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SCA/23498/2006 13/ 16 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 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 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
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 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 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 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 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
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 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.
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 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 :
?S14. 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 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 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 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 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
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