Delhi High Court
Priti Pratap Singh vs Rani Prem Kumari (Deceased) Thr ... on 30 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 555/2018
% 30th August, 2018
PRITI PRATAP SINGH ..... Appellant
Through: Mr. Salman Khurshid and Mr.
Dayan Krishnan, Sr. Advocates
with Mr. Kirtiman Singh, Mr.
Prateek Dhanda, Mr. Waize Ali
Noor, Mr. Vikramadivya Singh,
Ms. Shruti Dutt and Ms.
Sanjeevi Seshadri, Advocates
(Mobile No. 9811700872).
versus
RANI PREM KUMARI (DECEASED) THR LRS ..... Respondents
Through: Mr. Vivek Raj Singh and Ms.
Ananttika Singh, Advocates for
R-1(a) and 2 (Mobile No.
9839019224).
Mr. R.K. Agrawal, Sr.
Advocate with Mr. S.S.
Rathore, Advocate for R-5
(Mobile 9829483671).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
RFA No. 555/2018 and C.M. Appl. Nos. 28238-43/2018
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
impugning the Judgment of the Trial Court dated 12.3.2018 by which
the trial court has dismissed the suit for partition and injunction filed
by the appellant/plaintiff with respect to properties of her father Raja
Pratap Singh. It may be noted that the impugned Judgment dated
12.3.2018 is a common judgment disposing of two suits. One suit is
the subject suit for partition filed by the appellant/plaintiff, and the
second suit was the suit for possession filed by the sister of the
appellant/plaintiff, one Smt. Kiran Raj Bisaria with respect to barsati
floor/second floor of the property bearing no. 113, Sunder Nagar, New
Delhi, and which suit filed by Smt. Kiran Raj Bisaria was decreed in
terms of the impugned judgment for possession and mesne profits, the
RFA filed by the present appellant/plaintiff against the impugned
Judgment dated 12.3.2018 to the extent of decreeing the suit for
possession and mesne profits filed by Smt. Kiran Raj Bisaria, the same
stands compromised in terms of the consent/compromise order
recorded today separately in RFA No. 554/2018. The present appeal
is therefore concerned with the properties of Raja Pratap Singh, other
than the property at 113, Sunder Nagar, New Delhi, and which
disputed properties are stated in Annexure-A to the plaint filed by the
appellant/plaintiff.
2. The facts of the case are that appellant/plaintiff pleaded
that she is the daughter of late Raja Pratap Singh who was the Jagirdar
of Kuchaman in Rajasthan. Besides the appellant/plaintiff, late Raja
Pratap Singh had two other daughters, and who were sued as
defendant nos. 2 and 3 in the suit, namely Smt. Kiran Raj Bisaria and
Smt. Raj Laxmi Shah. The widow of Sh. Raja Pratap Singh was sued
as the defendant no. 1 in the suit. Appellant/Plaintiff pleads that the
registered Will dated 16.11.1992 relied upon by the respondent nos. 1
to 3/defendant nos. 1 to 3 being the widow and other daughters of late
Raja Pratap Singh is not a valid or genuine Will, and consequently
since late Raja Pratap Singh died intestate therefore all the properties
of late Raja Pratap Singh have been inherited by his four legal heirs,
namely three daughters and the widow, each of whom have 1/4th share
in the properties of late Raja Pratap Singh. The appellant/plaintiff has
also pleaded that late Raja Pratap Singh had become a Sanyasi in the
Dusshera of October 1993, and ultimately late Raja Pratap Singh had
taken a Jal Samadhi, i.e he expired, on 24.12.1993. Therefore, the
alternative case to seek intestacy of late Raja Pratap Singh by the
appellant/plaintiff was that since Raja Pratap Singh had become a
Sanyasi, therefore any Will made by late Raja Pratap Singh including
the registered Will dated 16.11.1992, was of no force and effect.
Partition was accordingly claimed with respect to the properties of late
Raja Pratap Singh, to the extent of 1/4th share of the appellant/plaintiff,
and which properties were stated in Annexure-A to the plaint.
3. Besides respondent nos. 1 to 3/defendant nos. 1 to 3 in
the suit, and who were the widow and two other daughters of late Raja
Pratap Singh, defendant no.4 in the suit was the son-in-law of late
Raja Pratap Singh being the husband of respondent no.3/defendant
no.3, a proforma defendant in the suit, as no reliefs were claimed
against respondent no.4/defendant no. 4. Originally, there was no
defendant no.5 in the suit. The defendant no.5 namely Shree Shree
Maa Anandmayee Trust was pendente lite added as defendant no.5 in
the suit through its trustees as defendants no. 5(a) to 5(e). Respondent
no. 5/Defendant no. 5/Trust was added as defendant no.5 to the suit
during the pendency of the suit because the appellant/plaintiff claimed
that the Kuchaman Fort and Palace/Mahal were the properties of late
Raja Pratap Singh at the time of his death and not of the respondent
no. 5/defendant no. 5/Trust and which Trust claimed that these
properties being Kuchaman Fort and Palace/Mahal had vested in the
respondent no. 5/defendant no. 5/Trust on account of the Trust Deed
dated 24.2.1978 and registered Settlement Deed/Pranyas Patra dated
15.2.1979. Therefore the respondent no. 5/defendant no. 5/Trust
pleaded that late Raja Pratap Singh was not the owner of Kuchaman
Fort and Palace/Mahal at the time of his death on 24.12.1993, and
hence whether late Raja Pratap Singh died leaving behind his Will
dated 16.11.1992 or died intestate, yet it was only the respondent no.
5/defendant no. 5/Trust which was the owner of the Kuchaman Fort
and Palace/Mahal. Respondent no. 5/Defendant no. 5/Trust also
pleaded that the Trust Deed dated 24.2.1978 was registered under the
Bombay Public Trusts Act, 1950 on 15.9.1978. Respondent no.
5/Defendant no. 5/Trust additionally pleaded that the Trust was again
registered under the Rajasthan Public Trusts Act, 1959 in terms of the
application Ex.DW1/3 dated 20.4.1979. Pursuant to the application
dated 20.4.1979 the Assistant Commissioner of Devasthan, Jodhpur
on 18.12.1979 took out a notice under Section 18(2) of the Rajasthan
Public Trusts Act, Ex.DW1/4 and thereafter on 27.3.1984 the
respondent no. 5/defendant no. 5/Trust was registered with the office
of the Assistant Commissioner, Bikaner, under the Rajasthan Public
Trusts Act, vide Ex.DW10/1. Respondent no. 5/Defendant no. 5/Trust
therefore prayed that the suit be dismissed so far as it seeks the relief
with respect to the Kuchaman Fort and Palace/Mahal properties.
4. After pleadings were completed, the trial court framed the
following issues as noted in paras 14 to 16 of the impugned
judgment:-
"14. On 04.9.2004, on the pleadings of the parties following issues were
framed, namely :-
1. Whether the deceased Raja Pratap Singh was competent to dispose off
the properties by executing a Will? OPD
2. Whether the registered Will dated 16.11.1992 and the holographic Will
dated 06.11.1992 have been validly executed by deceased Raja Pratap
Singh? OPD.
3. Whether probate is not essential in respect of the Will and holographic
Will? OPD
4. Whether the deceased Raja Pratap Singh left behind any properties other
than those mentioned in the Will? If so, to what effect? OPP.
5. Whether the plaintiff is entitled to partition in respect of estates detailed
in Annexure A to the plaint? OPP
6. Whether the suit is not maintainable against the defendant no. 5? OP
7. Relief.
15. Subsequently, an application under Order XIV rule 5 of CPC made on
behalf of the plaintiff was allowed and following additional issue
no. 6 (a) was framed on 02.11.2004, namely:-
6 (a) Whether the Kuchaman Fort and Palace have vested in defendant no.
5? OPD-5
16. Thereafter, by order dated 09.8.2017 on an application under Order
XVI rule 5 of CPC made on behalf of the defendant no. 2 one more
additional issued no. 6 (b)was framed, namely:-
6(b) Whether a suit for partition on the basis of succession can be filed for
the property which is the subject matter of a registered Will without
challenging the Will?"
5. After framing of issues, evidence was led by the parties,
and these aspects are recorded in paras 17 and 18 of the impugned
judgment, which read as under:-
"17. In support of her case the plaintiff got examined herself as PW1 and
during her examination in chief tendered her affidavit dated 04.1.2005 Ex. X
alongwith documents Ex. P-9 to Ex. P-12. The plaintiff also got
examined PW2 Rajender Prasad Saraswati, PW3 Bafati Karigar
PW4 Pradeep Kumar, Naib Tehsildar, Pushkar, Rajasthan (also
examined as PW6), PW5 Sumer Singh and PW Manohar Lal (also
mentioned as PW5). During the examination of PW Pradeep Kumar, PW
Sumer Singh and PW Manohar Lal documents Ex. PW5/1 (two different
documents tendered on 05.10.2007 and 20.8.2007 during examination
of PW Sumer Singh and PW Manohar Lal respectively), Ex. PW5/2 (two
different documents tendered on 05.10.2007 and 20.8.2007 during
examination of PW Sumer Singh and PW Manohar Lal respectively),
Ex. PW5/3 (two different documents tendered on 05.10.2007 and
20.8.2007 during examination of PW Sumer Singh and PW Manohar Lal
respectively), Ex. PW5/4, Ex. PW5/5 to Ex. PW5/6, Ex. PW6/1, Ex. PW6/2
and Ex. PW6/3 were also tendered in evidence on behalf of the plaintiff. All
the witnesses produced on behalf of the plaintiff were cross examined by
counsel for the defendants and on 24.4.2008 evidence on behalf of the
plaintiff was closed.
18. In their defence the defendants got examined DW1 Rani Prem Kumari,
DW2 Smt. Kiran Raj Bisaria, DW4 Kanwar Narvir Shah, DW5
Hari Om, DW6 Dr. A.K. Srivastava, DW7 Sube Chander, DW8 Rakesh
Kumar Sharma, Registration Clerk, Office of Sub- Registrar-II,
Lucknow, DW9 Mangla Ram Punia, Sub-Registrar, Nagaur,
Rajasthan and DW10 Ramesh Chand, Assistant Commissioner,
Devasthan, Ajmer, Rajasthan and DW Raj Laxmi Shah (numbered
as DW10). During the examination of the defendant's witnesses documents
Ex. DW1/1 (two documents, out of which document entitled
Pranyas Patra also brought on record as Ex. PW1/D2), Ex.
DW1/2, Ex. DW1/3, Ex. DW1/4, Ex. DW1/5, Ex. DW1/8 (also
brought on record as Ex. PW1/D1), Ex. DW1/9, Ex. DW1/10A, Ex.
DW1/10B, Ex. DW1/10C, Ex. DW2/1A, Ex. DW2/1B, Ex. DW2/1C, Ex.
DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5, Ex. DW2/6, Ex. DW2/7,
Ex. DW2/8, Ex. DW2/9, Ex. DW2/10, Ex. DW2/11A, Ex.
DW2/11B, Ex. DW2/11C, Ex. DW2/11D, Ex. DW2/11E, Ex.
DW2/12A, Ex. DW2/12B, Ex. DW2/12C, Ex.DW2/12D, Ex.
DW2/12E, Ex. DW8/1, Ex. DW9/1, Ex. DW10/1 (two different documents
tendered on 22.02.2010 and 05.4.2010 during examination of PW
Ramesh Chand and PW Raj Lakshmi Shah respectively) were also
tendered in evidence on behalf of the defendants. All the defendants
were cross examined by counsel for the plaintiff. Subsequently, through
admission denial documents Ex. D- 5/P-1 to Ex. D-5/P-3 were also
brought on record and defendant's evidence was closed."
6. The first issue which is called upon for decision by this
Court is Issue no.6 (and related issue 6(a)) i.e whether or not late Raja
Pratap Singh had or had not executed a Trust Deed dated 24.2.1978
and Pranyas Patra/Settlement Deed dated 15.2.1979 Ex.PW1/D2
whereby a Trust was created and thereafter the Kuchaman Fort and
Palace properties were transferred in favour of Shree Shree Maa
Anandmayee Kuchaman Trust through its trustees.
7. Since the discussion by the trial court with regard to Issue
no.6 is elaborated and exhaustive, I would seek to reproduce some of
the paras which decide this Issue no.6 and these paras read as under:-
"46. Thus, the stand of the plaintiff is that Kuchaman Fort and Palace
never vested in Ma Anandmayee Kuchaman Trust, whereas according
to the defendants, on 24.02.1978 by way of a trust deed late Raja Pratap
Singh created a public trust, namely Shree Shree Ma Anandmayee
Kuchaman Trust with corpus of Rs. 1,000/- which was got registered under
the provisions of the Bombay Public Trust Act, and subsequently, in the
following year on 15.02.1979 by way of a document described as
Pranyas Patra (Ex. DW1/1 and also Ex. PW1/D-2), the Kuchaman
Fort and Palace etc. were transferred to the said Shree Shree Ma
Anandmayee Kuchaman Trust and the said document, namely
Pranyas Patra was got registered on 28.02.1979. According to the
defendants, the said Shree Shree Ma Anandmayee Kuchaman Trust was
subsequently got registered as a public trust under the provisions of
the Rajasthan Public Trusts Act, 1959 also.
47. In this regard, it has been admitted by the plaintiff during her
cross-examination that she was aware that on 24.2.1978 her father got
registered a trust at Bombay. However, she expressed her
ignorance about the registration of the said Trust in Rajasthan
subsequently. During her cross examination PW1 Priti Pratap Singh also
admitted that each page of Ex. DW1/1 bears signatures of her late father
Raja Pratap Singh, but put rider that Ex. DW1/1 was never given
effect. On the other hand DW1 Rani Prem Kumari during her examination
unequivocally deposed that after registration of the Trust at Bombay,
Kuchaman Fort and Palace were transferred to the said Trust.
48. Similarly DW4 Kanwar Narvir Shah during his examination
deposed that after registration of the Trust at Bombay, by way of Pranyas
Patra Ex. DW1/1 Kuchaman Fort and Palace were transferred to the said
Trust and the Pranyas Patra was got registered in the office of
Sub-Registrar, Kuchaman. DW4 Kanwar Narvir Shah, one of the
trustee of the defendant no. 5 also deposed that subsequently the
said Trust was also got registered under the Rajasthan Public
Trust Act, 1959, and pursuant to application Ex. DW1/3, before
registration of the Trust under the Rajasthan Public Trusts Act, 1959, the
Assistant Commissioner Devasthan, Jodhpur on 18.12.1979 took out notice
under section 18 (2) of the said Act, the copy of which is Ex. DW1/4.
DW4 Kanwar Narvir Shah further deposed that Shree Shree Maa
Anandmayee Kuchaman Trust is a public trust within the meaning of
section 92 of CPC, and therefore, the properties, of which the plaintiff is
asking for partition, are not properties of late Raja Pratap Singh, but are the
properties of Shree shree Maa Anandmayee Kuchaman Trust.
49. DW9 Mangla Ram Poonia, Sub-Registrar, Nagaur, Rajastahn, on
the basis of the summoned record brought by him proved the
registration of Pranyas Patra Ex. DW1/1 that was registered as 6/79,
book no. IV, Volume no. VII, pages 77 to 83 on 28.2.1979. DW9 Mangla
Ram Poonia also tendered Ex. DW9/1, a copy of the document
registered in his office.
50. DW10 Ramesh Chand, Assistant Commissioner, Devastahan,
Ajmer, Rajasthan, during his examination, on the basis of record brought by
him deposed that on 27.3.1984 Shree Shree Maa Anandmayee Kuchaman
Trust was registered with the office of the Assistant Commissioner,
Bikaner, the then authority under the Rajasthan Public Trust Act,
1959. DW10 Ramesh Chand also tendered document Ex. DW10/1 from his
record. DW10 Ramesh Chand also deposed that Shree Shree Maa
Anandmayee Kuchaman Trust was duly registered without objection
from any one whatsoever.
51. From the testimonies of PW1 Priti Pratap Singh, DW1 Rani Prem
Kumari and DW4 Kanwar Narvir Shah and documents Ex. DW1/1 and
Ex. DW1/8 it has been proved that on 24.02.1978, by way of an
instrument in writing (Ex. DW1/1) late Raja Pratap Singh, with corpus
of Rs. 1,000/- created a Trust, namely Shree Shree Maa
Anandmayee Kuchaman Trust for charitable purpose, and the
said Trust was got registered under the provisions of the Bombay
Public Trust Act. From the testimonies of DW1 Rani Prem Kumari and
DW4 Kanwar Narvir Shah and the contents of Will Ex. DW1/8 it has
been proved that after creation of Shree Shree Maa Anandmayee
Kuchaman Trust in writing and its registration at Bombay
under the Bombay Public Trust Act, on 15.02.1979 Raja Pratap
Singh executed document entitled Pranyas Patra Ex. DW1/1, which,
after english translation, reads as follows:
SHRI GANESHAY NAMAH
TRUST DEED
This Deed of Trust is made today on 15th day of February, 1979 accordingly
Miti Phalgun Krishna 3 Thursday Samvat 2035 Vikram by me Raja Pratap
Singh Ji by caste Rajput Mertia residence of Kuchaman City, Tehsil Nawa,
District Nagaur, Rajasthan that I had executed on 24.02.1978 a Trust Deed
at Bombay through which I established a Trust by name of
Shree Ma Aanandmayee Kuchaman Trust, where as I myself is a devotee
and servant of Ma Anandmayee and, therefore, I established a Trust in the
name of Shree Shree Anandmayee Kuchaman Trust for fulfilling the objects
of Public and Charitable purposes. Through this Trust I had given my own
sum of money to the Trustees of the Trust and I had appointed Four
Trustees for managing the Trust and in which I myself was also a Trustee
and with me my wife Rani Prem Kumari Ji and Rajkumari Raj Lakshmi
Shah, wife of Rajkumar Shri Narvir Shah residing at present in New
Delhi and Babu Bhai Shri Kasturchand Shah at present residing at
Bombay were appointed Trustees and the object of that Trust were
described in para no. 5 of the Trust Deed dated 15.2.1978 and for
fulfilling and achieving those objects I had established aforesaid
Shree Shree Ma Anandmayee Kuchaman Trust and after executing the deed
of Trust the same had been registered under Bombay Public Trust Act and
in order to fulfill and for achieving the aims and objects of the Trust
through this deed I hereby transfer and assign my self
acquired and self owned immovable properties situated at Kuchaman
City (more fully detailed in the schedule (A) of this deed) to
the aforesaid Trust Shree Shree Ma Anandmayee Kuchaman
Trust whereas I am also a Trustee of the aforesaid Trust, therefore,
all the immovable properties belonging to me as rightful owner
and in my possession and given in schedule (A) now through this Deed
of Trust shall vest in the said Trust Shree Shree Ma Anandmayee
Kuchaman Trust, and all the Trustees I myself and Shrimati
Prem Kumarie Ji Rani Sahiba Kuchaman, Shrimati Rajkumari Raj
Lakshmi Shah at present residing at New Delhi and Shri Babu Bhai
Kastur-Chand Shah resident of Bombay shall exercise their rights as
Trustees of the Trust in the immovable properties, Palaces and
Fort situated in Kuchaman City and described in schedule (A) and
its income shall be utilized in the programs for fulfilling the objects of the
Trust initiated by me earlier. And with the effect of this day I relinquish
all the rights as owner vested in me in respect of said immovable
properties more fully described in schedule (A), in favour of the said
Trust through this Deed of Trust. And from this day Shree Shree Ma
Anandmayee Kuchaman Trust aforesaid shall have all the
rights in the immovable properties described in schedule (A).
In the schedule (A) attached with this Deed of Trust my own
Palaces which are situated below to my Fort and My Fort situated on the hill
are included and all the surrounding to these two are also
mentioned in the schedule. Both the two immovable properties
were in my ownership and rights till today. I am and was ex-Jagirdar of
the Thikana of Kuchaman and only son and heir of Late Shri Hari Singh Ji
and the immovable properties described in the schedule (A) has been my
own and personal property and estate after the death of my father
Late Shri Hari Singh Ji. I remain in possession of this property as
absolute owner and there is no other person having any right or title over the
aforesaid property except me. As I have no son I am desirous that the
aforesaid properties be utilized for public charitable and endowment
purposes and the general public to get benefitted by it by fulfilling the
objects of the Trust earlier executed by me. Therefore, I have surrendered
and transferred all my properties described in schedule (A)
through this Deed of Trust. Shree Shree Ma Anandmayee Kuchaman
Trust in which I am also a Trustee and the same has been
created by me the properties shall vest with and shall remain in
possession of the Trustees in my place from this day. Now from this day
the executant nor his heir have any right or title over the property. Now
from this day the aforesaid Trust Shree Shree Ma Anandmayee
Kuchaman Trust shall have all the proprietary rights with all the
amenities which were vested in me up till this day and the same shall be
utilized for the attainment of the objects of the said Trust Shree Shree
Ma Anandmayee Kuchaman Trust. Some part of the Palaces situated
below the Fort as described in schedule (A) has been given on rent to the
education department for S.T.C. School. Now from this day all the rent
payable by the education department for the said building the Trust will be
entitled to receive the rent and the said rent shall be utilized by the Trustees
for the purposes of the said Trust. The Trustees can also let or
hire the other Palaces and buildings situated below the Fort and the
rental income shall be utilized for fulfilling the objects of the said Trust.
Now from this day I shall have no personal right in the income of the
immovable property described in schedule (A) and from today the
Trust shall be responsible for the upkeep, maintenance, security and
management of the property given in the schedule (A) which is part of the
Deed.
In witness whereof with my own and free Will and consent without
any undue influence I the settler execute this Trust Deed in writing and the
immovable property by this Trust Deed is now transferred to
the other Trustees with me as Trustee of the Trust. Today 15.2.1979
accordingly Miti Phalgun Krishna 3 Thursday Samvat 2035. Typist
Kanhaiya Lal Sharma. After typing on 3 non judicial stamps of Rupees
30, 10 and 5 total Rupees 45 and two plain papers total five papers read over
to the settler Raja Shri Pratap Singh Ji Sahib which he acknowledge as
correct.
Settler
sd/
Pratap Singh
Witness 1.
Witness 2.
52. From a perusal of document Ex. DW1/1 it can be
discerned that although the said document purports to be a Pranyas
Patra (Instrument of Trust), but it is not a fresh trust deed, and
instead the same is only a conveyance deed to transfer
the immovable properties, inter vivos, in favour of the Shree Shree
Maa Anandmayee Kuchaman Trust, already created and registered
under the Bombay Public Trusts Act.
xxxx xxxx xxxx
55. In so far raising adverse inference against the defendants due to non
production of the original register in respect of the affairs and the properties
of the Trust by DW Raj Laxmi Shah is concerned, the said witness gave
explanation that the original register could not be brought as the same was
with Devasthan. DW Raj Laxmi Shah further explained that the register was
sent to the Devasthan as the plaintiff was making repeated inquiries and as
such on demand it was sent there. In the opinion of the court the
witness has properly explained the reason for non production of original
register, therefore, no adverse inference can be drawn against the defendants
due to non production of the register. The learned counsel for the plaintiff
has not brought to the notice of this court any provision under the Bombay
Public Trusts Act, 1950 or the Rajasthan Public Trusts Act, 1959 or any
other law to suggest that the transfer of the Kuchaman Fort and Palace by
way of Ex. DW1/1 to Shree Shree Maa Anandmayee Kuchaman
Trust, created and registered at Bombay was illegal or invalid and
was not permissible under the provisions of the Bombay Public Trusts
Act. On the contrary, in the light of judgment of Hon'ble
Supreme Court in Nautam Prakash DGSVC, Vadtal and others v.
K.K. Thakkar and others, (2006) 5 SCC 330 it appears to this court that a
public trust created and registered under the Bombay Public
Trusts Act, 1950 may own property outside the State of
Maharashtra.
56. From the contents of Ex. DW1/1, Ex. DW9/1 and Will Ex. DW1/8 it
has been proved that from 15.02.1979 Palace and Fort situated in
Kuchaman City and described in schedule (A) to Ex. DW1/1
vested in Shree Shree Maa Anandmayee Kuchaman Trust and its
income is to be utilized in the programmes for fulfilling the objects of
the said Trust initiated by Raja Pratap Singh. From the testimony of
DW4 Kanwar Narvir Shah and DW10 Ramesh Chand and documents
Ex. DW1/3, Ex. DW1/4 and Ex. DW10/1 (copy of registration
certificate under the Rajasthan Public Trusts Act, 1959) it has also been
proved that Shree Shree Maa Anandmayee Kuchaman Trust was also
registered under the provisions of the Rajasthan Public Trusts Act,
1959. In these circumstances, there remains no doubt that since
15.02.1979 onwards Palace and Fort situated in Kuchaman city and
described in schedule (A) to Ex. DW1/1 vested in Shree Shree Maa
Anandmayee Kuchaman Trust, which was subsequently also
got registered under the provisions of the Rajasthan Public
Trust Act, 1959, and hence Raja Pratap Singh ceased to be the owner
of the said properties comprised in schedule (A) to Ex. DW1/1. Issues
no. 6 (a) is decided against the plaintiff and in favour of the defendant
no. 5." (emphasis is mine)
8. I completely agree with the discussion, reasoning and
conclusions of the trial court that the Kuchaman Fort and
Palace/Mahal properties stood vested in the respondent no.
5/defendant no. 5/Trust inasmuch as the Trust Deed has been proved
and exhibited as Ex. DW1/1 and the Settlement Deed/Pranyas Patra
has been proved and exhibited as Ex.PW1/D2. In fact, as noted by the
trial court in para 47 of the impugned judgment that the
appellant/plaintiff in her cross-examination admitted that she was
aware that her father had got registered a Trust at Bombay and she
admitted the signatures on each page of the Trust Deed Ex.DW1/1 as
the signatures of the father though with the rider that the Trust Deed
Ex.DW1/1 was not given any effect. DW-9 was a witness summoned
by the Trust from the Sub-Registrar at Nagaur in Rajasthan and this
witness DW-9 Sh. Mangla Ram Punia has proved the factum of
registration of Pranyas Patra Ex.DW-1 (and also exhibited as
PW1/D2) at 6/79, Book No. IV, Volume No.VII, Pages 77 to 83 on
28.2.1979. A copy of the Pranyas Patra Ex. DW9/1 as found in the
office of the Sub-Registrar was tendered by DW-9 and which was
proved as Ex.DW9/1. In my opinion, therefore, the trial court has
rightly held that the Pranyas Patra was executed, whereby late Raja
Pratap Singh had transferred Kuchaman Fort and Palace/Mahal
properties to Shree Shree Maa Anandmayee Kuchaman Trust. It is
also relevant to note that in this Pranyas Patra Ex.PW1/D2 it is
specifically stated by the Settler Raja Pratap Singh, that the properties
given in Schedule A to the Pranyas Patra Ex.PW1/D2 will vest in the
Trust-Shree Shree Maa Anandmayee Kuchaman Trust, with the Fort
and Palace/Mahal being the properties specified in Schedule-A of the
Trust Deed and therefore it is held that there is no doubt as to the fact
that by the Trust Deed the Kuchaman Fort and Palace/Mahal
properties were transferred to the Trust. I need not reproduce the
Settlement Deed/ Pranyas Patra as it has already been reproduced in
entirety in para 51 of the impugned judgment which is reproduced
above.
9. In law, transfer of an immovable property is by a
registered document as per Section 17(1)(b) of the Registration Act,
1908. Since the Pranyas Patra is a document which is duly registered
before the concerned Sub-Registrar at Nagaur, Rajasthan, therefore, I
hold that by means of the Pranyas Patra the Kuchaman Fort and
Palace/Mahal properties became vested in Shree Shree Maa
Anandmayee Kuchaman Trust. Once the Kuchaman Fort and
Palace/Mahal properties were vested in the Trust, the same could not
have been subject matter of any Will executed by late Raja Pratap
Singh including the Will dated 16.11.1992, and also even if Raja
Pratap Singh died intestate, the Kuchaman Fort and Palace/Mahal
properties would not be available to the legal heirs for being
partitioned because the ownership of Kuchaman Fort and
Palace/Mahal properties stood vested with Shree Shree Maa
Anandmayee Kuchaman Trust much prior to the actual death of Raja
Pratap singh on 24.12.1993 ,as already discussed and concluded
above. I also affirm the finding of the trial court that a suit filed in the
year of 1994 to challenge the trust deed and Pranyas Patra of the year
1978/1979, would be time barred.
10. Learned senior counsel for the appellant/plaintiff firstly
sought to argue that the Kuchaman Fort and Palace/Mahal properties
are not validly transferred to the respondent no. 5/defendant no.
5/Trust inasmuch as in view of the provisions of Sections 22(C) and
36(B) of the Bombay Public Trusts Act. This argument of the
appellant/plaintiff however is of no substance because there is no
provision in the Bombay Public Trusts Act which states that if the
details of the trust properties are not forwarded/given to the Charity
Commissioner under the Bombay Public Trusts Act, then a transfer of
a property to a trust is void and of no effect. The provisions of the
Bombay Public Trusts Act, like the provisions of the Rajasthan Public
Trusts Act, provide, certain privileges and disadvantages on account
of registration of the Trust Act under the said Local Acts which extend
with the boundaries of the respective States of Maharashtra and
Rajasthan, however there is no provision in the Bombay Public Trust
Act that if the property of the Trust is not informed to the Charity
Commissioner as required by Section 22(C) within a period of three
months, that will cause a result that there is no property which would
be vested in the Trust simply because of not giving this information to
the Charity Commissioner under the Bombay Public Trusts Act.
Learned senior counsel for the appellant/plaintiff could not point out
to this Court any such provision in the Bombay Public Trusts Act, and
in fact it was ultimately conceded by the learned senior counsel that
there is no provision under the Bombay Public Trusts Act that simply
because the trust does not inform the Charity Commissioner under
Section 22(C) of the Bombay Public Trusts Act of an immovable
property vesting in the public trust which is registered under the
Bombay Public Trusts Act, and with respect to which immovable
property mention will be made in the Register of the properties of the
Trust under Section 36(B) of the Bombay Public Trusts Act, then the
transfer of the immovable property to the Trust would become invalid
and void simply because of necessary information not being
transmitted to the Charity Commissioner under the Bombay Public
Trusts Act. I therefore reject the argument urged on behalf of the
appellant/plaintiff that there is no valid transfer of the Kuchaman Fort
and Palace/Mahal properties to the respondent no. 5/defendant no.
5/Trust simply because of the Trust not giving such information to the
Charity Commissioner under the provision of Section 22(C) of the
Bombay Public Trusts Act.
11. At this stage, I would like to note that under the provision
of Section 18(2) of the Bombay Public Trusts Act, a Trust can be
registered under the said Act in case even if the trust property or
substantial trust property is not located within the local limits of
jurisdiction of the operation of the Bombay Public Trusts Act,
provided that the trustee has an office of administration of the Trust
within the local limits of the jurisdiction of the Bombay Public Trusts
Act. It is possibly for this reason that late Raja Pratap Singh and the
trustees of the respondent no.5/defendant no.5/Trust had applied for
registration of the Trust in Mumbai and which is also got registered in
Mumbai, however as already discussed above, the Trust was also
subsequently got registered under the Rajasthan Public Trusts Act.
However, registration of a public Trust either under the Bombay
Public Trusts Act or under the Rajasthan Public Trusts Act, will not
have any effect with respect to vesting of a property in a Trust by a
Settlement Deed by any person including the Settler of the Trust,
inasmuch as there is no provision either in the Bombay Public Trusts
Act or in the Rajasthan Public Trusts Act that on not informing the
respective authorities under the two Acts of a particular immovable
property vesting in the Trust, only for the such reason the Trust will
not be the owner of the immovable property, which has otherwise
been validly vested in the Trust by means of a duly registered
document in terms of Section 17(1)(b) of the Registration Act.
12(i) Learned senior counsel for the appellant/plaintiff then
sought to argue that Kuchaman Fort and Palace/Mahal properties
could not be said to have vested in the respondent no. 5/defendant no.
5/Trust, and this so argued by placing reliance upon the language
contained in the Will dated 16.11.1992/Ex.DW1/8 of late Raja Pratap
Singh. On the basis of the relied upon language in the Will where it is
stated that the Kuchaman Fort and Palace/Mahal properties which are
already vested in the respondent no. 5/defendant no. 5/Trust "are in
the process of being registered before the Deputy Commissioner of
Greater Bombay region", i.e it is argued that since it is written in the
Will that the factum with respect to the Kuchaman Fort and
Palace/Mahal properties are only in the process of being registered
before the Deputy Commissioner of Greater Mumbai under the
Bombay Public Trusts Act, i.e since they were not registered till the
time the Will was made by late Raja Pratap Singh on 16.11.1992,
hence for this reason it has to be held that Kuchaman Fort and
Palace/Mahal properties do not stand vested in the respondent no.
5/defendant no. 5/Trust.
(ii) In order to understand this argument urged for the
appellant/plaintiff, this Will dated 16.11.1992 of late Raja Pratap
Singh in its entirety is reproduced as under:-
"THIS IS THE LAST WILL AND TESTAMENT:-
of me (Raja) PRATAP SINGH of KUCHAMAN (Nagaur) Rajasthan, son of
Late Raja Hari Singh Ji Sahib of Kuchaman (At Nagaur) Raj. in the state of
RAJASTHAN made on the 6th November, 1992 in the year of our Lord
one thousand Ninety two -
I hereby revoke all wills made by me at anytime heretofore particularly last
Will Registered before the Chief Sub-Registrar Lucknow made on
the 20 th November, 1979, Register No. III file 404 entered 5/11 No. 621. I
also revoke my subsequent WILL made on the 5th June, 1987 at 16, Rana
Pratap Marg, Lucknow 226001 (U.P.)
I now appoint
(a) RAM JI DAS Advocate, son of Late Suraj Bux Singh alias
Chaudhary Virender Singh, Chaudhari Building, Murtaja Hussain
Road, Yahiyaganj, Lucknow (U.P.)
AND
(b) Kunwar Narvir Shah, s/o M.K. Shardul Bikram Shah of
Tehri- Garhwal, 16, Rana Pratap Marg, Lucknow (U.P.) 226001.
The above two will be my executors and direct that all my debts and
most modest funeral expenses shall be paid as conveniently possible after
my death. If possible my funeral preferably held at Vrindavan or Kankhal as
they find convenient.
This WILL revokes all previous WILL Made by me, specially last one
made by me on the 5th June, 1987 at Lucknow and codicil made on the 8th
February, 1989.
I bequeath and give into
(1) I had owned and possessed my Kuchaman Fort, And Mahals-But on the
26th day of February, 1978 I created a PUBLIC &
CHARITABLE TRUST which was registered before the Deputy
Charity Commissioner, Greater Bombay region, Bombay on the 15th
September, 1978. The Fort of Kuchaman and Mahals of Kuchaman are
already vested in the Trustees which include myself, my wife Rani Prem
Kumari, Shree B.K. Shah, Chairman of Shree Shree MA ANANDMAYEE
TRUST, Shreemati Raj Lakshmi Shah, my youngest daughter and Swami
Bhaskaranandji Maharaj C/o Shree Mata Anand Mayee Ashram, Kankhal
(U.P.) which are in process of being registered before Deputy
Charity Commissioner, Greater Bombay Region. The fifth trustee
being myself whose place will be filed as directed in the Trust. If the
trustees agree then I would recommend Kunwar Narvir Shah to take my
place as TRUSTEE but I would prefer to make my wife Rani Prem Kumari
as Chair person in my place.
Further Shree Shree MA ANANDMAYEE KUCHAMAN TRUST
registered at Bombay and have also been registered on the 25th
February, 1979 and registered deed also registered on 25th February, 1979
at Kuchaman by Tehsildar Nawa (Dt. Nagaur) Rajasthan.
In order to maintain Trust property of Fort and Kuchaman I have entered
in a lease agreement on the 10th October, 1992 on behalf of
the Trustees with M/s. RATHORE HOTELS & TOURS private Ltd. and
have handed over possession of the place except certain places enumerated
in the lease for 48 years with provision of further being extended to 41 years
on yearly rent Rs.1,00,000/- (One Lakh) per annum payable in advance to
the TRUST. Rent to be increased regularly as provided in lease deed.
(2) I bequeath the Building No. 113, Sundar Nagar, New Delhi which is on
leased land from Government of India has two flats, two garages and 4
Servant quarters. Out of this Bungalow I have already made ground floor
flat, one garage and two quarters to my second daughter PRITI SINGH
where she is at present residing. After my demise she will have to pay half
ground rent, half of the House Tax and other taxes subsequently imposed.
(3) I bequeath first floor flat at present on rent at 113, Sunder Nagar
which I am receiving but I bequeath the first floor flat to my eldest daughter
Kiran Raj Bisaria, Lalbagh, Lucknow. This flat has one garage
and two servant quarters. Further I also bequeath terrace with one room
and bathroom also to her. She too will have to pay half ground rent, half of
house tax and other taxes subsequently imposed.
(4) I bequeath the full amount derived from the Govt. of India
for acquisition of my Kuchaman Bungalow, Jodhpur now to be
received and subsequently received to my third daughter Raj Lakshmi
Shah absolutely as she and her husband Narvir Shah have taken
all the pains and trouble to procure this amount. I would
however request them to give two Llacs 2,00,000/- out of this
amount to their son Master Vivek Shah who is minor at present. It is my
ardent wish that he be made chairman of of Shree Shree Anadmayee
Kuchaman Trust on attaining majority first by Rani Prem Kumarie
and latter by Raj Lakshmi Shah. Further, they will provide one Lac
1,00,000/- to my wife Rani Prem Kumaree if none of my liquid assets left
are available.
(5) From the liquid assets left in Banks I would like to give after clearing all
dues of Income Tax, Wealth Tax and other Taxes as follows:-
(a) A sum of Rupees Thirty thousand to my rear sister Rani
Chain Kumaree, 51, Gaurav Nagar, Civil Lines, Jaipur.
(b) A sum of Rupees Ten Thousand to all my personal servants like Mr. &
Mrs. Nathu Singh, Narendra Singh, Murari Upadhya and other deserving
servants whom my wife Rani Prem Kumaree and Raj Lakshmi Shah deed fit
and deserving.
(6) All my books whether at Kuchaman or at Lucknow should
be preserved in some library provided by Shree Shree Ma
Anandmayee Kuchaman Trust.
(7) All my other personal belongings lying in safe, or in stores will be at the
disposal of Rani Prem Kumarie and subsequently by my daughter
Raj Lakshmi Shah but request them to make good use or be fitting donations
to my sentiments.
(8) All the ARMS lying at Kuchaman under licence and one 6
m.m. Pistol in my possession with ALL INDIA Licence should
be disposed of gradually through my son-in-law K. Narvir Shah in
consultation with my wife Rani Prem Kumaree.
(9) All the few valuable swords which should be preserved in store and
eventually pass to Master Vivek Shah when he attains majority. Till then
they be kept under supervision of Rani Prem Kumarie, Raj Lakshmi Shah
and her husband Narvir Shah who is also one of the executors of this WILL.
(10) It is also my pious wish that out of assets left in my Bank like State
Bank of India, Ashok Marg, Lucknow and also at United Commercial Bank-
Kuchaman will be available to my wife Prem Kumarie as she also has a
joint account with me. I pray that she will pay as my loving gift of Rupee
fifteen thousand to each of my grand children like Rajina Raj Bisaria,
Indritta Singh, Pia Singh and Smriti Shah.
In WITNESS WHEREOF I, the said (Raja) PRATAP SINGH hereto this
my WILL set my hand the16th November, 1992 at 16, Rana Pratap Marg,
Lucknow-226001 (U.P.)
Signed by the said Testator in presence at the same time, who at his
request in his presence of such other have subscribed our names as
witnesses.
Sd/-
EXECUTANT
WITNESSESS :-
1. ______Sd/-________
Dr. A. K. Srivastava
2. _______Sd/-_________
(R.K. Gupta)
AS (Retd.)" (emphasis mine)
(iii) In my opinion, this argument urged on behalf of the
appellant/plaintiff has already been effectively dealt with while
rejecting the argument of there allegedly existing a requirement as per
the case of the appellant/plaintiff of information being given to the
Charity Commissioner under the Bombay Public Trusts Act, inasmuch
as it has already been held by this Court that merely because the
properties of the Trust are not informed to the Charity Commissioner
under the Bombay Public Trusts, the same would not mean that the
public Trust will not be the owner of the properties which are
otherwise transferred to the Public Trust by complying with the
requirement of Section 17(1)(b) of the Registration Act. Also in my
opinion, merely mentioning in the Will dated 16.11.92 of Raja Pratap
Singh that Kuchaman Fort and Palace/Mahal properties "are in the
process of being registered before the Deputy Charity Commissioner
of Greater Bombay region", i.e under the Bombay Public Trusts Act,
will not take away from the earlier part of the language of this
paragraph which states that Raja Pratap Singh had owned the
Kuchaman Fort and Palace/Mahal i.e ownership being of the past with
the further fact that in the next paragraph it is specifically mentioned
that Kuchaman Fort and Palace/Mahal properties already stand vested
in the trustees of the respondent no. 5/defendant no. 5/Trust, Shree
Shree Ma Anandmayee Kuchaman Trust .
(iv) It is also relevant to note that the argument urged on
behalf of the appellant/plaintiff of properties of the respondent no.
5/defendant no. 5/Trust not being registered under the Bombay Public
Trusts Act, and hence ownership not vesting with the respondent no.
5/defendant no. 5/Trust is a meaningless argument merely because in
the Will dated 16.11.1992 late Raja Pratap Singh has mentioned about
the process of registering of the properties in the name of the Trust,
because by the Pranyas Patra/Settlement Deed which was registered
on 28.2.1979 Kuchamal Mahal/Palace and Fort already in accordance
with law stood vested with and ownership transferred to the
respondent no. 5/defendant no. 5/Trust and thus in my opinion writing
of a subsequent document with respect to a transaction which already
stands legally completed i.e of the respondent no. 5/defendant no.
5/Trust becoming owner of the Kuchaman Fort and Palace/Mahal
properties in terms of the registered Pranays Patra dated 15.2.1979
Ex.PW1/D2, will not mean that a legally completed transaction can in
any manner is nullified because of a mentioning by a narration in a
subsequent document being the Will of late Raja Pratap Singh dated
16.11.1992 of the aspect process of registering (i.e informing the
factum of Pranyas Patra) under the Bombay Public Trust Act.
(v) For all the aforesaid reasons, the arguments urged on
behalf of the appellant/plaintiff that Kuchaman Fort and Palace/Mahal
properties have not been vested and did not fall in the ownership of
the respondent no. 5/defendant no. 5/Trust, are absolutely without
substance and are therefore rejected.
13. The only argument which now remains to be dealt with
by this Court is as to what is the effect of late Raja Pratap Singh taking
Sanyas in the Dusshera days of October, 1993 and he thereafter on
24.12.1993 taking a Jal Samadhi as a Sanyasi.
14(i) On behalf of the appellant/plaintiff it is argued that since
late Raja Pratap Singh had become a Sanyasi, neither his Will dated
16.11.1992 will operate and also that the properties which vested with
the respondent no. 5/defendant no. 5/Trust would also stand de-vested.
(ii) I have however completely failed to understand this
argument urged on behalf of the appellant/plaintiff because firstly the
fact that a person has become a Sanyasi will only result in his civil
death from the date he became a Sanyasi. Therefore by a person
becoming a Sanyasi and consequently there being a civil death of
Sanyasi will only mean civil death on the particular date of a person
who becomes a Sanyasi. This in law doesn't mean that all acts done
by a person when he was not a Sanyasi would stand invalidated and
would become void simply because a person has become a Sanyasi.
No such law was cited before this Court that acts done by a person
will become void or stands invalidated simply because that person has
become a Sanyasi subsequently. I therefore reject this argument urged
on behalf of the appellant/plaintiff. Also by the Sanyasi/Raja Pratap
Singh taking a Jal Samadhi (going to his death by Jal Samadhi) will
not have any effect on these properties of which he was not the owner
of at the time of his death.
15(i) Reliance was placed by the learned senior counsel for the
appellant/plaintiff upon the judgment of a Division Bench of the
Madras High Court in the case of Avasarala Kondol Row and Anr.
Vs. Iswara Sanyasi Swamulavaru Alias Avasarala Kamarazu and
Ors. 40 Ind. Cas. 535 MANU/TN/0261/1917 to argue that in para 3 of
this judgment it is mentioned that if at the time of making of a Will it
is not anticipated that a person will become a Sanyasi, then, a Will
does not operate.
(ii) I have found no such ratio in the case Avasarala Kondol Row
(supra) as is sought to be argued by the appellant/plaintiff. The
relevant observations of the Division Bench of Madras High Court
were only to determine that defendant no. 1 in the suit had or had not
become a Sanyasi. The facts of the judgment in the case of Avasarala
Kondol Row (supra) are peculiar because during the lifetime of a
person who had become a Sanyasi the Will of such Sanyasi, and who
was defendant no.1 in the said suit, was sought to be enforced, and the
Court consequently concentrated in the said judgment as to whether at
all the defendant no.1 in the said suit had become Sanyasi for his Will
executed few days prior to becoming a Sanyasi to become operative.
The Division Bench of the Madras High Court has held that it was not
adequately proved in evidence that the person had become a Sanyasi
and once that is so there is no question of the Will of a person who
was living operate for giving rights in the property to the plaintiff to
whom rights were given by the person/defendant no.1 in the said suit.
(iii) I have also completely failed to understand this argument
urged on behalf of the appellant/plaintiff because nowhere in the
judgment in the case of Avasarala Kondol Row (supra), it has at all
been held that on a person becoming a Sanyasi, and therefore having a
civil death, any action taken by such a person when he was not a
Sanaysi would become invalidated. Obviously this could not be so
held in that judgment in the case of Avasarala Kondol Row (supra),
or any other judgment for that matter, because a person during his life
as a non-sanyasi and an ordinary citizen may have entered into Sale
Deeds or Gift Deeds or so many any other contractual transactions and
it is not and cannot be the law that all such contractual transactions
would become invalidated simply because at a subsequent point of
time, the person who has entered into contractual transactions had
become a Sanyasi.
(iv) Clearly therefore, either on facts or on law, the judgment in the
case of Avasarala Kondol Row (supra) in no manner helps the
appellant/plaintiff to successfully contend that simply because late
Raja Pratap Singh had become a Sanyasi, only because of this reason
the properties at Kuchaman Fort and Palace/Mahal which were vested
with the respondent no. 5/defendant no. 5/Trust around 14 years prior
to late Raja Pratap Singh becoming a Sanyasi, would no longer vest
with the respondent no. 5/defendant no. 5/Trust, and that too once the
ownership of the Trust is legally complete by means of a duly
registered document as required by Section 17(1)(b) of the
Registration Act.
16(i) Finally, it was argued on behalf of the appellant/plaintiff
that if the appellant/plaintiff is not entitled to the partition of two of
the suit properties being Kuchaman Fort and Palace, appellant/plaintiff
is yet entitled to partition of various other properties as stated in
Annexure-A to the plaint and which properties include immovable
properties as also moveable properties in the form of gold, silver
jewellery and idols etc.
(ii) In my opinion this argument has been rightly rejected by
the trial court by stating that appellant/plaintiff has failed to prove that
the immovable properties or moveable properties including the gold
and silver jewellery and idols etc which are claimed by the
appellant/plaintiff for being partitioned were owned by late Raja
Pratap Singh. In fact I would like to add another reason to the
discussion and reasoning of the trial court that the so called moveable
properties, jewellery and idols are so vague that in view of the
vagueness it is impossible to direct partition of the same. In order to
understand this aspect, para 42 of the impugned judgment which
reproduces these properties of which partition is claimed is reproduced
as under:-
"Re: Issue no. 4.
42. Onus of proof qua this issue has been on the plaintiff. The plaintiff
in the plaint has sought partition of the properties as
mentioned in Annexure-A, made part of the plaint. The said
Annexure-A lists the following properties:
IMMOVABLE PROPERTIES
Kuchaman Fort
Kuchaman Mahal (Palace)
All shops existing in Kuchaman Market
Bhairon ka talav (Lake)
Vacant land in :-
Kharia approximately 570 Bighas
Panwali
Shambagh
Palade Fort,property some adjoining land.
Kuchaman Bungalow house in Jodhpur.
Sunder Nagar House, New Delhi
Valuable books and manuscripts with paintings.
In the Fort Glass room with old gilding work and paintings (Kaach
Mahal). In the Fort Gold Painted room with old Frescoes (sunehri Burj).
MOVABLE PROPERTIES
1. GOLD AND SILVER JEWELLERY
(i) Gold jewellery studded with diamonds, emeralds, pearls, pukhraj
and rubies.
(ii) Gold bricks, sovereigns and guineas.
(iii) Gold jewellery studded with diamonds, emeralds etc. worn by
servants for ceremonial occasions.
(iv) Ceremonial jewellery including sarpechas to be worn on turbans and
emeraldkantas.
(v) Gold jewellery worn by camels, elephants & horses on state
occasions and festivals.
2. Arms, guns and armour, muskets with gilded ceremonial swords.
3. Ceremonial Gold, musnads, gaddis, gilded, carpets etc.
4. Old and valuable antiques.
5. Old valuable moghul textiles, brocades etc.
6. Valuable paintings.
7. Frescoes and gildings.
8. Chandeliers.
9. Silver and wooden furniture.
10. Household effects such as very valuable silver crockeries, cutlery,
gold and silver utensils.
11. Valuable carpets.
12. Baba's effects, Kharoos, his iron, artefacts.
13. Gangeur statues and the jewellery of Gangeur Mata which is in gold,
emerald.
14. Jhoolas.
15. Antique carved doors.
16. Palkis.
17. Temple effects.
18. Religious idols :
(i) Idols of Shiva, Parvathi, seven stones of Shivalingas, the statue of
papu Rathore, Ganesh, Nandis, Parvathi Statues, Hanuman statue which
are in the Fort.
(ii) The statue of Natwarlalji and temple effects in the Palace.
(iii) Kalimatha statue in the house with her gold and silver jewellery
studded with diamonds, pukhraj, emeralds, rubies, pearls and strings of
emerald pearls.
(iv)Old statues made of black stones in the Palace.
(v) Family deity of Nag Necha made of spatile, and its silver throne and
all its other possessions.
(vi) Original Meerabhi statue in the private temple of charbhuja and
Satyanarayan in the city of Kuchaman."
(iii) Trial court has rightly rejected the claim of partition of
these properties by holding, and as stated above, the appellant/plaintiff
has failed to prove that such properties were owned by late Raja
Pratap Singh and also on account of vagueness of the properties, and
this is so held by the trial court in para 44 of the impugned judgment,
and this para 44 reads as under:-
"44. From a reading of Will Ex. DW1/8, which has been duly proved as
valid Will of Raja Pratap Singh, it can be discerned that properties, namely,
Fort and Mahals of Kuchaman, property no. 113, Sunder Nagar, New Delhi
and the flats, garages, servant quarters and terrace etc. existing thereon,
amount derived from the Government of India for acquisition of Kuchaman
Banglow, Jodhpur, liquid assets left in the banks, books, personal
belongings of Raja Pratap Singh lying in safe or in stores, Arms lying at
Kuchaman, swords and assets left at banks like State Bank of India and
United Commercial Bank have been specifically dealt with by Raja Pratap
Singh in his last will Ex. DW1/8 and have been bequeathed. In so far as
other properties mentioned in Annexure-A are concerned, the
defendants in their written statement have denied the same being owned
by Raja Pratap Singh at the time of his death. The plaintiff during her
evidence has merely asserted that the properties mentioned in Annexure-A
were left by Raja Pratap Singh, but no evidence has been led to prove the
existence of the said properties as belonging to Raja Pratap Singh at the time
of his death. During her cross examination PW1 Priti Pratap Singh admitted
that she had no documents or details with regard to the vacant land
properties, Paladi Fort and Kuchaman bunglow at Jodhpur
mentioned by her in Annexure-A to the plaint. As regards to the movable
properties mentioned in Annexure-A to the plaint, PW1 Priti Pratap Singh
during her cross examination deposed that she had photographs of some of
them but she could not give the exact details of the same. During her cross
examination PW1 Priti Pratap Singh admitted that the items no. 2 to 6
mentioned in Annexure-A to the plaint belong to a public charitable trust.
No evidence has been led by the plaintiff to prove that at the time of his
death Raja Pratap Singh left properties, namely, shops existing in
Kuchaman Market, Bhairon ka talav (lake), vacant land in Kharia
(approximately 570 Bighas), Panwali, Shambagh and Palade Fort and other
movable properties. In the absence of plausible evidence led by the plaintiff,
the plaintiff has failed to prove that Raja Pratap Singh left behind any
properties other than those mentioned in Will Ex. DW1/8. Issue
no. 4 is decided against the plaintiff and in favour of the defendants. "
(underlining added)
(iv). I would also like to observe that as per the provision of
Order VII Rule 3 CPC when the subject matter of the suit is an
immovable property, the plaint has to contain sufficient description to
identify the property such as by boundaries or numbers in a record of
settlement etc, and it is seen that so far as the immovable properties
are concerned of which partition is claimed, there are no details
whatsoever as to what are the field numbers or municipal numbers of
these properties, and what is the area of those properties etc. etc .
Therefore in view of the provision of Order VII Rule 3 CPC, partition
as claimed by the appellant/plaintiff in respect to the vague immovable
properties, cannot be granted, and has rightly been rejected by the trial
court.
17. In view of the aforesaid discussion, there is no merit in
the appeal. In my opinion the claim of the appellant/plaintiff for
partition of the vague properties, and especially of the properties being
Kuchaman Fort and Palace which were already vested with the
respondent no. 5/defendant no. 5/Trust; and that too to the knowledge
of the appellant/plaintiff way back since the year 1979 with respect to
the suit having been filed in the year 1994, the suit was therefore
completely frivolous, vexatious and an abuse of process of law.
Accordingly, this appeal is dismissed with costs of Rs.2 lacs, and these
costs shall be paid by the appellant/plaintiff to the respondent nos. 1 to
3/defendant nos. 1 to 3 and the respondent no.5/defendant no.5/Trust
in the ratio of 50% each, within a period of six weeks from today. All
pending applications also stand disposed of.
AUGUST 30, 2018/ib VALMIKI J. MEHTA, J
