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Madhopuri and ors. Vs. Banshidhar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 156 of 1984
Judge
Reported in1985WLN(UC)189
AppellantMadhopuri and ors.
RespondentBanshidhar and ors.
DispositionAppeal dismissed
Cases ReferredMst. Goran v. Jamna Das
Excerpt:
.....trustees of the charitable trust said to have been created by the will of smt. sunder bai and the learned judge has rightly concluded that they cannot be said to have any selfish motive in getting the receiver appointed.;the apprehension of difficulty in recovering the rent if realised by the appellants in case the suit succeeds, cannot be said to be baseless. in the given circumstances of the case it cannot be said that the learned judge has exercised the discretion for appointment of receiver unjudiciously or without there being emergent necessity for doing so. ;appeal dismissed. - - 7, it was necessary for the learned district judge to find out as to whether the temple in question satisfied the condition of valuation to bring it within the category of trust necessarily..........of the plaintiffs-non-petitioners was that the petitioners had rented out the portions of he suit property and were realising the rent. yashwant puri is said to have taken possession of one room only a day before the commissioner inspecting the site and filing the report. yashwant puri is party to the suit and the receiver has been appointed to take possession of the room he had so occupied and other vacant portion of the suit house. the tenants are not to be dispossessed. the receiver is only to realise the rent from them. in such circumstances, there arises no question of a stranger to the suit being dispossessed by the appointment of a receiver.25. mr. parekh, learned counsel for the appellant urged that the court should, before appointing a receiver, see whether the requirement.....
Judgment:

Kanta Bhatnagar, J.

1. A. suit for possession of the property belonging to one Smt. Sunder Bai was filed by the respondents on May 2, 1980 in forma pauperis which after inquiry was registered on July 17,1981. On August 5, 1983 the respondents were permitted to proceed with the suit in forma pauperis. Various applications were filled in those proceedings by the plaintiffs respondents for appointment of receiver on the ground that the property was being damaged by the appellant-defendants. By the order under appeal, the learned Judge allowed the prayer and appointed receiver for the property.

2. Suit was filed by the respondents as Trustees of 'Smt. Sunder Bai Public Charitable Trust' (here in after to be referred as 'the Trust'). It was averred in the plaint that on December 2, 1978 Smt. Sunder Bai treated a Trust through a Will. Sunder Bai died on February 24, 1979. The grievance of the Trustees was that the appellants were damaging the property and were intending to erect construction on the open land. The defendants claimed the property through a registered Will dated June 26, 1971 executed in favour of Madhopuri and Bhanupuri appellants, being nephews (brother's son) of Smt. Sunder Bai. Appellant Yashwant Puri claims to be in possession in his right as being nephew (Son of Jeth--elder brother of husband) of Smt. Sunder Bai. Five applications for appointment of receiver were filed by the respondents-Trustees on various dates. The last application being dated April 18,1983 which was decided by the order under appeal.

3. Respondent No. 1 entered Caveat. Notices were issued to the remaining respondents at the admission stage Mr. S.C. Maloo represented respondent No. 1 and Mr. M.D. Kalla respondent Nos. 2 and 3.

4. Mr. H.M. Parekh, learned counsel for the appellants submitted that there was a registered Will executed on June 29, 1971 by Smt. Sunder Bai in favour of appellants Madhopuri and Bhanupuri who happened to be her nephews while Yashwant Puri being the son of the elder brother of Smt. Sunder Bai's husband belongs to her family and was in possession of the house in that right. That, the Will dated December 2, 1978 was not a registered one and there was no reason for Smt. Sunder Bai to cancel the will in favour of her nephews who served her till her last and create a charitable Trust. That the last rites of Smt. Sunder Bai after her death were performed by Madhopuri and Bhanupuri in the same house which they could have done only if they were in possession of the house.

5. The first point raised by Mr. Parekh to assail the findings of the learned Judge on the question of appointment of receiver is that the suit was not maintainable as the Trust was not registered. That, Section 29 of the Act creates a bar against the suits by registered Trusts.

6. Mr. Kalla, controverted this contention on this ground that it is not a case where the Trustees might not have taken care to get the Trust registered . Smt Sunder Bai had died on February 24, 1979. Thereafter as early as on March 8, 1979 application for registration was filed before the Assistant Commissioner Devasthan and the Trust was registered. On August 1, 1979 in pursuance of the order dated July 31, 1979 a registration certificate was issued. The appellants preferred appeal before Devasthan Commissioner who by the order dated April 7, 1980 sent the case back to the Assistant Commissioner for deciding the question of registration after hearing the appellants-defendants.

7. Mr. Kalla submitted that in the suit filed by the respondents the validity of the order of the Commissioner dated April 7, 1980 has been challenged with the prayer that it may be declared void. That, Section 29(1) of the Act does not prohibit institution of the suit by unregistered Trust rather creates bar for hearing and deciding of such suits by the Court.

8. Mr. Parekh referred to Sub-section (2) of Section 29 of the Rajasthan Public Trust Act, 1959 (here in after to be referred as 'the Act') and submitted that the provision of Sub-section (1) of the Act also apply to proceeding to enforce a right on behalf of a public trust and therefore, the application for appointment of receiver was not maintainable. 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 be registered under this Act but has not been so registered shall be heard or decided in any court

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

9. The question of bar Under Section 29 of the Act for suit by unregistered public trust came for consideration before this Court in the case of Jagannath v. Satya Narain 1972 RLW 491. In an appeal by the defendant directed against the judgment and decree of the District Judge. Issue No. 7 in those proceedings read as under:

Issue No. 7Whether this temple is public trust, if so, whether its registration under the Public Trust Act is essential and whether the plaintiffs are not entitled to institute or prosecute this suit in absence of such registration?

10. The learned District Judge observed that it was not at all necessary in that suit, which was between the management and the Pujari as regards the right of management to remove the Pujari for acts of misconduct on the part of the Pujari, the suit was decreed. Assailing the judgment and decree in this Court the main argument advanced was that without determination of Issue No. 7, the Court could not have proceeded to determine other issues. The point of Section 29 of the Act creating a bar was raised. According to his Lordship in order to decide Issue No. 7, it was necessary for the learned District Judge to find out as to whether the temple in question satisfied the condition of valuation to bring it within the category of Trust necessarily registerable. The appeal was allowed and the judgment and decree of the learned District Judge set aside. The case was remanded to that Court with the direction that the learned Judge would first try Issue No. 7 in the light of the observations made in the judgment. The relevant portion of those observations was as under:

In the event of the Assistant Commissioner Devasthan or other competent authority under the Act holding that the temple in question is a public trust within the meaning of the Act the learned District Judge shall not hear and decide the case till the trust is registered under the Act.

11. There is substance in the argument of Mr. Kalla that the suit filed by an unregistered trust need not be thrown at the initial stage and the opportunity may be given for getting it registered. According to Mr. Kalla, the present case falls on an altogether different footing. Here the trust was once registered and inquiry is still pending after the case being remanded by the Devasthan Commissioner and the order of the Devasthan Commissioner has been challenged in the suit itself.

12. In the case of Banshidhar v. Hindu Anatha Ashram 1976 WLN(UC) 237 the question of bar Under Section 29 of the Act regarding the maintainability of the suit came for consideration. When the suit was filed the trust was not registered but was got registered before the dismissal of the suit by the trial Court. In that circumstance it was observed that the Court is debarred from hearing and deciding the suit if the suit was filed by unregistered public trust, but the section does not prohibit institution of a suit by unregistered public trust. In that case the witness had been examined prior to the registration of the Trust. His Lordship considered it to merely an irregularity which in no way prejudiced the defendant tenant or affected the merits of the case or the jurisdiction of the Court.

13. In view of this position of law and the peculiar circumstances of the case I am of the opinion that it would be for the trial Court to consider the question of registration and not for this Court to hold that the application under Order 40, Rule 1 CPC should not have been decided because the suit having been filed by an unregistered trust and that too in the circumstances when the matter for registration is still pending before the Assistant Commissioner Devasthan.

14. Mr. Parekh next contended that Section 73 of the Act excludes the jurisdiction of Civil Courts and as such the learned Additional District Judge has legally erred in observing that the suit is maintainable Under Section 22 of the Act with regard to the order of Devasthan Commissioner dated April 7, 1980.

Section 73 of the Act reads as under:

Bar of Jurisdiction : 'Save as expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive.

15. Section 22 entitles the Trustee or person having interest in a public trust or in a public Trust found to be public property to institute a suit in civil court to have an entry made Under Section 21 of the Act, cancelled or modified.

16. Mr. Parekh has rightly argued that there is no question of any cancellation or modification of entries made Under Section 21 of the Act and therefore Section 22 of the Act cannot be applied in this case. Whether the suit with one prayer amongst others being for getting order of an authority declared void on the ground of it not being in conformity with the statutory provisions is maintainable or not, is yet to be decided by the trial Court. Suffice it to say for the present that the provisions for exclusion of the jurisdiction of Civil Court are to be applied with reference to a particular case. On this point reference may be made to the principle enunciated in the case of Secretary of State v. Mask & Co. AIR 1940 PC 105 wherein following principle was enunciated:

The exclusion of the jurisdiction of Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

17. This principle was followed in the case of Srinivasa v. State of Andhra Pradesh : [1970]2SCR714 .

18. Mr. Parekh strenuously contended that the facts and circumstances of the present case do not justify the appointment of a receiver. That the Trustees have no right over the property as their claim is through an unregistered will, the genuineness of which is not free from suspicions whereas the appellants are in possession of the property in their own right. As such Mr. Parekh stressed provisions of Sub-rule (2) of Rule 1 of Order 40 which limit the power of the Court for removing a person from possession or custody of property are attracted.

19. Meeting this argument Mr. Kalla submitted that this provision applies to the dispossession of a third party and not the party to the proceedings, Order 40 Rule 1(2) of the CPC reads as under:

Nothing in this rule shall authorise the Court to remove From the possession or custody of property any person whom any party to the suit has not a present right so to remove.

20. The plaintiffs have filed the suit for possession and perpetual injunction against the three appellants and therefore they are not strangers to the proceedings. The suit has been filed on the basis of the trust created by Smt. Sunder Bai. Hence it cannot be said that plaintiffs have no present right to sue for possession against the appellants.

21. The case of Chaitanya v. Kandhino Naiko and Ors. : AIR1965Ori217 relied on by Mr. Parekh is distinguishable on the facts and the principles enunciated therein are not applicable to the present case. That was a suit for partition between members of the joint family. One of the defendants had 30 percent of property in his exclusive possession and recorded in his name. The plaintiff also agreed to one fifth share of the defendant though he was claiming one-half share in suit lands. Their Lordships did not consider it to be a fit case in which the defendant's possession should be disturbed by appointing third person as. receiver merely on certain allegations regarding his behaviour with the plaintiff mother. It was observed that the Court would not as a general rule appoint a receiver in a partition suit between members of a joint family especially where the family property consists of immovable property and that to appoint a receiver in such a case, special circumstances must be proved and also that a receiver is appointed in such cases where there is a prima facie case of mis-appopriation by the manager of the family. Sub-rule (2) of Rule 1 of Order 40 CPC does not create absolute bar for the appointment of receiver which may involve dispossession of a party to the proceedings.

22. In the case of Hiralal Patni v. Loonkaran Sethiya : [1962]1SCR868 it was held that the Court may for the purpose of enabling the receiver to take possession and administer the property, by order, remove any person from the possession or custody of the property. According to their Lordships Sub-rule (2) of Rule 1 of Order 40 limits that power of the Courts to a person who is not a party to the suit, if the plaintiff has not a present right to remove him. But when a person is a party to the suit, the Court can direct the receiver to remove him from the possession of the property even if the plaintiff has no present right to remove him.

23. Considering the present case in the light of the principles enunciated in the above referred cases, the provisions of Sub-rule (2) of Rule 1 of Order 40 do not help the appellants.

24. The contention of the plaintiffs-non-petitioners was that the petitioners had rented out the portions of he suit property and were realising the rent. Yashwant Puri is said to have taken possession of one room only a day before the Commissioner inspecting the site and filing the report. Yashwant Puri is party to the suit and the receiver has been appointed to take possession of the room he had so occupied and other vacant portion of the suit house. The tenants are not to be dispossessed. The receiver is only to realise the rent from them. In such circumstances, there arises no question of a stranger to the suit being dispossessed by the appointment of a receiver.

25. Mr. Parekh, learned counsel for the appellant urged that the Court should, before appointing a receiver, see whether the requirement for appointment of a receiver exists in the case or not. In this connection he referred to the case of T. Krishnaswamy Chetty v. C. Thangavela Chetty and Ors. Considering the appointment of receiver as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril, his Lordship was pleased to observe that this being an exceedingly delicate and responsible duty it has to be discharged by the Court with the utmost caution and only when the five requirements embodied in the words 'Just and convenient' in Order 40, Rule 1 are fulfilled by the facts of the case under consideration.

26. The five requirements stated by his Lordship as 'Panch Sadachar' are as udder:

(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court;

(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent change of succeeding in the suit;

(3) Not only must the plaintiff show a case of adverse and conflicting claim to property but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is on important consideration;

(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one; and

(5) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.

27. The principle enunciated in that case were followed in the case of Srinivassa Rao v. Baburao and Anr. : AIR1970Kant141 .

28. Bearing these principles in mind, when I turn to the facts and circumstances of the case on hand I find that all the requirements were fulfilled in the present case necessiating the appointment of a receiver by the trial Court. The plaintiffs have based their case on a will executed by Smt. Sunder Bai creating a charitable trust which is claimed to be her last will. The will is dated December 2, 1971. Smt. Sunder Bai died on February 24, 1979 and only a shortwile thereafter on March 8, 1979 an application for registration was filed by the trustees before the Assistant Commissioner Devasthan. True it is that there is a registered will in favour of Madhopuri and Bhanupuri dated June 29, 1971 but according to the appellants, the will creating the charitable trust is the last will. The genuineness of this last will is challenged by the appellants. Whether the will creating the charitable trust is a genuine last will or not would be decided by the trial Court. At the stage of the application for receiver appointment of the Court was to see whether the plaintiffs appellants have come with a strong case. The learned Judge committed no error if he considered the will creating the charitable trust as a strong factor in favour of the appellants. Regarding the emergency and the danger or loss to property, the learned Judge has referred to the contents of the five applications filed by the trustees and the affidavit of Banshilal in support thereof. The allegations were that the appellants with the help of some Ladu Singh, were damaging the property and were using the same for illegal purpose. It has also been averred by the trustees that the appellants were allowed to be in possession in order to perform the rites and rituals at the death of Smt. Sunder Bai in the suit house but they misused the opportunity and claimed possession thereafter. That, they had rented out the premises to some tenants and were realising the rent. According to the plaintiffs, in case the receiver is not appointed, it would not be possible to recover the amount of rent realised by the appellants in case the suit succeeds. The suit has been filed by the trustees of the charitable trust said to have been created by the will of Smt. Sunder Bai and the learned Judge has rightly concluded that they cannot be said to have any selfish motive in getting the receiver appointed.

29. Mr. Parekh emphasized that the allegations about the house being used as gambling house for the purpose of gambling is a vague allegation but the learned trial Judge has given a categoric finding that the allegations raised in the application and supported by the affidavit of Banshilal has not been refuted.

30. Mr. Kalla referred to the report of the Commissioner and submitted that the report in itself was sufficient to show the emergency for appointment of the receiver because the property was being damaged. The learned Additional District Judge in order to know the real state of affairs regarding the condition of the property appointed Smt. Usha Dube Advocate as Commissioner. The Commissioner on March 13, 1981 inspected the site and filed the report. According to that report the iron bars, leaves of the doors and wire-gauge were found broken. Six rooms were in possession of the tenants. One room was found to be recently occupied by Yashwant Puri. More than half of the land on which the suit house was, was lying vacant.

31. The learned Judge took into consideration the allegation that in case receiver was not appointed, there was apprehension of the appellants raising construction on the vacant land. The learned Judge in such circumstances considered it just and convenient to appoint a receiver. On the verge of repetition it may be observed that the appointment of receiver was for the purpose of taking into possession the vacant portion of the property and the room from the possession of Yashwant Puri and to realise the rent from the tenants in occupation of the portions of the suit property. The apprehension of difficulty in recovering the rent if realised by the appellants in case the suit succeeds, cannot be said to be baseless. In the given circumstances of the case it cannot be said that the learned Judge has exercised the discretion for appointment of receiver unjudiciously or without there being emergent necessity for doing so.

32. If the trial Court after taking into consideration all the relevant facts and circumstances of the case appoints a receiver the appellate Court should not interfere with that order. In the case of Mst. Goran v. Jamna Das discussing the power of the appellate Court to interfere in the discretionary order of the trial Court their Lordships were pleased to hold that the Court of appeal will be slow to interfere with the discretion of the lower Court in the appointment of a receiver, and would interfere only if satisfied that the discretion has not been exercised in accordance with settled principles of law.

33. From the detailed discussion of the facts and circumstances of the case in the impugned order it is evident that there was sufficient material before the Court regarding the requirement of appointment of a receiver. The order for appointment of receiver has been passed by the learned trial Judge after satisfying himself that the refusal to so might put the property to peril. Such a reasoned order calls for no interference.

34. Consequently, the appeal is dismissed.


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