(1) Heard Sri Kshtiz Shailendra learned counsel for the appellant and Sri Ashutosh Srivastava and Sri K.S. Singh learned counsels who have appeared on behalf of the respondents.
(2) This is a defendants first appeal against the judgement and decree dated 6.11.1973 passed in original Suit no. 20 of 1966 Chaudhary Raja Ram & others Vs Jagdish Narain & others by the District Judge, Etawah. Sri Shailendra learned counsel appearing on behalf of the defendant appellant has referred to the findings recorded by the Trial Court on all the fourteen issues to submit that the plaintiff respondent had not been able to establish a firm case for grant of relief under Section 92 of the Code of Civil Procedure and it was also held that the Suit may have been filed with ulterior motive since the plaintiff was alleged to be a tenant in the premises of the temple. He states that inspite of having found that the plaintiff had made out no case the Trial Court had decreed the Suit of the plaintiff by laying down a scheme for management of the temple under the supervision of Board of Trustees and for rendition of account from 1956 up to the date of decree.
(3) Sri Shailendra has submitted that by virtue of an interim order passed in this appeal the accounts are regularly submitted before the District Judge and as such the said decree/direction does not require any interference in this appeal.
(4) Sri Shailendra has basically objected to the scheme directed to be framed by the Trial Court on the ground that the Board of Trustees can be persons who are qualifying eligibilities prescribed in the will of 1911 wherein a scheme was laid down by Mahant Ram Prappanna Ramanuj 2 Das (exhibit 3). The other objection is the direction that a lawyer be included as a trustee and further that the plaintiff who was a tenant has been given right to object in the selection of the trustees. A last objection is that the plaintiff should not have been entitled to costs from the trust funds.
(5) Sri K.S. Singh learned counsel for the plaintiff respondents has submitted that the wishes of the testator of the will dated 5.5.1911 are to be followed and there is no dispute from the side of the plaintiff respondents that persons appointed/nominated to the Board of Trustees should be eligible under the conditions provided in the will of 1911. He submits that in so far as the provision that a lawyer should be included as one of the trustees is concerned the same may be modified to read that a person conversant with law may preferably be included in the Board of Trustees but even such person should qualify the eligibility of 1911 will. He has also submitted that in case it is the strong objection of the defendant appellant that the plaintiff be not entitled to have a say in the manner of appointment of trustees the special provision made in the impugned judgement for the plaintiff to file an objection may be deleted and since it has been recorded that it is a public trust the objections, if any, to the nomination of trustees would govern the field in accordance with law. Sri K.S. Singh has submitted that the provision for cost of the Suit to the plaintiff from the trust fund may be deleted and the decree of the Trial Court be modified to that extent.
(6) The plaintiff respondent filed the suit under Section 92 CPC claiming that the court appoint trustees for providing further line of succession in view of the will, a scheme of management of the temple be framed and the Mahant and Pujari be directed to render accounts. (7) One Mahant Ram Prapanna Ramanuj Das claiming to be a successor to the Gaddi of the trust properties executed a will dated 5.5.1991 laying down the future scheme of administration of the trust by appointing trustees and made provision for filling the vacancies on their occurrence. After the original trustees dies no further appointments were made. It was alleged that the defendant Jagdish Narain has taken over the 3 management of the trust and he was not an eligible person as per the 1911 will and further that the properties were being mismanaged. The permission of the Advocate General U.P. was taken on 13.8.1965 for filing the suit.
(8) The Trial Court framed 14 issues for decision. It decision was as follows-
Issue no. 1- The plaintiff was entitled to maintain the suit. Issue no. 2- The suit is not undervalued and the court fees paid is not in sufficient.
Issue no. 3- The trust is a public trust and not a private trust. Issue no. 4- The consent of the Advocate General had been validly obtained for bringing the suit under Section 92 CPC. Issue no. 5- The will dated 5.5.1911 was duly executed and has been fully proved. It was acted upon.
Issue no. 6- All the deities are not necessary parties to the suit. Issue no. 7- Narsinghji Maharaj is the owner of the entire properties of the trust and other temples appertain to Narsinghji Maharaj. Issue no. 8- The suit under Section 92 CPC is maintainable. Issue no. 9- Defendant no. 1 is duly appointed Mahant and trustee of the trust in dispute.
Issue no.10-There is no convincing evidence of mismanagement of the trust but there are anomalies in its management. Issue no.11- It was not pressed and there is no question of bar of limitation.
Issue no.12- Defendant no. 1 cannot be called upon to render accounts prior to 1956.
Issue no.13- Properties no. 1 and no. 2, apart from property no. 12 described in the schedule, exist.
Issue no.14- The plaintiff is entitled to a decree for a scheme of management, for appointment of trustees and for accounting. (9) There is no evidence on record to enable this court to set aside the findings recorded particularly on Issues no-3 and 5 these findings are accordingly confirmed. Consequently the future scheme of management of the trust is to be primarily on the basis of the will dated 5.5.1911 of 4 the Mahant who was successor to the Gaddi of the trust after the founder. The will of 1951 does not govern the field regarding management scheme.
(10) Upon perusal of the record and for better understanding the controversy it would be necessary that the will dated 5.5.1911 executed by Mahant Ram Prappanna Ramanuj Das (Exhibit 3) be reproduced herein-
WILL (VASHIYATNAMA) I, am Mahant Ram Prapanna Ramanuj Das, disciple of Mahant Narayandas, a Brahmin Acharya by Caste, resident of Mahant Gaddi Nasim Asthal (Temple) Mahant Gopal Das, Etawah.
Where as one Asthal (temple) named Mahant Gopal Das Ji Maharaj constructed and situate at land (arazi) No. 87 Mauza Umrain, Pargana and District Etawah is famous in the city Etawah in which the idol of Swami Nar Singh Ji Maharaj stands established and one Asthal is situate at Mauza Tulsipur, District Etawah in which idol of Thakur Bihari Ji Maharaj stands established and another temple thakur Devala is situate in Kasba Jalaun, Pargana and District Jalaun at Orai in which an idol of Thakur Ji Maharaj stands established. The performance of Arti, Celebration (Utsav) etc. qua the properties attached to the temple concerned would always be carried out and managed out of the income of the same. I am Mahant Gadda Nashin (occupier of the chair) and manager of all the aforesaid properties and temple named Asthal and Thakur Devala and my name stands recorded in Municipal records of the government, although the owner of the aforesaid properties is the Devta(deity) concerned and I, being 50 years of age, often remain ill. The life having no certainty, the properties attached/related to the temple(s) concerned have already been transferred in the name of the deity vide a written tamleeknama (deed of transfer), and the possession of the said properties has also been handed over to the deity concerned; but I have no hope that after my death the properties and other functions would be properly managed by the forth coming occupiers of the chair, therefore, as per my own will and under full 5 capacity and with full strength of a sound mind and under no coercion I am executing the present will qua the properties mentioned herein below;
Firstly that during my whole life time I would remain the sole manager of the aforesaid properties concerning temple as per custom and usage (Badastoor) and no body would have any right to interfere in such management;
Secondly, after my death, the person appointed by me as Mahant would be managing, on my behalf, all the properties concerning Asthal temple of Etawah and Umrain, temple Shri Narsingh Ji Maharaj Virajman Mandir temple Shri Thakur Bihari Ji Maharaj Mauza Tulsipur, Pargana and District Etawah and temple Thakur Laxmi Narain Ji Maharaj, Kasba, Pargana and District Jalaun, Collectorate Orai and he would be having and exercising all such rights as I am having and the person who could be Mahant of temple of Etawah would also act as Mahant of temples at Jalaun and Tulsipur and the entire Management would be done by him and he would be having and exercising all rights of making appointments of Pujari and other employees and that he should be taking consult of/from the members and after him the person who would be appointed as Mahant Gaddi Nashin would also continue to taken advice from members and the functions would be performed as per the advice received;
Thirdly, after my death, Rao Narsingh Rao son of Rao Balwant Singh, a rich Brahmin by caste, in the capacity of president, Chaubey Manohardas, MA, son of Chaubey Purshottam, Chaubey Rama son of Rai Bahadur, Diwan Bahadur, Chaubey Raghu Nath Das, Rajkot, Seth Ganga Krishna Das, Seth Radha Krishna son of Seth Ram Dayal owner of the shop Rama Krishna Ram Dayal, a Baniya Maheshwari by caste and Lala Jagannath Prasad son of Kalyan Singh, a Kayasth by caste, resident of City Etawah in the capacity of members forming a committee, would be properly advising the Mahant and in case some Member dies then in his place his Aulad (heir/successor) or any other appropriate person of Vashnav cult would be appointed in consultation with the existing members and at the time of such appointment, the common opinion 6 of the members of the Committee as well as the opinion of the president would equally be taken into consideration and in case some of the members or president are not unanimous on a particular matter, then opinion of at least 3 members would suffice and they would act accordingly;
Fourthly if, at any time, the Mahant immediately appointed after my death or the forth coming Mahant keeps some woman with him due to which a bad name is attached to the image and reputation of the temple, then the members would have right to take the entire properties, jewellery and other, things from the possession of the Mahant concerned into their (members) possession and to appoint somebody else belonging to Vaishnav cult as manager for performance of workship and, further, such defaulting Mahant would be dis-entitled to work in any manner whatsoever and his monthly diet (Khurak) would be fixed (for his survival) with the understanding that he would detach himself from temple and concerning properties and would handover the same, as aforesaid, and if his character and activities do not improve even later, then the aforesaid members would continue to keep the aforesaid properties and management under their possession, custody and control and in case of death of such defaulting Mahant, a disciple belonging to Vashnav cult, would be appointed as Mahant and so long as the person so appointed maintain good conduct and character, he would be held entitled to occupy the chair and would continue to manage the temple. In case of the said disciple having become characterless/unchaste, the right of management would vest with/in the members;
Fifthly, if the Mahant occupying the chair marries, he would be completely divested of the management concerning the chair and would have absolutely no right whatsoever;
Sixthly, in case some Mahant dies without appointing/nominating his disciple of the Mahant marries, in that event the members would have right t appoint some Brahmin boy as Mahant after bringing him into the temple and after performing the formalities of "Shankh" & "Chakra". From that very date, the said person would become the sole Mahant and all his rights etc. would 7 be entered into the documents concerning the temple as such;
Seventhly, the properties which would be purchased/bought out of the income of the temple would also be treated as waqf properties and any Mahant or Muntazim (Manager) or member would, under no circumstance and at no point of time, be entitled to sell the same or create mortgage etc. but would remain in possession thereof without executing such deeds of transfer and in case any Mahant or any other person sells or otherwise disposes of the properties inclusive of jewellery etc. or creates any mortgage or gifts the same, the members would have every right to take the same back from the said transferees and, as such, such transfer would be held to be illegal, although, Mahant and members would always remain in possession thereof during their life times without having any right thereon;
Eighthly, the conditions imposed by/contained in the present will would remain binding upon all the Mahants/occupiers of chair, and members, present as well as future and no body would have any right to raise any objection with regard thereto.
Therefore, the present will has been executed after having given a careful thought so that it remains as a certificate for all times to come and be utilized as and when necessity arises.
Executed on 5th of May 1911 under the pen of Shiv Dayal, i.e. writer of the deed (Arzi Navis).
Signatures and thumb impression of Mahant Ram Prapanna Rammanuj Das (executants) Mahant Ram Das, Ramanuj, Thumb impression (witness-Baij Nath Modi, Etawah Marwari Maheshwari, Madwar.
Witness- Ghasi Ram son of Babu Ram Caste Khatri, resident of Etawah ----------------------------------------------------------------
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(here only signatures et. Are there) 8 Registered at Bahi No. 3 Zild six at page No. 94 to 96 dated 6th of May 1911.
Afzal Hasain, Sub-registrar.
(11) The submission is that there should be no binding on the nomination/election of a trustee to be a lawyer. The Trial Court has provided that a lawyer be also in the Board of Trustees. There is no provision in the will of 1911 to such effect. Both the parties are agreed that such provision in the impugned judgement requires to be modified by deleting the word "i.e. a lawyer" and it be read as a 'person conversant with law'. The judgement and decree of the Trial Court to that extent should be modified as above.
(12) It is also submitted that the right given to the plaintiff to make objection on the appointment of trustees has been given by the court below only on the ground that the plaintiff has taken interest in the matter. It is not disputed that the plaintiff has since died and at present the matter is being pursued by his heir and legal representatives. Such reasoning of having taken interest in the matter of filing the Suit and contesting the same was with respect to the deceased plaintiff and therefore there appears to be no necessity of providing the right of objection to all the heirs and legal representatives of the original plaintiff for all times to come. Consequently the sentence "similarly the plaintiff also, who has taken interest in the matter, will have a right to make objection and the court will be taking decision after hearing him" should be deleted from the judgement and decree and in its place the following sentence be substituted:- 'Since it is a public trust, the objections, if any to the nomination of trustees would govern the field in accordance with law.' (13) The last submission is that in so far as the entitlement of the plaintiff respondent to the cost of the Suit from the trust fund is concerned be set aside. Sri K.S. Singh has fairly fore- gone that right. Consequently the plaintiff should not be entitled to costs of the Suit from 9 the trust fund.
(14) In view of the aforesaid submission made on behalf of the defendant appellant and submission made by the plaintiff respondent this appeal is liable to be disposed of by modifying the impugned judgement and decree as under-
(15) In paragraph 1 of the scheme laid down by the Trial Court as contained in the judgement of the Trial Court the words 'i.e. a lawyer' shall stand deleted.
(16) In the same scheme laid down by the Trial Court the sentence 'similarly the plaintiff also, who has taken interest in the matter, will have right to make objection and the court will be taking decision after hearing them.' shall stand deleted and in its place the following sentence shall stand substituted:-
'Since it is a public trust, the objections, if any to the nomination of trustees would govern the field in accordance with law.' (17) In the same scheme laid down by the Trial Court the sentence 'plaintiffs would get their costs from the contesting defendants to be met out of the trust funds' shall be deleted and in its place the following sentence shall stand substituted:-
'Parties shall bear their own costs' This appeal stands partly allowed as above. The judgement and decree of the Trial Court shall stand modified as above.
No order is passed as to costs.
Order Date :- 6.1.2010 Pravin