with their in-laws.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 3/68
4. It has been averred that property no. 2484 was let out to the tenants and it is still in occupation of the tenants. Some portion of property no. 2353, 2354 and 2355, Dharampura are in occupation of the plaintiff and defendant no.1- 4 and 7 - 10. Some portions of the said property is in occupation of family of Pt. Jagan Nath while some shops are in occupation of the tenants.
5. It has been further averred that the rent from this branch of Joint Hindu Family was being realized by Pt. Lakshmi Narayan till his death in 1966. After his death, the rent is being realized by defendant no.1. It has been alleged that defendant no.1 had been realising the income of joint Hindu family properties after the death of Pt. Lakshmi Narayan, but he has been misappropriating the same exclusively for himself and defendant no. 8 , 9 and 10. It has been averred that defendant no.1 had married defendant no.8 twenty-five years back and since then his behaviour with defendant no. 2 -7 and the plaintiff has been very indifferent and he had not been maintaining them. He has devoted his sole attention to defendant no. 8 and her children,i.e. defendant no. 9 and 10.
6. It has been further averred that plaintiff is in occupation of a portion of property no. 2354 and of baithak bearing no. 2353 on the ground floor. The baithak is used by the plaintiff and is in his exclusive possession.
7. It has been further averred that out of the funds of Joint Hindu Family property, the defendant no. 1 constructed a house bearing no. 19, New Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 4/68 Krishna Nagar, near Radhey Puri, Delhi-110051, benami in the name of defendant no.8. It is the contention of the plaintiff that since the property at Krishna Nagar was acquired out of the income of Joint Hindu Family property, it is also a joint Hindu family property of the plaintiff and the defendants. It has been further averred that defendant no.1 had fallen out with the plaintiff and defendant no. 2-7 and is residing with defendant no. 8- 10 at the Krishna Nagar at Krishna Nagar property. The relationship between plaintiff and defendant no. 2- 7 on one hand and defendant no. 1, 8 10 on other hand are highly strained.
8. It has been alleged that the defendant no.1 wishes to dispossess the plaintiff from the baithak and for this purpose, on 22.10.1977, he came to premises no. 2353 when the plaintiff was in his office and in his absence, he broke open the locks of the plaintiff and threw away his goods and put his own lock on the baithak. Regarding this, a criminal complaint was filed under Section 145, 146 Cr.P.C against defendant no.1 in the court of SDM, Delhi.
9. It has been averred that defendant no.1 is not the absolute owner of the property no. 2353, 2354 & 2355 Dharampura and 2484 Naiwara and the plaintiff as well as defendant no.2 - 7 also have right, title and interest in the same being members of joint Hindu family property. The plaintiff has alleged that the defendant no.1, 8 and 10 are planning to dispose of the property in Krishna Nagar. Hence, the plaintiff's right to enjoy the above Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 5/68 said properties has been threatened. Also, the defendant no.1 has not even rendered the accounts of rent realized by him in respect of the said properties. It is further averred that defendant no. 2- 7 are only proforma defendants.
10.The plaintiff has prayed for the following reliefs:-
1. Decree for perpetual injunction restraining the defendant no.1, his agent/servants from selling, disposing, letting or otherwise parting with the possession of any portion of Joint Hindu Family property bearing no. 2353, 2354 & 2355 Dharampura & 2484 Nai Wara and defendant no.1,8,9 & 10 be further restrained from selling off or parting with possession in any manner of property no.19, Krishna Nagar.
2. Decree for rendition of accounts be passed in favour of plaintiff against defendant no.1 and after going into the unsettled accounts, a decree for the amount actually found due be also passed in favour of the plaintiff against the defendant.
11.Written statement was filed by defendant no.1, 8, 9 & 10 wherein they have vehemently denied the averments made by the plaintiff. It has been averred that the plaintiff has not given the correct pedigree table in their plaint. It has been denied by this set of defendants that the properties in question are ancestral properties. They have denied that the properties in question were inherited by Pt. Lakshmi Narayan and Pt. Jagan Nath Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 6/68 from their ancestors, and contended that it was inherited through their mother. They did not deny that defendant no.1 is realising rent from those properties and spending the same on his wife and children but only after meeting the expenses, taxes and expenses of the temple. It has been denied that the defendant no.1 is not spending money on defendant no. 2-7. It has been contended that defendants no. 2-7 themselves are earning quite well. Infact it was defendant no. 2-7 and the plaintiff who had started neglecting the defendant no.1.
12.It has not been denied that plaintiff is in possession of a room on second floor of house no. 2354. However, it has been denied that he is in possession of baithak no. 2353 and contended that it has always been in possession of the defendant no.1.
13.The defendants have denied that the house on plot no.19, New Krishna Nagar was constructed by the defendant no.1 out of the income from Joint Hindu Family properties. Infact, the said property was gifted to defendant no.8 by one person Durga Das and the defendant constructed three rooms, one bathroom, kitchen and toilet thereupon out of her own funds. It has been averred that defendant no. 8 is the sole and absolute owner of property at Krishna Nagar and it is not a joint Hindu family property. It has been contended that there was no family income and income from rent of properties was not enough for construction. The income was only Rs.140/- per month out of which taxes were paid, Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 7/68 repairs were made and expenses of temple were met.
14.It has been further contended that the Defendant no.1 is absolute owner of property mentioned in para no.23, which he had acquired by way of Will of his father Lakshmi Narayan dated 06.03.1950, and which was duly registered on 27.03.1950. The defendants have denied that they had broke open the locks of the baithak on 22.10.1977 or on any other date.
15.Written Statement was also filed on behalf of defendant no.2 -7 wherein they have denied that the Naiwara properties were inherited by Pt. Lakshmi Narayan and Pt. Jagan Nath. It has been contended by this set of defendants that the properties are known as Naiwara Temple and the properties attached to it, and had come to the possession of Lakshmi Narayan and Jagan Nath as Pujaris from their maternal grandfather Pt. Chaturbhuj. It has not been denied that the property is in occupation of the plaintiff, defendant no. 1-7, and defendant no. 8-10. Tenants are also in occupation of certain portions. It has also been admitted that Pt. Lakshmi Narayan was realising rent from these properties till 1966 and thereafter defendant no.1 has been realising the rent. They have further admitted that defendant no.1 is misappropriating the funds for use of defendant no. 8 -10 and himself. They admitted that defendant no. 1 has not spent any part of the income from the temple on the plaintiff and defendant no.2 to 7.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 8/68
16.The defendants have denied that the plot no.19, Krishna Nagar is a Joint Hindu Family property. It has been contended that the said property was gifted for construction of a temple and the temple thereupon was constructed out of the funds and income of the Naiwara temple and property attached to it. Hence, property no. 19, New Krishna Nagar is also a temple. The idols of Bhagwan Krishanji and Radhaji are installed in the said temple and the dedication is absolute and complete. They have not denied that the defendant no. 8 has no independent source of income and did not have funds for construction of any property. It has been admitted that construction if any in the name of defendant no. 8 is a benami one.
17.It has been admitted that the properties at Naiwara and Dharampura are in danger of being disposed of or let out. It is averred that defendant no. 1 is not the owner of the Naiwara property. They have averred that defendant no.1 has illegally converted a portion of the temple property into commercial premises and is realising the income therefrom. It has been averred that the defendant no.1 has dissipated, wasted and damaged the said temple and properties and is threatening to convert the other portions of the same into commercial premises. They admitted that the defendant no.1 has not rendered the account of the income from the properties to the plaintiff.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 9/68
18.The plaintiff has filed Replication to the written statement filed by the defendants, wherein he has denied the version of the defendants and reiterated his contentions. The plaintiff has denied that the property no. 19 was gifted to defendant no.8 by one person Durga Dass. He has denied that construction on plot no. 19 was done by defendant no. 8 and claimed that she never had any independent source of income and sufficient funds to make any construction. He denied that the income from the above said properties is only Rs.140 per month and contended that it is more that Rs.280/- per month. He denied that defendant no.1 , 8
-10 are residing in Naiwara, Dharampura properties.
19.The plaintiff has further denied that Pt. Lakshmi Narayan had acquired the property from his maternal grandfather. He has averred that Pt. Lakshmi Narayan's mother had died in 1916 and she had interest in the property only as a limited owner and not absolute owner. Hence, the property could not have devolved upon her legal heirs as she was not the absolute owner of the same. He has averred that the Will dated 06.03.1950 is illegal and void which is neither executed nor attested in accordance with law. Even otherwise as on 06.03.1950, defendant no.1 was the only legal heir of his father to inherit his properties and hence there was no requirement for execution of any Will.
20.Now let us discuss the briefly stated facts of suit no. 385/10/78, which are almost the same as the present one. Defendant no.2 Raj Narayan in Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 10/68 the present suit is the plaintiff in the second suit and he has averred that the property at Naiwara is a temple and the properties attached to it. Rest of the pleadings are same as the written statement filed by defendant no.2 to 7. In addition, the plaintiff Raj Narayan had contended that in the year 1917 Pt. Jagan Nath and Pt. Lakshmi Narayanhad filed a suit against Shyam Sunder and Shri ram who were minor children of Raghubar Dayal, for declaration that Naiwara temple and the property attached to it was their exclusive property. The matter was referred to the Arbitrator. Since there was difference of opinion between the Arbitrators, the matter was decided by Sh. Babu Mal, Umpire. He passed the award dated 12.01.1920 wherein it was declared that Pt. Jagan Nath and Pt. Lakshmi Narayan were the pujaris of the temple in Naiwara. The award was made a ruling of the court and decree was passed in the terms of the said award on 21.01.1920. It has been further averred that the above said Shyam Sunder and Shri Ram filed a suit in the year 1932 for getting the said decree annulled. However, the same was dismissed and hence the decree dated 21.01.1920 was confirmed.
21.The plaintiff has further contended that on the last date of Ram Leela, the Ram Leela celebrations/procession terminates at the Naiwara temple. Hence, the Naiwara properties cannot be treated as self acquired or separate property and no one has any right to transfer the same in any manner and the property exclusively vests in the God being debutter Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 11/68 property.
22.The plaintiff Raj Narayan has also contended that the Will of Pt. Lakshmi Narayan dated 06.03.1950 in favour of defendant no.1 is illegal as he had no right to make Will in respect of the temple. His contentions with respect to property at Krishna Nagar are same as that of the defendants no. 2-7 in the present suit.
23.The reliefs prayed by the plaintiff Raj Narayan are as follows:-
1. Decree for declaration in favour of plaintiff that the properties at Dharampura, Naiwara are temple properties and are inalienable.
2. Decree for declaration that property at New Krishna Nagar is also a temple and not alienable in any manner.
3. Decree for perpetual injunction against defendant no.1, 8 and 10 restraining them from disposing off the said temple and the properties attached to it in any manner either by sale, gift, Will or otherwise and restraining them from parting with possession of the property or any portion thereof.
4. Decree of rendition of account against defendant no.1 in respect of income from Naiwara temple and property attached to it for last three years from the date of institution of suit and on taking unsettled amount, a decree for amount due be also passed in favour of the plaintiff.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 12/68
24.The defendants no.1, 8, 9 and 10 had filed the written statement on the same lines as Written Statement filed in the present case. It has been admitted that in the year 1917 one suit was filed by Pt. Jagan Nath and Pt. Lakshmi Narayan for declaration that Naiwara property were the execlusive property of the Lakshmi Narayan and Jagan Nath. However, it has been denied that the Arbitrator had held the Naiwara property as temple. It has been contended that the Naiwara properties were only described as temple to distinguish the same from Parade ground temple by the Arbitrator. Further the word temple was only being loosely used by the Arbitrator and it did not mean that the temple in any way was a religious endowment or temple meant for the benefit of the public at large. It is further contended that as per the Order of Hon'ble High Court of Lahore, Lakshmi Narayanand Jagan nath were the execlusive owner of the property and other branches of the family were not given any share in the Naiwara temple. It has been further contended that the question whether the Naiwara temple was a private property or that plaintiffs were pujaris in the same was not the subject matter of Arbitration and the Arbitrator was never called upon to decide as to who was the Pujari or what was the nature of the possession of the plaintiffs qua the Naiwara temple. The only declaration sought was that the minor children of Raghubar Dayal had no right in Naiwara temple as their father had been adopted in another family and the Arbitrator had given his Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 13/68 decision to that effect only.
25.It has been also admitted that the suit filed by sons of Raghubar Dayal was dismissed and the decree of 1920 was upheld. It has been contended that Hon'ble High Court has reaffirmed in the second appeal that they were entitled only to a share in the Parade ground temple offerings and nothing else. It has been denied that procession of the Ram Leela used to terminate at Naiwara temple. Only the participants in the Ram Leela were brought to the Naiwara house where Aarti was offered and participants feasted, as a mark of respect. However, no general public was allowed. It has been denied that there was any dedication of the property at Naiwara to the idol of Bhagwan Lakshmi Narayan. The property is still in the name of defendant no. 1 and grand children of Jagan Nath in municipal records. The tax is also being paid by them. It is denied that defendant no. 1 had no right to transfer the property. It has been contended that even the ancestors of defendant no. 1 had treated the Naiwara property as their personal properties and now they cannot be called as endowed properties whether public or private.
26.It has been averred that the Will executed by Pt. Lakshmi Narayan is a valid and binding document. Also, the plaintiff had never challenged the Will of Pt. Lakshmi Narayan for all these years and now he cannot challenge the same. It has been further averred that defendant no. 1 is recovering all the rent being sole owner of the property and is entitled to Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 14/68 use the same in any manner whatsoever.
27.In the additional pleas, it was contended that there was no property attached to any temple in Naiwara. There is only one property in which the idol is installed in a portion and the rest of it is being used for the residence of the plaintiff by the defendants and also by the widow of Ram Nath. Pt. Jagan Nath had made a Will in favour of his adopted son Ram nath who in turn made a Will in favour of his two sons.
28.Separate written statement was filed by defendant no.4 Mahesh Narayan, who is the plaintiff in the present suit, who has averred that though it is correct that property at Naiwara was inherited by Lakshmi Narayan and Jagan nath after the death of Pt. Chaturbhuj, however, it had passed in the capacity of ancestral properties and as such these are joint hindu family properties. Pt. Lakshmi Narayan was never the execlusive owner of the property. He had denied that the temple is a private property and contended that it is a joint Hindu family property and hence, Pt. Lakshmi Narayan had no right to transfer it further. He has also contended that property at Krishna Nagar is also a joint Hindu Family property.
29.Vide order dated 19.10.1978, the suit no. 391/10/77 was consolidated with suit no. 385/10/78 and it was decided that common evidence was to be recorded in suit no. 391/10/77, i.e the present suit, and it was to be read for the purpose of the other suit also. After consideration, the Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 15/68 following issues were framed by my Learned Predecessor vide said order:-
1. Whether the suit properties are joint Hindu Family properties?
OPP.
2. If issue no. 1 is not proved, whether defendant no.1 is the absolute owner of property situated at Naiwara, Delhi? OPD-1.
3. If issue no.1 is not proved, whether defendant no.8 is the owner of the property and land of the house at Krishna Nagar as alleged in the WS? OPD-8
4. Whether the properties situated at Naiwara are the Naiwara temple and properties attached to it and are endowed properties? OPD2-7.
5. Whether the property at Krishna Nagar is an endowed property in the form of a temple? OPD 2 -7
6. Whether the plaintiff is entitled to injunction prayed for? OPP.
7. Whether the plaintiff is entitled to rendition of account? If so, from which of the defendants and for what period? OPP
8. Whether the suit is within time? OPP.
9. Whether the plaintiff is not valued properly for purpose of court fees? If so to what effect?OPP.
10.Relief.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 16/68
30.The plaintiff Mahesh Narayan has entered the witness box as PW-1 to prove his case. PW-1 has deposed that Pandit Lakshmi Narayan was his grandfather. He had three sons namely Pandit Ram Nath, Pandit Bishan Narayan and Pandit Ram Narayan. There were four sons and two daughters born from the first wife of Ram Narayan. The witness is the son of Ram Narayan from his first wife. He further deposed that Ram Narayan had one son from his second Marriage namely Suresh Narayan who is defendant no.7. Out of the third marriage of Pt. Ram Narayan, two sons namely Mukesh and Ajay Narayan, who are defendant no.9 and 10 respectively were born. The third wife is defendant no.8. The defendant no.2 to 6 are the siblings of the witness.
31.The witness further deposed that Pandit Jagannath had no issue and hence he had adopted Ram Nath. He further deposed that Bishan Narayan was adopted by one Kesho Dutt.
32.The witness further deposed that all the properties bearing no. 867(2353 to 2355 new numbers) and 868 (2484 new number) are ancestral properties. The tenants have been occupying property no. 2484 (old number 868). Property no. 2353, 2354 and 2355 have been in occupation of their ancestors. In the property which has been let out to tenants, shops have been made. He further deposed that the portion of upper floor is in his possession and that of his brothers defendant no.2 to 7 and 8 to 10. The children of Pandit Ram Nath are also in occupation of Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 17/68 some portion in these properties. However, these properties are joint family properties and have been inherited from Pandit Lakshmi Narayan. He further deposed that there is no partition between him and the other defendants in respect of these properties and these are still joint properties.
33.Witness deposed that earlier Pandit Lakshmi Narayan and Pandit Jaganath, and after their death, Pandit Ram Nath and Ram Narayan have been realising rent from the tenants. Now Pandit Kailash Nath s/o pandit Ram Nath is realising the rent along with defendant no.8. The witness deposed that he is in possession of a Baithak on the ground floor bearing no.2353, and a portion on the second floor in property no.2353, 2354 and 2355. In the baithak, locks of the witness as well as that of late Sh. Pandit Ram Narayan are jointly put under the orders of the court.
34.The witness deposed that his relation with his father i.e defendant no.1 and defendant no.8 to 10 were strained. Defendant no.1 continued to realize the rent until his death and kept the entire amount with him for the purpose of defendant no.8 to 10 and himself. He did not pay any amount to the witness.
35.The witness further deposed that property no.19, New Krishna Nagar was acquired by defendant no.1 with the Joint Hindu Family fund benami in the name of defendant no.8 who had no source of income being a house wife and an illiterate lady. The witness deposed that he is not even Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 18/68 aware as to how much amount was being realised by defendant no.1 and how much amount was spent on account of house tax etc in respect of the said property. Defendant no.1 never rendered any accounts of rental income despite their repeated demands.
36.It is further deposed that defendant no.1 during his life time wanted to sell all the above said properties and now defendant no.8 to 10 wants to sell it. In fact during the life time of defendant no.1, some portion of property no.19, New Krishna Nagar was sold by him. After his death the remaining portion was sold by defendant no.8 to 10. The witness has exhibited the site plan of property no.2353 and 2354 which is Ex.PW1/1. The witness is in possession of 'portion 1' & 'portion 2' of Ex. PW1/1. The site plan of property no.2484 is Ex. PW1/2. These plans were prepared by Sh. P. C. Goel under his instruction. The witness also relied upon and exhibited the certified copies of electoral roll which is Ex. PW1/3. He has also relied upon and exhibited certain photographs which are Ex.PW1/5 and Ex.PW1/6. The negatives of the same are Ex.PW1/4 and Ex. PW1/5. One more photograph is Mark Z.
37.The witness further deposed that the nature of properties at Naiwara is a temple and property attached to it. Originally, the properties belonged to their ancestor Pt. Chaturbhuj who was the maternal grandfather of Pandit Jaganath and Lakshmi Narayan. Firstly, Pandit Chaturbhuj was the Pujari in these properties. After his death, Pandit Jaganath and Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 19/68 Lakshmi Narayan became the Pujari, and after their death Pandit Ram Narayan and Pandit Ram Nath were the Pujaris. Property no.19 New Krishna Nagar is also joint family property. In that house, the Murtis of God Shri Krishan and Goddess Radha were installed, however, the witness was not aware whether these Murtis were incarnated (Pratishta) or not. The witness deposed that the property no.19 was built with the funds of Joint Hindu Family Property and the income from temple and its properties. Ex. PW1/7 and Ex.PW1/8 are the certified copies of municipal records showing old numbers and new numbers of the properties.
38.This witness was not cross examined by defendant no. 2 to 7. However, defendant no.10 cross examined him at length.
39.During his cross examination by defendant no. 10, the witness stated that he had got separated from his father as he had entered into a third marriage with defendant no.8 and they used to live with their Dada and Dadi in a separate room. Their father used to live in separate room even though the house was the same. Their father earlier used to reside in the room adjoining to the bathroom over the temple, on the first floor, but subsequently he shifted to the room over the temple, on the first floor in 1966. He admitted the possibility that the Defendant no.1 and 8 might have got married in the year 1950. The witness expressed his ignorance as to whether Brij Rani and Pt. Chaturbhuj were their ancestors as per Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 20/68 the Aks Shijra, and that Smt Brij was the daughter of Pt. Chaturbhuj. He further expressed ignorance as to whether the property in question was gifted by Chaturbhuj to his daughter Brij Rani. The witness did not know whether Niranajan Nath was the husband of Brij Rani, however, he admitted that they had three sons Raghubar Dayal, Jaganath and Lakshmi Narayan. He admitted the suggestion that Raghubar Dayal was given in adoption to Sewa Singh. He admitted that Jaganath had no issue and he adopted Ram Nath. He did not know whether Brij Rani gave property etc received by her as gift from Chaturbhuj to Lakshmi Narayan and Jaganath in equal shares. He admitted that Ram Nath was the natural son of Lakshmi Narayan. He admitted that Lakshmi Narayan had two more children namely Ram Narayan and Bishan Narayan. He admitted that Bishan Narayan was adopted by Pandit Kesho Dutt. Hence only Ram Narayan remained with Lakshmi Narayan. The witness did not know if Lakshmi Narayan had bequeathed his whole property including suit property to defendant no.1 i.e his father. He admitted that defendant no.1 had bequeathed his entire properties to defendant no.10. However, he voluntarily stated that it was done wrongly and an appeal is pending. He admitted that Ram Narayan had got the properties mutated in his name in Municipal record. Again said it was in the joint name of Ram Narayan and Ram Nath. He denied the suggestion that Ram Nath and Ram Narayan dealt with their properties separately. Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 21/68
40.The witness further stated that earlier the rent of property no.2353-2355 and property no. 2484 Naiwara was collected jointly by Ram nath and Ram Narayan and now their wives are receiving the rent. The witness voluntarily stated that there is no rent for property no.2353. He further admitted that Durga Dass and Doongal Dass were the owners of property no.19 New Krishna Nagar, prior to defendant no.8. He denied the suggestion that Durga Dass had gifted this property to defendant no.
8. He did not know if Durga Dass was Nana of defendant no.10 and for this reason he had gifted the property to defendant no.8.
41.The witness admitted that Ram nath and Ram Narayan were taking rent jointly but he did not know about their internal arrangement. He stated that the legal heirs of Ram Nath were not impleaded as there was no need to do the same. He denied the suggestion that defendant no.5, 6, 7 and 9 were not in possession of any portion of properties in question. He did not know if some portion of property no. 2353 and 2354 had been sold by the children of Ram Nath.
42.He stated that Idol of Lord Hanuman is behind the baithak on the ground floor, and there are four to five idols kept in the temple right outside the idol of Lord Hanuman and there is also a Parikrama. They conduct prayers in the temple. He admitted that they had not employed any Pujari. He denied the suggestion that their temple is visited only by the family members and no one from outside comes to offer prayers. He did Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 22/68 not know whether any Chadhawa is made in the temple by the public. He denied that there is no Chadhawa made in the temple. He stated that he had been seeing the temple since his childhood and had never seen any chadhawa being offered in the temple.
43.He has denied that his father used to disburse Ayurvedic Medicine from baithak and stated that baithak was used by all the family members for sitting purpose. He denied that Ram Narayan alone used to sit in the baithak. He stated that there are two door, one on the road and one on the dahleez for entering the baithak. He denied that there is a locking device (sankal) on each door for locking. He denied that their locks were not put on these doors. He stated that their locks on the door towards main door are still there while the one on the inner door was broken. He denied that during the pendecy of the present suit, he had forcibly put his lock on the main door and proceedings under Section 145 Cr.P.C were initiated. He denied the suggestion that he was not in possession of the baithak.
44.The witness admitted that the photographs Ex. PW1/D8 to D20 were of his family members. He denied that the entire control of the family was with his father and he alone used to organize family functions. He was not aware if his grandfather Lakshmi Narayan did not do the work of Pandit or that he had no source of income. He admitted that his dadi had got paralysed in 1958-59 and she died in 1962-63. He admitted that the Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 23/68 stroke she had received had rendered her bedridden. He denied that the defendant no.1 and 8 used to take care of the entire family.
45.He stated that the pamphlets of Ram Leela were always distributed. Mark X-1 is one of such pamphlets. He admitted that the Sawari of Ram Leela used to be concluded at the temple at Naiwara and the Prasad would be distributed and public used to collect at the Mandir. Aarti was also performed there. The witness admitted that he had never read the pamphlets and he could not say whether it was mentioned in the pamphlets that this is a personal temple.
46.He admitted that his two brothers Prakash and Prem Narayan are residing at G-32-I,Ashok Vihar, Delhi. He admitted that house warming ceremony was done in 1971. However, he could not say whether the card Mark X2 was printed on the said occasion.
47.The witness further stated that he had never seen defendant no.10 collecting rent. He admitted that he does not know whether the property at 19, Krishna Nagar is a private temple or not. Witness was not aware of the cost of the construction of property no.19, New Krishna Nagar, however he stated that the money was spent by his father. He admitted that he never contributed anything towards construction of the property at Krishna Nagar. Witness could not identify the photographs Mark X3 to X10.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 24/68
48.The witness admitted that he is residing at property no. 2354, Dharampura and also at 1717, Roshan Pura, Nai Sarak, Delhi. He stated that he has no telephone connection in his name in property no. 2353 to 2355 Dharampura. In the property no. 2353-55 there was a telephone connection in his name but it was disconnected about one year back. The witness did not remember the number of the said phone. The witness denied that the electricity supply in property at Dharampura is lying disconnected.
49. He further deposed that he was born in the year 1939. He denied the suggestion that the marriage of defendant no. 5 and 6 was performed by defendant no.1. He voluntarily stated that their grandfather had performed the marriage. He denied that Raj Narayan, Prakash Narayan and Prem Narayan were married off by defendant no.1. The witness was confronted with their marriage cards which were admitted by him and exhibited as Ex. PW1/D1 to D6. However, he stated that the name of defendant no.1 was printed in all the cards as he was the father. He admitted that Suresh Narayan had got married during the pendency of the suit. He admitted his marriage card which is Ex.PW1/D7. The witness was unable to identify the signatures of Raj Narayan or Suresh Narayan. The witness could not identify the signature of Suresh Narayan on Mark A. He admitted that Suresh Narayan was a Civil Engineer and in the year 1977, October he was posted at Ranchi.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 25/68
50.He further stated that his dada was Pujari and Mahant of Ramleela and was Gaddidar in Badi Ramleela. He was not aware of his monthly income. He stated that his dada was Pujari at the Mandir at Parade Maidan and Mandir at Dharampura. He was also the Mehant of Bari Ramleela. He admitted that his father was employed with LIC, but could not tell about his post and designation as well as year of resignation.
51.Defendant no.2 to 7 have not led any evidence in support of their contentions.
52.Defendant no.10, Ajay Narayan has entered the witness box as DW-1 to prove his case. He deposed that he is the owner of properties no. 2353-54-55 Dharampura and property no. 2484, Naiwara, Delhi. Besides him, Smt. Shanti Devi, wife of Lt. Sh. Ram Nath is also its owner. He had become the owner of these properties by virtue of the Will of his father executed in his favour. He exhibited the certified copy of Will of his father as Ex. DW1/1, and identified his signatures in English and Hindi and also his thumb impression on all the pages of the Will. He deposed that Mr. I. D. Tyagi and Pankaj Sharma are the witnesses to the said Will. However, Mr. I. D. Tyagi has expired. He deposed that he can identify the signatures of I. D. Tyagi and Pankaj Sharma as they were his teacher and nephew respectively and he had seen them writing and signing. He further deposed that his father had acquired the said properties from his late grandfather Pandit Lakshmi Narayan by virtue of a registered Will. Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 26/68 The certified copy of the Will of Pandit Lakshmi Narayan is Ex. DW1/2 (objected to on the mode of proof). He identified the signature of Pt. Lakshmi Narayan on the said Will.
53.The witness further deposed that the said properties are partly residential and partly commercial. The family members are residing in one part of the property and there is also a private temple for the prayers by the family members only. In the said mandir the idol of Bhagwan Lakshmi Narayan was installed by his late grandmother, while the rest of the idols of Bhagwan Ram, Lakshman, Sita and Hanuman were installed by his father. The witness further deposed that the property known as Mandir Shri RamChander at Esplanade Road is separate from the property in question and his father used to do puja in the said mandir as a pujari.
54.DW-1 further deposed that after the death of his grandfather, the properties at Naiwara were mutated in the municipal records in the name of Sh. Ram Narayan and Sh. Ram Nath. There was a mutual partition of 50:50.
55.The witness has deposed that Sh. Chaturbhuj was the father of Smt. Brij Rani and had three children namely Raghubar Dayal, Jagan Nath and Lakshmi Narayan. Raghubar Dayal was adopted by one Sewa Singh. Since Jagan Nath had no issue, he adopted Ram Nath, one of the sons of Lakshmi Narayan. Bishan Narayan was also adopted by Sh. Keshav Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 27/68 Dutt.
56.The witness deposed that rent of the aforesaid four properties were being realized by his father Ram Narayan (now deceased) and his uncle Ram Nath. After their death his mother Smt. Kanta and the widow of Ram Nath, Smt. Shanti, were realizing the rent. He deposed that half the portion is in the possession of his family while the remaining half is in the possession of Smt. Shanti Devi. The portion in possession of wife of Raj Narayan is lying locked.
57.DW-1 further tendered his evidence by way of affidavit. The original house tax bill is Ex. DW1/3, payment receipts for house tax are Ex. DW1/4 and original water and electricity bills are Ex. DW1/5. The receipt of purchase of building material are Ex. DW1/10 and DW1/11, certified copy of orders of Hon'ble High Court are Ex.DW1/13 and DW1/14, house tax bills are Ex. DW1/15 and Ex. DW1/16. He has further exhibited the posters of Ramleela as Ex. DW1/17 and Ex. DW1/18. The letter received by the witness's father are Ex. DW1/20 and Ex. DW1/21. The cards of house warming ceremony are Ex. DW1/22 and photographs are Ex. DW1/22 to DW1/30 (all these documents have been objected to by the plaintiffs).
58.In the cross examination by counsel for plaintiff no.6, witness stated that he did not remember the year in which the property was mutated in the name of his father. The witness was not aware whether his father had Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 28/68 given any notice to the plaintiffs about his applying to the MCD for mutation of property or whether no objections were filed in the municipal records. He admitted that a restraint order was passed by Sh. Om Prakash, Ld. ADJ restraining the witness from acting upon the Will of his father Ram Narayan. He further admitted that the said order is still in force. He further stated that water and electricity connections were earlier in the name of his grandfather but thereafter it was transferred in the name of his father.
59.The witness stated that he had applied for transfer of property in his name about three years back, however, it has not been so transferred. He admitted that he did not give the notice of the said application to the plaintiff Mahesh Narayan. He further stated that he was born in the year 1966 and had seen the Gift Deed vide which the property no. 19, Krishna Nagar was gifted to his mother by Durga Dass in the year 1966. The said Gift Deed was on a stamp paper, the value of which he could not recall. He stated that the said property was to be used for private residence or private temple by the person to whom it was gifted. He admitted that his mother is a house wife. He denied that Ram Narayan had invested the HUF funds in the construction of aforesaid property. In fact the funds used were of his mother and her brothers. He could not tell how much amount was given by his maternal uncles to his mother and in what manner. He admitted that one idol of Radha & Krishan was Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 29/68 established in the building so constructed at Krishna Nagar and regular prayers were held there. He voluntarily stated that his mother did the prayer and now no prayers are being held as his mother has disposed of the property. He admitted that his mother was restrained from disposing of this property. He admitted that he never resided in the property at Krishna Nagar and only occasionally visited that house.
60.The witness could not tell in which year his mother had sold the property but he came to know about the said factum in 1996-97. He further stated that he lived with his mother either in Naiwara or in Krishna Nagar. He admitted that in the FIR No.388/84 dated 06.11.1984 under Section 379/511 IPC which was registered against him, his residential address was mentioned at 19, Krishna Nagar.
61.The witness denied the suggestion that property came in their hands as ancestral property. The witness admitted that there is a temple in property no. 2353-2354 & 2355 Dharampura. He admitted that there is another property attached to the property no. 686, Naiwara. He admitted that Lakshmi Narayan and Jagant Nath were using this property for residence. He admitted that there is a temple in property no. 2354 and there are shops in property no. 2355. The witness could not tell who was in possession of these shops at the time of death of Brij Rani. He further deposed that his father used to sit in Baithak and practice from this Baithak in 1973-74. However, he admitted that it is possible that his Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 30/68 father might have been practicing from shop no. 2353 as he was confused about shop numbers. He admitted that Mahesh Narayan came in possession of property no. 2353 in 1974-75. He denied that Ram Narayan wanted to break open the locks of this shop and let it out. He further denied that Ram Narayan broke open the locks of Mahesh Narayan. He admitted that Mahesh Narayan had filed a complaint under Section 145 Cr.P.C which was stayed sine-die. He admitted that Lakshmi Narayan and Jagan Nath used to collect rent from various tenants in the shops and issue joint receipt till they were alive. He further admitted that after their death rent was recovered by Ram Narayan. He admitted that no partition had effected between Ram Narayan and his sons.
62.The witness admitted that in 1917, Jagan Nath and Lakshmi Narayan had filed a suit against Shyam Sunder and Shri Ram for declaration that Naiwara temple and attached property were for their exclusive use. The witness stated that he was not aware if the matter was referred to the Arbitrators. However, he remember that there was difference of opinion between the Arbitrators and Umpire Babu Mal Engineer was appointed. He admitted that an award was given by him but he could not remember its contents. He did not remember whether it was held in the Arbitrator's Order that Lakshmi Narayan and Jagan Nath were only Pujaris. He admitted that properties in question are not his self acquired properties or that of Lakshmi Narayan and Jagan Nath. He stated that Lakshmi Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 31/68 Narayan and Jagan Nath were the exclusive owners of the property as he had seen the Will of Lakshmi Narayan and also, this fact was told by his father. The witness stated that he could identify the signatures of Lakshmi Narayan as he had seen his signatures on certain documents.
63.The witness expressed his inability to tell whether the attesting witnesses had signed in the presence of Lakshmi Narayan on the Will. He further stated that he cannot tell whether Lakshmi Narayan was in a sound disposing mind at the time of writing of the Will. He denied the suggestion that Ram Narayan was not the exclusive owner of half of this property. He denied the suggestion that Ram Narayan had formed a joint Hindu Family with his sons and thus he has no right to execute any Will in regard to this property. He further denied the suggestion that Ram Narayan had never executed any Will and the same has been forged by the witness. He admitted that Will Ex. DW1/2 was not written in his presence. He admitted that in January 1995 Ram Narayan was hospitalized. He voluntarily stated that he had returned after recovery and had got operated for Prostate Gland. He denied the suggestion that Ram Narayan had misappropriated the rent collected from tenants and not deposited it in joint funds. He admitted that defendant Ram Narayan was directed to deposit Rs.25/- per month in any nationalised bank by the court. However, he could not tell if he had appealed against that order of the court. He further stated that Ram Narayan used to collect Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 32/68 rent which was in amount 400-500 per months. He stated that Ram Narayan was recovering rent from tenants Mangal Singh, Trilok Chand, Rajeev Ratan Rastogi and Kamla Devi. Rajeev Ratan was paying the rent of Rs.100/-. He could not recall the exact details as now his mother was collecting the rent. He stated that he may have also issued rent receipts. The mother was authorised by Will to collect the rent. He denied the suggestion that after his third marriage Ram Narayan did not maintain the plaintiff and defendant no. 2 to 7 and his attitude became totally hostile towards him after the birth of defendant no.9. He denied that he had not spent any money on wedding of the sons. The witness could not recall the year of the marriage of Raj Narayan (eldest son) of defendant no.1. He further stated that Mukesh Narayan, Suresh Narayan and Mahesh Narayan got married after his birth.
64.During cross examination on 03.02.2003, DW-1 stated that the house tax was in the name of Lakshmi Narayan and after that in the name of Ram Narayan. Witness did not know whether payment vide receipt Ex. 1/10 and Ex. 1/11 were made in cash or through cheque as the said payment were made by his mother. The witness did not know if any account were made of the construction carried out at Krishna Nagar property. He admitted that revision petition filed by Raj Narayan against Ram Narayan was dismissed in default. He could not tell who got house warming cards Ex. DW1/22 printed. He denied the suggestion that no Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 33/68 house warming party took place.
65.He admitted that he was enjoying the possession of the Baithak with his father during the life time of his father and after his death, he came into the exclusive possession of the Baithak. He stated that he was in joint possession with his father and his father had handed over the entire premises to him before death. He admitted that during life time of his father the proceedings under Section 145 Cr.P.C had commenced against him and Mahesh Narayan. However, the same were dismissed against which the witness has filed revision. He stated that he had put the lock after the death of his father. He denied that at that time lock of Mahesh Narayan was already on the door. The witness could not remember in which year his mother had sold the property at Krishna Nagar or whether it was sold before or after 1984. He further deposed that his mother was residing in property no. 2353-54-55 Dharampura as well as in property no.19, Krishna Nagar. He admitted that in the present suit he has filed affidavit on 18.09.99 wherein he had stated that his residence is at 19, Krishna Nagar.
66.He further stated that he became the Mahant of Ram Leela Committee as he had got the property in the cycle market along with other Mahant. His father had wanted him as the Mahant and written a Will to that effect. He admitted that there is a restraining order from acting upon the Will. Witness did not know whether his elder brother Mukesh Narayan had Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 34/68 moved an application to restrain him from dispossessing him from property no.19, Krishna Nagar. He stated that his brother Mukesh Narayan had not got any right in the suit premises nor does he have any share in the property by virtue of the Will of their father. He admitted that his father used to live at plot no.19, Krishna Nagar in the year 1973-74. He admitted that idol of Radha Krishan are installed in the premises of the home as temple for pooja for family members. Witness could not remember the day, month and year of installation of Idol. He stated that the house in Krishna Nagar was built in 1970s. He denied that the said idols have been installed in the house at Krishna Nagar. Witness could not recall whether the Idol was installed in 1970s. He denied the suggestion that after installation of the idol his parents had shifted to that house and used to perform pooja daily. He stated that his father Ram Narayan had died in March 1999. He stated that Mahesh Narayan was in possession of one room on second floor of house no.2354, Dharampura. He stated that property no. 2353 is a baithak but denied that it is in possession of the plaintiff. He admitted that there was a case with regard to the said Baithak which was stayed sine-die. He admitted that there is a lock of Mahesh Narayan on the outer door but denied that his lock is also put on the inner door. He denied that lock on the inner door is not his.
67.DW-1 admitted that on the last day of Ram Leela, Sawari of Ram, Seeta Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 35/68 and Lakshman used to come to the Naiwara property. Only the public connected with Ram Leela and family members used to accompany. He denied that the general public also used to visit or that it was a public temple.
68.DW-2 is Pankaj Sharma, who was an attesting witness to the Will of Ram Narayan. He identified his signature on the said Will i.e Ex. DW1/1. He deposed that at the time of execution of Will, the mental condition of Ram Narayan was stable and he had signed on the said Will at the instance of Sub-Registrar, Kashmere Gate. Firstly the Will was signed by Ram Narayan and thereafter the witness had signed. After the witness one Mr. Tyagi had signed as a witness. The signature of Ram Narayan are at point C and D in Hindi and English and his thumb impression is at point D in Ex. DW1/1. He deposed that Ram Narayan and Tyagi signed in his presence after going through the contents of the documents.
69.During cross examination by plaintiff, he stated that Ram Narayan was Phufa of his Mami. At the time of execution of Will, he was working in Unicorn Mercantile Pvt Ltd. He stated that it took one hour in writing and signing the Will. He could not remember the month but the year was 1955. He could not recall whether it was summer season, winter or rainy season. He stated that Ram Narayan must be 75-80 years of age at that time. The Will was already typed in Hindi. The witness could not recall who had drafted the Will and got it typed. He deposed that the mental Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 36/68 condition of Ram Narayan was stable in January 1995. He stated that as per memory, Ram Narayan was residing at Krishna Nagar in 1995. He denied the suggestion that signatures and thumb impression of Ram Narayan on the Ex. DW1/1 were not his. The witness could not say whether the family of Ram Narayan was joint family nor could he tell about the original owner of the property. Witness could not recall whether any entry was made in the register by the Sub-Registrar, before or after signing of the Will by Ram Narayan.
70.DW-3 is the UDC from Sub-Registrar Office, Kashmere Gate who had brought the original record of registration of Will of Pandit Lakshmi Narayan. He deposed that the said Will was registered in their office vide registration no.26, Bahi no.3, Vol no.77 on page 143-148 on 27.03.1950. He deposed that certified copy of the Will Ex. DW1/2 has been issued by their office. He had also brought the record of the Will of Ram Narayan which was registered in their office by document no. 4797, Bahi no.3, vol no. 2264, page no. 74-76, dt. 02.02.95. He deposed that the Certified copy of the original Will, Ex. DW1/1 was issued by their department. Witness was not cross examined by the defendants.
71.DW-4 Kailash Nath Sharma deposed that his father Ram Nath Sharma had expired in 1976. He could identify his signatures. He deposed that he had seen the original Will, the certified copy of which is Ex. DW1/2. He identified the signature of his father at point A. He also identified the Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 37/68 signatures of other witnesses Sh. Inder Narayan, Manohar Lal and R. R. Shrivastava at point B, C and D and that of Bishan Narayan at point E.
72.During cross examination by plaintiff, he stated that Lakshmi Narayan was the brother of his grand father Jagan Nath. He admitted that Lakshmi Narayan and Jagan Nath had got the property no. 2353-54-55, Dharampura, 2484-92 Naiwara from their ancestors. He admitted that these are joint Hindu family properties. He admitted that Lakshmi Narayan and Jagan Nath were living jointly in house no. 2354, Dharampura with family. Manohar Lal was working as Vaid having his clinic in front of their house. He had seen Manohar Lal Vaidya writing and signing every time as he used to sit over there. Inder Narayan was his uncle and he had seen him writing and signing as he used to visit him when Sh. Inder Narayan was in Chartered Bank. He stated that Inder Narayan had signed many times in his presence in the bank. He denied the suggestion that he had never seen Inder Narayan and Manohar Lal writing and signing. The witness used to call him Tayaji and visited him in his press where he had seen him signing also. He denied the suggestion that he was not aware of the contents of Ex. DW1/2. He stated that this document is a Will which relates to the property no. 2353-54 Dharampura and the temple of Ramchander JI Maharaj at Esplanade Road. He denied that Mandir is the Waqf property. He voluntarily stated that it is a trust property belonging to three Mahants. He denied that Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 38/68 Lakshmi Narayan had no right to execute a Will in respect of the said Mandir Ram Chander Ji Maharaj or property no. 2353-54-55 Dharampura and 2484, Naiwara. He stated that his father was owner in respect of half of the property. Even in the year 1957 he was owner of half portion of these properties. Witness had no knowledge about partition of properties. He was not aware who used to pay the house tax of these properties. He further stated that there is private Mandir of Lakshmi Narayan Ji at 2354 and there are also idols of Shri Ram, Lakshman and Sita and the said temple were installed by Ram Narayan. He could not tell when the idol were installed but it was done in his presence. He was more than 10 years old at that time. He did not know whether the idols were installed at the expenses of joint family.
73.DW-5 Ram Krishan Sharma, the grandson of Raghubar Dayal deposed that he belongs to family of Ram Narayan being of the same Kutumb. He deposed that his grand father were three brothers namely Raghubar Dayal, Lakshmi Narayan and Jagan Nath. Sh. Raghubar Dayal was given in adoption in the family of Sh. Sewa Singh. He further deposed that Lakshmi Narayan had three sons namely Ram Narayan, Ram Nath and Bishan Narayan. He deposed that Ram Narayan was given in adoption to Jagan Nath and Bishan Narayan was given in adoption to another family. He deposed that he is conversant with the signature of Ram Narayan and can identify the same. He identified the signatures of Ram Narayan Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 39/68 on the Will of Pt. Lakshmi Narayan, Ex. DW1/2. He also identified the signatures of Bishan Narayan and R. R. Shrivastava, the attesting Witnesses to the Will. He deposed that after the death of Lakshmi Narayan, half of the Naiwara property devolved upon Ram Narayan and other half devolved upon Jagan Nath. Ram Narayan got the half share by virtue of Will of Lakshmi Narayan. He had seen the property in question many times and had been there many times. The witness deposed that in property no. 2353 there is a baithak, in property no. 2354 there is a gate and shops and in 2355 he does not know. He deposed that he had attended the marriage of Raj Narayan, Nanhe, Prem, Mukesh and Pushpa - all children of Ram Narayan and the marriage expenses were born by Ram Narayan. He deposed that house no. 19, Krishna Nagar belonged to her Taiji namely Kanta and she had got this property from her parent's side.
74.During cross examination by the plaintiff he admitted that property at Dharampura and Naiwara were received by Lakshmi Narayan and Jagan Nath from their ancestors. He was not aware whether any partition had taken place but the roooms wre divided amongst Lakshmi Narayan and Jagan Nath. He denied the suggestion that Lakshmi Narayan and Jagan Nath were residing together and had a common kitchen. He stated that their kitchen was separate since the beginning. He deposed that he is not aware whether Raghubar Dayal was given an adoption. He denied Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 40/68 the suggestion that there was litigation between Lakshmi Narayan, Jagan Nath and Raghubar Dayal. However, he admitted that there was litigation between Lakshmi Narayan, Jagan Nath, Shyam Sunder and Shri Ram. He denied the suggestion that after the third marriage and particularly after the birth of his son out of the third marriage, Ram Narayan stopped taking care his other children from earlier marriages. He denied the suggestion that Ram Narayan became indifferent towards his other children and used to take care only of his third wife and children. He voluntarily stated that it was the children of earlier marriage who had started misbehaving with him. He denied that in the marriage of Raj Narayan all the expenses were borne by Lakshmi Narayan. He admitted that Pt. Ram Narayan used to realise rent from the tenant however he was not aware whether he used to issue receipt to the tenants or not. He stated that family had income from Chadhawa from Ram Leela. He stated that Ram Narayan used to give the income from rents to his sons from first and second marriage. However, he could not tell how much amount he used to pay to them and also stated that no amount was ever paid in his presence. He denied the suggestion that Baithak in ground floor is used as a common room for recreation purposes. He denied that it was in possession of Mahesh Narayan since 1974-75. He denied the suggestion that in October 1977 Ram Narayan wanted to let out the said Baithak and for the said purpose, he broke open the lock of Mahesh Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 41/68 Narayan. He admitted that there are about eight locks put outside the suit premises as on date.
75.He stated that property at 19, Krishna Nagar was given as a gift to defendant no.8 by one of the disciples of her father. The father of defendant no. 8 was an Astrologer and Tantrik. He denied the suggestion that father of defendant no. 8 did not have any reasonable income. He denied the suggestion that property at Krishna Nagar was purchased from the funds of HUF. He stated that all the properties in question i.e 2353-54-55 and 2484 and 19 belonged to the maternal grand father of his grand father. He was not aware whether this is a HUF property or not.
76.DW-6 could not bring the summoned record from the office of Sub - Registrar as the same was not traceable.
77.DW-7 Sub-Registrar deposed that despite efforts the summoned record i.e the Gift Deed is not traceable. He produce the traced index wherein at point X it is mentioned that a Gift Deed was registered as on 31.05.2006 at page no.199-200 but these pages are not available on files. Copy of the index is Ex.DW7/1(OSR). The witness was shown the certified copy of the Gift Deed on record which he deposed to have been issued by his department. The certified copy of Gift Deed is Ex. DW7/2. Objections were raised wih respect to the exhibiting the said documents as not been proved according to law.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 42/68
78.During cross examination by the plaintiff, he stated that he does not know whether Urdu documents Ex. DW7/1 is the document of index of registrar. He stated that each document is filed subject wise. The Gift Deed in question was kept in register no.1, Vol 515 which contained 200 pages. The last two pages bearing no. 199-200 are missing. He could say that Ex. DW7/2 is the Gift Deed register and mentioned at point X on the basis of page number. He admitted that at point X the details of names of parties are not mentioned. He denied that entry at point X in Ex. DW7/1 does not pertain to gift deed. He admitted that it is nowhere been recorded that this gift deed is missing. He voluntarily stated that he had orally informed. He could not tell if the index in Ex. DW7/1, details of parties is mentioned or not in all entries as he does not know how to read Urdu.
79.During cross examination by defendant no. 2 to 7, he denied that all the entries exhibited at point X are in Urdu and voluntarily stated that they all are in Urdu and English. He denied that there is over writing in entry at point X.
80.Thereafter DE was closed.
81.Plaintiff did not lead any evidence in rebuttal.
82.I have heard the arguments on behalf of plaintiff and all the defendants and perused the record carefully. The issuewise findings of the court are as below:-
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 43/68
83. Issue no.1:-
"Whether the suit properties are joint Hindu Family properties?"
OPP.
84.The onus of proving this issue was on the plaintiff. It is the contention of the plaintiff that the property in question are ancestral/joint Hindu Family Properties. Under the Hindu Law, property is broadly divided into two classes:-
1. Joint Family Property or Coparcenary property
2. Separate property or self acquired property
85.The joint family property is the property in which all the coparceners have community of interest and unity of possession. Such property consist of:-
1. Ancestral property
2. Property jointly acquired by the members of the joint family.
3. Separate property of a member thrown into the common stock with the intention of abandoning all separate claims of it.
4. Property acquired by two or any of the coparcerner with the aid of joint family funds.
86.The ancestral property refers to the property which descends through the father, father's father or father's father father. It is an established rule that the ancestral property consists only of that property which has been Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 44/68 inherited by a Hindu from his three immediate paternal ancestors, that too, by the reason of birth only. In "Mohd. Hussain vs Babu Keshav Nandan Sahai" 64IA 250, it was held by the Privy Counsel that the ancestral property is confined to the property inherited from the three immediate paternal ancestors and the property inherited from a maternal grandfather is the absolute property of the inheritor in which his son does not acquire any interest by birth, and it is not ancestral property.
87.In the case at hand, it is an admitted fact that the properties at Naiwara have been inherited by Pt. Lakshmi Narayan and his brother Pt. Jagan Nath from their mother Brij Rani, who had inherited it from her father Pt. Chaturbhuj. Since the property has been inherited by Pt. Lakshmi Narayan and Pt. Jagannath from their maternal ancestor, it is their separate property. Neither the plaintiffs nor the defendants have any interest in the said property in the capacity of coparcener. Hence, the Naiwara property is not an ancestral property.
88.Now the question that arises before the court is whether the self acquired property of Pt. Lakshmi Narayan became a Joint Hindu Family Property qua defendant no.1 and his children. The issue regarding the nature of property obtained by a Hindu under a gift or a Will made by the father or grandfather or great grandfather, was decided by Hon'ble Supreme Court in the case titled as "Arunachala Mudaliyar vs C.A Muruganatha"1953 AIR 495. It was held by the Hon'ble Apex Court, "In Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 45/68 view of the settled law that Mitakshara father has absolute power of disposition over a self acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee, in which his sons would acquire co-ordinate interest." It was further observed by the Hon'ble Apex court, "As the law is accepted and well settled that Mitakshara father has complete power of disposition over his self acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressely, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a Will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and court would have to collect the intention of donor from the language of the document taken along with the surrounding circumstances in accordance with the well known cannons of construction."
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 46/68
89.Thus, in order to decide the nature of property as devolved upon Lakshmi Narayan to Ram Narayan we shall have to read the Will of Pt. Lakshmi Narayan. The defendant no. 10 has placed on record the certified copy of the will of Pt. Lakshmi Narayan which is Ex. DW1/2. As per Section 68, Indian Evidence Act 1872, a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. The Proviso to Section 68 reads that the attesting witness may not be called to prove execution of any document, not being a Will, if the same has been registered in accordance with the provisions of Indian Registration Act 1908, unless its execution is denied by the person who has purportedly executed it.
90.Section 69 of the Indian Evidence Act says that if no such attesting witness can be found, then it must be proved that the attestation of at least one attesting witness was in his handwriting and that the signature of the person executing the document is in the handwriting of that person. In "Chhatra Pratap Singh vs Tulsi Prasad" 2000 (3) MPLJ 293, the Hon'ble High Court of Madhya Pradesh had observed "The question whether the applicant can lead secondary evidence by producing the certified copy of the Will has to be determined by the trial court after coming to the conclusion that it is admissible by Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 47/68 way of secondary evidence in one of the modes mentioned in Section 65 (a) to (g) of the Evidence Act....The trial court shall permit the applicant to summon the record of the Sub-Registrar for proving the certified copy of the Will. When this document is tendered in evidence the opposite party may raise an objection regarding the admissibility of the secondary evidence. The court may admit it subject to objection and permit the opposite party to cross examine the witness if he alleges that this document can be admitted for one of the reasons given in Section 65 of the Evidence Act." The Hon'ble Court further observed that "It is however made clear that the production of the certified copy of the Will may not prove the execution of the Will. The execution of Will has to be proved in accordance with Section 63 of the Indian Succession Act....A party should as a rule examine at best one of the attesting witnesses to prove that both the attesting witnesses saw the maker of the Will signing or making his mark on the document or some body signed or made the mark or at the behest of the maker and they attested it by signing it.....If it is successfully proved that both the attesting witnesses have died in the meanwhile, in such a situation, there may be other ways of proving the Will, that is, by examining the scribe or some other person who saw them attesting the Will."
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 48/68
91.In the case at hand, the defendant no.10 has failed to produce any attesting witness to the Will of Pt. Lakshmi Narayan. However, he has produced and examined DW-4 Kailash Nath Sharma, who has deposed that the attesting witness to the Will of Lakshmi Narayan was his father Ram Nath Sharma. He has identified the signatures of his father at point A on the certified copy of the Will of Pt. Lakshmi Narayan i.e Ex. DW1/2. He has also identified the signatures of the other witnesses namely Inder Narayan, Manohar Lal, R.R.Shrivastava and Bishan Narayan at point B to E respectively. The testimony of this witness has remained in tact and the plaintiff has failed to impeach the credibility of this witness or shake the veracity of his testimony.
92.DW-3 A. Rehman, UDC from Sub-Registrar office had brought the original record of registration of Will of Pt. Lakshmi Narayan. He has categorically deposed that the said Will had been registered and Ex. DW1/2 is the certified copy of the said Will, as issued by their office.
93.There is nothing on record to suggest even remotely that Pt. Lakshmi Narayan was not in a sound mental condition at the time of execution of his will.
94.Thus, it is clear from the Will of Pt. Lakshmi Narayan (Ex. DW1/2) that he had bequeathed his portion of the Naiwara property as well as all his movable properties to his son Pt. Ram Narayan and also gave him the right to realize the rent from the above said property. Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 49/68
95.In view of the above discussion, and in light of the above discussed case laws, the court is of the view that the certified copy of the will Ex.DW1/2 can be read in evidence for the purpose of settlement of the issue at hand. The court is further of the view that the Executant Lakshmi Narayan, by his will, had intended to bequeath the Naiwara property to his son Pt. Ram Narayan as his separate property and not a joint Hindu Family Property. Hence, in view of the aforesaid discussion, the court is of the view that the properties at Naiwara are not Joint Hindu family preoperties.
96.Let us now come to the property at Krishna Nagar. It was held by the Hon'ble High Court of Madras in the case of "P.M.Mani vs P.S.Mohan Kumar" AIR 2002 Mad 402, that a person claiming a property to be ancestral property or that it belongs to the joint family, the burden of proving lies on him. He must show initially that there was a sufficient joint family nucleus. In the case titled as "Achuthan Nair vs Chinnamnu Amma & Ors" (1966 Supreme Court 411) it was held by the Hon'ble Supreme Court that under Hindu law, when the property stands in the name of a member of a joint family, it is incumbent upon those who assert that it is a joint family property to establish it.
97.In the case at hand, the plaintiff has failed to prove that the property at Krishna Nagar was constructed by the defendant no.1 out of the funds of Joint Hindu Family property. Infact, he has failed to prove that there is Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 50/68 any Joint Hindu Family property at all or that there was the nucleus of the joint Hindu family. There is no evidence on record to show that the said property falls within any of the four categories of Joint Hindu Family property as discussed above. Hence, the Krishna Nagar property is not a joint Hindu family property.
98.In view of the above discussion, the court is of the view that the suit properties i.e the Naiwara properties as well as Krishna Nagar property are not joint Hindu Family Properties or ancestral properties.
99.Issue no.1 is decided against the plaintiff.
100.Issue No.2:-
"If issue no.1 is not proved, whether defendant no.1 is the absolute owner of property situated at Naiwara, Delhi?" OPD-1.
101.The onus of proving this issue was on defendant no.1. It has already been discussed above that the Naiwara properties is not the ancestral property of the plaintiffs or defendants. It was the separate property of Lakshmi Narayan and Jagan Nath. Pt. Lakshmi Narayan had made a Will by which he bequeathed his portion of the Naiwara property to his son Ram Narayan. Certified copy of the Will of Pt. Lakshmi Narayan is Ex. DW1/2. It has already been discussed at length that the Ex.DW1/2 can be read in evidence. Though the defendant could not produce any attesting witness to the Will of Lakshmi Narayan. However, he has examined DW-4 Kailash Nath Sharma who has identified the signatures Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 51/68 of his father Ram Nath Sharma on the copy of the Will Ex. DW1/2, who had signed the same in capacity of an attesting witness. He has also identified the signature of the other attesting witnesses. DW-3, UDC from Sub-Registrar office had brought the original record of registration of Will of Pt. Lakshmi Narayan. He has categorically deposed that the said Will had been registered and Ex. DW1/2 is the certified copy of the said Will, as issued by their office. Hence, the defendant has successfully proved the Will of Pt. Lakshmi Narayan.
102.In view of the above discussion, court is of the view that by virtue of the Will of Pt. Lakshmi Narayan, defendant no.1 is the absolute owner of the Naiwara properties. The issue is decided in favour of defendant no.1 and against the plaintiff.
103.Issue no.4 "Whether the properties situated at Naiwara are the Naiwara temple and properties attached to it and are endowed properties?" OPD2-7.
104.Issue no.4 is being taken up before issue no.3 as the findings on issue no.4 would be relevant for the issue no.3 as well. The onus of proving this issue was on defendant no.2 to 7. It has been contended by the defendant no.2 to 7 that the Naiwara property is a temple and an Endowed property and as such, defendant no.1 had no right to make a Will in respect of the said property. They have contended that the defendant no.1 was only a Pujari in the said temple and thus had a Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 52/68 limited interest in the same. However, these defendants have not lead any evidence whatsoever to prove that the Naiwara properties are Endowed properties. They have relied upon the Order of the Arbitrator Sh. Babu Mal Engineer. The certified copy of the Arbitral Award and its English and Hindi translation thereof has been placed on record. The certified copies of certain judgments delivered in a suit subsequent to the Arbitral Award have also been placed on record. The said judgments have not been exhibited by any witness. However, all the parties have admitted these judgments and they only differ in their interpretation of the same. Hence these judgments are being discussed below. The brief facts which constitute the matter for the said previous litigation are as follows :-
105.Pt. Jagan Nath and Lakshmi Narayan had instituted a suit on 9th of June 1917 against Shyam Sunder and Shri Ram, the then minor sons of Raghubar Dayal for a declaration that Naiwara temple to which certain properties are attached, was their execlusive property; and that they had 2/3rd share in the Parade ground temple and were entitled to receive all the offerings in that temple. By mutual consent, the suit was referred to arbitration and a decree was eventually passed on the basis of the Arbitral award on 21.01.1920, declaring that Lakshmi Narayan and Jagannath were the pujaris of the temple in the Naiwara Mohalla and that Raghubar Dayal had nothing to do with the said property. Secondly, it Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 53/68 was held that the temple at the Parade ground was Waqf property but its offerings were to be distributed amongst the parties in equal shares for 10 years i.e upto 16.10.1929 and thereafter, in the proportion of 1:2. No appeal was filed against the said order and the order attained finality.
106.However, Shyam Sundar and Sri Ram, on attaining majority, brought a suit on 11.10.1932 for declaration that the previous decree dated 21.01.1920 was not binding on them, and that they were entitled to one third share in the Naiwara temple and also were the sole owners of the temple in the Parade ground. They also asked for an account with respect to the Parade ground temple. The suit was decreed in favour of the plaintiffs, however, on appeal it was set aside by the Learned Additional District Judge on the ground of Limitation. The plaintiffs were however held entitled by the Ld. ADJ to a decree for an account in respect of their share in the income from the Naiwara temple.
107.The plaintiffs filed second appeal against the said order in the Hon'ble High Court of Lahore. It was urged that the plaintiff's father Raghubhar Dayal and the defendants Jagan Nath and Lakshmi Narayan had inherited the property in dispute after the death of Musammat Birjo in 1960 as co-sharer and although Jagan Nath and Lakshmi Narayan remained in possession of the said property, their possession cannot be held adverse to that of Raghubhar Dayal.
108.It was held by the Hon'ble High Court that the suit was within limitation Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 54/68 and the possession of defendants has not been shown to be adverse to Raghubhar Dayal. The order of Sh. Kartar Singh was accordingly set aside and the matter was remanded back to the Ld. District Judge for re- decision.
109.Thereafter, the said suit was re-decided by Sh. G. S. Mongia, the then Ld. PCS Additional District Judge. By his order dated 10.03.1939, the Ld. ADJ had observed that there is no dispute any longer with respect to the Parade ground temple, its income and the Ramleela celebrations. The only dispute centers around the Naiwara temple and property. It was also observed that the locality Naiwara was also referred to as Chhipiwara, and that it was admitted by both the parties that this temple and property belonged originally to Chaturbhuj, the maternal grandfather of the defendants. The property passed to his daughter Mst. Birjo and thereafter in the hands of the present defendants and Raghubhar Dayal, plaintiff's father. The Ld. ADJ dismissed the plaintiffs' contention that the decree of 1920 was bad in law as the defendants had not prayed for joint possession. It was further held that Raghubar Dayal was adopted by Sewa Singh and thus, he has no right in the Naiwara property. The dispute was hence decided.
110.Apart from the abovesaid decisions, the defendants have relied upon various case-law, out of which only the relevant ones are discussed below:-
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 55/68
1. Ram Jankiji Deities & Ors. Vs State of Bihar (1999SC 2131)
2. Ram Brahma Chatterjee vs Kedar Nath Banerjee (1922) 36, Cal Law Journal 478-483.
3. P. F. Sadavarithy vs Commissioner, HR and CE AIR 1963 SC 51, wherein it was held that the religious institution will be a temple if two conditions are satisfied:-
1. It is a place of public religious worship
2. It is dedicated to or for the benefit of or is use as right by Hindu Community or any section thereof as a place of religious worship.
4. Pramtha Nath Mullick vs Pradhuymana Kumar Mullick & Anr. AIR 1925 Privy Counsel 159 .
5. Smt. Maruadie @ Maku Dei & Ors. Vs Murlidhar Nande & Ors, AIR 1999 Supreme Court 329.
6. Venktarama Ayyar in Deoki Nandan vs Murlidhar (AIR 1957 SC 133) wherein the Hon'ble Supreme Court cited certain judgments in which it was decided whether a temple was public or private temple.
7. Pooher Fakir Sadavrathy of Bondilipuram vs Commissioner, Hindu Religious and Charitable Endowment wherein it was held that when there is a good evidence about the temple being the private one, the mere fact that a number of people worship at Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 56/68 the time is not sufficient to come to the conclusion that the temple must be pubic temple to which those people go as a matter of right.
8. In Bihar State Board Religious Trust Patna vs Mehant Shri Biseshwar Dass, AIR 1971 SC 2057, wherein it was held that the evidence that Sadhu and other persons visiting temple were given food and shelter was not by itself indicative of the temple being a public or its properties being subject to public trust.
9. Goswami Shri MahaLakshmi Vahuji vs Rannchboddas Kalidas AIR 1970 SC 2025 wherein it was held that the circumstance that the public or a Section thereof had been regularly worshiping in the temple as a matter of right and they could take part in the festival in the ceremonies conducted in the temple apparently as a matter of right was a strong piece of evidence to establish its public character.
10.Shiva Nand and another vs Shankarji Maharaja Birajman & Ors vs AIR 1984 Allahabad 55.
11.Shriu Vidya Varuthi Thi Rthi vs Baluswami Ayyar Privy Counsel 5.7.1921.
12.Sudhindra thi Rtha Swamiar and others vs Commissioner of Hindu Religious Charitable endowment, Mysore AIR 1963 Supreme Court 1966.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 57/68
13.Doongrasee Syami Joshi & Ors. Vs Mukhiya Tirbhuwan Das AIR 34 1947 Allahabad 375
14.Kali Kinkar Ganguly vs Panna Banerjee (citation not provided)
111.The meaning of 'Temple' has been defined under Section 2 (17) of the Bombay Public Trusts Act, 1950 as :- "Temple means a place by whatever designation known and used as place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu Community of any section thereof as place of public religious ownership."
112.A Religious Endowment is a property set apart or dedicated for the worship of some particular deity for the establishment/maintenance of religious institution.
113.In Balashankar Maha Shankar Bhatt Jee vs Charity Commissioner, Gujarat,1994 Suppl. (2) SCR 687, the Hon'ble Supreme court had decided the issue whether Kalika Mandir temple is a public trust or not. The factors taken into consideration by the Hon'ble Court were:-
1. The temple is very ancient being more than thousand years old.
2. Its origin is lost in antiquity.
3. Thousand of pilgrims visit the temple every year for darshan, Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 58/68 individual rituals and discharging themselves from the vows, which they do on account of their faith in Mataji.
4. The visitors visit the temple without any hindrance. There is no evidence of obstruction to the visit of any person for darshan in the temple.
5. There is evidence on record regarding offerings from the visitors to Mataji not only in small coins but also in big things.
6. The temple has been shown in the Government records as belonging to Mataji and the respondents have been described as its Vahivatdars or Pujaris.
7. There is a cash allowance from the State treasury to maintain the temple, which is paid to the deity. The respondents are only its recipients in their capacity as the Pujaris or Acharyas of the temple.
8. The evidence of one witness show that separate accounts of the income of the temple have been maintained.
9. Sanad no. 19 shows that Scindias in their capacity as soverign rulers had interest in that temple and they had passed on their obligation in respect of the temple to the British Government by the treaty concluded between them and the British Government in 1860.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 59/68
10.The properties attached to the temple of Kalka Mandir have been shown in all Government records in the name of Mataji and not in the name of the respondents. This factor leads to the inference that immovable properties standing in the name of Mataji were gifted or donated to the deity.
114.The religious endowment are of two kinds- public and private. In Public endowment, dedication is for the use or benefit of public at large or a specific class. However in private endowment, temple is set apart for the worship of family god in which the public are not invited. Secondly, in the public trust, the beneficial interest is vested in an uncertain and fluctuated body of persons, while in a private trusts the beneficiaries are definite and certain individuals.
115.It was observed by the Hon'ble High Court of Rajasthan in case titled "Shri Ram vs Prabhu Dayal"AIR 1982 Rajasthan 180, " The origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to the worship therein, the consciousness of the devotees themselves as to the character of temple are the factors to establish whether a temple is public temple or a private temple. By far the most important thing to determine is whether the public can have access to the temple as a matter of right. The private temple is generally meant for private individual or an ancestral group, Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 60/68 whereas the public temple is for the benefit of public at large."
116.In the case at hand, the defendants no. 2 to 7 have not led any evidence to prove that the properties at the Naiwara temple is a public temple. There is no proof whatsoever that the ancestors of Pt. Lakshmi Narayan had dedicated the temple at Naiwara properties to the deity and that public used to offer prayers and make offering in the same as a matter of right. There is no evidence to prove that any kind of trust was created for the purpose of temple. Even in the municipal records, the property is mutated in the name of Ram Narayan and not in the name of any Hindu God or deity. The defendants have not examined any person from the public to prove that they used to visit the temple as a matter of right and use to make offerings (chadhawa) and participate in the festivals or cultural events organized by the temple. Moreover, the PW-1, during his cross examination had admitted the Pamphlet 'Mark X' as the pamphlet distributed at the time of Ramleela. In the said pamphlet, it has been clearly mentioned that the Naiwara temple was the private temple of Pt. Ram Narayan.
117.Also, the Arbitral Award of Sh. Babu Mal as well as the judgment of Sh. G.S. Mongia have no implication on the present case as the matter in issue between the parties in that suit was with respect to the possession of the Naiwara proprties and share in the Parade Graound Temple. It was never a fact in issue before the Arbitrator whether the Naiwara Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 61/68 property was an Endowed Property or not. The court was never called upon to decide the question whether the Naiwara property was a temple or not. The findings of the Ld. Arbitrator that Pt. Jagan Nath and Pt. Lakshmi Narayan were Pujaris in the Naiwara tepmle did not amount to a declaration that they were not the owner of the said property and had a limited interest in the same being a pujari. It only upheld their claims as Pujaris in the Chipiwara/Naiwara temple. There is no finding that the said property was a temple and not the separate property of Jagan Nath and Lakshmi Narayan. Hence, defendants have failed to prove that the property at Naiwara is a temple and not the property of Pt. Jagan Nath and Pt. Lakshmi Narayan.
118.In view of the above discussion, the court is of the considered view that the temple at Naiwara was a private property and not a public temple. It is not an Endowed property. The issue is decided against defendant no. 2-7.
119. Issue No.5 "Whether the property at Krishna Nagar is an endowed property in the form of a temple?" OPD 2 -7
120.Issue no.5 is being taken up before issue no.3 as the findings on issue no.5 would be relevant for the issue no.3 as well. The onus of proving this issue was on defendant no. 2 to 7. However, no evidence whatsoever has been led by the defendants to prove their claim. The Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 62/68 defendants no. 2 to 7 have merely given suggestions to DW-1 that the property at Krishna Nagar is a public temple and that the idols of Shri Krishna and Radha Rani have been installed therein. These suggestions have been denied by DW-1. These suggestions do not by themselves prove that the property at Krishna Nagar was a temple. The defendants have failed to prove that the said property has been dedicated to deity or that any trust was made with respect to the said property. The defendants have relied upon the Gift Deed Ex.PW7/2 and contended that the property was gifted for the purpose of temple. However, a bare perusal of the said Gift Deed transpires that the property was gifted by one Durgo Dass to defendant no. 8 for private temple and residence. As discussed above, the first and foremost condition of an endowment is that the property should have been dedicated for the worship of diety, either absolutely or partially. In case of absolute dedication, the property is wholly dedicated to the worship of the idol without receiving any beneficial interest to the settler, or his descendants or any other person. However, if the intention of the deed is to create a charge in favour of the deity and the residue vests in the settler, the dedication is partial. In case of absolute dedication, the property vests in the idol and is inalienable except for legal necessities. However, in case of partial dedication, the property descends to the heirs of the settlor and is inalienable in ordinary ways, sold to the trust or charge created in favour of the idol. Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 63/68
121.In the case at hand, no dedication to the deity has been created by the Gift Deed neither complete nor partial, in favour of any deity. There is nothing to show that the said property was a temple and public would visit the temple for a prayer and offerings as a matter of right. Mere installation of the idol is not sufficient to prove that the property is a temple.
122.In view of the above discussion, the court is of the considered view that the property at Krishna Nagar was not an endowed property. The issue has been decided in favour of defendant no.8 to 10 and against defendant no. 2 to 7 and the plaintiff.
123.Issue no.3:-
"If issue no.1 is not proved, whether defendant no.8 is the owner of the property and land of the house at Krishna Nagar as alleged in the WS?"OPD-8
124.The onus of proving this issue was on defendant no.8. However, she has not got herself examined as a witness. Nevertheless, his son defendant no.10, i.e DW-1 has led evidence to show that the property at 19, New Krishna Nagar belonged to defendant no.8. DW-1 has relied upon and exhibited the certified copy of Gift Deed in favour of defendant no.8 as Ex.DW7/2. Vide this Deed, one Durga Dass had gifted the property at Krishna Nagar to Smt. Kanta (defendant no.8). This Gift Deed has been admitted by the plaintiff as well as the defendant no.2 to 7. As Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 64/68 per Section 58 Indian Evidence Act, "No fact need to be proved in any proceeding:-
1. Which the parties thereto or their agents agree to admit at the hearing, or
2. Before the hearing, they agree to admit by any writing under their hands, or
3. Which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.
125.Both the defendant no. 2 to 7 and the plaintiff have admitted in their respective pleadings that the Gift Deed with respect to the Krishna Nagar property was executed by one Durga Dass in favour of defendant no.8.
126.It has already been observed that the Krishna Nagar property is not an Endowed property. It has been clearly mentioned in the abovesaid Gift Deed that it is for the purpose of the private residence and temple of the Donee. There is nothing to suggest in the entire Gift Deed that the Donor had dedicated the property to any deity or to any Trust.
127.In view of the above discussion, the court is of the view that the defendant no.8 was the absolute owner of property at Krishna Nagar and she has absolute right to alienate the property in any manner whatsoever.
128.Issue no.3 is decided in favour of the defendant no.8 and against the plaintiff.
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 65/68
129.Issue No. 6:-
"Whether the plaintiff is entitled to injunction prayed for?"OPP.
130.The onus of proving this issue was on the plaintiff. In the preceding paragraphs, a detailed discussion with respect to the suit properties and the right of the parties qua those properties has already been made. It has already been observed that the Naiwara property are neither endowed properties nor joint Hindu Family properties. Defendant no.1 was the sole and absolute owner of Naiwara properties. The plaintiff does not have any right, title or interest in the same. Hence, the plaintiff is not entitled to the injunction prayed for. The issue is decided accordingly.
131.Issue no. 7:-
"Whether the plaintiff is entitled to rendition of account? If so, from which of the defendants and for what period?"OPD
132.Onus of proving this issue was on the plaintiff. It has been observed in the proceeding paragraphs that the property at Naiwara is neither any ancestral property nor any endowed property. It was separate property of Pt. Lakshmi Narayan, and thereafter of Pt. Ram Narayan. The plaintiff has not been able to show that there was a joint family nucleus which was created or that the rental income of Naiwara property a part of that Nucleus. Hence, plaintiff is not entitled to any rendition of accounts. This issue is decided against the plaintiff and in favour of the defendant no. 1, Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 66/68 8, 9 & 10.
133.Issue no. 8:-
"Whether the suit is within time?"OPP.
134.The onus of proving this issue was on the plaintiff. However, since the objection with respect to the limitation was raised by the defendants, hence onus of proving that the suit was not within time should have been on the defendant. However, none of the parties have led any evidence on this issue. The issue has remained.
135.Issue no. 8 is accordingly decided.
136.Issue no. 9:-
"Whether the plaintiff is not valued properly for purpose of court fees? If so to what effect?"OPP.
137.The onus of proving this issue was on the plaintiff. However, since the objection with respect to the valuation was raised by the defendants, hence onus of proving that the suit was not properly valued should have been on the defendant. However, none of the parties have led any evidence on this issue. The issue has remained disproved.
138.Issue no.9 is decided accordingly.
139.Issue No.10:-
"Relief"
140.In view of the above discussion, suit of the plaintiff is dismissed. No order as to cost. Decree Sheet be prepared accordingly. Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 67/68
141.File be consigned to the record room after due compliance.
Announced in the open court on (SAUMYA CHAUHAN)
20th September of 2014 Metropolitan Magistrate-07
West/Tis Hazari Court/Delhi
Suit No.391/10/77 Mahesh Narayan vs Pt. Ram Narayan & Ors. 68/68