Full Text
JAGDISHPRASAD Appellant
Through: Ms.P.Gupta,Advocate.
STATE
Respondent Ml'. Akshay Makhija,CGSC with Ms. SiiratDeep Singh,Advocate for UOI.
Mr.Sanjeev Kumar,Advocate for Pujya Sadhvi Shantanand Smarak
Samiti.
13.02.2020
ORDER
1. This appeal is directed against an order dated 22"^* December, 2016, passed by the learned Single Judge disposing ofthe Appellant's Test Case No.4 of2007 whereby he was seeking probate ofa Will dated 9'*^ February, 1982 purportedly executed by the Testator,Mata Shantanand(hereafter,'the Testator'), bequeathing the ownership ofQuarter No.204,Block No.7,Jheel Khureji, Geeta Colony, Delhi (hereafter, 'the property in question') in favour ofthe Appellant.
2. In the first round oflitigation,the learned Single Judge had by a decision dated 5"^ April,2008,rejected the prayer for grant ofprobate ofthe Will in ih question.A review petition filed by the Appellant was also dismissed on 11 FAO(OS)87/2017 Page1of[9] 2020:DHC:3905-DB July,2008.Assailing both the orders,the Appellant had filed FAO(OS)355 of2008.By ajudgment dated 3"^ March,2015,the appeal was allowed and the above orders were set aside. Test Case No.4 of2007 was restored to file ofthe learned Single Judgefor adjudication afresh on merits.
3. The case ofthe Appellant was that the Testator was in occupation ofthe property in question since 1950. In 1951-52, she constructed a residence thereon for herself, as well as a temple on the ground floor. On 26^ December, 1956, the land on which the temple (now known as Mata Shantanand Shree Radha Krishan Mandir)stood,was allotted to the Testator by the Government ofIndia. The case ofthe Appellant is that in the year 1980-81, the Testator appointed him as a Pujari and also provided him accommodation in the premises. According to him, she executed the Will dated 9^^ February,1982,bequeathing the property in question in hisfavour. The Testator expired on 13*November,1984 with no heirs.
4. It appears that the Appellant filed a suit seeking permanent injunction in the Court of a Civil Judge, Delhi apprehending dispossession from the property in question.Accordingto him,someinterim protection was granted to him in the said proceedings.
5. Objections were filed in the testamentary case by the Pujya Sadhvi Shantanand Smarak Samiti ('PSSSS') claiming to be a registered society and having control and supervision of the Mata Shantanand Shri Radha Krishan Mandir. According to PSSSS,shortly before her death,the Testator had authorized one Smt. Krishna Wanti to look after the temple. In 1990, FA0(0S)87/2017 |5 dueto family burdens,Smt.Krishna Wanti could not maintain and look after the temple properly and appointed another Pujari who was performing the temple duties till February, 1994. Thereafter, other Pujaris were appointed from time to time.
6. It is claimed that it is only in December, 1996, that the Appellant had approached the Executive Committee ofPSSSS and offered to perform the duties ofa Pujari in the temple. With the donations received,PSSSS in the year 1998,got constructed a hall on the first floor above the temple,and in 1999, two rooms, one kitchen and a bathroom on the second floor. According to PSSSS,the Appellant came to reside on the second floor with his family in one ofthe rooms,that he was in possession ofonly one room and a kitchen,and that the remaining property was in possession ofPSSSS. It was denied by PSSSS, that the Will in question was executed by the Testator.It is claimed thatshe executed a registered Will on 24^*^ May,1982 in favour of Baba Rajnath and Mr. Khairati Lai, but on 17^'' September, 1982,registered the cancellation ofthe said Will.
7. The learned Single Judge on 16"" December,2016,passed the following order: "1.This matter was listed on 8^*" November,2016for framing of • issues. Upon neither party proposing any issues, the file was directed to be keptin Chamberfor framing ofissues.
2. However, on perusal ofthe file, it was felt that there is no need for fr 'aming ofissues.Hence,the matter was directed to be listed for today to enable the counsels to address on the said aspect. FA0(0S)87/2017 Page3of[9] I ^ r'
3. The petitioner has filed this petition seeking probate of a document dated 9^^" February, 1982 stated to be the validly executed last Will of Mata Shantanand. The said Will is with respect to a temple constructed on property No.204, Block-7, Jheel Khureji Geeta Colony,Delhi. The petitioner claims to be the caretaker ofthe deceased and the temple and is residing on the second floor above the temple.
4. Objections have been filed on behalf of Pujya Sadhavi Shanta Nand Samarak Samiti(Regd.) claiming the property of the temple to be belonging to it and claiming to be in management ofthe temple and the first floor above the temple. It is further its case that petitioner is in unauthorized occupation ofthe second floor.
5. The possession of objector of ground and first floor is admitted by the petitioner as well. 6.[1] have enquired from the counsel for the petitioner as to what is the documentoftitle ofthe property in favour ofdeceased.
7. The counsel for the petitioner states that neither party has filed any document oftitle and there is only a house tax receipt in the name ofthe deceased.
8. It thus appears that the dispute between the parties is a title dispute and when civil proceedings between the parties are already pending adjudication, no purpose will be served by entertaining this petition inasmuch as the question ofthe Will can also be adjudicated by the Civil Court, where the dispute regarding title ofproperty is pending.
9. The counsel for the petitioner to inform the counsel for the objector ofthe next date ofhearing.
10. List on 2L'December,2016."
8. Thereafter,on 2L^December,2016,the following order was passed: FAO(OS)87/2017 Page4of[9] th "1. This order is in continuation of the order dated 16 December,2016.
2. The counsel for the petitioner hastoday in Courthanded over photocopy ofthe lease deed dated 30^*^ December, 1966 ofthe land underneath the property executed by the President ofIndia in favour ofdeceased Smt,Shanta Nand.
3. Therefrom, it appears that the property was the private property ofSmt.Shanta Nand.
4. However the counsel for the petitioner as well as the counsel for the objector Pujya Sadhavi Shanta Nand Samarak Samiti (Regd.) agree that the temple existing on the property is a 'public temple','open to the members ofthe public'. While the counsel for the petitioner Jagdish Prasad states that the temple was constructed by Smt. Shanta Nand, the counsel for the objector Pujya Sadhavi Shanta Nand Samarak Samitim(Regd.) states that the cost of construction ofthe temple was borne by the residents of the locality for whose benefit the said temple was constructed.
5. It is further the case of the objector Pujya Sadhavi Shanta Nand Samarak Samiti(Regd.)that it is the objector only which has throughout been managing the temple including the floors above the temple and it is the objector only which had appointed the petitioner Jagdish Prasad as the pujari of the temple and permitted him to reside on the second floor ofthe property.
6. Once it is the admitted position that the temple existing on the property is a'public temple in my opinion,the same ceases to be the property ofSmt. Shanta Nand for Mata Shanta Nand to make a Will or bequest thereof in favour of anyone or in favour ofthe petitioner Jagdish Prasad.
7. The said public temple would be a public charity within the meaning ofSection 92 ofthe CPC and since there appears to be FAO(OS)87/2017, Page5of[9] a dispute as to the administration thereof, this Court under Section 92 of the CPC will form a scheme for management thereofand issue appropriate directions.
8. The plaintiff cannot appropriate any part ofthe property of such public charity unto himselfand carmot make his residence on the second floor of the property and is liable to be ejected therefrom.
9. On request of counsel for the petitioner, list tomorrow i.e. 22"^ December,2016."
9. It was concluded by the learned Single Judge in the impugned order,that although the lease deed showed the grant ofperpetual lease ofrights in the land underneath the property in favour of the Testator, the lease does not expressly permit use of the said property for religious purposes. The fact remained that the temple existing on the property was a public temple. This was admitted by the Appellant before the Court as well as in the pleadings.
10. The learned Single Judge then referred to the decision ofthe Supreme Court in GoswamiShriMahalaxmi Vahuji v. RanchhoddasKalidas(1969) 2see853 where it was held that: "the fact that the temple subject matter ofthat proceeding was attracting a large number ofdevotees and that Utsavas and other festivals were being performed in the temple on a reasonably grand scale,the devotees as well as the Pujaris were treating the temple as a public temple, were held to be decisive in determining the property in question as being a public property."
11. Reference was also made to the decisions in Pratapsinghji N.Desai v. FAO(OS)87/2017. Page6of[9] Deputy Charity Commissioner, Gujarat 1987(Supp.) SCC 714, Kapoor Chand v. Ganesh Dutt 1993 Supp.(4)SCC 432 and Bala Shankar Maha Shanker Bhattjee v. Charity Commissioner, Gujarat State 1995Supp.(1) SCC 485. It was concluded that with the admission of the existence of a public temple on the property in question, the property ceased to be the private property ofthe Testator. Therefore, even ifthe Will was held to be the validly executed last Will ofthe Testator,it would not vest any rights of the property in question in the Appellant. It was held that on the date of making the alleged Will,the Testator was left with no rights in the property,
12. Consequently, while declining to grant the reliefs in the testamentary case in favour of the Appellant, the learned Single Judge directed the Administrator General, Delhi constituted under the Administrators-General Act, 1963 to enquire ifthere was a "breach of any express or constructive trust created for public purpose of a charitable or religious nature", in respect of the property in question, and to accordingly take appropriate action.
13. Before the learned Single Judge,PSSSS placed a copy ofan order dated 20'V23'^'^ December, 2013 of the Govermuent of India, Ministry of Urban Development('MoUD'),Land and Development Office('L&DO'),holding that neither the Appellant nor PSSSS had any right to the property and further,that since the allottee ofthe property had died intestate,the property vested back in the Government by escheat,
14. It must be noted here that the MoUD, L&DO has filed a separate application being CM APPL. 26029/2018, referring to the aforementioned FAO(OS)87/2017 Page 7of[9] 'v order dated 20'V23''''December,2013 and asserting that: "the subject property vests with the GoveiTiment ofIndia,Land and Development Office and the Applicant is the lessor ofthe subject property therefore the Applicant is a necessary and proper party in the present case." Thisapplication wasallowed bythis Courton 23*^^^ October,2018.
15. This Court has heard the submissions oflearned counselfor the parties.
16. It appears that there was a clear admission before the learned Single Judge, as noted in the orders dated Ib'*^ and 2D'December,2016,that the temple existing on the property in question is a public temple. With those orders not having been challenged by the Appellant, it cannot be urged at this stage that the Testator could have validly executed a Will concerning the property in question in favour ofthe Appellant.
17. The Court concurs with the view expressed by the learned Single Judge that by the time the alleged Will was executed, the Testator, was not left with any right in the property in question, since its character had changed into that ofa public temple.
18. Further, the Court is not informed whether the order dated 20'V23''' December,2013 passed by the L&DO was challenged by the Appellant or PSSSS. The Court takes note of the assertion of the L&DO,that it is the lessor of the property in question, and that the property now vests in the Government of India. Interestingly, in the same application filed by the L&DO it is noted that the Appellant's claim was without any legal basis and FAO(OS)87/2017 Page8of[9] ( ) <riy that no copy ofthe alleged Will was provided by the Appellant during the hearing before the L&DO.
19. For all of the aforementioned reasons, the Court finds no reason to interfere with the impugned order ofthe learned Single Judge.The appeal is accordingly dismissed.The pending application also stands disposed of.
FEBRUARY 13,2020 tr S.MURALIDHAR,J. TALWANT SIN H