IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No. 1883 of 2006 (O&M)
Date of Decision: 21.1.2009
Colonel S.K.Sood.
....... Appellant through Shri
K.K.Jagia, Advocate.
Versus
Smt.Sita Devi,Shamsher Chand Kuthiala Charitable Trust
(Regd.),Chandigarh and others.
....... Respondent no.1 through
Shri G.S.Jaswal, Advocate.
None for other respondents.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
4.
....
Mahesh Grover,J.
C.M.No.4994-C of 2005
The application is allowed and delay of 190 days in refiling of
the appeal is condoned.
R.S.A.No.1883 of 2005
This appeal is directed against judgments and decrees dated
21.5.1998 and 21.5.2004 passed respectively by Sub Judge Ist Class,
Chandigarh (hereinafter described as `the trial Court’) and Additional
District Judge, Chandigarh (referred to hereinafter as `the First Appellate
Court’) whereby the suit filed by respondent no.1-Shrimati Sita Devi
Shamsher Chand Kuthiala Charitable Trust (Regd.) was partly decreed and
R.S.A.No.1883 of 2005
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the appeal of the appellant along with that of respondent no.1 was
dismissed.
Respondent no.1 filed the suit for mandatory injunctions
through Thakur Maluk Singh, one of its trustees. It was pleaded that
respondent no.1 is a registered Charitable Trust as per Trust Deed dated
27.7.1987 and Thakur Maluk Singh being the authorised trustee was
competent to file the suit. Smt. Sita Devi and Shri Shamsher Chand
Kuthiala, resident of House No. 10, Sector 15-A, Chandigarh died
issueless. They were owners of movable and immovable properties and
since they were without any issue, they created the Charitable Trust to
manage their properties. After creation of the Trust, a meeting of the
trustees was held on 21.8.1988 wherein Shamsher Chand Kuthiala and Sita
Devi, the founder trustees, declared that they had opened S.B.Account
No.1971 and F.D.R.Account in the name of the Trust under their joint
signatures in the Haryana State Co-operative Bank, Sector 15, Chandigarh.
The following were the said F.D.Rs.:-
(i)F.D.R.No.5101 dated 3.11.1987 for Rs.10,000/-
(ii) F.D.R.No.5113 dated 1.12.1987 for Rs.10,000/-
(iii) F.D.R.No.5180 dated 25.3.1988 for Rs.10,000/-
On 16.10.1988, Shamsher Chand Kuthiala in another meeting
of the Trust, disclosed that there is dispute regarding the Trust properties
which were situated in Duraha and it was decided by the Trust to dispose of
the same. The Trust was taken into confidence in another meeting regarding
the sale of properties at Duraha and consequent deposit of the sale proceeds
R.S.A.No.1883 of 2005-3-
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in the name of the Trust which were also deposited in the F.D.Rs., the
details of which were given in the plaint and the same are extracted
hereunder:-
Sr.No. F.D.R.No. & Date Amount Date of Maturity
1. 9003 20.11.1989 Rs.10,000/- 3.11.1991
2. 02003 26.3.1990 Rs.10,000/- 25.3.1992
3. 26.3.1990 Rs.10,000/- (number of RID is not
known as the same is
missing)4. TRD 36319 7.7.1990 Rs.25000/- 7.7.1991
5. TRD 36320 -do- Rs.25000/- -do-
6. TDR 36321 -do- Rs.50,000/- -do- 7. SB A/C No.1971 Rs.44,703.50 -do- Total Amt. 1,74,703.00 8. FDR No.33429 + Rs.10000/- 9. FER No.33430 + Rs.10000/-"Shri Shamsher Chand Kuthiala also opened FDR Account with
UCO Bank,Garli,Tehsil Dehra,District Kangra and obtained the following
FDRs”-
1. FDR AF/08310816/269/89 dated 29.9.1989 for Rs.11,000/-
2. FDR AF/08/310117/270/89 dated 29.9.1989 for Rs.10,000/-“
On 18.9.1990, Shri Shamsher Chand Kuthiala expired and the
Trustees decided amongst themselves that two of them can operate the
aforesaid bank accounts and signatures of Sita Devi would also be necessary
for that purpose.
Appellant- S.K.Sood, in the meanwhile, informed the Manager
of the Haryana State Co-operative BankLtd., Sector 15-D, Chandigarh that
R.S.A.No.1883 of 2005
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on the death of Shamsher Chand Kuthiala, he had been appointed as
General Attorney by Sita Devi and he claimed to be the sole heir to the
estate of the deceased and proclaimed that he was entitled to operate the
aforesaid Saving and F.D.R.Accounts in the name of the Trust. He also
alleged that the Trust had been revoked by Smt.Sita Devi.
The matter was brought to the notice of Smt.Sita Devi, the sole
surviving founder trustee, who denied having executed any General
Attorney in favour of Shri S.K.Sood.
The application given by Shri Sood to the said Bank was
withdrawn and the Trust continued to operate the aforesaid accounts.
Smt.Sita Devi died on 22.9.1991 and the Trust got renewed
two F.D.Rs. with UCO Bank, Garli, District Kangra on 7.11.1991.
When the trustees presented the passbook in November,1991
for updating it, the bank authorities informed that the operation of the
accounts of the Trust in respondent-bank had been stopped. The matter was
agitated before the General Manager of the respondent-bank, but the
trustees were not permitted to operate the bank accounts.
The suit was, therefore, filed for mandatory injunction directing
respondent-bank to permit the trustees to operate the bank accounts. It was
alleged that the operation of the accounts was stopped in connivance with
the appellant.
Upon notice, the respondent-bank and its officers through their
counsel stated that they did not wish to file any written statement.
The appellant, who was arrayed as defendant no.3 in the suit,
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filed a counter. He pleaded that the Trust was created and registered on
27.7.1987 but it was the handiwork of Thakur Malook Singh and that he
was entitled to be enrolled as one of the trustees being the adopted son of
Shamsher Chand Kuthiala. It was further pleaded that Shamsher Chand
Kuhtiala had huge properties and that Thakur Malook Singh, who was an
Advocate, was approached by him for managing the same, but in a most
unethical manner, the Trust was created and he got himself enrolled as one
of the trustees. He averred that he was adopted by Shamsher Chand Kuthiala
in the year 1954, but this fact has been concealed by the plaintiff. He further
averred that Sita Devi had executed a Will in his favour on 16.10.1990 and
by virtue of the same, he, being the sole legal heir of Shamsher Chand
Kuthiala and Sita Devi was entitled to inherit the properties left by them. He
pleaded himself to be the son of Kamla Devi, sister of Samsher Chand
Kuthiala. He averred that he had no knowledge of the meeting of the Trust
which was held on 5.4.1992. The Trust was stated to have been revoked by
Sita Devi.
Broadly on these pleadings, the parties went on to trial on the
following issues:-
1. Whether the plaintiff is a competent person to sue on behalf
of the plaintiff trust?OPP
2. Whether there was a valid subsisting trust?OPP
3. Whether the plaintiff is competent person to operate and
renew the FDRs in dispute?OPP
4. Whether the plaintiff is estopped from filing the present suit
R.S.A.No.1883 of 2005-6-
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on account of his own act and conduct?OPD
5. Whether the said Smt.Sita Devi executed a Will in favour of
defendant no.3 on 16.10.1990,if so, to what effect?OPD
6. Relief.
After appraisal of the entire evidence brought before it, the trial
Court partly decreed the suit to the effect that Gurdial Singh is competent to
operate S.B. Account No.1971 and entitled to possession of the passbooks
pertaining to that account. He was also held entitled to operate FDR
Account Nos. 266/381 and 33429 & 33430, but his claim qua the other
properties which vested in Shri S.K.Sood by virtue of Will in question was
declined. It was held that the Trust was validly created and the same was
never revoked. The Trial Court categorically held that the revocation deed
as set up by the appellant was not proved. However, the Will dated
16.10.1990 executed in favour of the appellant was held to have been
proved, but it was concluded that it did not specify as to whether he was
permitted to operate S.B.Account No.1971 and the aforementioned F.D.Rs
opened with the Haryana State Cooperative Bank Ltd., Sector 15-D,
Chandigarh.
Feeling aggrieved both the plaintiff-respondent no.1 and the
appellant preferred appeals which were dismissed by the First Appellate
Court and the findings of the trial Court were affirmed.
In the instant Regular Second Appeal, learned counsel for the
appellant has heavily relied upon the documents which have been Exhibited
as DW3/A, DW4/F & G, DW4/H, DW4/I, DW4/J and DW4/P to DW4/T
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and other related documents to show that the appellant was the only person,
who was taking care of Shamsher Chand Kothiala and Smt.Sita Devi and
that he, being the validly adopted son, could only succeed to their estate.
He contended that Exhibit DW3/A is the invitation, Exhibits DW4/F and G
are the letters written by Shamsher Chand Kothiala, Exhibit DW4/H is the
letter written by Smt.Sita Devi, Exhibit DW4/I is the certificate regarding
collection of the dead body of Shamsher Chand Kothiala, Exhibit DW4/J is
the receipt issued by the Indian Read Cross Society, Exhibit DW4/L is
another receipt and Exhibits DW4/P to DW4/T are the OPD slips. He
argued that both the Courts have ignored these documents while rejecting
the claim of the appellant.
On the other hand, learned counsel for respondent no.1
contended that the Trust was validly created on 27.7.1987 and Shamsher
Chand Kuthiala died on 18.9.1990 while Sita Devi expired a year thereafter
i.e. on 22.9.1991. He further contended that the Trust was never dissolved
and there is no evidence on record to prove this fact. The General Power of
Attorney and the revocation deed as set up by the appellant have not been
proved and the Will has also not been established and, therefore, these
documents on which he seeks to place reliance are of no consequence. He
argued that the concurrent findings have been recorded by the Courts below
on appreciation of evidence and the appellant has not been able to show any
substantial question of law which can warrant interference in the present
appeal.
I have thoughtfully considered the respective contentions and
R.S.A.No.1883 of 2005
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have carefully perused the record.
Concededly and undeniably, the Trust was created during the
life time of Samsher Chand Kuthiala regarding the properties which he held.
It is also the admitted case of the parties that Samsher Chand Kuthiala and
Sita Devi died issueless. The appellant has set up a plea that he was
adopted son which he has failed to substantiate in evidence on record. He
then set up a plea that there was a General Power of Attorney in his favour
which was duly executed in order to enable him to operate the bank
accounts. He also claimed that the Trust was dissolved by a revocation deed.
But, all these documents were not proved in accordance with law. In so far
as the Will executed by Sita Devi, it only pertains to House No.10, Sector
15,Chandigarh and Saving Account No.33 with the Haryana State
Cooperative Bank, Locker No.251 and a Post Office Account. It does not
say anything about the Saving Bank Account No.1971 and other
F.D.R.Accounts as aforesaid.
Therefore, the findings recorded by both the Courts below that
the Trust was never dissolved and it had the right to operate aforesaid bank
account as well as to manage its properties, do not warrant any interference.
Moreover, the appellant, in his testimony, admitted that in his
application dated 23.10.1990 he had stated that the revocation deed of the
Trust had been destroyed and he did not wish to claim any right on the basis
of the same.
In my opinion, the findings of the Courts below are in
consonance with the evidence which has been brought on record.
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No substantial question of law has been shown to have arisen in
the present appeal. Consequently, the same is devoid of any merit and is
dismissed.
January 21,2009 ( Mahesh Grover ) "SCM" Judge