* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 31.08.2010
Judgment Delivered on: 09.09.2010
+ RSA No.49/1991
RAM DASS
CHELA OF LATE MAHANT NET RAM
...........Appellant
Through: Mr.J.K.Seth, Senior Advocate with
Ms.Shalini Kapoor, Ms.Promil Seth
and Ms.Kriti Arora, Advocates
Versus
THE THAKURDWARA RADHA KRISHAN (REGD.SOC.)
..........Respondent
Through: Mr.Ashwini Mata, Senior Advocate
with Mr.Sunil Agarwal, Advocate for
the respondent.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. This second appeal has impugned the judgment dated
4.1.1991 passed by the court of Additional District Judge whereby
the judgment and decree of the trial judge dated 5.4.1983 was set
aside. The Civil Judge vide judgment and decree dated 5.4.1983
had decreed the suit of the plaintiff. This was a suit for declaration
and injunction against the defendant society seeking a prayer that
the order of the Additional District Magistrate dated 16.12.1969
delivering articles of the Radha Krishan Bhagwan Mandir,
Najafgarh, Delhi to the defendant society be declared null and void
with a further prayer that the defendant society be directed to
RSA No.49/1991 Page 1 of 26
hand over the management of the Mandir to the plaintiff.
2. Briefly stated the factual matrix of the case is as follows:
(i) Late Mahant Manohar Dass a renowned practitioner in the
Ayurvedic system of medicine had out of his professional
income built various temples, acquired agricultural land,
religious places such as piyao and dispensaries.
(ii) Late Mahant Manohar Dass had executed his last will and
testament dated 1.11.1953 by virtue of which he had
bequeathed his Ayurvedic Dawakhana to Ram Chander and
Pooja Path sewa to Net Ram. As per this will the Mahant had
authorized one Jai Ram Dassji to give Ram Dass (plaintiff) in
adoption to Net Ram.
(iii) This will of late Mahant Manohar Dass had been
probated in a probate petition filed on 10.5.1957. The order
of the Additional District Judge dated 10.5.1957 was
confirmed by the Division Bench of High Court of Punjab and
Haryana on 6.8.1965.
(iv) By virtue of this will the Pooja Path Sewa dwelt upon Net
Ram and the right to look after the Dawakhana fell to the
share of Ram Chander.
(v) Net Ram died on 18.12.1966. On the same day, the
temple was sealed.
(vi) In early 1967 under Section 25 of the Police Act the
temple property being unclaimed was sealed by the police.
(vii) On 25.8.1967 the seal of the temple was opened.
(viii) In proceedings before the ADM vide order dated
16.12.1969 he delivered the movable properties of temple
which included ornaments of the mandir and cash to the
RSA No.49/1991 Page 2 of 26
defendant society. This was subsequent to the inter seobjections filed by the plaintiff and the defendant society
before the ADM.
(ix) Present suit has been filed by the plaintiff seeking a
declaration that this act of the ADM dated 16.12.1969 is
illegal, void and ultra vires. A further direction has been
sought that the management of the temple and the properties
of the temple be handed over to the plaintiff as he is the
successor-in-interest of Net Ram in terms of the probated will
dated 1.11.1953 of late Mahant Manohar Dass.
(x) The defendant had contested the suit. It was denied that
the plaintiff was entitled to inherit the property after Net
Ram. By virtue of the order dated 16.12.1969 of the ADM the
properties and the management of temple had been handed
over to the defendant society which was a legal order and
called for no interference.
(xi) The trial judge had framed seven issues. 15 witnesses
had been examined on behalf of the plaintiff while seven
witnesses had come into the witness box on behalf of the
defendant. The trial judge decided all the issues in favour of
the plaintiff. It was held that Net Ram and after him the
plaintiff namely Chela Ram Dass was entitled to the
management and the properties of the Radha Krishanji
Maharaj Mandir, Najafgargh, Delhi in terms of last will of
late Mahant Manohar Dass dated 1.11.1953 which had been
probated and had conclusively decided the rights of the
parties.
(xii) Suit of the plaintiff was decreed; the defendant society
RSA No.49/1991 Page 3 of 26
was directed to hand over the possession and management ofthe temple and its properties to the plaintiff.
(xiii) In appeal, the Additional District Judge vide judgment
and decree dated 4.1.1991 reversed the finding of the trial
judge. The appeal was allowed. Suit was dismissed. The
first appellate court read into evidence the versions of PW-5
Jai Ram Dass Ji and PW-8 Ram Chander whose testimonies
had been recorded in the probate petition.
3. This is a second appeal. On 8.3.1995 the appeal was admitted
and following three substantial questions of law have been
formulated which inter alia read as follows:
“1. Whether the judgment of probate case is judgment-in-rem and if
it is so, can the civil court (not the probate court) again probe into
the matter and give its finding contrary to the judgment of
probate case?
2. When the judgment of probate case is judgment-in-rem will that
be not resjudicate for all subsequent suits of title in respect of
same property?
3. Whether the police can put seal over the immoveable properties
U/s 25 of Police Act, 1861 as unclaimed as was done in the
present case particularly when the word „property‟ in this section
is defined as moveable property only?”
4. On behalf of the appellant, it has been urged that the
impugned judgment is illegal and arbitrary; it has taken into
account the versions of PW5 Sh. Jai Ram Das and PW8 Sh. Ram
Chander without following the due procedure; their testimonies do
not qualify as a public document under Section 74 of the Indian
Evidence Act. They could not have been read in evidence without
certified copies of the same having been proved on record after
summoning of the concerned file with a chance of cross
examination by the appellant in order that PW 5 and PW 8 could
have been confronted with such a previous statement under
RSA No.49/1991 Page 4 of 26
Section 145 of the Indian Evidence Act. It has been pointed that
under Section 33 of the said Act, statements made by a witness in a
previous judicial proceeding can be proved in evidence only if the
said person is either dead or is not found. There is no finding to
the effect that PW 5 was either dead or could not be found. This
evidence recorded in the probate petition was even otherwise not
an inter se litigation between the parties; the appellant before this
court was admittedly not a party in the probate petition; on this
ground also such statements could not be read. For this
proposition, reliance has been placed upon a judgment of the Apex
Court reported in AIR 2000 SC 1416 Nirmal Singh Vs. State of
Haryana. It is submitted that in this case Supreme Court had held
that Section 299 of the Cr. P.C. is the only exception to the
principle embodied in Section 33 of the Indian Evidence Act which
necessarily enjoins that only if a person is either dead or not
capable of being found that his testimony recorded in a previous
judicial proceeding can be read in evidence. At the cost of
repetition, it is pointed out that there was no evidence before the
first appellate court to hold that PW 5 was either dead or not
found. For the same proposition, reliance has also been placed
upon 2000 (55) DRJ Om Prakash Vs. Union of India. The Supreme
Court in this case had cautioned the courts that a statement
received under Section 33 of the Indian Evidence Act should be
received with due care and caution and only when the said
witnesses are not available. For the same proposition, reliance has
also been placed upon AIR 1975 SC 149 Mithulal and another Vs.
State of Madhya Pradesh . In this case the Supreme Court had
held that the evidence recorded in the previous case could not have
RSA No.49/1991 Page 5 of 26
been read in the subsequent case; this was a cross case in criminal
proceedings. The learned counsel for the appellant has urged that
the version of Ram Chander (examined as PW 8 in the probate
petition) also cannot be read as he was examined as PW-9 in the
instant case but his entire cross examination shows that the
defendant had not confronted him with the earlier version of Ram
Chander recorded as PW 8 in the Probate Petition. In the absence
of the witness having been confronted with his earlier statement
under the provisions of Section 145 of the Evidence Act, this
statement of Ram Chander recorded as PW-8 in the Probate
Petition also cannot be read. For this proposition reliance is placed
upon a judgment reported in AIR 1958 Calcutta 186 Kali Pada Das
and Ors. Vs. State. It is submitted that in this case it has been held
that unless the previous statement of the witness is put to the
witness with the intention to contradict him as per the procedure
contained in Section 145 of the Evidence Act, such a statement
cannot be used against the party.
5. Attention has been drawn to the statements of PW-3, PW-9,
PW-10, PW-11 and PW-12; of whom PW 5, PW 6 and PW 11 were
also the attesting witnesses to the will dated 1.11.1953 of late
Mahant Manohar Dass. It is pointed out that all the aforenoted
witnesses have testified on the adoption ceremony i.e. putting of
the „chadar‟ over Ram Das and putting him into the lap of Net Ram.
None of these witnesses have been suggested by the learned
counsel for the defendants that no such adoption ceremony had
taken place. The adoption of Ram Das by Net Ram stood proved.
The will Ex.PB dated 1.11.1953 which is an admitted document
clearly spells out the intention of the testator; the intention being
RSA No.49/1991 Page 6 of 26
that after the „chadar ceremony‟ and the adoption of Ram Das by
Net Ram, Ram Das would inherit the „gaddi‟ from Net Ram; that is
also the reason that why Ram Das has performed last rites of Net
Ram. To establish this argument, attention has been drawn to the
cross examination of PW-9 wherein he has stated that the last rites
of Net Ram had been performed by the plaintiff Ram Das. It is
submitted that the concept of „Mahant‟ and „gaddi‟ has been
recognized over the generations; attention has been drawn to
exhibit PW-9/1 which is a book publication of Mahant Manohar
Dass evidencing this fact. Attention has also been drawn to the
testimony of DW 4 wherein he has stated that Mahant Manohar
Das was looking after the affairs of the temple; it is submitted that
this role attributed to him qualifies him as a shebait and not as a
pujari. Attention has also been drawn to the version of DW-5
wherein he has stated that the mahant was not receiving any
salary but the offerings of the temple were shared amongst them
substantiating the argument that the mahant was not a mere pujari
but was looking after the administration of the temple. Attention
has been drawn to the version of DW-2 Tota Ram who has stated
that the Mahant was looking after the repairs of the temple and
was organizing Ram Lilas. DW-3 has also used the words „mahant‟
and „gaddi‟ in his version. It is submitted that it was the witnesses
of the defendant himself who had acknowledged this system of the
„mahants‟ which is analogous to „shebait‟. The properties of a
shebait can be transferred by inheritance i.e. his „gaddi‟ being
succeeded by one successor and thereafter another. Learned
counsel for the appellant has placed reliance upon AIR 1985 SC
905 Shambhu Charan Shukla Vs. Sh. Thakur Ladli Radha Chandra
RSA No.49/1991 Page 7 of 26
Madan Gopalji Maharaj and another to substantiate his submission
that the office of a shebait is in the nature of an immovable
property; the word „muhtamim‟ is analogous to the use of the word
„shebait‟. It is submitted that in the will Ex.PB dated 1.11.1953 of
late Mahant Manohar Dass, he had used the word „muhtamim‟ in
the context of a „shebait‟ and „muntazim‟ as an administrator and
incharge of the affairs of the temple. The use of this terminology
had made Net Ram the shebait, the incharge of the affairs of the
Radha Krishan Bhagwan Mandir at Najafgarh. This was after the
adoption by Net Ram of Ram Das by performing the „chadar‟
ceremony. Ram Dass in terms of Ex.PB had thus become entitled
to inherit this shebaitship from Net Ram. The judgment of the trial
court did not call for any interference by the first appellate court;
the findings of the first appellate court are perverse.
6. It is submitted that the substantial questions of law as
formulated in question no. 1 and question no. 2 are admitted
inasmuch as it is settled position of law that the judgment in a
probate case is a judgment in rem; nevertheless the question of
title which is a subject matter of a will can be gone into by a Civil
court; title of the suit property can be questioned by a civil court.
This is not disputed by the learned counsel for the respondent.
Counsel for the appellant has urged that the title in the suit
property has vested in the appellant/plaintiff.
7. It is further submitted that the action of the police under
Section 25 of the Police Act 1861 is illegal and arbitrary; the use of
the word in the said provision of law is „property‟ which denotes
movable property only; the act of the police in sealing the temple
which is an immovable property by the order of the ADM and the
RSA No.49/1991 Page 8 of 26
handing over of the same to the society was an illegal act which
again raises a substantial question of law as there has been an
incorrect interpretation of the said provision.
8. Arguments have been countered by the learned counsel for
the respondents. It is submitted that the appellant is not permitted
to set up a new case in a second appeal. He has to abide by the
averments as made by him in his plaint. Attention has been drawn
to paras 6,7,9 and 11 of the plaint. It is submitted that the case of
the plaintiff all along in his pleadings has been that Mahant
Manohar Dass had acquired these properties by himself; the
question of inheritance of gaddi and the shebaitship passing from
one successor to another is not a part of his pleadings. There could
not be any inheritance of the gaddi from Nand Kishore and Mohan
Dass. Mahant Manohar Dass was himself a pujari, he could not
pass a better right to Net Ram. This is a new case set up by the
appellant which is a distinct deviation from the averments in the
plaint. In para 9 of the plaint, it has been stated that the plaintiff
succeeded to the gaddi of Net Ram who himself was only managing
the mandir; since Net Ram himself had management rights only
the question of the plaintiff succeeding to the gaddi could not arise.
9. There is no infirmity in the impugned order. It is submitted
that the first Appellate Court had rightly considered the
testimonies of Jai Ram Dass examined as PW-5 and Ram Chander
PW-8 in the probate case. Certified copies of the statements of the
said witnesses had been permitted to be taken on record vide order
of the Trial Judge dated 6.7.1979, wherein it had been ordered that
the said documents including certified copies of the statements of
Jai Ram Dass and Ram Chander are taken on record but whether
RSA No.49/1991 Page 9 of 26
judicial notice can be taken of these documents will be considered
at the time of final disposal of the case. It is submitted that the
Trial Court had wrongly rejected these documents; being certified
copies and a public document in view of Section 74 of the Indian
Evidence Act they could be read in evidence. For this proposition,
learned counsel for the respondent has placed reliance upon a
judgment of the Supreme Court AIR 1994 SC 1303 Damu Ganu
Bendale Vs. Arvinda Dhondu Talekar & Ors. It is submitted that
where certified copies of the statements had been placed on record
and the plaintiff was put to notice of this; it was then for the
plaintiff to defy their veracity; he has chosen not to do so.
Attention has been drawn to the versions of these witnesses who
had been examined in the probate petition.
PW-5 Jai Ram Dass, in his cross-examination, had inter alia
stated:
“At that time I said to Net Ram that he should adopt Ram
Chander‟s son and we would tie a paggri on his (Net Ram‟s) head.
Net Ram, however, did not take Ram Chander‟s son in his lap. At
that time Ram Chander‟s son was four or five years‟ old.”PW-8 Ram Chander had deposed as follows:
“There was no dastar-bandi ceremony after the death of
Bawa Manohar Dass as a dispute had arisen between us.”
10. It is submitted that the First Appellate Court had correctly
read these versions of PW-5 and PW-8 and appreciated that there
having been no adoption ceremony of the plaintiff by Net Ram the
question of the plaintiff Ram Dass succeeding to the gaddi of Net
Ram did not arise.
11. Learned counsel for the respondent has drawn the attention
of this Court to the provisions of Section 33 of the Evidence Act. It
RSA No.49/1991 Page 10 of 26
is submitted that for the applicability of this section, it is
mandatory that the issues in the former proceedings and the
subsequent proceedings are between the same parties and are
substantially the same. This is not so; it is submitted that probate
petition was a petition interse between Ram Chander and Net Ram.
The present suit was a suit between Ram Dass and the
Thakurdwara Radha Krishan Society. Section 33 is not attracted.
12. Attention has also been drawn to the version of PW-5 and
PW-6 to substantiate the averment that this mandir was the self
acquired property of Mahant Manohar Dass and that is why the
municipal records have also recorded ownership in his name; the
mandir is 200-300 years old and this has come in the version of
PW-9. The defendant society although registered in the year 1969
was functioning as a panchayat and was a conglomeration of
persons much prior in time and this found mention in the versions
of the witnesses of the plaintiff himself; attention has been drawn
to the version of PW-9 and PW-11 who have all spoken of the
panchayat; submission being that this panchayat had later on
formalized itself into a registered society. Attention has also been
drawn to the testimony of plaintiff Ram Dass who had been
examined as PW-10 wherein he has stated that he has no concern
or connection with the affairs of the temple. Reliance has been
placed upon AIR 1982 SC 1153 Controller of Estate Duty, Bihar Vs.
Mahant Umesh Narain Puri to substantiate his submission that
when a mahant dies the properties do not pass by inheritance but a
mahant has to be elected. Reliance has also been placed upon AIR
1920 Privy Council 123 Vidya Varuthi Thirtha Vs. Baluswami Ayyar
& Ors. to substantiate his submission that a mahant is only a
RSA No.49/1991 Page 11 of 26
trustee and by whatever name he may be called he is only the
manager and custodian of the institution and nothing more.
13. Attention has been drawn to Ex.PC, the order dated
16.12.1969, passed by the court of Sh.B.R.Basu, Magistrate First
Class in proceedings under Section 25 of the Police Act. It is
stated that vide this order it was only the articles required for the
day to day running of the temple which had been handed over to
the defendant society; the question of the handing over of any
immovable property i.e. the possession of temple to the
management did not arise, this is clear from the said order. It is
submitted that on 25.8.1967 the SDM under Section 145 of the
Cr.P.C. had de-sealed the temple and handed over its management
and control to the defendant society; that order dated 25.8.1967 is
not the subject matter of challenge in the present suit proceedings.
Attention has been drawn to the prayer made in the plaint wherein,
it has been prayed that the order dated 16.2.1969 of the ADM be
declared illegal. Section 25 of the Police Act has not been violated
as no immovable property has been handed over in terms of this
order dated 16.12.1969; there is no illegality in the said order.
14. It is submitted that findings of fact cannot be interfered at
the second appellate level. For this proposition reliance has been
placed upon (1998) 6 SCC 423 Satya Gupta Vs. Brijesh Kumar as
also another judgment of Supreme Court reported in (2001) 9 SCC
521 Pakeerappa Rai Vs. Seethamma Hengsu. It is submitted that
finding of facts, even if, erroneous and grave in nature cannot be
interfered with in second appeal.
15. This Court is sitting in second appeal. Jurisdiction is vested
with this Court in terms of Section 100 of the Code. After the
RSA No.49/1991 Page 12 of 26
amendment of 1976 this provision of law stands further curtailed;
it is only on substantial questions of law that interference is called
for by the High Court. In 1999 9 SCC 237 Neelu Narayani Vs.
Laxmanan, the Supreme Court had held that a question of title
arising on the basis of the interpretation of proved document is a
question of law and can be examined in a second appeal. In 2001
(5) SCC 46 Surendra Kumar Vs. Nathu Lal & Ors., the Apex Court
had held that where a document has been duly proved, the
impugned judgment would be vitiated by an error of law calling for
interference at the second appellate level. This position has been
reiterated in AIR 2008 SC 1749 Kashmir Singh Vs. Harnam Singh.
The well recognized exceptions to the general rule that the High
Court will not interfere with concurrent finding of fact have been
culled out in para 17 which inter alia reads as follows:-
“The general rule is that High Court will not interfere with
concurrent findings of the Courts below. But it is not an absolute
rule. Some of the well recognized exceptions are where (i) the
courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to decision
based on no evidence. It not only refers to cases where there is a
total dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of
supporting the finding.”
16. It is in this backdrop that the arguments addressed by the
respective parties have to be ajudged. The subject matter of
dispute is the will dated 1.11.1953 of Mahant Manohar Dass. Its
construction and interpretation by the first Appellate Court has
been challenged before this Court. It is not in dispute that this
will had been probated in probate petition by the District Judge on
10.5.1957 and had been confirmed by the Division Bench of the
RSA No.49/1991 Page 13 of 26
High Court of Punjab and Haryana on 6.8.1965. It is also an
undisputed proposition of law that the decision of a Probate Court
is a judgment in rem. A probate granted by the competent Court
is conclusive of the validity of such a will until it is revoked; no
evidence can be admitted to impeach it except the proceedings
demanding revocation of the will. This principle has been
reiterated by the Supreme Court in AIR 1984 SC 1866 Rukmani
Vs. Narender Lal. It is also not in dispute that although a probate
being a judgment in rem binds not only the parties to the case but
all other persons in all proceedings arising out of the will, yet it is
not decisive about the title of the properties of the testator which
are the subject matter of the will; such title can only be decided by
a Civil Court. This has been held by the Supreme Court in JT 2007
(13) SC 50 Kanwaljit Singh Dhilon Vs. Hardayal Dhillo. In (2008)
4 SCC 300 Krishan Kumar Birla Vs. Rajendra Singh Lodha & Ors.
the Supreme Court had reiterated this principle. It had been
reiterated that the questions of title and the construction of the
will relating to the right, title and interest of any person are
beyond the jurisdiction of the probate Court; remedy of such a
person being the remedy of filing a separate suit or an application
under Section 263 of the Indian Succession Act for the revocation
of the probate.
17. These propositions of law have not been disputed before this
Court.
18. It is thus clear that although the will of late Mahant
Manohar Dass had been probated yet the construction and the
interpretation of the title of the subject matter of the properties
contained in the will could have been raised and decided by the
RSA No.49/1991 Page 14 of 26
Civil Court.
19. This document i.e. the will dated 11.9.53 Ex.PB is in the
urdu and hindi translation of the said document of the said
document has been placed on the record. The parties have
exchanged copies of the said document. Except on two places on
page one and one place at page two where the word „muharar‟
finds mention, it is stated that it has to be substituted by the word
„muntazim‟. There is otherwise no dispute to this translated
version.
20. The executant has described himself as a „muntazim‟ and
„muhtamim‟ of the properties which are subject of the will. As per
this will he had revoked his earlier wills which have been made by
him in 1947 and 1952. On the second page of the document (hindi
translation) he has stated that he is the owner/muntazim of his
entire property. In the first sub para (internal page 3 of the hindi
translation) he has stated that Net Ram his Chela would be the
muntazim and muhtamim of the Radhakrishna Maharaj Mandir at
Najafgarh; further he would do the path-puja. However, Mahant
Jai Ram Dass Ji would put Ram Dass S/o Ram Chander in the lap of
Net Ram, wrap a Chadar around him; thereafter Net Ram would
perform his last rites. This is the only reference made to the
plaintiff Ram Dass in the will. Name of Net Ram as muntazim and
muhtamim find mention in this sub para 1 and also in sub para 5
of the will wherein Net Ram has been described as a muntazim of
the piayo and the bagicha. In the other sub paras of the will which
are eight in number he has bequeathed his other properties to
other chelas who have all also been described as „muntazims‟ and
„muhtamims‟.
RSA No.49/1991 Page 15 of 26
21. The present suit was a suit for declaration and injunction.
The plaint has to be read as a whole. It states that late Mahant
Manohar Dass was a practitioner in Ayurvedic system medicines.
He had succeeded to the gaddi of Nand Kishore Mahant. By his
personal efforts, he had established the dispensary, constructed
rooms and made improvements for the benefit of the temple. He
had got valuable silver and gold ornaments in the temple which
were his self acquired properties. Para 3 and 4 also recite the
efforts of Mahant Manohar Dass relating to acquisition of
agricultural land at village Karala and building of a temple
Daryaopur Kalan. In para 11, it is categorically stated that all
these properties which were the subject matter of the bequest of
Mahant Manohar Dass were the properties which were self
acquired by the mahant. This has also been endorsed as a finding
of the Trial Court.
22. Being the self acquired properties of the mahant, the
question of succession from one to the other did not arise. As
rightly pointed out by the learned counsel for the respondent as
these properties were the self acquisitions of Manaht Manohar
Dass himself there can be no contrary plea that he had inherited
them from any successor; title of these properties also did not
have to pass by succession.
23. The word „shebait‟ does not find mention anywhere in the
pleadings of the plaintiff either at the stage of Trial Court or at the
stage of first Appellate court yet the word „mahant‟ and „gaddi‟
does find mention. The testator in Ex.PB has often used the
expression „muntazim‟ and „muhtamim‟. He had described himself
as „muhtamim‟; Net Ram has also been referred to as a
RSA No.49/1991 Page 16 of 26
„muhtamim‟. Muhtamim has been defined in the Persian
dictionary (supra) as a trustee, manager or a superintendent. In
the case of Shambhu (supra) the Supreme Court has used the
words „muhtamim‟ and „shebait‟ as interchangeable of one
another; one is analogous to the other. In JT 2003 (3) SCC Kacha
Kanti Seva Samity & Anr. Vs. Shri Kacha Kanti Devi & Ors. the
Supreme Court had even recognized a de facto shebaitship.
Mulla in his book Principles of Hindu Law (supra) has defined the
role of a „mahant‟ as a‟ shebait‟. Maynes in his “Commentary on
Hindu Law and Usages” 12th Edition had defined the concept of
„Shebait‟ as inclusive of duties and personal interest blended
together and being inheritable. As aforenoted both the executant
Mahant Manohar Dass and the beneficiary Net Ram has been
referred to as a „muhtamim‟ which is equivalent to shebait. The
testator in the will has ascribed ownership of all properties to
himself in his capacity as an owner and a „muhatmim‟; these same
rights devolved upon Net Ram who was thus not a mere pujari. It
is also not in dispute that shebaitshib is in the nature of
immovable property which is inheritable. This has been
reaffirmed by Supreme Court in the case of Shambhu (supra). It is
thus clear that the properties of Mahant Manohar Dass could have
been inherited by Net Ram and Ex.PB which has been duly proved
thus stated that these properties would devolve upon Net Ram.
However, the role of the appellant/plaintiff as an inheritor of these
properties from Net Ram is clearly negatived. Ex.PB categorically
recites that only after the „chadar‟ ceremony had been performed
and Ram Dass (appellant/plaintiff) is put in the lap of Net Ram,
will Net Ram perform the last rites of Mahant Manohar Dass in
RSA No.49/1991 Page 17 of 26
accordance with custom and as per the desires of Mahant
Manohar Dass. In this will the intention of the testator was
implicit. The implicit intent being that only after the adoption
ceremony by way of putting the „chadar‟ on Ram Dass is
completed and he is made to sit in the lap of Net Ram, Net Ram
will be permitted to perform his last rites.
24. The next question posed before this Court is as to whether
this „chadar‟ ceremony had taken place or not. In this context the
crucial point is as to whether the impugned judgment dated
5.4.1983 could have relied upon the statements of PW-5 Pt.Jai
Ram Dass and PW-8 Ram Chander who were both witnesses
examined in the probate court. Admittedly, PW-5 Pt. Jai Ram Dass
and PW-8 Ram Chander were not parties in the instant suit; they
had appeared as witnesses in the probate petition wherein
certified copies of their depositions had been taken into account
by the first Appellate Court to non-suit the plaintiff.
25. PW-5 Pt. Jai Ram Dass had made an unequivocal admission
in his cross-examination which has been reproduced hereinabove.
This statement categorically recites that Jai Ram Dass had told
Net Ram to adopt Ram Dass; Net Ram, however, did not take Ram
Chander‟s son (plaintiff) in his lap; at that time Ram Chander‟s son
was four to five year of age.
26. Version of PW-8 Ram Chander (examined as PW-8 in the
present proceedings) was also a clear and unambiguous
statement. It has been reproduced hereinabove. This statement
also categorically recited that there was no dastar bandi after the
death of Baba Manohar Dass as disputes had arisen between the
parties. The will Ex.PB had recited that after pagari ceremony
RSA No.49/1991 Page 18 of 26
(dastar bandi), Net Ram would be permitted to perform last rites
of Baba Manohar Dass.
27. An application under Order XIII Rule 2 had been filed by the
defendant on 28.3.1979 seeking permission of the court to place
certain documents on record which included certified copies of the
statements of PW-5 and PW-8. This has been contended in para 5
and para 6 of the application. The reply filed to the corresponding
paras of the plaint has not disputed the veracity of the
genuineness of these documents. It states that the defendant
should have been vigilant to inspect the file in time; filing of these
documents at this stage is only a delaying tactic. On 6.7.1979 this
application had been disposed of. Para 2 of the order clearly
states that by way of this application, the defendant seeks
permission to place certified copies of eight documents on record
which included statements of Jai Ram Dass and Ram Chander.
Application was allowed. The relevant extract of the aforenoted
order reads as follows:
“All these documents are certified copies and in my opinion there
can be no objection from the side of the plaintiff to bring these
documents on record as these documents were very much relied
upon by the plaintiff himself in his plaint, so I allow the application
of the defendant and all these documents referred to above are
allowed to be filed on the record with cost of Rs.20/-. With regard
to the request of the defendant that judicial notice be taken of
these documents, this request can be considered only at the stage
of final disposal of the case.”
28. Section 74 of the Evidence Act defines public documents; it
is not in dispute that a certified copy of a deposition of a witness
made in the course of judicial proceedings is a public document.
Under Section 77 of the said Act certified copies may be produced
in proof of the contents of public documents. Under Section 79 of
RSA No.49/1991 Page 19 of 26
the said Act there is a presumption about the genuineness of such
certified copies. This section is couched in the mandatory
language; the word „shall‟ has been used; the Court shall presume
that all documents purporting to be certified copies to be a
genuine documents; this is a rebuttal presumption. In the
judgment of Damu Ganu Bendale (supra) while dealing with the
certified copy of the statement which had been sought to be
placed on record. The Supreme Court held inter alia as follows:-
“The appellant having filed certified copy of the statement, it was
for the respondents to explain it and the adverse inference drawn
by the revising authority against the appellant due to failure of
filing any application for summoning the deponent does not
appear to be well founded in law. The appellant had done what
was possible for him to do by producing a certified copy of the
statement of the respondents wherein he had admitted that the
appellant was a cultivating tenant. It was for the respondent to
explain the deposition either by examining himself or producing
any material to nullify the effect of admission contained in the
deposition.”
29. The ratio on the aforenoted judgment is fully applicable. The
defendant on coming to know of the proceedings in the probate
petition had filed certified copies of the statements of two
witnesses namely Pt. Jai Ram Dass examined as PW-5 and Ram
Chander examined as PW-8. Plaintiff was put to the notice of the
evidence which the defendant had sought to adduce by filing these
certified copies; he had done all that was within his power at that
stage i.e. filing certified copies of the statements of the said
witnesses; this was by virtue of an application under Order XIII
Rule 2 of the Code which was allowed on 6.7.1979. It is relevant
to state that in the reply filed by the plaintiff, the veracity and the
genuineness of these statements was not under challenge; it was
RSA No.49/1991 Page 20 of 26
not the case of the plaintiff that these statements were false or
incorrect and for that reason same should not be taken on record.
The only objection taken by the plaintiff/appellant in the reply was
that this was a delaying tactic. This application was allowed on
6.7.1979 with a rider as aforenoted. This rider has been answered
by the provisions of law as discussed supra i.e. the provisions of
Section 74 read with Section 79 of the Evidence Act. The certified
copies of these documents i.e. statements of witnesses recorded in
the course of judicial proceedings being a public document; their
genuineness shall be presumed unless rebutted. It was not
rebutted. The ratio of the aforenoted judgment would clearly be
applicable to the instant situation by virtue of which this Court is
of the view that the first Appellate Court had rightly read into
evidence these versions of PW-5 and PW-8.
30. The judgment relied upon by the learned counsel for the
ppellant in rebuttal reported in AIR 1977 SC Sita Ram Bhau Patil
Vs. Ramchandra Nago Patil is in applicable. In that case the
evidentiary value of an admission was under question; the said
admission was held to be ambiguous and as such was not
accepted. In this case statements of PW-5 and PW-8 are clear,
categorical, cogent and unambiguous. Even in the reply filed to
the application under Order XIII Rule 2 Cr.P.C., the plaintiff had
taken no such objection to their authenticity or veracity. The
second judgment relied upon by the counsel for the appellant in
rebuttal reported in AIR 1977 Delhi 73 Prakash Rai Vs. J.N.Dhar
is also inapplicable. In this case the Court had held that mere
production of a certified copy of a public document does not prove
the same as the question of its admissibility involves that the
RSA No.49/1991 Page 21 of 26
contents must relate to a fact in issue or a fact relevant under the
various sections of the Evidence Act; it was the relevancy of the
evidence under Sections 35 to 38 of the Evidence At which was in
question. In this case, it was not in dispute that statements of
PW-5 Jai Ram Dass and Ram Chander PW-8 in the probate petition
are relevant to the matter in issue before this Court. It was these
versions which have in fact established that no adoption ceremony
of the plaintiff had taken place by Net Ram.
31. The will Ex.PB had cast a heavy responsibility upon Pt.Jai
Ram Ji Dass; the word „Ji‟ used in the testament has a special
connotation; as its usage had cast a burden on Pt.Jai Ram Dass; he
being a senior had been couched with the responsibility of
performing the „chadar‟ ceremony and of putting the plaintiff
Ram Dass, son of Ram Chander, in the lap of Net Ram. Who could
have been a better witness than Pt.Jai Ram Dass himself who had
been examined PW-5 in the probate petition and had
unambiguously and in clear language stated that in spite of his
request to Net Ram to take Ram Dass in his lap, Net Ram had
refused. This version of PW-5 clearly established that the
adoption ceremony did not take place. This version of PW-5 read
along with the version of PW-8 further shows that the dastar bandi
i.e. pagari ceremony of Net Ram had also not taken place. The
necessary corollary being that the request of the testator not
having been complied with by Net Ram i.e. he having refused to
adopt Ram Dass, the question of the interest of Net Ram devolving
on Ram Dass the plaintiff did not arise. The judgments relied
upon by the learned counsel for the appellant reported in Nirmal
Singh (supra), Amarjeet Kaur (supra) and Om Prakash Jain (supra)
RSA No.49/1991 Page 22 of 26
are inapplicable; they relate to the applicability of the Section 33
of the Evidence Act; which is not applicable. Testimony of PW-5
and PW-8 recorded in the probate case are not relevant facts
under Section 33 of the Evidence Act. The certified copy of their
statements being public document on which a presumption arises
in their favour under Section 79 of the said Act have to be read
under that provision of law.
32. In the written statement, the defendant has described
himself as a registered society and an administrative body of the
temple properties, maintaining the accounts of the mandir. It is
stated to be a registered society having an elected body and
constituted under the bye-laws and provisions of the Societies
Registration Act. In the preliminary objection, it is stated that this
temple has been described as Thakurdwara Radhkrishna Mandir
at Najafgarh in the Bandobast Report of 1864. It is not in dispute
that this society was registered as a society on 9.12.1969. It is
also not in dispute that this mandir is about 200 years old; this
finds mention in the version of PW-9. DW-5 has also admitted that
the mandir is about 200 years old. DW-5 being a secretary of the
defendant society has deposed that the election of this society
takes place in due course. PW-9 Ram Chander is the father of the
plaintiff. He admitted that the plaintiff is living with him. He has
deposed that a panchayat took place in 1954 after the death of
Mahant Manohar Dass and it was agreed that the properties of
Mahant Manohar Dass would be jointly occupied by Net Ram and
Ram Chander. PW-10 Ram Dass has deposed that he does not
know about the affairs of the mandir and his father is looking after
the management. PW-11 Mahant Jag Ram Dass was an attesting
RSA No.49/1991 Page 23 of 26
witness to the will Ex.PB. He had deposed that this temple was
constructed by Mahant Mohan Dass but the remaining property
was developed by Mahant Manohar Dass; the management of the
temple and the property did not remain with the panchayat.
PW-12 is also a Mahant in Village Tikri, Delhi. In his cross-
examination he has admitted that there is a committee in which
Pt.Ram Dhan Sharma is a secretary and Vaid Krishan Lal is the
president who were managing the affairs of the temple.
33. Although there is no specific averments in the written
statement that the panchayat which had been formulated in 1954
is the same panchayat which had later on transformed into the
defendant society; yet the witnesses of the plaintiff himself had
spoken about this Panchayat which is none other than a committee
of persons representing the village i.e. the defendant society.
34. It is also not in dispute that after the death of Net Ram on
28.12.1966, the temple was sealed on the same date. This was
under the action of the police. The contention of the defendant
was that this order was passed by SDM under Section 145 of the
Cr.P.C.; there is no such order on the court record. The order
dated 16.12.1969 Ex.PC was passed by Sh.B.R.Basu, Magistrate
First Class, under Section 25 of the Police Act. The second page
of the order recites that on 25.8.1967 the SDM visited Najafgarh
and in the presence of large number of people the locks of the
temple were opened and most of the articles which have been
taken into possession were handed over to Shri Kishan Lal Vaid,
president Thakurdwara Radha Krishan Temple, Najafgarh on
superdari with the consent of the people collected there; the said
president was asked to maintain his account. Last page of this
RSA No.49/1991 Page 24 of 26
order reads as follows:
“The possession of the temple was handed over to the managing
committee mentioned above in August, 1967. Kishan Lal has
claimed that the managing committee is representative of the local
population and as answerable to the latter for the account. The
committee has also been managing the affairs of the temple on
proper lines since it took over management of the temple.
Considering all these facts and also that these articles are
required for day-to-day running of the temple. I am of the opinion
that these articles should be handed over to the president of the
Managing Committee of the temple. These articles are at present
in the custody of the police who may be advised to hand over the
same to the President of the temple committee.”
35. Perusal of this order clearly shows that these were such
articles which are required for the day to day running of the
temple which had been handed over to the president of the
managing committee. The temple had already been locked and
sealed on 28.12.1966 and was de-sealed on 25.8.1967 as is
revealed from this order. The contention of the learned counsel
for the appellant that the order under Section 25 of the Police Act
had vested the possession of the temple in the defendant society is
not borne out from this order Ex.PC. It is clear that after the
death of Net Ram on 28.12.1966 the temple had been locked by
the police; thereafter on an application made on 27.1.1967 by the
Secretary of the defendant society in the presence of several
persons of the village, the SDM on 25.8.1967 had de-sealed the
temple and handed it over to the President. The order dated
16.12.1969 passed under Section 25 of the Police Act only related
to articles which are a movable property of the temple and had
been handed over for the day today working of the temple. There
is no infirmity in the order as it did deal with any immovable
property. The judgment of Chhutan Lal relied upon by the learned
RSA No.49/1991 Page 25 of 26
counsel for the appellant has no application.
36. The substantial questions of law as formulated above have
been answered. There is no merit in the appeal. It is dismissed.
INDERMEET KAUR, J.
SEPTEMBER 9, 2010
rb/ss/nandan
RSA No.49/1991 Page 26 of 26