SCA/23498/2006 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23498 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= MAHANT NARSANGDASJI GURU SANTDASJI - Petitioner(s) Versus KISHORBHAI KANJIBHAI PATEL & 11 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1,MR SURESH M SHAH for Petitioner(s) : 1, MR MIHIR JOSHI,SR.ADVOCATE WITH MR VIMAL M PATEL for Respondent(s):1, None for Respondent(s) : 2 - 12. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/11/2008 CAV JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original SCA/23498/2006 2/17 JUDGMENT plaintiff - appellant has prayed for an appropriate Writ to quash and set aside the judgment and order dated 28.02.2006 passed by the learned Additional District Judge, Rajkot in Civil Misc.Appeal No.114 of 2005 as well as order dated 22.12.2005 passed by the learned 9th Additional Senior Civil Judge, Rajkot below Exh.5 in Regular Civil Suit No.564 of 2005. 2. The petitioner herein had instituted Regular Civil Suit No.564 of 2005 in the Court of learned Civil Judge, S.D., Rajkot for declaration and permanent injunction. As per the plaintiff he is Mahant of Kabir Ashram situated at Rajkot. As per his case, he was appointed as Mahant by his Guru Santdasji the then Mahant of the Kabir Ashram vide his Will dated 04.04.1984. That Santdasji was appointed as Mahant of the Kabir Ashram by his Guru – Bhagvandasji Guruharidasji vide Will dated 16.09.1972. According to the custom of the Kabir Ashram for becoming a Mahant one has to take Diksha from the Ashram. That Mahanat Bhagvandasji Guru Haridasji had purchased certain properties during his life time, but those were purchased from the SCA/23498/2006 3/17 JUDGMENT followers in his capacity as Mahant. Land bearing survey No.329, 384 situated at Gondal Road, Rajkot were purchased from one Premji Gopa Patel in 1955 and similarly land bearing Survey No.325 was purchased in the year 1960 from one Sama Kala. Out of the said properties, certain properties were sold by Mahant Bhagvandasji and the amount received from those sale transactions were spent by Mahant Bhagvandasji for the development and other activities of the Ashram. After the death of Bhagvandasji the above said properties were being managed by Guru Santadasji. Respondent No.1 had obtained letters of administration in respect of above said properties on the basis of so called Will of Guruj Mahant Bhagvandasji. As per the plaintiff, the properties which were held by Mahant Guru Bhagvandas at the time of his death vest in the appellant as a successor Mahant as per the Hindu law. It was the case on behalf of the petitioner that the Will made by Mahant Bhagvandasji in favour of deceased Kanjibhai Patel is invalid and so it is to be believed that Mahant Bhagvandasji died intestate and in that circumstances as a successor Mahant those properties vest in the SCA/23498/2006 4/17 JUDGMENT appellant. As per the case of the petitioner, he has acquired the properties of Mahant Bhagvandasji on the basis of Will dated 16.09.1972 made by Mahant Bhagvandasji and thereafter also as a result of Will made by Mahant Santdasji dated 04.04.1984. That Bhagvandasji had no right or authority to give these properties to Kanjibhai by executing Will and Kanjibhai did not get right over those properties mentioned in the Will. That the Will made by Kanjibhai in favour of defendant No.1 is also invalid and void. That deceased Kanjibhai Dosabhai obtained letters of administration in respect of certain properties pursuant to the order passed by the Joint Charity Commissioner in Application No.122 of 1994. That the deceased Kanjibhai had also filed Civil Misc. Application No.48 of 2000 in the Court of Civil Judge, S.D., Rajkot for obtaining letters of administration of the properties of Mahant Bhagvandasji on the basis of Will of Mahant Bhagvandasji and obtained letters of administration. As per the plaintiff, letters of administration were obtained by deceased Kanjibhai by suppressing real facts made. Respondent No.1,2 and 3 are the power of SCA/23498/2006 5/17 JUDGMENT attorney of defendant No.1. As per the petitioner that the letters of administration obtained by respondent No.1 on the basis of Will does not give any right, title or interest to respondent No.1 in support of those properties. That respondent No.5 Rajkot Municipal Corporation has approved plans and give construction permission over the said properties in absence of any proof regarding ownership. Original defendant Nos.4 to 8 have recognized the right of respondent No.1 to 3 arbitrarily by acknowledging the documents which has no legal force. Respondent Nos.1 to 3 are illegally continuing the construction over those properties. The plaintiff made representation before respondent No.4 to 12 to restrain respondent Nos.1,2 and 3 from doing illegal act but no action were taken by the said respondents. Therefore, the plaintiff is required to file aforesaid Suit. In the said suit, the petitioner – plaintiff has prayed for declaration that he is entitle to acquire all the properties of Mahant Bhagvandasji as successor Mahant; the so-called Will of Mahant Bhagvandasji dated 18.04.1978 in favour of Kanjibhai and the Will executed by Kanjibhai dated 20.10.1995 in favour of SCA/23498/2006 6/17 JUDGMENT respondent No.1 are illegal, null and void; the defendants have no right, title, interest in the suit property and they have no right to sell, transfer the suit properties on the basis of letters of administration obtained in Civil Misc.Application No.48 of 2000; the construction permission and electric connection given and mutation entry made in revenue record by the defendant Nos.4 to 10 in respect of suit properties are illegal and void. The petitioner – plaintiff also claimed permanent injunction and mandatory injunction restraining defendant Nos.1 to 4 to stop the construction being carried out on the suit land and to remove the construction which are already carried out on the suit lands. By way of permanent injunction the petitioner- plaintiff has also prayed restraining respondent Nos.1,2 and 3 from transferring the lands of sub-plot of Survey No.325 in any manner to any person and respondent No.11 be restrained from registering the documents pertaining to transfer of these lands. It is also further prayed to restrain respondent Nos.5 to 10 from giving completion certificate in respect of the construction done over SCA/23498/2006 7/17 JUDGMENT the suit lands. In the said suit the petitioner – plaintiff submitted application for interim injunction at Exh.5. The learned trial Court vide order dated 22.12.2005 dismissed Exh.5. Being aggrieved and dissatisfied with the order passed by the learned trial Court passed below Exh.5 in dismissing the same, the petitioner – plaintiff preferred Civil Misc.Appeal No.114 of 2005 before the learned District Court, Rajkot and the learned Additional District Judge, Rajkot vide his impugned order dated 28.02.2006 has dismissed the said appeal confirming the order passed by the learned trial Court passed below Exh.5. Being aggerieved and dissatisfied with both the aforesaid orders, the petitioner – plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.S.M.Shah, learned Advocate for the petitioner has vehemently submitted that both the Courts below ought to have considered that normal rule is to preserve status-quo as on date of the suit. It is further submitted that both the Courts SCA/23498/2006 8/17 JUDGMENT have materially erred in not properly appreciating the scope and ambit of Section 307 of the Indian Succession Act. It is further submitted that properties cannot be transferred without prior permission of the Court as contemplated under sub- section (2) of Section 307 of the Indian Succession Act. It is submitted that Mahant Bhagvandasji had no right or authority to give properties in question to Kanjibhai by executing Will and thereby Kanjibhai did not get properties mentioned in the Will. It is submitted that subsequent Will made by Kanjibhai in favour of defendant No.1 is also invalid and void. Aforesaid aspects have not been considered by both the courts below. Therefore, it is requested to allow present Special Civil Application. 4. Petition is opposed by Mr.Mihir Joshi, learned Senior Advocate with Mr.Vimal Patel, learned Advocate for respondent No.1. It is submitted that on appreciation of evidence both the Courts below have concurrently held against the petitioner. It is also further submitted that even suit filed by the petitioner – plaintiff is not maintainable and has no SCA/23498/2006 9/17 JUDGMENT locus to file such a suit. It is submitted that suit is filed on insufficient court fees of Rs.1000/- only. It is submitted that total value of the land is more than Rs.30 lacs. It is also further submitted that deceased Kanjibhai had obtained letters of administration from the Joint Charity Commissioner as well as from the learned Civil Judge, S.D., Rajkot. It is submitted that the very petitioner submitted application being Civil Misc. Application No.110 of 2002 in the Court of learned Civil Judge, S.D., Rajkot for revocation of Letter of Administration and the Court dismissed the said application on the ground of locus-standi. It is further submitted that against the said order, the petitioner – plaintiff preferred First Appeal No.2629 of 2004 before this Court and the learned Single Judge of this Court also dismissed the said application by specifically holding that the petitioner has failed to establish his interest over the disputed property and therefore, the petitioner has no locus-standi to file application for revocation of Letter of Administration. It is submitted that the said order is not further challenged and has become final and SCA/23498/2006 10/17 JUDGMENT therefore, the petitioner has no locus to file present suit. It is further submitted that considering Section 211 and 213 of the Indian Succession Act once Letter of Administration is obtained thereafter, Kanjibhai had authority to dispose of the property and accordingly by Will properties have been given to respondent No.1. It is submitted that as such even properties in question are sub-plotted and all of them are transferred. It is further submitted that even application submitted by the respondents under Order VII Rule 11 of the Code of Civil Procedure is pending. Therefore, it is requested to dismiss present Special Civil Application. 5. In reply Mr.Shah, learned Advocate for the petitioner has submitted that decision of this Court in First Appeal No.2629 of 2004 would not come in the way of the petitioner as same was in proceedings initiated by the petitioner for revocation of Letter of Administration. 6. Heard the learned Advocates for the respective parties. SCA/23498/2006 11/17 JUDGMENT 7. At the outset, it is required to be noted that dispute is with respect to land bearing Survey No.325. The petitioner – plaintiff claims to be Mahant of Kabir Ashram on the basis of Will dated 04.04.1984 executed by his Guru Santdasji and said Santdasji was appointed as Mahant of Kabir Ashram by his Guru Bhagvandasji vide Will dated 16.09.1972. Deceased Kanjibhai claimed right on the suit property on the basis of registered Will executed by Bhagvandasji Guruharidasji. It is required to be noted that said deceased Kanjibhai had obtained Letter of Administration with respect to the suit property by submitting Civil Misc.Application No.48 of 2000 in the Court of learned Civil Judge, S.D., Rajkot. It has come on record that it is not disputed that the petitioner submitted application being Civil Misc.Application No.110 of 2002 in the Court of learned Civil Judge, S.D., Rajkot for revocation of the aforesaid Letter of Administration and the learned Civil Court has dismissed the said application by holding that the petitioner – plaintiff has no locus-standi. The order passed by SCA/23498/2006 12/17 JUDGMENT the learned Civil Court dismissing the application for revocation of Letter of Administration was challenged by the petitioner before this Court by way of First Appeal No.2629 of 2004 and the learned Single Judge vide judgment and order dated 25.11.2004 dismissed First Appeal by specifically observing and holding that so far as PTR maintained by the office of Charity Commissioner which is on record, it does not mention three Survey Nos.325, 329 and 384 of Rajkot therefore, those properties were exclusively belonged to Mahant Bhagvandasji as exclusive owner. Learned Single Judge has also specifically observed and held that the petitioner – plaintiff has no locus standi for filing revocation of Letter of Administration. Relevant observations made by the learned Single Judge in aforesaid First Appeal are as under : “14. It is true that so far as PTR maintained by the office of Charity Commissioner which is on record, it does not mention three S.Nos.325, 329 and 384 of Rajkot, which are subject matter of dispute in these proceedings. Therefore, there is no manner of doubt in coming to the conclusion that those properties bearing S.Nos.325, 329 and 384 were SCA/23498/2006 13/17 JUDGMENT exclusively belonged to Mahant Bhagvandasji as exclusive owner. It appears from the record that said Mahant Bhagvandasji had executed two Wills. One Will was unregistered and it was executed in favour of Santdasji as successor-in-office of Mahant and also the properties of the Ashram Trust while the second Will was registered and it was executed in favour of the father of respondent No.1 herein and in the said registered Will specifically these three S.Nos.325, 329 and 384 are mentioned. Therefore, there is no difficulty in coming to the conclusion that Mahant Bhagvandasji had bequeathed properties bearing three S.Nos.325, 329 and 384 in favour of father of respondent No.1 by registered Will and on the basis of the said registered Will father of respondent No.1 herein had absolute ownership of the properties bearing S.Nos.325, 329 and 384 and thereafter father of respondent No.1 has executed Will in favour of respondent No.1 and he has become absolute owner of the said S.Nos. on the basis of the said Will. Respondent No.1 has applied for obtaining Letter of Administration by filing CMA No.48 of 2000 which came to be allowed. It is also evident that before deciding CMA No.48 of 2000, a public notice was issued which is at page 78 which was also never objected by the present appellant. .....xxxx..... 23. On overall view of the matter, this Court SCA/23498/2006 14/17 JUDGMENT is of the opinion that appellant has failed to establish his interest over the dispute properties bearing S.Nos.325, 329 and 384 of Rajkot. Therefore, obviously, the appellant has no locus standi to file application for revocation of the Letter of Administration and the trial Judge has rightly rejected the application filed by the appellant which does not call for any interference by this Court in the appeal filed under Section 96 of the Code read with Section 299 of the Indian Succession Act, 1925.” 8. It is also required to be noted at this stage that even learned Single Judge has considered the submission on behalf of the petitioner with respect to Will executed by Bhagvandasji in favour of Santdasji. Said judgment and order in aforesaid First Appeal has become final and same is not further carried to appeal. Now considering above findings and considering above fact that deceased Kanjibhai obtained Letter of Administration with respect to suit property on the basis of Will executed by Bhagvandas in favour of Kanjibhai and thereafter, Kanjibhai executed Will in favour of defendant No.1 and finding of the learned Single Judge in aforesaid SCA/23498/2006 15/17 JUDGMENT First Appeal that the petitioner – plaintiff has no locus-standi and considering above when both the Courts below have refused to grant injunction, it cannot be said that both the Courts below have committed any error or illegality. On the contrary both the Courts below are justified in not granting injunction as prayed for. The petitioner-plaintiff has no locus and/or interest on the land in question. In view of above fact that deceased Kanjibhai had obtained Letter of Administration from the competent Court and he subsequently transferred the said property by Will in favour of defendant No.1, section 307 of the Indian Succession Act would not be applicable as contended on behalf of the petitioner. Section 211 and Section 213 of the Indian Succession Act is very much clear. Once the Letter of Administration is obtained, the person who obtained Letter of Administration can deal with the properties as per the said order. Under the circumstances when it is found that property in question was not trust property and was exclusively owned by Mahant Bhagvandasji who bequeathed the property in favour of deceased Kanjibhai by registered Will and in turn SCA/23498/2006 16/17 JUDGMENT deceased Kanjibhai bequeathed the property in favour of defendant No.1 by Will and when the petitioner- plaintiff was never in possession of the suit property, the petitioner is not entitled to any injunction as prayed for as he has no interest on the property in question. There are concurrent findings given by both the Courts below on appreciation of evidence and this Court in a petition under Article 227 of the Constitution of India is not require to re-appreciate the evidence on record. There is no jurisdictional error much less an error of law committed by both the Courts below which calls for interference of this Court under Article 227 of the Constitution of India. 9. For the reasons stated above, there is no substance in the present Special Civil Application and deserve to be dismissed and accordingly it is dismissed. [M.R.Shah,J.] satish SCA/23498/2006 17/17 JUDGMENT