Skip to content


Shri Ram Kishan Mission and anr. Vs. Dogar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1362 of 1978
Judge
Reported inAIR1984All72
ActsHindu Law; Trusts Act, 1882; Transfer of Property Act, 1882 - Sections 122 and 123; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 8
AppellantShri Ram Kishan Mission and anr.
RespondentDogar Singh and ors.
Appellant AdvocatePalak Basu, Adv.
Respondent AdvocateA.D. Prabhakar, Adv.
DispositionAppeal dismissed
Excerpt:
.....- subsequent gift of same property not valid. - - 14, 1959 and that she desired to convert this property into a dharmashala in the memory of her deceased husband with the object that this may be utilised for religious and charitable purposes by providing accommodation to the poor and needy pilgrims who might take bath in the ganga and engage themselves in bhajan etc. (ii) the object or purpose of dedication should be clearly indicated; (iii) the founder must effectively divest himself of all beneficial interest in the endowed properly. all that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes. therefore, the rule laic down in section 5 regarding..........and that she shall also have the right to determine the trust. i have mentioned above that in this deed smt. parmeshwari devi created the trust with the express purpose of managing the property endowed. she had said so in express words as appearing from the quotation extracted above. it is nowhere suggested expressly or even by implication that she reserved the power to rescind or revoke the endowment as such. the vesting of the property in the dharmashala is unqualified and absolute. it is only in the matter of the management relating to the endowment that she reserved the power to make a change. instead of trust being constituted to manage the endowed property, she could carve out some other modified or substituted directive for management by herself or some other agency, but that is.....
Judgment:

B.D. Agarwal, J.

1. This is defendants' appeal.

2. Facts relevant briefly are that Smt Parmeshwari Devi (since dead) was the exclusive owner of the property specified at the foot of the plaint and situate within the municipal limits of Hardwar. On March 13, 1962 she executed a Tamliknama by registered instrument in respect of this property. The property was dedicated by her for use as Dharmashala to be known as 'Dharmashala Purshottam Das Ji'. Purshottam Das deceased was the husband of the executant. A Board of Trustees was created also by her in this deed with herself as the managing trustee. Clause 12 of the deed provides that during her life time she will have the right to increase or decrease the trustees and to wind up the Trust. On Sept. 16, 1968 this Tamliknama was revoked by Smt. ParmeshwariDevi by another registered instrumentfollowed by a registered deed of gift in respect of the said property made by her in favour of Ram Krishan Mission on 17th Sept., 1968. The gift was accepted by the donee by a resolution dated 9th Nov., 1968.

3. The suit giving rise to this appeal was instituted under Order 1 Rule 8 of the Code of Civil Procedure on Feb. 23, 1970 by the plaintiffs representing the Hindus of the Sanatan faith alleging that Smt. Parmeshwari Devi had no right to revoke the Tamliknama executed by her. The dedication was complete and the property vested in the Dharmashala as an endowment for use of the pilgrims. The pfea taken further was that the gift dated 17th Sept. 1968 was not a conscious act of Smt. Parmeshwari Devi nor was it executed, by way at her free will and, in any case, she was not competent to execute the same. The defendants Nos. 1 and 2 resisted the suit contending that, in view of Clause 12 of the Tamliknama, the settlor was competent to revoke the same which she did on Sept. 16, 1978 (1968?) and thereafter executed the deed of gift of her free will for which she was competent.

4. The trial court dismissed the suit on Dec. 4, 1971. The view taken was that Smt. Parmeshwari Devi executed the deed of gift dated 17th Sept. 1978 of her free will. The plaintiff had the right to sue. The suit had been properly framed under Order 1 Rule 8 of the Code of Civil Procedure. The power of revocation, it was further held, was reserved by the executant under Clause 12 of the Tamliknama and hence she was competent to revoke the same. The plaintiffs preferred appeal against this decree passed by the trial court. In appeal the case was remanded on Oct. 31, 1973 saying fhat the question relating to the compliance of Order 1 Rule 8 of the Code of Civil Procedure had to be reconsidered. In second appeal filed by the defendants I and 2 against this order of remand, the order was set aside and the lower appellate court was directed to decide the appeal on merit. On March 16, 1978 the lower appellate court reversed the decision of the trial court dated 4th Dec. 1971 and took the view that the endowment created by Smt. Parmeshwari Devi was complete and incapable of being revoked by her. No title consequently passed to the defendant No. 1 by the gift dated 17-9-1968. Aggrieved the defendants 1 and 2 have preferred this second appeal. Smt. Parmeshwari Devi was impleaded as defendant No. 3 in the suit. She died during the pendency thereof on May 4, 1974.

5. The central question raised by the appellants' learned counsel is whether Smt. Parmeshwari Devi retained the power and was competent otherwise to revoke the Tamliknama executed by her on March 13, 1962. It was contended that there was no dedication made by her and that under Clause 12 she reserved the power expressly for revocation. The instrument, it was further argued, had to be construed as a deed of gift and hence this was capable of being revoked. For the plaintiff-respondents the contention raised, on the other band, is that the creation of the endowment by the Tamliknama aforesaid was complete and unconditional. The property vested in the Dharmashala and Smt. Parmeshwari Devi did, not remain competent to revoke the same. Clause 12, it has been urged pertains only to change into manage-ment of the endowed property.

6. Before entering into this contention, it would be useful to refer in brief to the contents of the Tamliknama dated March 13, 1962 which was admittedly executed by Smt. Parmeshwari Devi deceased vide Ex. A-5. There is no dispute that Smt. Parmeshwari Devi was the exclusive owner of the property in question. She had acquired the same under a permanent lease executed in her favour on February 14, 1959 (Ex. I). The husband of Smt. Parmeshwari Devi had died. The Tamliknama opens with the recital that Smt. Parmeshwari Devi was the exclusive owner of the said property having acquired the same on Feb. 14, 1959 and that she desired to convert this property into a Dharmashala in the memory of her deceased husband with the object that this may be utilised for religious and charitable purposes by providing accommodation to the poor and needy pilgrims who might take bath in the Ganga and engage themselves in Bhajan etc. With this preamble she goes on to say that she was, therefore, creating the 'Dharmashala Pandit Purshot-tam Das' and that on determining her proprietary right in toto she was conveying the property to the Dharmashala with effect from the date of the execution of the dead. In the words appearing in the deed which are material:--

mijksDr tk;nkn ij viuk LoRo o vf/kdkj o gSfl;rekfyd dkfey lekIr djds mldks vktdh rkjh[k gS cgd /keZ'kkyk iafMriq:'kkske nkl reyhd djds mijksDr tk;nkn dks /keZ'kkyk ^^ia-iq:'kkske nkl** ds uke ls dk;e djrh gS vkSj /ke'kkyk ds izca/k ds fy,fuEu VLVh fu;qDr djrh gwa A

7. For purposes of the management of the endowment she created a trust in the same deed and thereafter laid down the details how the trust was to function. She appointed 13 persons including herself as the Trustees and stated that she would be the managing trustee for life. It was provided also that trustees shall have no right to transfer any part of the property dedicated in any manner. The rental income from the shops pertaining to the Dharmashala shall be utilised for purposes of the endowment, In Clause 12, which is also material, it was stated :--

^;g fd VLVh;ksa dh laLFkk cs vius thou dkyes iw.kZ vf/kdkj gksxk A*

8. The law is settled that to constitute valid dedication by a Hindu for religious or charitable purposes no document in writing or registered is necessary. Dedication to charity need not necessarily be by an instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. The essential formalities for the creation of a religious or charitable instrument according to Hindu Law are :--

(i) the property in respect of which the endowment is made must be designated with precision;

(ii) the object or purpose of dedication should be clearly indicated;

(iii) the founder must effectively divest himself of all beneficial interest in the endowed properly.

(See: B.K. Mukherjee's Hindu Law of Religious and Charitable Trusts (1979 Edition) Page 105); Lalta Prasad v. Brahmanand (AIR 1953 All 449) (DB), In Mulla: Hindu Law (1982 Edition page 519), it is stated:--

'A Hindu who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it. A trust is not required far that purpose. All that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes. Even in the case of a dedication to an idol, which cannot itself physically hold lands, it is not necessary, though it is usual, to vest the lands in trustees. Nor it is necessary, that there should be any express words of gift to the idol. No religious ceremony such as sankalp, samarpan, pranapratishta or kumbhabhishekam etc, is necessary and a clear and unequivocal manifestation of intention to create a trust and vesting of the same in the donor or another as a trustee is enough to constitute dedication.'

The real test is furnished by the intention of the grantor. ' If there is clear and unequivocal manifestation of the intention to create a trust and there is formal divesting of ownership in the properly on the part of the donor with the intention of devoting it to the religious or charitable purpose, dedication must be deemed to be complete' (Vide B. K. Mukherjea's Hindu Law of Religious and Charitable Trust Page 106). It must be proved that the donor intended to divest himself of his ownership in the property dedicated. Section 5. Trusts Act lays down the method for creating a trust of immovable property but it is provided by Section 1 of the said Act that the Act does not apply to public or private religious or charitable endowment. Therefore, the rule laic down in Section 5 regarding execution of a registered document in writing does not govern a case like the present. Nor may the provisions of the Transfer of Property Act be said to be attracted since this is not a deed of gift in favour of a living object. No question of attestation arises in relation to an endowment created for religious or charitable purposes.

9-10. Controversy also does not exist on the point that creation of an endowment in favour of a Dharmashala for the stay of pilgrims coming to the holy city of Hardwar for taking bath or other religious performances is a pious object recognised as such in the Hindu Law. The dedication is for the benefit of pilgrims intended for the benefit of the public or certain sections of the public and there is no specific donee by whomthe endowment has to be accepted. At page 81 of the treatise of B. K. Mukher-jea's referred to above, it is mentioned that a popular form of Hindu charitable trust is an institution known as Dharmshala.

11. Viewed in the light of the above, it will be observed in the instant case that the dedication made by Smt. Parmeshwari Devi was complete. Tamliknama it is held, means a document by which Maliki or ownership rights are transferred and the document expressly says that the grantee has been made a Malik or owner. The word 'Malik' is commonly used in our parts. In Ram Gopal v. Nand Lal (AIR 1951 SC 139) construing a Tamliknama the Supreme Court endorsed the view of the Privy Council that the expression 'Malik' is apt to describe an owner possessed of full proprietary rights, including a full right, of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred. The property itself upon which the purpose is impressed is raised to the category of a juristic person so that the property dedicated would vest in the legal person so created. In other words 'Dharmashala Purshottam Das, in question is to be treated under the law as a juristic person capable of holding property. The grantor in this case categorically and in unequivocal terms expressed that she was abjuring absolutely of her rights, title and interest in the property as the proprietor and conferring the same upon the Dharmashala. This clearly has the effect of vesting the property involved in dispute in the Dharmashala which is the object of the endowment. With effect from the date when this endowment came into being the grantor was divesting all her rights and the title was created instead in the Dharmshala as a juristic entity. The learned counsel for the appellant could not suggest anything substantial in the course of his argument to derogate against the weight of this express averment contained in the Tamliknama. The intention of the grantor is indicated in unambiguous terms in this deed and further the same is fortified, as the lower appellate court also found from her immediate subsequent conduct in relation to this property. Licence was obtained from the Municipal Board, Hardwar for use of this property as a Dharmashaladuring the period of 1964-69 vide Ex. 3 to 8. A register was maintained also during April 4, 1967 to Sept. 23, 1970 (Ex. 10) wherein entries were made in the ordinary course of the pilgrims staying at the Dharmashala. The rent realised from the various shops pertaining to Dharmashala was accounted for and P. W. Om Prakash testified that his father--one of the trustees maintained the accounts. Both P. W. Om Prakash and P. W. Smt. Ram Kaur corroborated the testimony of Smt. Parmeshwari Devi P. W. 1 on the point that the property was actually made use of as a Dharmashala subsequent to the execution of the Tamliknama. There is no indication from the evidence that the deed was sham or not intended to be acted upon.

12. In so far as Clause 12 upon which the appellants' learned counsel laid emphasis is concerned, it will be clearly noticed that the power reserved thereunder by the grantor is confined to the trust. It is said, in other words, that during her life time she would have the right to increase or decrease the trustees and that she shall also have the right to determine the trust. I have mentioned above that in this deed Smt. Parmeshwari Devi created the trust with the express purpose of managing the property endowed. She had said so in express words as appearing from the quotation extracted above. It is nowhere suggested expressly or even by implication that she reserved the power to rescind or revoke the endowment as such. The vesting of the property in the Dharmashala is unqualified and absolute. It is only in the matter of the management relating to the endowment that she reserved the power to make a change. Instead of trust being constituted to manage the endowed property, she could carve out some other modified or substituted directive for management by herself or some other agency, but that is far from saying that there was the power reserved to revoke the dedication as such. As Mulla observed at page 520, in the quotation given above, in the case of a dedications even to idol, it is unnecessary to vest the land in trustees. Similar is the position in the present case. There is no vesting of the property in the trustees; the vesting has instead been made in Dharmashala Purshottam Das. At page 30, B. K. Mukherjea observed in his treatise that Dharmashalas occupy a position analogous to that of Mutts and they are generally dedicated for the benefit of the travellers. It was not necessary, therefore, to have vested the property in the trustees nor has that been resorted to in the instant case. The power to manage alone was given to the trustees by the grantor and she reserved the right to revoke this power, but for the rest, namely, in so far as the endowment created is concerned, the Tamliknama operates as absolute and irrevocable in my view.

13. In view of the above, the alleged deed of revocation claimed to have been executed by Smt. Parmeshwari Devi on Sept. 16. 1968 followed by the deed of gift dated 17-9-1968 in favour of the defendant No. 1 appellant are without authority. No right can be claimed to be created in this gift in favour of the appellant No. 1, since having endowed the property completely, Smt. Parmeshwari Devi did not remain competent to revoke the same or to divest the 'Dharmashala Purshottam Das'.

14. The appeal, therefore, fails and is, accordingly, dismissed Costs on parties.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //