Delhi High Court
Rajesh Giri vs Subhash Mittal & Ors on 15 July, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : July 15, 2015
+ RFA(OS) 67/2015
RAJESH GIRI ..... Appellant
Represented by: Mr.Abhishek Kumar, Adv.
versus
SUBHASH MITTAL & ORS ..... Respondent
Represented by: None
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
CM 1230/2015
Exemption allowed subject to just exceptions.
CM 12302/2015
For the reasons stated in the application the delay of 11 days in filing
the appeal is condoned.
RFA(OS) 67/2015
1. Aggrieved by the order dated May 14, 2015 dismissing the suit filed
by the appellant being CS(OS) No.3280/2014 the appellant Rajesh Giri files
the present appeal.
2. The suit was filed by Rajesh Giri in his capacity as a worshiper and he
sought the following prayers:
"1. Pass a decree of declaration and the Sale Deed dated
28.03.2005 and two sale deeds of even dates dated 12.05.2010
in respect of trust property i.e. property bearing No.674, Gali
Ghanteshwar Katra Neel, Chandni Chowk, Delhi, be declared
as null and void.
2. The defendant No.1 to 5 be directed by way of mandatory
injunctions to produce the ancient idol of „Shri Radha Krishan
Ji Maharaj‟ with the directions to defendant Nos.3 to 5 to
reconvert the said Waqf property i.e. property bearing No.674,
Gali Ghanteshwar Katra Neel, Chandni Chowk, Delhi, as
temple of Radha Krishan Ji Maharaj whereby the defendants
also be restrained to stop the plaintiff from worshiping the said
idol of „Shri Radha Krishan Ji Maharaj‟.
3. The defendant No.6 be directed by way of mandatory
injunction to rectify its record of mutation whereby remutating
the property on the name of the Waqf.
4. The defendant Nos. 1-5 also be directed by way of
permanent injunctions not to sell the suit property and not to
create any third party interest upon the property forever.
5. Permanent injunction thereby permanently restraining
the defendant Nos. 1 to 5 and their successors, assignees, LRs
etc for using the Waqf property other than the purposes for
waqf which was created by virtue of Will dated 19.11.1930."
3. Vide the impugned judgment the learned Single Judge came to the
conclusion that there is no averment in the plaint that the execution of the
sale deeds last of which was dated May 12, 2010 was learnt by the appellant
on a later date and the suit having been instituted on September 18, 2014
was thus beyond the period of limitation, having not been filed within three
years from the date of execution of the sale deed as per Article 58 of
Schedule I of the Limitation Act. That apart the learned Single Judge also
noted that not only the suit was barred by limitation but the appellant has
made out no cause of action to file the suit.
4. Since no summons were issued to the defendants in the suit we are not
required to issue notice to the defendants while deciding the present appeal.
5. Learned counsel for the appellant relies upon the decision in AIR
1993 SC 1145 Kapoor Chand and Ors. Vs. Ganesh Dutt and Ors. to contend
that when the temple is found to be a public temple, the law is well settled
that the true beneficiaries of religious endowments are not the idols but the
worshippers and that the purpose of the endowment is the maintenance of
that worship for the benefit of the worshipers. In relation to limitation
learned counsel for the appellant refers to Article 94 of Schedule I of the
Limitation Act to contend that period of limitation prescribed for suits in
relation to trust properties is 12 years and not three years as held by the
learned Single Judge.
6. In the plaint the appellant Rajesh Giri stated that he was one of the
worshipper of the ancient idol of Shri Radha Krishan Ji Maharaj enshrined at
waqf/endowment/temple bequeathed by one Nikko Bibi in the name of God
by virtue of her Will dated November 20, 1930. Rajesh Giri challenged the
malicious and malafide act of the defendant/ respondent Nos. 3 to 5 who
sold the waqf/endowment property i.e. temple to defendant/ respondent No.1
and 2 i.e. Subhash Mittal and Shyam Putela. In the mutation records of the
MCD the property/temple was registered as a waqf/endowment property
since 1940 on the strength of Will dated November 20, 1930. However, the
MCD illegally transferred/mutated the said property in its record into the
name of defendant/ respondent No.1 & 2. The Sub-Registrar registered the
sale deeds dated May 12, 2010 in favour of defendant/ respondent No.1 & 2
on the basis of interpolated and bogus documents/Deeds created by Trustees
in order to unlawfully transfer Title of the waqf/temple property adverse to
the right of the beneficiary of Trust i.e. Shri Radha Krishan Ji Maharaj.
7. From the averments in the plaint it is clear that the appellant herein
was seeking declaration of the sale deed dated March 28, 2005 and two sale
deeds dated May 12, 2010 in respect of the trust property as null and void.
Article 94 of Schedule I of the Limitation Act provide a period of limitation
of 12 years to set aside a transfer of immovable property comprised in a
Hindu, Muslim or Budhist religious or charitable endowment made by
Manager thereof for valuable consideration. Thus, even if there is no
averment in the plaint as to when Rajesh Giri came to know about the sale
deeds, the date of knowledge cannot be prior to March 28, 2005 and May 12,
2010 and thus the suit seeking declaration of the sale deeds as null and void
was within the period of limitation since it related to trust property.
8. Distinguishing the judgment reported as AIR 1967 SC 1044
Bishwanath and Anr. Vs. Shri Thakur Radhaballabhji and Ors. the learned
Single Judge held that the decision in Bishwanath (supra) did not apply to
the factual matrix of the present case as in Bishwanath‟s case the suit was
for possession where the "Shibait" of the temple had not come forward to
take any legal proceedings. The Supreme Court in the decisions reported as
AIR 1957 133 Deoki Nandan Vs. Murlidhar and Kapoor Chand and Ors
(supra) held that though under Hindu law an idol is a juristic person capable
of holding property and the properties endowed for the temple vest in it,
however it can have no beneficial interest in the endowment and the true
beneficiaries are the worshippers as the real purpose of gift of properties to
an idol is not to confer any benefit on God, but the acquisition of spiritual
benefit by providing opportunities and facilities for those who desire to
worship. It was thus held that the worshipers have a right to file a suit to set
aside transfer of immovable property comprised in a Hindu religious or
charitable endowment made by a Manager thereof for valuable consideration
and the same would be governed by Article 94 to Schedule I of the
Limitation Act.
9. Consequently, the impugned judgment dated May 14, 2015 is set
aside. The suit i.e. CS(OS) No. 3280/2014 is restored and be listed before
the learned Single Judge on July 30, 2015.
10. No costs.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JULY 15, 2015
'ga'
