Smt.

Vidyawati And Another vs Ram Janki And Others on 24 April 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

On 07.07.1972, i.e. the day when the partition suit in question being O.S. No.23 of 1972
for partition of the suit property was filed, the plaintiff Mata Prasad died. According to the
heirs of Mata Prasad, he died at about 2:30 P.M. after filing of the suit while according to the
defendants he died at about 10:30 A.M. before filing of the suit which was presented in court
at about 1:00 P.M. Mata prasad was succeeded by his successors, namely Ram Janki, Akhilesh
Chand and Rajendra Kumar. The defendant No.1 Bhagwan Das died during pendency of
the suit. The other defendants, i.e. defendant Nos.2 to 9 are the sons and daughters of Ram
Krishna and the defendant No.10 was the wife of Ram Krishna. This suit was contested only
by the defendant No.6 Vidywati daughter of Ram Krishna and defendant No.10 Smt.
Mahadeiya, wife of Ram Krishna. The other defendants accepted the claim made in
the partition suit. Accordingly, the suit was decreed by judgment dated 29.09.1978 passed by
the 3rd Additional District and Sessions Judge, Banda with cost against defendant Nos.6 and
10 only. It was held that the property was not dedicated for charitable purpose and it belong to
the parties jointly and they are entitled to claim partition.

Having briefly summarised the principles of law laid down by Hon'ble Supreme Court and
High courts on different points as above, now I proceed to examine the facts of the present case
and rival submissions so as to answer the question framed in para 22 of this judgment.

FINDINGS:-

The partition suit in question was filed only for partition of the suit property which was
purchased by Lal Man for construction of Dharmshala by a registered sale deed dated
08.07.1924. After few days Lal Man died on 16.07.1924. The cause of action and the basis of
right shown in the plaint was that since as per compromise amongst the plaintiff and his two
brothers in the earlier partition Suit No.2 of 1962, construction of Dharmshala could not be
completed within ten years, therefore, the suit property, i.e. the Dharmshala is liable to
be partitioned equally amongst the plaintiff and his two brothers.

The location and boundaries of the suit property purchased by Lal Man for Dharmshala also
clearly indicates that he chosen to purchase the suit property for Dharmshala since it is situate
at the Station Road and very close to the Railway Station so that travellers coming to Banda by
train may be benefited by their stay in Dharmshala.

Thus, Lal Man was conscious enough to confine his Will to the properties in his possession at
the time of execution of the Will as well as the properties which may be received in Suit No.42
of 1923. By the aforesaid Will deeds, he also dedicated a sum of Rs.40,000/- out of the money/
properties to be received in Suit No.42 of 1923, for Dharmshala. Subsequent to his last
supplementary Will deed dated 30.06.1924, the suit property was purchased by Lal Man by a
registered sale deed dated 08.07.1924, in which, purchase of the suit property for Dharmshala
was clearly mentioned as evident from the relevant portion of the sale deed (Ex.10), reproduced
in paragraph-9 above. Thus while dedicating a sum of Rs.40,000/- for construction of
Dharmshala, purchase of the suit property was well in his mind/ under process and accordingly,
after few days of the aforesaid dedication, he, by registered sale deed dated 08.07.1924,
purchased and dedicated the suit property for construction of Dharmshala for public benefit.
Few days thereafter, he died. Thus, the purchase and dedication of the suit property for
Dharmshala and dedication of Rs.40,000/- for its construction and Rs.30,000/- for Sadavrat,
are well proved by documentary and oral evidences on record as well as the surrounding
circumstances but the trial court completely misdirected itself and arbitrarily and illegally
passed the impugned judgment to decree the partition suit.

To sum up, I have no hesitation to hold that finding recorded by the court below while deciding
issue No.4 that Lal Man merely expressed desire to construct Dharmshala and there was no
dedication, is wholly perverse and is, therefore, set aside. The conclusions so reached by me is
based on detailed discussion made in foregoing paragraphs of this judgment which clearly
establishes that dedication of suit property for Dharmshala and dedication of Rs.40,000/- and
Rs.30,000/- for construction and maintenance of Dharmshala, are evidenced by registered Will
deeds dated 22.05.1924 and 30.06.1924 (Ex.12 and 13), the registered sale deed of
the suit property dated 08.07.1924 (Ex.10), the notice given by plaintiff Mata Prasad dated
30.05.1972 (Ex.32), copies of books of accounts, paper No.131ga and 132ga/11 relating to the
year 1972-1973 and 1973-1974, copies of Dharmshala account for the year 1968-69, cash-book
of the year 1969-1970, (paper No.315ga, 316ga, 317ga and 318ga), application for sanction of
map submitted to the Municipal Board (Ex.7 and Ex.14), oral evidence of DW-1- Mahadeiya,
wife of Ram Krishna, DW-2 Ramesh Chand, DW-3 - Jagannath Dixit, PW-1- Harish chandra
Gupta and rent receipts being paper No.56C, 205C, 206C and 207C, the surrounding
circumstances, intention of the testator Lal Man and the law settled by Hon'ble Supreme Court
in Pratap Singh Ji N. Desai (supra), Menakuru Dasaratharami Reddi and another (supra),
Kuldeep Chand and another (supra), Malayammal (supra), Narendra Gopal Vidyarthi (supra),
Dayal Chand (supra), K.S.Palanisami (Dead) through Legal Representatives (supra), Deoki
Nandan (supra), Tilkayat Sri Govindlalji Maharaj (supra). The relevant portions of the
aforesaid judgments have already been reproduced in foregoing paragraphs of this judgment.
The alleged compromise decree in partition Suit No.2 of 1962 is not binding in view of the
discussions made in foregoing paragraphs of this judgment as well as the law laid down by
Hon'ble Supreme Court in Nagubai Ammal (supra), Kishori Lal (supra), Banarasi Das (supra),
the judgment of Privy Council in Mohd. Imam Ali Khan (supra), and the judgments of this
Court in Rahmanul Hasan (supra), Devi Shankar and others (supra), Mohd. Kafeel and another
(supra). The partition suit for partition of the suit property amongst individuals was not
maintainable being a public charitable endowment. The plaintiff alleged in the plaint that
the suit property is not Dharmshala property but he could not lead evidence to establish that it
is not Dharmshala property as against the evidences discussed above. The onus to prove that
the suit property is not Dharmshala property, was upon the plaintiff which he completely failed
to prove.