R.S.A. No. 2218 of 1983 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2218 of 1983 Date of Decision : 7.1.2010 Shri Radha Krishan .......... Appellant Versus Shri Vishwa Nath ( dead through L.Rs.) & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Suvir Sehgal, Advocate for the appellant. Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for respondents No. Mr. M.K. Dogra, Advocate for respondents No.5 & 6. **** VINOD K. SHARMA, J. (ORAL) This judgment shall dispose of two regular second appeals i.e. RSA No. 2218 of 1983 titled Shri Radha Krishan Versus Shri Vishwa Nath (dead) through L.Rs. & others and RSA No. 2693 of 1983 titled Gopal Krishan & another Versus Vishwa Nath, as common questions of law and facts are involved. For the sake of brevity, facts are being taken from RSA No. 2218 of 1983 titled Shri Radha Krishan Versus Shri Vishwa Nath (dead) through L.Rs. & others. The plaintiff / appellant filed a suit for declaration, that he along with the defendants, was entitled to joint management and receive the offerings, in respect of Mandir known and styled as 'Mandir Kali Mata' situated at Amritsar. R.S.A. No. 2218 of 1983 2 Prayer was also made for permanent injunction restraining the defendant No.1 from interfering in the joint management of the said Mandir. The plaintiff / appellant also sought rendition of accounts, and in the alternative prayed for declaration for joint possession, of the temple and its offerings. The suit was brought on the averments that the Mandir known as 'Mandir Kali Mata' situated in Bazar Tokerian, Amritsar was founded by Ram Chand, the ancestor of the parties. It was treated as Wakf property by all the concerned. The management of the Mandir remained in the hands of Ram Chand, and his heirs from time to time. Ram Chand and his heirs solely were entitled to offerings received in the Mandir. The pedigree table given in the suit reads as under :- Ram Chand Common ancestor ______________________(Died 53 years back)_________________ | | | | Sant Ram Bal Mukand Mahant Ram Gandhu Ram (son) (son) (son) (son)(died issueless) | | | Vishwa Nath Devi Dass | | (son) (son) Mohan Lal Phulwanti (Deft. No.1) | (son) (widow)(deft. No. 7) | | | | | Radha Krishan | (Plantiff | _____________________________________ | | | | | Satya Bhawan Gopal Krishan Shri Krishan | (Deft. No. 8) (Deft. No. 5) (Deft. No. 6) _________________|______________________ | | | Hukam Chand Danyanti Manohar Lal (Deft. No. 2) (Deft. No. 9) ( Not heard of) R.S.A. No. 2218 of 1983 3 Gandhu Ram, one of the sons of Ram Chand died issueless without leaving any heir, whereas Manohar Lal was also not heard of for more than 12 years, therefore, he was presumed to have died. However, his legal heirs were Shiv Charan, Gobind Lal and Darshan, who were impleaded as defendants No. 3, 4 & 10 in the suit. Ram Chand made a Will dated 10.8.1908 under which he bequeathed all his property moveable as well as immovable. In the Will a provision was made regarding 'Mandir Kali Mata'. It was desired by Sh. Ram Chand in the Will, that offerings were to be shared amongst the heirs in accordance with their respective shares. The plaintiff / appellant claimed 1/3rd share jointly with defendants No.5 to 8 and plaintiff further set up the case, that defendant No.1 Vishwa Nath was also entitled to 1/3rd share and remaining 1/3rd share going to other defendants. The pleaded case of the appellant / defendant was, that after death of Ram Chand, the dispute arose amongst his heirs, and the matter was referred to the arbitration of Sh. Atma Ram and Bawa Lochan Singh, who announced the award on 6.10.1915. The award was got registered on 5.2.1916. As per the award the management of Mandir was given to Sh. Sant Ram in the first instance thereafter to Devi Dass and then to Mohan Lal. The award did not make any provision for further management of the Mandir after the death of these three persons. The award was, therefore, claimed to be vague and not valid one. It was the case of the plaintiff, that the award was not accepted by defendant No.1 Vishwa Nath, in the previous litigation filed by Mohan R.S.A. No. 2218 of 1983 4 Lal in the Court of learned Senior Sub Judge, Amritsar. Mohan Lal had filed a suit for injunction claiming right to management of the temple on the basis of award. The suit was dismissed on some technical grounds and subsequently the appeal preferred was dismissed as abated, on account of death of Mohan Lal, as the right to sue did not survive. The appellant herein being son of Mohan Lal, was held to have no right to come on record, as legal representative. It was observed in the judgment that rights of the plaintiff / appellants independent of Mohan Lal could be agitated by them in accordance with law. It may be noted that the revision filed against the said order also failed, as the order passed by the learned lower appellate Court was upheld by this Court. After the death of Mohan Lal, the plaintiff filed the present suit claiming their right of inheritance to share in the offerings, on the basis of Will of Ram Chand, vide which the offerings were bequeathed to all the sons in equal share. In the suit it was claimed that after death of Sant Ram defendant No.1 had no independent right to manage the temple and get offerings, as the affairs of the temple were to be managed jointly by the parties. On notice, the suit was contested by defendant No.1 by raising number of preliminary objections. It was pleaded, that Sant Ram and defendant No.1, his father were sole and in exclusive possession of the temple, its management and that they had been claiming adversely to every for more than 67 years, after the death of Ram Chand. The plea was also raised that the Presiding Diety 'Kali Mata' R.S.A. No. 2218 of 1983 5 was a necessary party to the suit, therefore, the suit was bad for mis-joinder of necessary party. The plea was also raised, that the suit was not competent in view of the fact, that earlier suit was withdrawn by Hukam Chand and Manohar Lal on 25.1.1932, therefore, the suit was said to be barred in view under Section 92, Order 7 Rule 2 and Order 2 Rule 2 of the Code of Civil Procedure, and on the principle of res judicata. On merit, it was pleaded by the defendants, that temple 'Kali Mata' was a public wakf and existed long before Pt. Ram Chand, and that he was only managing the temple, and it was the devotees, who had elected him as the Mahant / Manager of the temple. The case set up was, that after the death of Pt. Ram Chand, Sant Ram was installed as Mahant by the devotees and he continued to manage the affairs during his life time. The temple was not managed by any other member of the family. It was denied in the written statement, that heirs of Ram Chand were entitled to get any offerings. The authority of Ram Chand to execute the Will was also challenged. Regarding award it was pleaded that Pt. Ram Chand had no right to refer the matter regarding the management for arbitration and the award, if any, was invalid. As already noticed above, the plea of res judicata was also raised. Defendants No.5 & 6, however, admitted the case set up by the plaintiff. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the suit is bad for non-joinder of necessary parties? OPD R.S.A. No. 2218 of 1983 6 2. Whether the suit is not competent without the sanction of the Advocate General?OPD 3. Whether the plaintiff has locus standi to sue?OPP 4. Whether the suit is maintainable in the present form?OPP 5. Whether the suit is properly valued for purposes of court fee and jurisdiction?OPP 6. Whether the suit is according to the provisions of Order 7 Rule 2 CPC?OPD 7. Whether the daughters of Manohar Lal and Devi Dass and widow of Mohan Lal are necessary parties to the suit?OPD 8. Whether the suit is barred under Order 2 Rule 2 CPC?OPD 9. What is the effect of the dismissal of the previous suit filed by Mohan Lal on this suit ?OPD 10. What is the effect of the withdrawal of the suit for accounts filed by Hukam Chand and Manohar Lal ?OPD 11. Whether the suit is within time?OPP 12. Whether the property shown in the plan attached to the plaint belongs to the temple?OPP 13. Whether Sh. Bal Mukand separated from Pt. Ram Chand in 1908 and to what effect?OPD 14. Whether the plaintiff is entitled to the declaration and injunction prayed for?OPP 15. Whether Ram Chand made a will dated 10.8.1908. If so its effect on the suit?OPP 16. Whether any award dated 4.10.1915 was duly made and delivered by Sh. Atma Ram R.S.A. No. 2218 of 1983 7 and Bawa Lochan Singh as alleged. If so its effect?OPP 17. Whether the said award has been acted upon ?OPP 18. Whether Manohar Lal has not been heard of for the last 12 years. If so, its effect?OPP 19. Which of the parties are entitled to manage the property and receive the offerings and in what shares? OP parties 20. Whether the plaintiff is entitled to accounts from defendant No.1. If so for what period?OPP 21. Whether the plaintiff is entitled to joint management and offerings with defendant No.1. If so to what extent?OPP 22. Whether defendant No.1 has no right to manage or participate in the management for reasons given in para No.11 of the written statement by defendants No.5 and 6?OPD 22-A. What is the effect of plaintiff having given up his claim relating to Chhabil wali shop?OPD 23. Relief.” The learned trial Court on appreciation of evidence came to the conclusion that the plaintiff had the locus standi to maintain the suit, and that the suit was maintainable in the present form. It was also held that the suit was properly valued for the purpose of court fee and jurisdiction, and that the suit was framed as per the provisions of Order 7 Rule 2 of the code of Civil Procedure. The Court also decided that the dismissal of the previous suit filed by Mohan Lal did not affect the rights of the plaintiff to maintain the present suit in their R.S.A. No. 2218 of 1983 8 individual capacity. It was also held, that sanction of Advocate General to maintain the suit was not necessary. The suit was held to be within limitation. The property shown in the plan attached with the plaint was held to be the property of the Mandir, and it was held that the plaintiff was entitled to the relief claimed. The award was said to have been acted upon. The Will dated 10.8.1908 was said to have been proved. In pursuance to the amendment of the written statement by defendant No.1, the learned lower appellate Court framed an additional issue, which reads as under :- “Whether scheme for management of the temple has to be framed in this case for the reasons given in additional plea appended to written statement of defendant No.1 ? OPD Further evidence was recorded on the directions of the learned lower appellate Court, and the learned trial Court decided this additional issue also against defendant No.1. The learned lower appellate Court found, that the findings on issues No. 1, 5, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 22-A and 22 were not challenged and were affirmed. However, it was contended, that in view of the dispute raised, the permission of the Advocate General, as contemplated under Section 92 of the Code of Civil Procedure was necessary. The learned lower appellate Court did not accept this plea, keeping in view the fact, that the dispute raised was of inheritance of property, and not a suit filed under Section 92 of the Code of Civil Procedure. The learned lower appellate Court non-suited the plaintiff / appellant on the question of locus standi to maintain the present suit. The R.S.A. No. 2218 of 1983 9 finding recorded by the learned lower appellate Court in this regard reads as under :- “16. In order to appreciate the arguments properly, it will be necessary to mention briefly the nature of the contents of the will of Ram Chand, the original founder. It is proved on record as Ex. PW10/14. The relevant clause 3 of this will then translated reads:- “Like myself, the legatees will worship Mandir Devi Dwara above named, which is a Nakf and its income by way of offerings also would be shared by them according to their shares.” Earlier in clause 2, the legatees were named as Sant Ram (son), Devi Dass ( son of Shri Babu Lal) and Mohan Lal ( son of Mangat Ram). Subsequently, it is not disputed that there was an Award in respect of the various properties left by Ram Chand and this Award was given by Atma Ram and Bawa Lachan Singh. In this award regarding the temple in question, the right and duty in respect of the temple was given in the first instance to Sant Ram and in his absence to Devi Dass and in the absence of both, the right was to go to Mohan Lal. The person concerned who served and managed the temple at a particular time was to get the entire offerings. The learned counsel Shri Tuteja has submitted that in the plaint itself, it has been pleaded by the respondent- plaintiff that the Award was vague and in the circumstances the suit of the plaintiff-respondent must be treated to be based on the will of Ram Chand. The learned counsel on behalf of the plaintiff-respondent submits that the respondent / plaintiff basis his suit on the will of Ram Chand R.S.A. No. 2218 of 1983 10 and also on the recitals in the award. I have considered the rival contentions. I am of the view that for all practical purposes, it will not make any difference if the will of Ram Chand alone is taken into consideration, and if the recitals in the Arbitration Deed are also noticed. In the will of Ram Chand, the right and duty to manage and get offerings was certainly given to the same persons, Sant Ram, Devi Dass, and Mohan Lal. In the subsequent award given by Atma Ram copy of which is mark 'A', the right and duty was given to the same three persons, but it was mentioned that Sant Ram had the prior right and in his absence Devi Dass was to act and in the absence of both Mohan Lal was to act and all these three persons were to get the offerings for the period for which they acted. It is not disputed between the parties that Sant Ram continued to act till the year 1961, when he died. Sant Ram could act under the Will of Ram Chand as well as under the Award. At this stage it must however be mentioned that if a valid mode of succession or management of the temple had been provided in the will by the founder the same could not be changed by the Arbitrators or in any other manner. Thus precisely the recitals in the will of Ram Chand form the basis for determination of right of the parties. 17. Learned counsel for the respondent invites my attention to article 29 of Hindu Law by Mullah wherein the doctrine of representation has been mentioned. The learned counsel submits that under the principle laid down in article 29 the respondent-plaintiff and also defendants No.5 and 6 who are appellants in the other appeal will have R.S.A. No. 2218 of 1983 11 a right on account of being heirs of Ram Chand in as much as they are the persons related to Ram Chand upto the fourth degree. The learned counsel Shri Tuteja submits that according to the allegations made in the plaint, the cause of action had arisen for bringing the present suit on the death of Sant Ram. His submission is that on the death of Sant Ram Mohan Lal, father of the respondent -plaintiff was alive. This fact is evidence in view of the earlier litigation brought by Mohan Lal himself after the death of Sant Ram. The submission of the learned counsel is that in the life time of Mohan Lal it was not possible for the respondent-plaintiff to claim himself to be an heir of Ram Chand under the principle laid down in Section 29. There is merit in the submission. The respondent-plaintiff and defendants No.5 & 6 could not claim to represent the live so long as their father was alive. Mohan Lal was definitely alive at the time of death of Ram Chand. It is specifically pointed out by the learned counsel that a great grand son can claim to be an heir only if his father or grand father are both dead. There is merit in the submission. I questioned the learned counsel for the respondent -plaintiff and for defendants No. 5 & 6 if they would claim the right to sue on the death of Mohan Lal and they clearly took up the position that they were not claiming any cause of action on the death of Mohan Lal and the cause of action arose to them on the death of Sant Ram as pleaded in the plaint. This position perhaps was taken in view of the earlier litigation between the parties where the respondent-plaintiff and others were not permitted to become LRs by R.S.A. No. 2218 of 1983 12 the Hon'ble High Court. What ever may be the reason the fact remains that on the death of Sant Ram, Mohan Lal, father of respondent-plaintiff being alive, the respondent / plaintiff could not claim to be heir of Ram Chand, the original founder and as such be could not have locus standi to bring the present suit. xx xx xx xx 20. As already noticed the learned counsel for the respondent -plaintiff does not claim any cause of action on the death of Mohan Lal father of the respondent-plaintiff and the cause of action is claimed only on the death of Sant Ram, the respondent – plaintiff, could not be considered to be an heir of the founder, Shri Ram Chand, under the doctrine of representation, as already noticed. 21. The learned counsel for the respondent – plaintiff took up the position that the provisions of Hindu Succession Act would not come into play while determining the present controversy. His submission was that Hindu Succession Act was not retrospective in operation as Ram Chand had long ago died. I have considered this submission of the learned counsel. The argument may not be wholly convincing for the simple reason that when such a situation arises, we have to apply the principle of the heirs of Ram Chand. The time of death of Ram Chand, the founder, must really be irrelevant. This, however, will not make any difference in the present case, as even under the Hindu Succession Act, on the death of Sant Ram, the respondent- plaintiff cannot claim to be one of the heirs of Ram R.S.A. No. 2218 of 1983 13 Chand. 22. With the above discussion, I hold that seeing from whatever angle, the respondent -plaintiff could not have locus standi to bring the present suit for the simple reason that he was not one of the heirs of Ram Chand at the time the cause of action allegedly arose to the plaintiff on the death of Sant Ram. The finding of the learned trial Court on issue No.3, in my view, is erroneous, and the same is accordingly reversed and the issue is decided against the plaintiff-respondent.” The learned counsel for the appellant challenged the findings recorded by the learned lower appellate Court by rasing the following substantial question of law :- Whether the first appellate Court has failed to appreciate the principle laid down in Article 419 of Mulla's Hindu Law, which recognizes the right of the plaintiff – appellant to jointly manage and receive the offerings made in 'Mandir Kali Mata' by virtue of being one of the heirs of Sh. Ram Chand, the original Manager / Mahant of the Mandir and accordingly, he has the locus standi to file the instant suit ? In support of this contention the learned counsel for the appellant placed reliance on Article 419 of Mulla's Hindu law, which reads as under :- “419. Devolution of office of Shebait.--(1) The devolution of the office of shebait depends on the terms of the deed or will by which it is created. Where there is no provision in the deed or will as to the succession or where the mode of succession prescribed in the deed or will comes to an end, R.S.A. No. 2218 of 1983 14 the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu law; in other words it follows the line of inheritance from the founder and passes to his heirs, unless there has been some usage or course of dealing which points to a different mode of devolution, e.g., devolution on a single heir. This rule applies also where the right of nomination is given to a committee, but the committee has ceased to exist. But this rule cannot be applied so as to vest the shebaitship in person who, according to the usages of the worship, cannot perform the rites of the office. In the undermentioned cases it has been held that a founder cannot lay down a line of succession for shebaitship inconsistent with general law. In the undermentioned cases it has been held that it is competent to a heir of a founder of a shrine in whom the trusteeship has rested owning to the failure of the line of the original trustee to create a new line of trustees. (2) On the view that Shebaiti is property, the Supreme Court in Angurbala v. Debobrata recognised the right of a female to succeed to the religious office of Shebaitship, where the question for consideration was as to the applicability of the Hindu Women's Right to Property Act, 1937. But while the right to such office is property, it involves also substantial elements of duty. In the above case it was said : “both the elements of office and property, of duties and personal interest are blended together ( in such offices) and neither can be detached from the other”. In R.S.A. No. 2218 of 1983 15 respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties. (3) When the office has become vested by descent in more than one person, it is lawful for the parties interested to arrange among themselves for the due execution of the functions belonging to the office in turn or in some settled order and sequence. If the parties do not agree, then, if the right to worship carried with it the right to receive offerings, any one of them may sue for a division of the right just as he may sue for partition of the joint family property, and to have periods fixed during which he may exercise the right. Such a right is “property” liable to partition, and the joint owners are entitled to