Allowed

Bagadiya Charitable Trust v. Janki Devi Bagadiya

Rajasthan HC3 Jan 2024CFA/315/2023

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed the first appeal, setting aside the Family Court's dismissal of a suit for cancellation of sale deed. The High Court held that Section 29 of the Rajasthan Public Trusts Act, 1959, bars only the hearing and decision of a suit, not its filing, and the dismissal was erroneous as the trust had made attempts towards registration despite external delays. Proceedings w

What did the court decide?

The impugned order dismissing the suit is set aside. The suit is restored to its original number and proceedings are stayed pending registration of the trust by the plaintiff.

Bagadiya Charitable Trust Vs Janki Devi Bagadiya — Partition | Rajasthan HC (2024)

¶1

[2024:RJ-JD:237]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Civil First Appeal No. 315/2023

¶4

Bagadiya Charitable Trust, Churu (District Churu), Rajasthan Founded By Trustee Late Shri Shyamsunder Bagadiya S/o Late Shri Brijmohan Lal Bagadiya, Aged About 81 Yrs., Resident Of Ward No. 24, Mukaam, Churu (Raj.), Through President Pawan Kumar Bagadiya S/o Shri Bajranglal Bagadiya, By Caste Agarwal, Resident Of Near Subhash Chowk, Churu.

¶5

----Appellant

¶6

Versus

¶7

1. Janki Devi Bagadiya W/o Late Shri Devkinandna Bagadiya, Resident Of House No. Rza-51, Nihaal Bihar, Nangloi Sahidaan, Mukaam New Delhi 51.

¶8

Usha Bagadiya W/o Rajkumar Bagadiya, Resident Of House No. Rza-51, Nihaal Bihar, Nangloi Sahidaan, Mukaam New Delhi 51.

¶9

Rekha D/o Late Shri Devkinandna Bagadiya, R/o Present Ward No. 38 Mukaam Churu, District Churu, Raj, R/o House No. Rza-51, Nihaal Bihar, Nangloi Sahidaan, Mukaam New Delhi 51.

¶10

Santosh W/o Devkaran, By Caste Jat, R/o Phangediya Mohalla, Mauja Ghanghu, Tehsil And District Churu.

¶11

Priya W/o Ranveer, By Caste Jat, R/o Phangediya Mohalla, Mauja Ghanghu, Tehsil And District Churu.

¶12

LRs Of Chotu Devi, W/o Late Shri Aasaram

¶13

6/1. Ranveer Singh S/o Late Shri Chotu Devi, W/o Late Shri Aasaram, By Caste Jat, R/o Phangediya Mohalla, Mauja Ghanghu, Tehsil And District Churu.

¶14

6/2. Devkaran S/o Late Shri Chotu Devi, W/o Late Shri Aasaram, By Caste Jat, R/o Phangediya Mohalla, Mauja Ghanghu, Tehsil And District Churu.

¶15

Naina Devi @ Neena Devi W/o Rajendra Kuamr @ Rajkumar, By Caste Brahamin Ojha, R/o Ward No. 38, Mukaam Churu, District Churu (Raj.)

----Respondents

(2 of 11)

[2024:RJ-JD:237]

[CFA-315/2023]

For Appellant(s)	: Mr. Nitin Trivedi
For Respondent(s)	: Mr. Manish Shishodia, Sr. Advocate
	with Mr. Hardik Gautam

¶21

HON'BLE MS. JUSTICE REKHA BORANA

¶22

Judgment

¶23

03/01/2024

¶24

The present first appeal has been preferred against the judgment and decree dated 10.08.2023 passed by the Family Court, Churu in Civil Suit No.24/2017 (300/2009) (77/2009) whereby while allowing the application as preferred by the defendants, the suit as preferred by the plaintiff has been dismissed.

¶25

The relevant facts are that a suit was instituted by the plaintiff Trust for cancellation of the sale deed dated 08.04.2009 and for perpetual injunction. In the written statement, a plea was taken by the defendants that the suit is not maintainable as the plaintiff Trust is not registered. In view of the said plea, issue No.7 as framed was decided as a preliminary issue vide order dated 15.12.2022.

¶26

Issue No.7 as framed was as under:

¶27

" D;k VªLV ifCyd VªLV gS] blfy, oknh VªLV ds }kjk fcuk nsoLFkku foHkkx esa VªLV jftLVMZ djok;s nkok ykus dk vf/kdkj ugha gS\ "

¶28

Vide order dated 15.12.2022, the Court decided the said issue in favour of the plaintiff Trust with a finding that the plaintiff Trust is a Public Trust and is entitled to institute a suit even being unregistered. However, in view of the ratio laid down by the Hon'ble Apex Court in Public Trust Shri Geeta Satsang

[2024:RJ-JD:237]

[CFA-315/2023]

(3 of 11)

Bhawan vs. Nand Lal and Ors.; AIR 2017 SC 3603 wherein it was held that the bar for institution of a suit by an unregistered Trust applies for hearing and deciding a suit and not in filing the suit, the learned trial Court granted a month's time to the plaintiff Trust to get itself registered.

¶33

On 05.04.2023, an application was filed by the defendants with a submission that as vide order dated 15.12.2022, a month's time was granted to the Trust to get itself registered and place the same before the Court, the same having not been done, the suit be dismissed in terms of the ratio as laid down by the Hon'ble Apex Court in Public Trust Shri Geeta Satsang Bhawan's case (supra).

¶34

Vide the order impugned dated 10.08.2023, the said application as preferred by the defendants has been allowed and as a consequence thereof, the suit of the plaintiff has been dismissed. The learned trial Court held that as time had been granted to the plaintiff Trust to obtain the registration certificate and the same has not been obtained within the specified time, in view of the ratio laid down by the Hon'ble Apex Court, the suit is liable to be dismissed. The Court, while deciding the application, also held that the plaintiff did not place on record any document to show that any attempt was made by the Trust to get itself registered/obtain the registration certificate after passing of the order dated 15.12.2022. Hence, the Court found that in terms of Section 29 of the Rajasthan Public Trusts Act, 1959 (hereinafter referred to as 'The Act of 1959'), the suit deserves to be dismissed and hence dismissed the same.

[2024:RJ-JD:237]

[CFA-315/2023]

(4 of 11)

Learned counsel for the appellant submitted that the finding as recorded by the learned trial Court that no document was placed on record qua the attempts made by the plaintiff for obtaining the registration certificate post order dated 15.12.2022 is totally incorrect on the face of it as an application was very well filed by the plaintiff Trust wherein it was specifically submitted that although the plaintiff Trust had moved before the Devasthan Department for registration of the Trust way back in the year 2009, the same could not be decided as the Devasthan Department was not proceeding in view of an interim order having been passed in the present suit. It was therefore, prayed that it be clarified that the interim order passed by the Court would operate only for maintaining status quo qua the suit property and not for the proceedings initiated for issuance of the registration certificate.

¶39

However, the application as preferred by the Trust was rejected by learned Court vide order dated 10.08.2023 with the finding that there is no scope for clarification in the interim order and neither can any such clarification be made by the Court in terms of Section 151, CPC. On the same date i.e. 10.08.2023, the Court proceeded on to allow the application as preferred by the defendants which ultimately culminated into dismissal of the suit of the plaintiff.

¶40

Learned counsel further submitted that the learned trial Court erred in ignoring the basic fact that the proceedings before the Devasthan Department were stalled at the instance of defendants themselves as it is only on their application that further proceedings therein were stayed vide order dated

[2024:RJ-JD:237]

[CFA-315/2023]

(5 of 11)

06.04.2011. Learned counsel submitted that an application was also filed before the Devasthan Department on 28.02.2023 with a prayer that the interim order was not qua the proceedings of Devasthan Department and hence, appropriate orders be passed. However, the application as preferred by the plaintiffs was never decided by the Commissioner, Devasthan Department and it remained pending till 10.08.2023 i.e. the date of impugned order/judgment.

¶45

To show the bonafides of the Trust regarding the attempts made by it after the order dated 15.12.2022 been passed, learned counsel placed on record the order-sheets of the proceedings before the Devasthan Department to clarify that after 15.12.2022, on maximum occasions, the Presiding Officer was not available and further, no orders were passed on its application dated 28.02.2023.

¶46

Learned counsel for the appellant further submitted that all said and done, even if, it was found that the Trust was not registered, the non-registration of the same, could not have been a ground to dismiss the suit itself. To the most, by virtue of Section 29 of the Act of 1959, the suit could have been stayed but could not have been dismissed by any stretch of imagination. Learned counsel further submitted that the learned trial Court totally misinterpreted Section 29 of the Act of 1959 as well as the ratio as laid down in Nand Lal’s case(supra).

¶47

With the above submissions, learned counsel submitted that the impugned judgment deserves to be set aside and the plaintiff Trust deserves to be granted further time for obtaining the registration certificate.

[2024:RJ-JD:237]

[CFA-315/2023]

(6 of 11)

Per contra, learned counsel for the respondents raised a preliminary objection that as in the present appeal notices have not been issued to respondents No.1 to 3, the appeal cannot be decided without their service, they being the essential parties to the litigation. Counsel further submitted that it is clear on record that after passing of order dated 15.12.2022 and a specific time of one month been granted to the plaintiff Trust for obtaining the registration certificate, no attempts were made by the Trust to get the same and hence, in view of the ratio laid down by the Hon'ble Apex Court, the learned trial Court rightly dismissed the suit holding that despite time being granted, the plaintiff Trust failed to get itself registered.

¶52

Heard learned counsel for the parties and perused the material available on record. 13. So far as the first issue raised by learned counsel for the respondents regarding the non-issuance of notices to respondents No.1 to 3 is concerned, this Court is of the clear opinion that their non-service would not affect the decision of the present appeal. Admittedly, the application which has been allowed vide the impugned order/judgment was filed by the respondents defendants No.4 to 6. The said respondents are represented through counsel who had put in appearance in caveat. Further, defendants No.4 to 6 are the subsequent purchasers in whose favour the sale deed dated 08.04.2009 had been executed by the defendants No.1 to 3. The present suit is for cancellation of the sale deed dated 08.04.2009 executed in favour of respondents No.4 to 6 only and hence, the non-service on respondents No.1 to 3 would not affect the merits of the present appeal.

[2024:RJ-JD:237]

[CFA-315/2023]

(7 of 11)

Coming on to the issue whether the present suit could have been dismissed by the learned trial Court in the given facts and the circumstances, this Court is of the view that the approach of the learned trial Court cannot be said to be just. It is undisputed on record that an application for registration of the Trust had been preferred by the plaintiff Trust way back in the year 2009. However, the same remained pending till the order dated 15.12.2022 was passed by the Civil Court. A perusal of the ordersheets as placed on record reveals that the next date fixed before the Devasthan Department after 15.12.2022 was 03.01.2023 on which date the Presiding Officer was not available and further on three dates i.e. 09.01.2023, 24.01.2023 and 14.02.2023 also he was not available. On 14.02.2023, the next date was fixed for 28.02.2023. An application dated 27.02.2023 was filed by the Trust on the said date with the specific submission that the interim order as passed by the Civil Court is qua the property of the Trust only and same has nothing to do with the proceedings for registration of the Trust. Vide the said application, it was prayed that there is no legal impediment in passing the order for registration of the Trust and hence, appropriate orders be passed. 15. However, despite the said application having been filed, no orders were passed on the same and on the subsequent dates i.e. 25.04.2023, 08.06.203 and 04.08.2023, the Presiding Officer was not available. Meanwhile, the order impugned was passed on 10.08.2023. Therefore, the finding of the learned trial Court that no attempts were made by the Trust to get itself registered even after the passing of the order dated 15.12.2022 seems to be incorrect on the face of it. Further, in spite of the fact of the

[2024:RJ-JD:237]

[CFA-315/2023]

(8 of 11)

proceedings being pending before the Devasthan Department and the fact of the defendants having prayed before the Devasthan Department regarding the operation of the interim order, being placed on record, the same were totally ignored by the learned trial Court. Interestingly, even the application as preferred by the plaintiff for clarification of the fact that no interim order was operating qua the registration of the Trust was dismissed by the learned trial Court on no logical ground.

¶61

In the opinion of this Court, the plaintiff Trust, in the given circumstances could not have made any better attempts as had been made by it. The present is a situation wherein the Devasthan Department refused to proceed on the premise that an interim order was operating and the Civil Court declined to clarify that there was no interim order operating qua the proceedings for registration as pending before the Devasthan Department. The plaintiff Trust, in the present matter, could not have been faulted for inaction on the part of the Presiding Officer of the Devasthan Department. Therefore, this Court is of the clear opinion that the non-registration of the plaintiff Trust within the time granted by the learned trial Court cannot be attributed to the Trust and hence dismissal of the suit on the said ground cannot be held to be valid. 17. Coming on to the issue whether the suit in question could have been dismissed by the learned trial Court even in terms of law, this Court is of the specific opinion that even by virtue of Section 29, the suit could not have been dismissed. Section 29 of the Act of 1959 provides as under :

(9 of 11)

[2024:RJ-JD:237]

[CFA-315/2023]

“ 29. Bar against suits by unregistered trust.- (1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any court.

¶66

(2) The provisions of sub-section (1) shall apply to claim of set off or other proceedings to enforce a right on behalf of such public trust.”

¶67

The Hon’ble Apex Court in Nand Lal’s case, while analysing the effect of Section 29 specifically held that Section 29 creates a bar “for hearing and deciding” a suit filed by the public trust for enforcement of any of their rights, if the said trust is not registered under the Act and further that, the bar applies for “hearing and deciding” a suit and not in filing the suit. The Hon’ble Apex Court concluded as under :

¶68

“In other words, suit can be filed by the unregistered trust but such suit will neither be heard nor decided by the Court unless and until the trust is registered under the Act.

¶69

Section 29 is, therefore, operates as stay of proceedings in the suit so long as the trust does not get itself registered under the Act .

¶70

21. A fortiori, the moment the trust is registered under the Act, the trial court would assume the jurisdiction to hear and decide the suit on merits. The bar created under Section 29 of the Act for “hearing and deciding” the suit is then lifted and ceases to apply to the proceedings in the suit.”

¶71

What can be concluded from the above ratio is that if a suit is filed by an unregistered trust, the Court shall not proceed with the hearing of the same. The suit proceedings shall remain stayed as long as the trust does not get itself registered. As soon as the

[2024:RJ-JD:237]

[CFA-315/2023]

(10 of 11)

trust is registered, the Court would assume the jurisdiction to hear and decide the suit on merits i.e. the trial Court shall then proceed on to hear the suit and decide the same.

¶76

Applying the above ratio to the present matter, it is crystal clear that the learned trial Court seriously erred in dismissing the suit for want of registration. So far as the observation of the Hon’ble Apex Court to the effect of dismissal of the suit on the trust failing to obtain registration certificate inspite of reasonable time being granted in the matter is concerned, firstly , the same would not evidently apply to the present suit as the said observation was made qua the first appellate Court and not the trial Court. Secondly , the said observation was made qua the suit which was dismissed by the trial Court on the count of nonregistration of the trust and dismissal of the appeal by the first appellate Court also on the same count.

¶77

In view of above ratio as laid down by the Hon’ble Apex Court and in view of the facts of the present case, this Court is of the clear opinion that the suit in question could not have been dismissed by the learned trial Court on any of the counts. 20. The order/judgment impugned dated 10.08.2023 is therefore, set aside and the present appeal is allowed . The order dated 10.08.2023 whereby the application as filed by the plaintiff Trust for clarification was rejected, is also set aside. Let the suit be restored to its original number. However, the suit proceedings shall remain stayed till the plaintiff Trust obtains a registration certificate and places that on record. Meanwhile, the learned trial Court is directed to pass an appropriate order of clarification

¶78

(11 of 11) [CFA-315/2023]

¶79

[2024:RJ-JD:237]

¶80

regarding the interim order within a period of one week of the receipt of the present order.

¶81

Stay petition and the other pending applications, if any, also stand disposed of .

¶82

(REKHA BORANA),J

¶83

91-SPhophaliya/-

Bagadiya Charitable Trust v. Janki Devi Bagadiya

Case brief

What is this about?

What did the court decide?

Bagadiya Charitable Trust v. Janki Devi Bagadiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prabhu Lal Vs Sanjaygiri

Suresh Chandra Vs Shriram General Insurance Co. Ltd.

Shyamsundar Tak Vs Neeraj Chandak

Ratan Singh Vs Bhakhar Singh

Jayram Vs Janki Devi

Dilip Singh and Anr. Vs Shekh Mohsin Hasan and Ors.