IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.48 of 2001 SMT.SHASHI SINGH & ANR Versus MATA BHAGWATI & ORS With C.R. No. 1129 of 2001 SMT. SHASHI SINGH & ANR. Versus MATA BHAGAWATI & ORS. --------- For the petitioners: Mr. Sachidanand Choudhary,Adv. For the Opp.parties : Mr. Sukumar Sinha, Sr.Adv. Mr. Abinash Kumar, Adv. --------- 18 28.07.2008 Heard Mr. Sachidanand Choudhary, learned counsel for the petitioners and Mr. Sukumar Sinha, learned Senior counsel appearing on behalf of the opposite parties. In C.R. No. 48 of 2001 the defendants, petitioners have assailed the order dated 16.12.2000, whereby and whereunder, the court below has rejected prayer of the petitioners for deciding the suit on preliminary objection as to the maintainability of the suit. It would be necessary to quote the prayer made in the said application filed by the defendants, petitioners which reads as follows:- “It is, therefore, prayed that your honour may be graciously pleased to reject the plaint/T.S. No. 171 of 2000/150 of 2000 before final adjudication of the same and/or before conclusive determination of the rights of the parties on the 2 instant preliminary issue as barred u/s 213 of the Indian Succession Act, and or pass such other order or orders as to your Honour may deem fit and proper for the ends of substantial justice. “ This Court having examined the materials on record which have also been discussed at length in the impugned order while rejecting the aforementioned prayer would hold the court below has committed any jurisdictional error. It has to be always taken into account the maintainability of a suit in terms of order XIV Rule 2 of the Code of Civil Procedure (C.P.C.) and rejection of plaint in terms of Order VII Rule 11 of the Code of Civil Procedure are two separate and distinct provision to be dealt at two different stages. The submission of Mr. Choudhary that from very perusal of the plaint it would appear that the plaintiff, Mata Bhagawati, the deity had actually sought to claim the right, title and interest in the suit property on the basis of an unprobated registered will dated 30.6.1929 is itself misconceived. From the plaint 3 which is Annexure 1 to this Civil Revision Application it would be clear that the case of the plaintiff deity is that a registered document was executed in which Raja Chandeshwar Prasad Narayan Sngh had made a Will in the first part in favour of his wife Rani Deo Murat Kuer, wherein a provision was made that the entire property would stand endowed in favour of the deity if the said Rani did not adopt any son by way of male heir. There is no dispute that the Raja died on 28.9.1941 and after his death the legatee under the Will being Rani did not adopt any male heir and died on 29.6.1942. Thus, second part of the registered document allegedly being described as Will dated 30.6.1929 is said to have come into force and by virtue of the endowment in favour of the deity, it had came into possession ever since death of Rani in 1942. This has been only explained in the plaint by the plaintiff- deity while asserting its possession over the suit property by way of rag-bhog and puja path etc. from the usufructs of the suit property since the death of Rani in 4 the year 1942. Further from perusal of the plaint it would appear that family members of Raja including defendants-petitioners are alleged to have interfered and also alienated in the suit property by executing sale deeds and/or other documents, as a result whereof the plaintiff-deity had filed the suit in question for declaration of title over the entire suit land. While it is true that reference of the registered Will dated 30.6.1929, which is said to be attested by Sir Sultan Ahmad, an eminent lawyer and also by some eminent personalities has been made at several places in the plaint for justifying the continued possession of the suit property by the plaintiff-deity, but then it cannot be said that the plaintiff was either a legatee under the Will or that it was claiming its right and title in the suit property in the capacity of legatee of the Will. The plaint in fact would make a case of title by adverse possession and therefore plea of the petitioner that the plaint or suit was fit 5 to be rejected in terms of Order VII Rule 11 (d) of the Code of Civil Procedure seems, being barred under the provisions of Section 213 of Indian Succession Act is by itself a far fetched conclusion. In the opinion of this Court in order to reject the plaint under Order VII Rule 11 (d) of the Code of Civil procedure, it has to be shown that the suit from the statement in the plaint was barred by any law. Obviously, claim of adverse possession was not barred under section 213 of the Indian Succession Act. This Court, in fact, has also gone into the contents of the alleged Will dated 30.6.1929 which has been filed by the plaintiff, opposite parties in their show- cause and from a bare perusal of the same it would appear that the same is a composite document of both a Will and endowment, Will in favour of Rani and in the event Rani not adopting any male heir, endowment in favour of the deity for the Cheerished cause of spread of education amongst the poor and helpless people of locality. 6 That being so, in the peculiar facts and circumstances of this case, this Court is not in a position to accept the submission of Mr. Choudhary that the plaint of the suit was fit to be rejected under section 213 of the Indian Succession Act. Reliance placed by Mr. Choudhary on the judgment of the Apex Court in the case of „Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs. Miss. Isolyne Sarojbeghini Bore & Ors.’ reported in 1962 S.C. 1471 is also wholly misconceived, in as much as, the facts of that case would go to show that the plaintiff had brought suit for a declaration that she was owner of a house on the basis of a will for which a letter of administration was issued in her favour in respect of a will but the prepounder of that will in favour of plaintiff had based her right and title on the basis of an unprobated will and as, such the claim of the plaintiff was held to be barred under Section 213 of Indian Succession Act. In the present case when 7 as a matter of fact the will in favour of Rani became infructuous in 1942 as she did not adopt any male heir in her lifetime, the properties stood dedicated to the deity in view the last paragraph of the document for an avowed and laudable object of a public cause namely education amongst the poor helpless people of the locality and therefore it cannot be said that the plaintiff opposite party was claiming right and title to the suit property on the basis of the will in favour Rani so as to suffer the consequence of Section 213 of the Indian Succession Act. This Court, in fact, is also in agreement with the submission of Mr. Sukumar Sinha, learned Senior counsel appearing for the plaintiff-opposite parties that where two clauses of the document described as will are irreconcilable the last one has to prevail. In the present case, as noted above, from a bare reading of the alleged Will it would be clear that the dedication to the deity by way of endowment popularly known in this part of the country as 8 “SAMARPANNAMA” cannot be equated strictly in terms of a Will under the Indian Succession Act. Mr. Sinha seems to be also correct that in fact this very issue was gone into by this Court also in Misc. Appeal No. 551 of 2000, wherein order of injunction granted in favour of the plaintiff by the court below, also assailed on the ground of the suit itself being no maintainable and hit by the provisions of Section 213 of the Indian Succession Act, was dismissed. Judgment of Misc. Appeal No. 551 of 2000 would thus directly stand in the face of the petitioner as the same plea was raised and rejected by this Court while dismissing the aforementioned Misc. Appeal No. 551 of 2000. Assuming that the application filed by the petitioner was not under Order VII Rule 11 of the C.P.C, but under Order XIV Rule 2 of the C.P.C, in that event it has to be held that the same was premature because till the date of passing of impugned order, even the issues were not framed nor the Court had taken up hearing 9 of the suit on preliminary issue. That being so, this Court would not find any merit in Civil Revision No. 48 of 2001 and would accordingly dismiss this civil revision application. Coming to the facts of second case (C.R. No. 1129 of 2001), this Court would find that all that has been done by the impugned order dated 30.4.2001 is that the defendant no. 4 Ajoy Singh was transposed as Shebait in place of his father Late. Raja Ram Kishore Prasad Singh, who had originally filed the suit in the capacity of Shebait of the Mata Bhagawati, the deity, the plaintiff. The submission in this regard of Mr. Choudhary is that the impugned order is bad because earlier the petitioner was working as Shebait but without her removal the court below has allowed transposition of defendant no.4, Ajoy Singh, son of original Shebait in his place after his death. The court below in this regard has examined large number of documents and has also appreciated the various submissions and has arrived at the following findings:- 10 “-------Ajoy Singh, his wife Nalini Singh have participated actively in several functions both religious and charitable at Maksudpur Kila, whereas the above three defendants completely failed to brought any material at present juncture to show that any of them are in any way attached with any function at Maksudpur reveals that Smt. Nalini Singh used to extend Puja Path and several other religious and charitable functions in temple, situated in the Maksudpur Kila. And it appears to me that the petitioner Ajoy Singh and his wife Nalini Singh are in true sense honoring the sprit of the will of 1929 of Late Raja Chandeshwar Prasad Narayan Singh-------“ As a matter of fact the court below has also recorded a finding of fact that the defendant no.4 Ajoy Singh an officer of Indian Revenue Service of the Government of India has no adverse interest to the plaintiffs-deities and from his conduct it also appeared that he was ready to safeguard the interest of the deities and as such Ajoy Singh was a proper and befitting person among the all four defendants who could be transposed as Shebait in place of his father Raja to watch or safeguard and represent the plaintiff in the suit. Such evaluation and appreciation of 11 materials on record backed by finding of facts by the Court below would require no interference by this Court especially when the learned counsel for the petitioners could also not point out any fatal infirmity in the aforementioned findings. The deity being a perpetual minor, its interest either with regard to pursuing the suit or safeguarding the suit property has to be represented through a Shebait or any other person found fit by the Court and if the court below has exercised its discretion by transposing Ajoy Singh as Shebait in place of his father, the same cannot be interfered by this Court in its revisional jurisdiction in exercise of power under section 115 of the Code of Civil Procedure. Consequently, this Civil Revision Application No. 1129 of 2001, being devoid of any merit, is also hereby dismissed. Before parting with, this Court would reiterate the earlier direction given by this Court in an interlocutory order dated 13.12.2004 in Civil Revision No. 1129 of 2001, wherein following 12 directions were issued:- “--------This Court by order dated 29.8.2002 directed the trial court to proceed with the proceeding of the suit, but it appears that even issues have not yet been framed. In the aforesaid circumstances, the learned trial court is directed to take steps for framing of issues, if not yet framed, immediately and start hearing of the suit and decide the same expeditiously as the subject matter of the suit is a set of temples, upkeep and maintenance of which should be the prime concern--------“ Thus, in the light of the aforementioned earlier order, this Court would direct the court below to dispose of the suit preferably within a period of one year from today. With the aforementioned observations and directions, both the Civil revision applications being devoid of any merit, are accordingly dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar