# Ashish & Ors v. Murti Shri Ramchandra Virajman & Ors

- **Citation:** (2022) 7 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-27
- **Case number:** First Appeal From Order No. 3841 of 2018
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-ors-v-murti-shri-ramchandra-virajman-ors-48816
- **Pages:** 11

## Headnote

(A) Civil Law - Civil Procedure Code, 1908
- Section 92 - Order 1, Rule 8, Order 7,
Rule 11, Order 32, Rules 1: - Defendants'
Appeal - against remand order of Civil
Appellate Court for fresh decision before
Trial court - Maintainability of - Suit filed
by a representative - under Order 1 rule 8
-
seeking
permanent
injunction
for
restraining
the
defendants-appellants
from
management
&
selling
of
the
property in question as well as for
transferring the entire management work
including right of maintenance of the deity
from appellants to the Administration -
objection taken under Order 7 rules 11 -
trial court rejected - the Plaint on the
ground of 'non-disclosure of cause of
action' & 'suit barred by law' - court held
that - 'no cause of action' is different from
a Plea that 'Plaint does not disclosure a
cause of action' - words 'Cause of Action'
means 'any cause of action' - hence suit is
maintainable - and admittedly, it is
defendant's own case that neither public
or private Trust was created nor any deity
was installed - thus, section 92 not
attracted - hence, rejection of plaint by
trial court is not proper - order of lower
appellate court needs no interference -
appeal dismissed.(Para - 18, 20, 21, 22, 30,
32, 33)

Appeal - Dismissed. (E-11)

List of Cases cited: -

## Text

7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
615
In Ref: Civil Misc. Correction Application
No.5 of 2022

This is basically a review filed in the
grab of correction.

We uphold the order of the learned
trial Judge and grant the recovery rights to
the insurance company subject to the
amount be deposited as the claimants are
the third party.

It is stated that the order could be
uploaded only in the month of June, 2022,
we extended the time by four more weeks.

This review is partly allowed.

We thank Shri Nigamendra Shukla for
ably assisting this Court.
----------
(2022)07ILR A615
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.06.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal From Order No. 3841 of 2018

Ashish & Ors. ...Appellants
Versus
Murti Shri Ramchandra Virajman & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Kartikeya Saran, Sri Ujjawal Satsangi

Counsel for the Respondents:
Sri Kuldeep Singh, Sri Santosh Kumar
Mishra, Sri Vipin Vinod

(A) Civil Law - Civil Procedure Code, 1908
- Section 92 - Order 1, Rule 8, Order 7,
Rule 11, Order 32, Rules 1: - Defendants'
Appeal - against remand order of Civil
Appellate Court for fresh decision before
Trial court - Maintainability of - Suit filed
by a representative - under Order 1 rule 8
-
seeking
permanent
injunction
for
restraining
the
defendants-appellants
from
management
&
selling
of
the
property in question as well as for
transferring the entire management work
including right of maintenance of the deity
from appellants to the Administration -
objection taken under Order 7 rules 11 -
trial court rejected - the Plaint on the
ground of 'non-disclosure of cause of
action' & 'suit barred by law' - court held
that - 'no cause of action' is different from
a Plea that 'Plaint does not disclosure a
cause of action' - words 'Cause of Action'
means 'any cause of action' - hence suit is
maintainable - and admittedly, it is
defendant's own case that neither public
or private Trust was created nor any deity
was installed - thus, section 92 not
attracted - hence, rejection of plaint by
trial court is not proper - order of lower
appellate court needs no interference -
appeal dismissed.(Para - 18, 20, 21, 22, 30,
32, 33)

Appeal - Dismissed. (E-11)

List of Cases cited: -

1. Rajendra Bajoria & ors. Vs Hemant Kumar
Jalan & ors., Civil Appeal Nos.5819-5822 of 2021

2. Bhupati Nath Smrititirtha Vs Ram Lal Maitra
1909 Law Suit (Cal) 89

3. Chairman Madappa Vs M.N. Mahanthadevaru
& ors. AIR 1966 SC 878

4. Ranchhoddas Kalidas & ors. Vs Goswami
Shree Mahalaxmi Vahuji & ors. AIR 1953 Bom.
153

5.
Kumaravelu
Chettiar
&
ors.
Vs
T.P.
Ramaswami Ayyar & ors. AIR 1933 PC 183

6. St. of Orissa Vs Klockner & Co. (1996) 8 SCC
377

7. Raptakos Brett and Co. Ltd. Vs Ganesh
Property 1998 (7) SCC 184
616 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Kartikeya Saran, learned
counsel for the defendants-appellants and Sri
Santosh Kumar Mishra, learned counsel for
the plaintiffs-respondents No.2 to 7.

2. This appeal under Order 43 Rule 1(u)
of Code of Civil Procedure, 1908 (hereafter
referred to as "CPC") arises out of judgment
and decree dated 18.7.2018 passed by
Additional District Judge, Court No.6,
Mirzapur in Civil Appeal No.42 of 2016
setting aside the judgment and order dated
11.12.2017 passed by Additional Civil Judge
(Senior Division) Mirzapur in Original Suit
No.265 of 2015 and remanding back the
matter to the Trial Court.

3 . A brief sketch of facts is necessary
for the better appreciation of the case which
are as under :

4. The dispute relates to the property
being Arazi No.548, 549/1, 549/2, 546, 547,
554, 569, 570, 571, 575, 577 and 572
measuring 5 Bigha and 18 Biswa situated in
Village-Tarkapur, Tappa - 84, Pargana -
Kantit, Tehsil and District Mirzapur. On
13.03.1947, one Kedar Nath Mishra was given
a lease of aforesaid land in perpetuity. He
executed
an
agreement
for
largesse
(bakshishnama) (Endowment Deed) dated
17.08.1949, dedicating the entire property to
"Lord Ram Chandraji" and His idol was to be
installed over the said property and thereafter
necessary religious worship was to be
performed under the control and guidance of
one Kailash Nath Agrawal, after him, his
successors.

5. Kailash Nath Agrawal did not get the
idol of Lord Ram Chandraji installed over the
property dedicated, thus a suit under Order 1
Rule 8 C.P.C. was filed by the plaintiffsrespondents being Original Suit No.265 of
2014 against the present appellants claiming
relief of permanent injunction restraining the
appellants from managerial capacity of the
property in question, as well as restraining the
appellants from selling off the property in
dispute and also for transferring the entire
managerial work and rights for maintaining
and taking care of the deity to the district
administration. The said suit was contested by
the defendants-appellants who filed their
written statement denying the plaint allegation.

6. An application under Order 7 Rule 11
CPC was filed by the defendants-appellants on
18.3.2015, on the ground that the suit filed by
the plaintiffs was not maintainable in view of
Order 7 Rule 11 (a) and (d) CPC, as it did not
disclose any cause of action and from the
statement in the plaint, the suit appears to be
barred by law. The Trial Court vide order
dated 11.12.2017 allowed the application
75Ga filed by defendants-appellants and
rejected the objection 78Ga filed by plaintiffsrespondents and dismissed the suit. Against
the said judgment and order, Civil Appeal
No.42 of 2017 was preferred in which the
lower Appellate Court framed following point
of determination :

"क्या प्रस्तुत वाद आदेश 7 दनयम 11 जा. दी. के
प्रादवधानों से बादधत है?"

7. The lower Appellate Court vide
judgment and order dated 18.7.2018 allowed
the appeal and set aside the order dated
11.12.2017 and remanded the matter back
and directed the Trial Court to frame issues
on the basis of pleading of the parties and
decide the suit on merits. Hence this appeal.

8. Sri Kartikeya Saran, learned
counsel appearing for the appellants
7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
617
submitted that the suit filed under Order 1
Rule 8 C.P.C. on behalf of plaintiffs was
not maintainable as no deity has been
installed in the property in question and
thus no person can file a suit as a next
friend. He next contended that the person,
who was a party to the agreement dated
17.8.1949 or his legal heirs could file civil
suit for the breach of the clauses mentioned
in the said agreement and no third party can
maintain a suit against the appellants. He
next contended that suit at the instance of
the
plaintiffs-respondents
was
not
maintainable under Order 1 Rule 8 CPC
and at best could have been filed under
Section 92 read with Order 32 Rule 1 CPC
as the matter relates to public charity and
the issue raised by the plaintiffs is for
installation of a deity and claiming to be
the next friend of the deity. He also
contended that from perusal of the
document of 1949 and the event, which had
followed since then, no trust either private
or public was created and in other words,
condition mentioned therein had become
redundant in the present time.

9. According to appellants' counsel,
installation of an idol accessible to public at
large is sine qua non for creation of a
public trust. In the instant case, neither idol
has been installed till date nor any trust has
been created, thus institution of a suit as a
next friend of a deity cannot be maintained.
He then tried to impress upon the Court
that application under Order 7 Rule 11 CPC
was maintainable before the Trial Court as
the plaintiffs have failed to disclose any
cause of action. Moreover, from the
reading of the plaint it is clear that no suit
under Order 1 Rule 8 CPC is maintainable.

10. Reliance has been placed upon
decision of Apex Court in the case of
Rajendra Bajoria and others vs. Hemant
Kumar Jalan and others, Civil Appeal
Nos.5819-5822
of
2021
decided
on
21.9.2021.

11. Sri Santosh Kumar Mishra,
learned
counsel
for
the
respondents
submitted that endowment once made
cannot be revoked. According to him,
endowment was created by dedication of
property to the deity "Shri Ram Chandraji"
and the property became debutter property.
He then contended that registered deed
dated 17.8.1949 by Kedar Nath Mishra was
not a deed of agreement. It was in fact a
deed of dedication in favour of deity "Shri
Ram
Chandraji",
and
Kailash
Nath
Agrawal was appointed only as a manager.
According to him, once the dedication was
made to the deity, which is a juristic
person, the legal personality of deity can
exist and endowment made is competent
and efficacious independently, even if the
idol does not exist. According to him, it is
pious obligation of Kailash Nath Agrawal
and his legal heirs to have carried out the
pious purpose for which Kedar Nath
Mishra had executed the deed in the year
1949. He then contended that Section 92 is
not attracted in the present case as it relates
to ''public charity' and if there is any
alleged breach of trust created for public
purpose then a suit under Section 92 CPC
is maintainable, while the plaintiffs had
filed the present suit under Order 1 Rule 8
CPC as a representative suit so as to give
effect to deed of 1949.

12. He has relied upon a Full Bench
decision of Calcutta High Court in case of
Bhupati Nath Smrititirtha vs. Ram Lal
Maitra 1909 Law Suit (Cal) 89, wherein
the question which was referred to the Full
bench was; "Does the principle of Hindu
Law which invalidates a gift other than to a
sentient being capable of accepting it, apply
618 INDIAN LAW REPORTS ALLAHABAD SERIES
to
a
bequest
to
trustees
for
the
establishment of an image and the worship
of a Hindu deity after the testator's death
and make such a bequest void?" The
Calcutta High Court held that Hindu Law
recognizes
dedications
for
the
establishment of the image of a deity and
for the maintenance and worship thereof.

13. I have heard the respective
counsels and perused the material before
this Court.

14. Before adverting to decide the
issue as to whether the application under
Order 7 Rule 11 CPC was maintainable or
not, and whether the lower Appellate Court
had rightly remanded the matter to the Trial
Court, to be decided on merit after framing
of issues or not, glance of provisions of
Section 92, Order 1 Rule 8, Order 7 Rule
11 and Order 32 Rule 1 of CPC are
necessary for better appreciation of the case
which are extracted hereasunder :

"92. Public charities. - (1) In
the case of any alleged breach of any
express or constructive trust created for
public purposes of a charitable or
religious nature, or where the direction
of the Court is deemed necessary for the
administration of any such trust, the
Advocate-General,
or
two
or
more
persons having an interest in the trust
and having obtained the 2 [leave of the
Court], may institute a suit, whether
contentious or not, in the principal Civil
Court of original jurisdiction or in any
other Court empowered in that behalf by
the State Government within the local
limits of whose jurisdiction the whole or
any part of the subject-matter of the trust
is situate to obtain a decree:

(a) removing any trustee;

(b) appointing a new trustee;

(bb) for delivery of possession of
any trust property against a person who
has ceased to be trustee or has been
removed.

(c) vesting any property in a
trustee;

(cc) directing a trustee who has been
removed or a person who has ceased to be
a trustee, to deliver possession of any trust
property in his possession to the person
entitled to the possession of such property;

d)
directing
accounts
and
inquiries;

(e) declaring what proportion of
the trust property or of the interest therein
shall be allocated to any particular object
of the trust;

(f) authorizing the whole or any
part of the trust property to be let, sold,
mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other
relief as the nature of the case may require.

(2) Save as provided by the
Religious Endowments Act, 1863 (XX of
1863), or by any corresponding law in
force in the territories which, immediately
before the 1st November, 1956, were
comprised in Part B States, no suit
claiming any of the reliefs specified in subsection (1) shall be instituted in respect of
any such trust as is therein referred to
except in conformity with the provisions of
that sub-section.
7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
619

(3) The Court may alter the
original purposes of an express or
constructive
trust
created
for
public
purposes of a charitable or religious nature
and allow the property or income of such
trust or any portion thereof to be applied
cypres in one or more of the following
circumstances, namely :

(a) where the original purposes
of the trust, in whole or in part,

(i) have been, as far as may be,
fulfilled; or

(ii) cannot be carried out at all,
or cannot be carried out according to the
directions given in the instrument creating
the trust or, where there is no such
instrument, according to the spirit of the
trust; or

(b) where the original purposes of
the trust provide a use for a part only of the
property available by virtue of the trust; or

(c) where the property available
by virtue of the trust and other property
applicable for similar purposes can be
more effectively used in conjunction with,
and to that end can suitably be made
applicable to any other purpose, regard
being had to the spirit of the trust and its
applicability to common purposes; or

(d) where the original purposes,
in whole or in part, were laid down by
reference to an area which then was, but
has since ceased to be, a unit for such
purposes; or

(e) where the original purposes,
in whole or in part, have, since they were
laid down,

(i) been adequately provided for
by other means, or

(ii) ceased, as being useless or
harmful to the community, of

(iii) ceased to be, in law,
charitable, or

(iv) ceased in any other way to
provide a suitable and effective method of using
the property available by virtue of the trust,
regard being had to the spirit of the trust."

"8 - One person may sue or
defend on behalf of all in same interest-
(1) Where there are numerous persons
having the same interest in one suit,-

(a) one or more of such persons
may, with the permission of the Court, sue
or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons
so interested;

(b) the Court may direct that one
or more of such persons may sue or be
sued, or may defend such suit, on behalf of,
or for the benefit of, all persons so
interested.

(2) The Court shall, in every case
where a permission or direction is given
under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the
suit to all persons so interested either by
personal service, or, where, by reason of
the number of persons or any other cause,
such service is not reasonably practicable,
by public advertisement, as the Court in
each case may direct.

(3) Any person on whose behalf,
or for whose benefit, a suit is instituted or
620 INDIAN LAW REPORTS ALLAHABAD SERIES
defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.

(4) No part of the claim in any
such suit shall be abandoned under subrule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of
Order
XXIII,
and
no
agreement,
compromise
or
satisfaction
shall
be
recorded in any such suit under rule 3 of
that Order, unless the Court has given, at
the plaintiff's expense, notice to all persons
so interested in the manner specified in
sub-rule (2).

(5) Where any person suing or
defending in any such suit does not proceed
with due diligence in the suit or defence,
the Court may substitute in his place any
other person having the same interest in the
suit.

(6) A decree passed in a suit
under this rule shall be binding on all
persons on whose behalf, or for whose
benefit, the suit is instituted, or defended,
as the case may be.

Explanation - For the purpose of
determining whether the persons who sue
or are sued, or defend, have the same
interest in one suit, it is not necessary to
establish that such persons have the same
cause of action as the person on whom
behalf, or for whose benefit, they sue or are
sued, or defend the suit, as the case may
be."

"11. Rejection of plaint. - The
plaint shall be rejected in the following
cases-

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) where the relief claimed is
properly valued, but the plaint is returned
upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to
supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law:

(e) where it is not filed in
duplicate;

(f) where the plaintiff fails to
comply with the provisions of Rule 9;

Provided that the time fixed by
the Court for the correction of the
valuation or supplying of the requisite
stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by
any cause of an exceptional nature form
correcting the valuation or supplying the
requisite stamp-paper, as the case may be,
within the time fixed by the Court and that
refusal to extend such time would cause
grave injustice to the plaintiff."

"1. Minor to sue by next friend.-
Every suit by a minor shall be instituted in
his name by a person who in such shall be
called the next friend of the minor.

Explanation-In
this
Order,
"minor" means a person who has not
attained his majority within the meaning of
7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
621
section 3 of the Indian Majority Act, 1875
(9 of 1875) where the suit relates to any of
the matters mentioned in clauses (a) and
(b) of section 2 of that Act or to any other
matter."

15. From the reading of Section 92
CPC, it is clear that a suit in a
representative capacity is fundamentally
maintainable on behalf of the entire body of
persons who are interested in the trust. It is
for the vindication of public rights. The
principal object behind the provision is to
afford protection to public trust and to
prevent vexatious proceedings from being
initiated by irresponsible person against the
trust, as held by the Hon'ble Supreme Court
in the case of Chairman Madappa vs.
M.N. Mahanthadevaru and Ors. AIR
1966 SC 878.

16. For the application of this Section,
three conditions must be satisfied, (i) the
Suit must relate to public, religious or
charitable trust; (ii) there must be allegation
of breach of trust or the direction of the
Court must be required for administration
of a trust and; (iii) the reliefs claimed must
be mentioned in the Section.

17. In Ranchhoddas Kalidas & Ors.
vs. Goswami Shree Mahalaxmi Vahuji &
Ors. AIR 1953 Bom. 153, Bombay High
Court had explained the conditions, which
must be satisfied so as to maintain a suit
under Section 92 CPC.

18. For leave to file suit in
representative capacity under Section 92
CPC, existence of trust is necessary. While
the object of Order 1 Rule 8 CPC is that all
persons interested in a suit, either as a
plaintiff or as a defendant, must be joined
as parties so that the Court may finally
adjudicate upon the rights of all parties and
the orders of the Court may be safely
executed by those, who are compelled to
obey them and future litigation may be
avoided. This rule is an enabling provision
which entitles one party to represent many,
who have a common cause of action.

19. In Kumaravelu Chettiar and
Ors. vs. T.P. Ramaswami Ayyar and
Ors. AIR 1933 PC 183, Privy Council held
that Order 1 Rule 8 CPC has been framed
in order to save time and expenses, to
ensure a single comprehensive trial of
questions in which large body of persons
are interested and to avoid harassment to
parties by multiplicity of suits. It is thus a
rule of convenience.

20. The distinction between the suit
under Section 92 and Order 1 Rule 8 CPC
is that in a suit to be instituted under
Section 92, prior permission of the Court is
mandatory, while in a suit under Order 1
Rule 8, the leave can be granted post
institution of the suit.

21. Thus, from the reading of Section
92 and Order 1 Rule 8 CPC, it is clear that
a suit under Section 92 can only be
maintained where it relates to public
charitable and religious trust, and there is
an allegation of breach of trust and
direction of the Court is required for the
administration of trust, while there is no
such requirement for filing a suit under
Order 1 Rule 8 CPC, which though is a
representative suit but on other footing.

22. Now coming to order 7 Rule 11
(a) and (d) it is clear that a plaint can be
rejected if it does not disclose a cause of
action or where from the statement made in
the plaint, the suit appears to barred by any
law. The Rule is mere procedure. The
Court has to give a meaningful reading to
622 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaint and if it is manifestly vexatious
or meritless in the sense of not disclosing a
clear right to sue, the Court may exercise
its power under this rule.

23. A plea that there was no cause of
action for the suit is different from the plea
that plaint does not disclose a cause of
action. In the latter case, it is the duty of the
Court to decide the question before issuing
summons, and reject the plaint without
issuing summons. In State of Orissa vs.
Klockner & Co. (1996) 8 SCC 377 and in
Raptakos Brett and Co. Ltd. vs. Ganesh
Property 1998 (7) SCC 184 the Apex
Court had clarified the said position.

24. The words "cause of action"
means "any cause of action". If the plaint
discloses a cause of action even in part it
cannot be rejected. Recently, the Supreme
Court in Rajendra Bajoria and others
(supra) while dealing with matter under
Order 7 Rule 11 held that reading of the
averments made in the plaint should not
only be formal but also meaningful.
Relevant paras 15, 17 and 20 are extracted
hereas under :

"15. It could thus be seen that this
Court has held that reading of the
averments made in the plaint should not
only be formal but also meaningful. It has
been held that if clever drafting has created
the illusion of a cause of action, and a
meaningful reading thereof would show
that the pleadings are manifestly vexatious
and meritless, in the sense of not disclosing
a clear right to sue, then the court should
exercise its power Under Order VII Rule 11
of Code of Civil Procedure. It has been
held that such a suit has to be nipped in the
bud at the first hearing itself.

...

17. It could thus be seen that the
court has to find out as to whether in the
background of the facts, the relief, as
claimed in the plaint, can be granted to the
Plaintiff. It has been held that if the court
finds that none of the reliefs sought in the
plaint can be granted to the Plaintiff under
the law, the question then arises is as to
whether such a suit is to be allowed to
continue and go for trial. This Court
answered the said question by holding that
such a suit should be thrown out at the
threshold. This Court, therefore, upheld the
order passed by the trial court of rejecting
the suit and that of the appellate court,
thereby affirming the decision of the trial
court. This Court set aside the order passed
by the High Court, wherein the High Court
had set aside the concurrent orders of the
trial court and the appellate court and had
restored and remanded the suit for trial to
the trial court.

...

20. It could thus be seen that this
Court has held that the power conferred on
the court to terminate a civil action is a
drastic one, and the conditions enumerated
Under Order VII Rule 11 of Code of Civil
Procedure are required to be strictly
adhered to. However, Under Order VII
Rule 11 of Code of Civil Procedure, the
duty is cast upon the court to determine
whether the plaint discloses a cause of
action, by scrutinizing the averments in the
plaint, read in conjunction with the
documents relied upon, or whether the suit
is barred by any law. This Court has held
that the underlying object of Order VII
Rule 11 of Code of Civil Procedure is that
when a plaint does not disclose a cause of
action, the court would not permit the
Plaintiff to unnecessarily protract the
proceedings. It has been held that in such a
7 All. Ashish & Ors. Vs. Murti Shri Ramchandra Virajman & Ors.
623
case, it will be necessary to put an end to
the sham litigation so that further judicial
time is not wasted."

25 . In the instant case, the endowment
deed executed by Kedar Nath Mishra on
17.8.1949 clearly states that the property
mentioned was dedicated to "Lord Ram
Chandraji" and the deed further took note
of the fact that the possession was also
transferred to the deity and the doner did
not keep any right with him. He had
appointed Kailash Nath Agrawal to manage
the affairs and look after worship of the
deity after it was installed, which was in
times to come, to be looked after by his
legal heirs. Relevant extract of the
endowment deed is as under :

"पट्टा मजकूर का कुल नजराना बाबू कैलाशनाथ
अग्रवाल वल्द देवी प्रसाद अग्रवाल दनवासी मोहल्ला बसनई बाजार
दमरजापुर ने अदा दकया है और बवख्त हादसल करने पट्टा मजकूर
यह बात तै हो गई थी दनयत जायदाद श्रीराम िंर जी को जो उसी
इमारत में स्थादपत होगें समदपुत कर दी जावेगी और िढाई जावेगी
िुनांि तय मुदकर इस बात तै शुदा के मुतादबक वदुरूस्ती होश हवास
व खुशी वो रजामंदी दवलादकसी जब्रो इकरात जायदाद मुझ दहस्सा
जैल श्री रामिंर जी को जो उसी इमारत में स्थादपत होगें समदपुत कर
देते हैं अब जायदाद मजकूर से कोई वास्ता हम मुदकर को बाकी नहीं
है और हम मुदकर ने कब्जा भी अपना ...कर ददया है और श्रीरामिंर
जी को कब्जा दे ददया है और श्री रामिंर जी जायदाद मुफस्सला
जैल के यहां ...इस्तम्दवादी बजररये वसतावेजताजा हो गये और
आइन्दा हमेशा रहेगें जायदाद मजकूर का इंतजाम दमनजादनब श्री
रामिंर जी व० कैलाशनाथ वल्द बाबू देबी प्रसाद अग्रवाल मजकूर
व बाद वफात उनके वरसान दसलदसले वार करते रहे और जायदाद
...की आमदनी श्रीरामिंर जी के सेवा व पूजा व राजभोग इत्यादद में
खिु करते रहेगें और उनको या उनके वरसान दकसी और शख्स को
जायदाद मजकूर की आमदनी की दकसी और मद में खिु करने का
अदख्तयार न होगा और उनको यह उनके वरसान और दकसी शख्स
को जायदाद मजकूर को दकसी और तौर पर मुन्तदब्दल करने का
अख्तयार हादसल न होगा।"

26. The Hindu Law has been
recognizing the religious and charitable
gifts from ancient time and the Hindu
concepts of religious and charitable gifts is
as old as the Rigveda, wherein the term
used is ''Istha' and ''Purtta". The compound
word Istha-Purtta has been retained in the
writings of all Brahminical sages and
commentators down to modern days. By
"Istha" mean Vedic sacrifices and rites and
gifts in connection with the same; "Purtta",
on the other hand, means and signifies
other pious and charitable acts which are
unconnected with any Srauta or Vedic
sacrifice.

27. In every act of dedication, there
are two essential parts, one of which is
called Sankalpa or the formula of resolve,
and the other Utsarga or renunciation.
Sankalp state what object the founder has
in making the gift, while Utsarga, on the
other hand, completes a gift by renouncing
ownership of the thing given.

28. In all types of endowment, the
purpose of founder is clearly expressed in
the Sankalpa while Utsarga or renunciation
divests the founder of his rights in the
property dedicated.

29. Thus, once a property is dedicated
to a deity, after Sankalp and Utsarg, as in
the present case for establishment of idol of
"Shri Ram Chandraji" the endowment was
complete at the hands of doner Kedar Nath
Mishra, and it vested in the juristic person
Shri Ram Chandraji though the idol was
not installed. The Full Bench of Calcutta
High Court in Bhupati Nath Smrititirtha
(supra) held as under :

"66. To sum up

(i) The view that no valid
dedication of property can be made by a
will to a deity, the image of which is not in
existence at the time of the death of the
624 INDIAN LAW REPORTS ALLAHABAD SERIES
testator, is based upon a double fiction,
namely fist that a Hindu deity is for all
purposes a juridical person and secondly
that a dedication to the deity has the same
characteristics and is subject to the same
restrictions as a gift to a human being. The
first of these propositions is too broadly
stated and the second is in-consistent with
the first principles of Hindu jurisprudence.

(ii) The Hindu Law recognises
dedications for the establishment of the
image of a deity and for the maintenance
and worship thereof. The property so
dedicated to a pious purpose is placed
extra commercial and is entitled to special
protection at the hands of the sovereign
whose duty it is to intervene to prevent
fraud and waste in dealing with religious
endowments Manohar Ganesh Tambekar v.
Lakhmiram Govindram (1887) I.L.R. 12
Bom. 247 affirmed, on appeal, by the
Judicial Committee in Chotelal Lakhmiram
v. Monohar Ganesh Tambekar (1899)
I.L.R. 24 Bom. 50 L.R. 26 I.A. 199. It is
immaterial that the image of the deity has
not been established before the death of the
testator or is periodically set up and
destroyed in the course of the year."

30. The suit filed by the plaintiff
seeking relief of permanent injunction
restricting defendants-appellants from the
managerial capacity of the property and
also restraining them from selling the
property in question as well as for
transferring the entire managerial work and
right for maintaining and taking care of the
deity
from
the
appellants
to
the
administration,
was
thus
maintainable
under Order 1 Rule 8 CPC.

31. The endowment made in 1949 by
Kedar Nath Mishra divesting himself from
the property, and vesting the same in Lord
Shri Ram Chandraji, and giving only the
managerial work to be performed by
Kailash Nath Agrawal and his successors in
form of worship and rituals of the deity.

32. The argument as to non
maintainability of suit under Order 1 Rule 8
CPC holds no ground. It is the own case of
the
defendants-appellants
that
neither
public or private trust was created, nor any
deity was installed. Once the stand is to the
extent that no public trust was created after
1949, Section 92 is not attracted and the
suit under Order 1 Rule 8 CPC was thus
maintainable.

33. Now coming to the question as to
whether any cause of action arose for filing
the suit, the statement made in the plaint
clearly reflect that Kedar Nath Mishra
endowed the property to Lord Shri Ram
Chandraji on 17.8.1949 giving managerial
right to Kailash Nath Agrawal and his
successors. The argument that endowment
deed was never brought to its existence as
no idol was installed would not attract
Order 7 Rule 11 CPC in the present case.
From reading of the application filed by the
defendants-appellants
for
rejection
of
plaint, no case is made out either under
Order 7 Rule 11 (a) or (d) CPC. The Trial
Court committed gross error in allowing
the application under Order 7 Rule 11(a)
and (d) and dismissing the suit. The lower
Appellate Court had rightly set aside the
order of the Trial Court and remanded back
the matter to be decided after framing the
issues on the basis of the pleading of the
parties and directing to decide the suit on
merit.

34. This Court finds that once the
property was endowed in 1949 to Lord Shri
Ram Chandraji, the rights of doner came to
an end and the property vested in the deity
7 All. Kamal Kishore Vs. Debts Recovery Appellate Tribunal, Allahabad & Ors.
625
whether it was installed or not. Lord Shri
Ram Chandraji is a juristic person and the
property
vested
in
Him
once
the
endowment was complete following the
Sankalp and Utsarg.

35. Considering the facts and
circumstances of the case, I find that the
judgment and order of lower Appellate
Court needs no interference by this Court.

36. The appeal fails and is hereby
dismissed.
----------
(2022)07ILR A625
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C. J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No.165 of 2022

Kamal Kishore ...Appellant
Versus
Debts
Recovery
Appellate
Tribunal,
Allahabad & Ors. ...Respondents

Counsel for the Appellant:
Sri Deepak Kumar Jaiswal, Sri Sanjay
Kumar Gupta

Counsel for the Respondents:
Sri Gyan Prakash Shrivastava, Sri S.K.
Srivastava, Sri Padmaker Pandey

A. Banking Law - Mortgage - Transfer -
Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 - Sections
29 & 30 - Second Schedule to the 1961
Act: Rules 54, 56, 57, 60 and 61; Section
222, 276; Transfer of Property Act, 1882:
Section 48, 60.

A.(a) Right to appeal u/s 30, RDDBFI Act -
The learned Single Judge was not right in
holding that since the petitioner-appellant
had not followed the procedure prescribed
u/Rule 60 of the Second Schedule to the
1961 Act, he could not ask the auction
sale, not yet confirmed, to be set aside
through an appeal u/s 30 of the RDDBFI
Act. (Para 23)

An appeal u/s 30 of the RDDBFI Act can be
preferred by a person aggrieved by the
Recovery Officer's orders, notwithstanding the
fact that he has not invoked the provisions of
Rule 60 or 61 of the Second Schedule to the
1961 Act. This is so because S.30 of the RDDBFI
Act opens with a non-obstante clause that gives
an overriding effect to the provisions of S.30 of
the said Act. It is S.29 of the RDDBFI Act,
extracted hereinabove, that makes provisions of
Second Schedule of the 1961 Act applicable to
proceedings for recovery under the RDDBFI Act.
The application of the Rules, including
Rules 60 and 61 of the Rules under the
Second Schedule of the 1961 Act to a
recovery under the RDDBFI Act cannot,
therefore, be construed in a manner so as
to derogate from the plenary right of a
person
aggrieved
by
the
Recovery
Officer's order of any kind to appeal to the
Tribunal. (Para 18)

A.(b) Harmonious constructions of the
provisions of Sections 29 & 30 of the
RDDBFI Act - The right of a person
aggrieved by an order of the Recovery
Officer under the aforesaid Act cannot be
confined in the manner that he must of
necessity invoke Rule 60 of 61 by making an
application before the Recovery Officer in
the first instance and against the order of
the Recovery Officer, come up in appeal u/s
30. If that were done, it would whittle down
the scope of the appellate powers of the
Tribunal against all orders of the Recovery
Officer, that include an order of attachment,
auction and sale prior to its confirmation. If
the challenge is laid on grounds completely
different from those envisaged u/Rule 60 of
the Rules framed under the Second Schedule
of the 1961 Act, there may not be any
requirement of deposit at all. The challenge
may be on grounds like those envisaged
u/Rule 61 of the Rules aforesaid or on any
other ground. (Para 22)