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Kr. Nirmal Chand Soni and ors. Vs. Thakurji Saligramji Maharaj and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 601 of 1974
Judge
Reported inAIR1980Raj22
ActsRajasthan Public Trust Act, 1959 - Sections 18, 29 and 29(1); Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 7
AppellantKr. Nirmal Chand Soni and ors.
RespondentThakurji Saligramji Maharaj and ors.
Appellant Advocate R.C. Jain and; Arun Kumar Bhandari, Advs.
Respondent Advocate Abhay Kumar Bhandari, Adv.
DispositionRevision dismissed
Cases ReferredJagannath v. Satya Narain
Excerpt:
.....and the devasthan commissioner or a private temple belonging to the maheshwari community as claimed by the plaintiffs is a mixed question of law and fact and is required to be determined by the authorities under the act provided certain other conditions are also satisfied. and the courts then having satisfied such amount has been paid, pass-es a final decree in favour of the plaintiff; (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (b) of the proviso the petitioner has miserably failed to show that in case the order passed by the lower court, if allowed to stand, would occasion any failure of justice or cause any irreparable injury to the petitioner......the directions of the decree and it was not for the trial court while taking proceedings for final decree to investigate the questions which were not raised earlier in the pleadings. in the result the learned trial court dismissed the objections raised by the defendants in this regard.3. mr. jain, learned counsel for the defendant-petitioners has contended that when the trial court had arrived at a finding that the temple had properties near about rupees two lacs and that it was a public temple, it committed a clear error in dismissing the objections raised by the defendants. it was further contended that the provisions of sections 29 and 72 of the act were mandatory in nature and no proceeding could at all be taken in the case without complying with those provisions. the learned.....
Judgment:
ORDER

N.M. Kasliwal, J.

1. This litigation has a long chequered history but I shall narrate only the relevant facts which are necessary for the disposal of this revision.

2. The plaintiffs filed a suit for redemption in respect of an agricultural land situate at Hathibata Ajmer and a residential house situate at Pushkar. The suit was dismissed by the trial Court on 12th January 1949 but was decreed by the Judicial Commissioner, Ajmer on 28th July, 1953 and a preliminary mortgage decree was passed. An appeal against the said judgment and decree was also dismissed by Hon'ble the Supreme Court on 14th December, 1961. After the decision of the case by Hon'ble the Supreme Court a Commissioner was appointed to go through the accounts. The plaintiffs objected to the taking of accounts and the parties came in appeal to this Court. In second appeal No. 71/ 1970 Hon'ble Justice J. P. Jain passed a order for taking all the accounts by his judgment dated 26th March, 1972. On remand of the case from this court the Commissioner after going through the accounts submitted his report on 12th February, 1974 and the parties filed objections against the said report. The defendants apart from other objections also took an objection by filing an application supported by an affidavit that the properties in question were public trust property of a value exceeding Rs. 30,000/-and Section 29 of the Rajasthan Public Trust Act, 1959, (hereinafter referred to as 'the Act') laid a bar for being heard and decided unless such public trust was registered. A further objection was raised on the basis of Section 72 of the Act where any question affecting a public, religious, charitable trust was involved, the same could not be determined until after notice had been given to the Devasthan Commissioner. The plaintiffs opposed the application filed by the defendants and cross-examined the deponent of the affidavit. The learned Civil Judge, Ajmer, by his order dated 23rd September, 1974, held that the temple had properties worth more than Rs. 30,000/- i. e. near-about Rs. 2,00,000/- and that it was a public temple but took the view that as a preliminary decree had been passed by the highest court i. e. the Supreme Court, hence at this stage by issuing notice to Devasthan Commissioner or staying the proceedings of the suit would be against the directions of the decree and it was not for the trial court while taking proceedings for final decree to investigate the questions which were not raised earlier in the pleadings. In the result the learned trial Court dismissed the objections raised by the defendants in this regard.

3. Mr. Jain, learned counsel for the defendant-petitioners has contended that when the trial Court had arrived at a finding that the temple had properties near about Rupees two lacs and that it was a public temple, it committed a clear error in dismissing the objections raised by the defendants. It was further contended that the provisions of Sections 29 and 72 of the Act were mandatory in nature and no proceeding could at all be taken in the case without complying with those provisions. The learned lower Court was wrong not to take notice of subsequent change in law. It was further submitted that the learned trial Court committed a serious illegality in exercising of its jurisdiction in taking the view that in complying with the provisions of Sec.-tions 29 and 72 of the Act it was acting in any way in conflict of the decree affirmed by Hon'ble Supreme Court or in any manner varying the directions contained in the said decree. It was also eon-tended that the case remained pending in Hon'ble the High Court in deciding second appeal No. 71/1970 till its final disposal on 26th March, 1972 and as such the petitioners were not guilty of any laches,

4. Mr. Jain also contended that proceedings for final decree are proceedings in the suit. Reliance in this connection is placed on Krishna Lal v. Mandeswar Jha AIR 1921 Pat 296 wherein it was held that proceedings for final decree are proceedings in suit. In Madan Theatres Ltd. v. Dinshaw & Co., Bankers Ltd, AIR 1945 PC 152, it was observed that mortgage suit continued until the final decree is passed and there is no time-limit for recording the agreement arrived at as there is under Order 21 Rule 2. In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992, it was observed that a preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, to suits which contemplate the making of two decrees a preliminary decree and a final decree, the decree which would be executable would be the final decree.

5. Learned counsel further submitted that if any change of law took place between passing of the preliminary decree and the final decree, the court should take note of such events. Reliance in this connection is placed on the following observations in Sm. Billabasini Datta v. Dulal Chandra Dutta, AIR 1958 Cal 472:

'Though the rights are crystallised and are conclusively determined by the preliminary decree, see Section 2 Sub-section (2) Civil P. C., Lachminarain v. Bal Mukund, 51 bid App 321: 29 Cal WN 391: (AIR 1924 PC 198), the preliminary decree is a step in a pending litigation and the suit still continues: see Jadunath Roy v. Par-meshwar Mallick, AIR 1940 PC 11: 67 Ind App 11, and any alteration in the rights of the parties subsequent to the preliminary decree must be adjusted before the flnal decree is passed: see Krishanlal v. Mandeshwar Jha, AIR 1921 Pat 296; Madan Theatres Ltd. v. Dinshaw & Co, Bankers Ltd., SO Cal WN 102: (AIR 1945 PC 152), whereby legislation subsequent to the preliminary decree the rights of the parties are altered retrospectively, the Court must take into account and adjust the rights of the par-ties suitably and if necessary by altering the preliminary decree.'

6. Mr. Abhay Bhandari, learned counsel for the plaintiff-non-petitioners has contended that the defendants should have raised this objection in the pleadings whether the properties in question belonged to a public trust or a private trust. No such question was raised before the passing of the preliminary decree and the same having become final, the defendants have no right now to raisa this objection during the proceedings for final decree. It was next contended that the Rajasthan Public Trust Act, came into force on 22nd October, 1959 and Chapter V requiring the public trust to be registered came into force on 1st July, 1962, even then the present application raising the objections under the Act have been filed after a long period of 12 years i. e. 25th March, 1974 and such objections being wholly belated should not be allowed. It is further submitted that the objections are wholly mala fide and have been filed merely in order to delay tha proceedings. Learned counsel further submitted that Section 29 did not come into operation as it only puts a bar on a suit to enforce a right on behalf of a public trust which was required to be registered under the Act but had not been so registered but the proceedings for final decree cannot in any manner be considered to be a suit to enforce a right on behalf of a public trust.

7. Mr. Abhay Bhandari further contended that the property involved in the suit did not belong to a public trust and the defendants had never denied the stand taken by the plaintiffs that it was their family property.

8. Learned Civil Judge while considering the question whether the properties in suit belong to a public trust or not while considering the evidence of Nand Kishore observed as under;

'As already stated the evidence of Nand Kishore as disclosed by his cross-examination does lead to the conclusion that the temple had properties worth more than Rs. 30,000/- i. e. of near about Rs. 2,00.000/- and that it was a public temple.'

After having arrived at this finding learned Civil Judge considered whether this sort of inference at that stage warranted any interference with the preliminary decree. Mr. Abhay Bhandari, learned counsel for the plaintiff-non-petitioners could not seriously challenge this finding of the learned trial Court that the temple had properties worth more than Rupees 30,000/- i. e. of near about 2 lacs and also that it was a public temple. Mr. Jain learned counsel for the petitioners further pointed out in this connection the following observations in the judgment of the Judicial Commissioner, Ajmer, dated 28th July, 1953:

'On the evidence on the record I am of the opinion that it is satisfactorily established that this property was purchased by Nand Ram Das for the benefit of the plaintiffs Nos. 1 to 3 (Idols) and that the property was not his personal property.'

Thus taking the above finding of the learned Civil Judge into consideration I am also of the view that the temple had properties worth more than Rs. 30,000/-and having arrived at this conclusion the notification dated June 28, 1962, bringing into force Chaps V, VI, VII, VIII and IX on the first day of July, 1962, comes into operation. The notification dated June 28, 1962, is reproduced as under:

'Revenue A Department Notification

Jaipur, June 28, 1962

No. F-3F (11) Rev./A/59- In exercise of the powers conferred by Sub-section (4) of Section 1 of the Rajasthan Public Trust Act, 1959 (Rajasthan Act 40 of 1959), the State Govt. hereby directs that the provisions of Chaps. V, VI, VII, VIII and IX of the said Act shall come into force on the 1st day of July, 1962, and shall apply therefrom to all public frusts throughout the State of Rajasthan whose gross annual income from all sources whatsoever is not less than Rupees 3,000/- or the total valuation of the assets whereof is not less than Rupees 50,000/-, a draft notification to this effect having already been published, as required by Sub-section (5) of Section 1 of the said Act, in the Rajasthan Gazette Extraordinary, Part-B, dated May 21, 1962.

Sd/- G. L. Mehta

Secretary to the Government'

It has been held in Jagannath v. Satya Narain, 1972 Raj LW 491 as under:

'A bare reading of this notification Shows that Chaps. V, VI, VII, VIII and IX apply to all public trusts whose gross annual income from all sources whatsoever is not less than Rs. 3,000/- or the total valuation of the assets whereof is not less than Rs. 30,000/-. Since the pro-visions of the Act apply only to particular kinds of public trusts namely, those whose annual income is Rs. 3,000/-or more or the valuation of the assets is not less than Rs. 30.000/- the Act does not at all apply to such of the public trusts as do not satisfy the condition of valuation. Now, who is to draw the boundary line between the public trusts to which the Act shall apply and the public trusts to which the Act shall not apply. Section 73 no doubt creates a bar regarding the civil courts deciding any question which is by or under this Act to be decided or dealt with by an officer or authority under the Act. But Chapter XIII will apply only to public trusts satisfying the prescribed conditions regarding valuation; It is not that Chap. XIII is applicable throughout Rajasthan to all public trusts. Therefore, to my mind, it is only for such public trust which satisfy the condition of valuation that the exclusive jurisdiction is conferred on the Assistant Commissioner Devasthan and other authorities, but all other public trusts are outside their purview. Whether this Laxmi Narainji's temple is a public trust or not may have to be decided by the authorities under this Act but whether it is a public trust of the prescribed valuation by way of income or valuation of assets or not, is a question which could be decided by the Civil Court when such controversy is raised.'

However, in the case before me the question for determination is whether in a suit for redemption where a preliminary decree has already been passed and has been confirmed by the highest court of this land on 14th December 1961, i. e. prior to the coming into force of the various chapters of the Act on 1st July, 1962, can such a suit be brought within the purview of Section 29 of the Act or not. Section 29 of the Act reads as under:

'Section 29 -- Bar against suits by unregistered trust-- (1) No suit to enforce a right on behalf of a public trust which is required to foe registered under this Act but has not been so registerd shall be heard or decided in any court.

(2) The provisions of sub-sec. (1) shall apply to a claim of set off or other proceeding to enforce a right on behalf of such public trust'

The above section only puts a bar against a suit to enforce a right to be filed on behalf of a public trust and that such suit shall not be heard or decided by a court if such public trust was required to be registered under the Act. Thus there is no bar in the above section for the institution of a suit and it only creates a bar for the hearing and decision by the court. If a controversy is raised by the defendants, the court will have to stay the proceedings and direct the parties to get the question whether a trust exists and whether such trust is a public trust, and whether any property is a property of such trust decided by the Assistant Commissioner Devasthan under Section 18 of the Act. I am fortified in my above view by the following observations in Jagannath's case (supra):

'Now the next question is who is to hold this inquiry and till then what is to happen. Section 73, which I have set out above, lays down that no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any officer or authority under this Act unless it is provided otherwise in the Act. No other provision has been brought to my notice. The question whether Shri Laxmi Narainji's temple is a public temple as asserted by the defendants and the Devasthan Commissioner or a private temple belonging to the Maheshwari Community as claimed by the plaintiffs is a mixed question of law and fact and is required to be determined by the authorities under the Act provided certain other conditions are also satisfied.'

But in a case where a preliminary decree has already been passed the controversy between the parties has already been heard and decided and the proceedings for final decree cannot be treated aa falling within the scope of 'no suit to enforce a right on behalf of a public trust' under Sub-section (1) of Section 29 of the Act. It is no doubt true as decided in the cases relied upon by the learned counsel for the petitioner that proceedings for final decree are continuation of the proceedings or preliminary decree and such suit for redemption only concludes finally after the passing of the final decree yet for the purpose of considering a bar under Section 29 of the Act we have to keep a distinction in mind of the stages in a redemption suit which are concluded by the preliminary decree and the matters left to be decided during the course of proceedings for final decree. While passing a preliminary decree under Order 34 Rule 7 C. P. C. the court determines all the main controversies between the parties and on an application moved by the mortgagors for final decree the court considers whether the plaintiff had made the payment into courts of all amounts due from him under Sub-rule (1) of Rule 7 of Order 34 C. P. C. and the courts then having satisfied such amount has been paid, pass-es a final decree in favour of the plaintiff; and order the defendant to deliver all the) documents referred to in the preliminary I decree and if necessary order the defendant to retransfer at the cost, of the plaintiff the mortgage property as directed in the said decree and also if necessary, order him to put the plaintiff in possession of the property. Thus the proceedings for final decree in a suit for redmption cannot come within the purview of Section 29 of the Act putting a bar for passing a final decree even though it may be a litigation with respect to a property belonging to a public trust which was required to be registered under the Act. The suit to enforce a right on behalf of a public trust has already been heard and decided, on the passing of a preliminary decree.

9. There are other circumstances in the case which led me to arrive at a conclusion not to interfere in the exercise of the revisional jurisdiction of this court in the impugned order of the learned Civil Judge dated 23rd September, 1974. The provisions of Chaps. V, VI, VII, VIII and IX had come into force on 1st July, 1962 and the present objections could have been raised by the petitioners after such date. In the present case these objections have been filed on 25th March, 1974, i. e. after about 12 years and this shows that the petitioners have raised these objections merely in order to delay these proceedings. Learned counsel for the petitioners in this connection have given an explanation that the record of the case had gone to the High Court in connection with the Civil Second Appeal No. 71/1970 which was decided on 26th March. 1972 and as such the petitioners are not guilty for any laches. I am not at all convinced with this explanation given by the petitioner. The case had been decided by Hon'ble Supremo Court on 14th December, 1961, and these objections could have been raised by the petitioners at any time after 1st July, 1962. Learned counsel for the petitioners could not satisfy me that from 1st July, 1962, till the objections filed on 25th March, 1974, the file did not remain with the trial Court. It is no doubt true that some revisions were also filed in the High Court prior to the Civil Second Appeal No. 71/ 1970 but it is clear from the record that the file remained with the trial Court for a number of years after 1st July, 1962. Under the amended provisions of Section 115 C. P. C. a proviso has been added to Sub-section (1) of Section 115 C. P. C. under which the High Court shall not vary or reverse any order made in the course of a suit except where under cl. (a), the order, if it had been made in favour of the party applying for revision, would have finally disposed the suit or other proceedings or under cl. (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In the present case the impugned order does not come within cl. (a) of the proviso and as regards cl. (b) of the proviso the petitioner has miserably failed to show that in case the order passed by the lower court, if allowed to stand, would occasion any failure of justice or cause any irreparable injury to the petitioner. On the contrary, if the order in set aside it will again stop the proceedings for final decree in a litigation which was started as early as in the year 1945. Thus looking to the facts and circumstances of this case I am not inclined to interfere in the order of the trial Court in the exercise of the powers of this court under Section 115 C. P. C,

10. In the result this revision fails and is dismissed with costs.


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