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SMT. BHAGWATI DEVI MAHESWARI versus MAHESH KUMAR AND ANOTHER

High Court of Judicature at Allahabad

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Smt. Bhagwati Devi Maheswari v. Mahesh Kumar And Another - WRIT - A No. 26930 of 2004 [2006] RD-AH 18494 (1 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

 Court no. 7                                                        

           Civil Misc. Writ Petition No. 26930 of 2004

 Smt.   Bhagwati Devi Maheshwari     versus       Mahesh Kumar Gaur

                                                                              and another.    

Hon'ble Rakesh Tiwari,J.

  Heard counsel for the parties and perused the record.

  Premises no. 30/136 Maheshari Mohal, Kanpur belonged to one Kunjee Lal who had a large number of properties in Kanpur. Kunjee Lal executed a registered will dated 17.8.1917 by which he created a charitable and religious trust known as Gaushala Panchayats. After the death of Kunjee Lal his property as per the will vested in the trust. The house/property in dispute was sold by some of the trustees in favour of one Mahesh Kumar Gaur without obtaining any permission under Section 92 of the Code of Civil Procedure.

The petitioner claiming herself to be one of the trustees and a lineal descendant of late Kunjee Lal initiated suit proceedings under the provisions of Charitable and Religious Trust Act, 1920 being case no. 42/70 of 1998 before the District Judge, Kanpur Nagar. The petitioner is in fact great daughter-in-law of late Kunjee Lal. She claims to be the wife of Sri Bal Kishan  a male lineal descendant of Prayagi Lal  the brother of Kunjee Lal who died issueless.

It  is alleged that the house in dispute which vested in the trust was sold by some of the trustees surreptitiously in favour of one Mahesh Kumar Gaur on 25.11.1998 without obtaining permission under  Section 92 C.P.C. As soon as the petitioner came to know about the sale deed dated 25.11.98 she initiated proceedings under the provisions of Charitable and Religious Trust Act, 1920 being case No. 42/70 of 1998 before the District Judge, Kanpur Nagar.

In the mean time, Mahesh Kumar Gaur filed a suit for arrears of rent and ejectment against tenant Vijay Kumar Gaur in respect of premises no 30/136 Maheshwari Mohal, Kanpur Nagar  before the District Judge, Kanpur Nagar which was registered as J.S.C.C. Suit No. 420 of 2000. The petitioner filed an impleadment application under Order 1 Rule 10 C.P.C. giving details of creation of trust claiming to be direct lineal descendants of Kunjee Lal. It was also stated in the impleadment application that sale deed was void abinitio in the circumstances. It was also stated that the applicant is the heir of the creator of the trust and a case regarding property in dispute is pending under the provisions of Charitable and Religious Trust of 1920 before the District Judge, Kanpur Nagar. An objection was filed on behalf of the plaintiff controverting the allegations made in impleadment application. The application for impleadment was rejected vide order dated 10.3.2004 holding that the petitioner can file a suit in regular Court and question of title can not be decided in the present.

Aggrieved by the aforesaid order dated 10.3.2004 the petitioner preferred SCC Revision No. 32 of 2004 before the District Judge, Kanpur Nagar which was rejected vide order dated 21.4.2004,hence this writ petition.

It appears that in the mean time Mahesh Kumar Gaur filed an application under Order 7 Rule 11 C.P.C. in case no. 47/70 of 1998. The aforesaid application was rejected vide order dated 2.8.2003 and it was found that late Kunjee Lal had created the trust vide registered sale-deed dated 17.8.1917.

The counsel for the petitioner submits that the courts below have not considered that the petitioner was direct lineal descendant of Kunjee Lal who was creator of the trust and as such she was a necessary party but the courts below ignored the findings recorded by the lower Court while rejecting the application under Order 7 Rule 11 C.P.C. in case no. 47/70 of 1998 regarding creation of trust and execution of will dated 17.8.1917 and as such observation of the courts below that the petitioner is not a necessary party is absolutely illegal.

He further submits that the courts below also ignored that merely obtaining a sale-deed in violation of Section 92 C.P.C. would not confer any title on the plaintiff and as such he cannot claim himself to be landlord of the premises in dispute.

  The petitioner has no locus standi for challenging the suit of the property which has been donated to the trust for its creation, as she is not lineal a descendant of late Kunjee Lal as argued by the counsel for the petitioner. If there is any violation of the law in sale of trust property, the same can be challenged in a regular suit before the competent Civil Court in the capacity of a trustee of the trust. There is no illegality or infirmity in the impugned order.

For the reasons stated above, the writ petition is dismissed.

Dated 1.11.2006

CPP/-

 

   

 


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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