# Smt. Meena Devi Revisionist v. Babu Ram & Ors

- **Citation:** (2023) 1 ILRA 1373
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-03
- **Case number:** Civil Revision No. 341 of 2016
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-meena-devi-revisionist-v-babu-ram-ors-49126
- **Pages:** 7

## Headnote

Civil Law - Impleadment-Indian Trust ActSection
74-Impugned
order-impleadment
allowed-applicant impleaded as defendants-Suit
filed u/s 74 of the Act-certain questions to be
considered only after impleadment is allowed.

Revision dismissed. (E-9)

List of Cases cited:

## Text

1 All. Smt. Meena Devi Vs. Babu Ram & Ors.
1373
states that the respondent proposes to
challenge the order dated 06.11.2018 by
filing a writ petition and therefore, liberty
may be granted to him to file a writ
petition.

23. In our view, if the respondent is
aggrieved with the order dated 06.11.2018
passed by the Managing Director, it is well
within his rights to challenge that order by
filing writ petition or to challenge it before
appropriate forum.

24. So for as the impugned order is
concerned, it would be suffice to observe
that in the impugned interlocutory order,
the findings have been recorded that the
Officers are totally in contempt. Therefore,
the impugned order is unsustainable.

25. That apart, the impugned order
contains a directions for revisit and pass a
fresh order, which in our humble view
could not have been issued. Therefore, the
impugned order dated 14.09.2022 cannot
be sustained.

26. For all the reasons aforestated, the
impugned order dated 14.09.2022 is set
aside.

27. The contempt court may proceed
in accordance with law. The contempt
Application (Civil) No. 5916 of 2018 shall
be listed before the contempt court in
second week of January, 2023.

28. The appeal is allowed to the
extent indicated above.
----------
(2023) 1 ILRA 1373
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2022

BEFORE
THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 341 of 2016

Smt. Meena Devi ...Revisionist
Versus
Babu Ram & Ors. ...Respondents

Counsel for the Revisionist:
Sri Murli Dhar Mishra

Counsel for the Respondents:
Sri Raghuvansh Misra, Sri Sachida Nand Tiwari

Civil Law - Impleadment-Indian Trust ActSection
74-Impugned
order-impleadment
allowed-applicant impleaded as defendants-Suit
filed u/s 74 of the Act-certain questions to be
considered only after impleadment is allowed.

Revision dismissed. (E-9)

List of Cases cited:

1. Balasaheb Vs Venkat, (2006) SCC 530

2. Amit Kumar Vs Farida, AIR 2005, SC 2209

3. Anil Kumar Vs Shiv Nath (1995), 3 SCC 147

4. S.T.C. Vs Chittoor Co-operative, AIR 1990
Del, 142

5. Ratan Muni College Vs Additinal Civil Judge,
AIR 1995 Allahabad 7

6. Udit Vs Additional Member Board of Revene
AIR 1963, SC, 786

7. Kasturi Vs Iyyamperumal, AIR (2005) 6 SSC
733

8. Basanligappa Vs Nagamma, AIR 1969 Mys
313

(Delivered by Hon'ble Umesh Chanbdra
Sharma, J.)

1. This civil revision has been
instituted against the order dated 15.9.2016
passed by Additional District & Sessions
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge/ Fast Track Court, Court No.-2,
Kannauj, in original suit no. 01 of 2014
(Smt. Meena Devi Vs. Babu Ram).

2. By the impugned order, the learned
Court below allowed the application 25 C2
and directed the plaintiff to implead the
applicants as defendants.

3. In brief, facts of the case are that
Meena Devi filed an original suit no. 1 of
2014 under Section 74 of the Indian Trust Act
in the Court of District & Sessions Judge
Kannauj stating therein that one Ram Prasad,
who was the trustee and occupant of the
properties A, B & C mentioned in the foot of
the plaint, constructed a Shiv Mandir in
village Balarpur, District Kannuaj, over the
land of list 'A' which was known as Mahadev
Mandir. He also constructed Thakur Gi
Temple and some other temples over the land
of list B and vested the land of list 'C' for the
maintenance of temples made over the land
of list 'A' & 'B'. He also constructed one room
in the plot A & B. In this regard he executed a
deed on 2.12.1959 and appointed Swami
Ram Charan disciple Bhagwandas as the
Sarvarakar (priest). The aforesaid Ram
Charan died during the life time of Ram
Prasad, therefore, he executed another deed
on 29.4.1982 appointing Jageshwar Prasad
(plaintiff's husband) as the Sarvarakar of the
temple and also authorized him to appoint
Sarvarakar of his choice. Apart from being
appointed by Jageshwar Prasad the plaintiff is
also his legal representative being his wife.
Thus she has become Sarvarakar of the
impugned trust. Jageshwar Prasad executed a
will deed dated 8.2.2014 appointing the
plaintiff as Sarvarakar and after their death
their heirs by way of inheritance for the time
immemorial.

4. After death of Jageshwar Prasad on
5.4.2015, on the basis of deed executed by
him, the plaintiff became Sarvarakar. She was
also given right to appoint Sarvarakar being
legal representative of Jageshwar Prasad.
Jageshwar Prasad had also constructed
Dharmshala over the land of list A & B from
the income of the property of list 'C' and with
his own income. The defendant has no
concern with the property of list A, B & C.
The defendant saying himself to brother of
Jageshwar Prasad is not ready to get the name
of the plaintiff mutated. The defendant Babu
Ram, is not ready to get the name of the
plaintiff recorded in the revenue record,
therefore, it was prayed to appoint the
plaintiff as Sarvarakar of the temple through
Court. This Court has jurisdiction to try the
suit hence it was prayed to appoint the
plaintiff as Sarvarakar of the property A, B &
C of the plaint.

5. During the pendency of the case, an
application under Order 1 Rule 10 CPC was
moved by Anil Srivastava and Shiv Nath
stating that the suit is based on false and
fabricated facts. The defendant is real brother
in law (Devar) of the plaintiff. The temple
was constructed by original trustee Ram
Prasad and he had gifted his Bhumidhari
property situated in the village Sahajhapur
and Balarpur vide registred deed dated
2.12.1959. He had also executed an
amendment agreement dated 29.4.1982 and
appointed Jageshwar Prasad Katiyar his
manager and trustee of the trust and also
authorized him to appoint manager and
trustee during his lifetime.

6. During lifetime of Jageshwar
Prasad, he neither appointed any manager
nor executed alleged deed dated 8.2.2014
in favour of the plaintiff. The alleged
unregistered deed is forged and fictitious
which bears no signature of Jageshwar
Prasad. The plaintiff is not the sarvarakar of
the impugned trust nor she can be.
1 All. Smt. Meena Devi Vs. Babu Ram & Ors.
1375

7. Jageshwar Prasad had jointly
executed an affidavit dated 8.9.2012
whereupon his original signature are
present. Apart from that he had also signed
on declaration as guarantor. The original
signature is totally different from the
signature that has been made on the alleged
deed dated 8.2.2014. The plaintiff has no
concern with the trust. She is not in
possession over the trust property. In fact
the trust is a public trust and the
defendant/applicants who are the residents
of village Balarpur, perform worship in the
temple and look after its property and they
are the beneficiary and necessary party to
the suit, therefore, plaintiff be directed to
implead the applicants as defendants so that
the correct facts through the written
statement/objections may be presented.
Plaintiff and defendants are in collusion
and have concealed the facts. They want a
decision from the court to grab the trust
property.

8. After hearing both the parties the
learned Additional District and Sessions
Judge allowed the application and directed
the plaintiff to implead the applicants as
defendants on the ground that it is true that
the plaintiff and defendants are the real
Devar and Bhabhi, the facts of the suit were
admitted by the defendants and they
wanted the case to be decided accordingly.
There is apprehension of grabbing the
property of the trust and hence the Court
below found that applicants must be
impleaded as defendant to bring the true
facts before the Court.

9. Being aggrieved by the aforesaid
order, the present revision has been
preferred by the revisionist-plaintiff on
the ground that the Court below has
exercised its jurisdiction illegally and has
allowed the application under Order 1
Rule 10 CPC after recording the finding
that the papers relied upon by the plaintiff
is forged and fictitious without giving an
opportunity to prove its genuineness
which will cause failure of justice and
irreparable loss to the revisionist. The
Court below has failed to consider that
the trust is a private trust and not a public
trust. The Court has also failed to
consider that the applicants have no
connection with Ram Prasad, the creator
of the trust or with Jageshwar, the trustee
appointed by Ram Prasad. The Court
below has also failed to consider that the
document dated 8.2.2014 is a will deed
and need not be registered and is a valid
document unless its execution appears to
be in suspicious circumstances. The
Court below has also failed to consider
that the conditions under Order 1 Rule 10
CPC are not satisfied.

10. Heard learned counsel for the
revisionist, learned counsel of opposite
party and perused the record.

11.

Learned
counsel
for
the
revisionist submits that the impugned
trust is a private trust and after death of
revisionist's husband, Jageshwar Prasad,
she moved an application under Section
74 of the Indian Penal Code making her
brother-in-law (Devar) as defendant to
appoint her as Sarvarakar on the basis of
alleged will deed executed by her
husband Jageshwar Prasad on 8.2.2014
and also on the basis of being legal
representative of the deceased Jageshwar
Prasad.

12. The facts of the case have already
been mentioned earlier. The deed executed
by Ram Prasad is annexed as annexure no.
1 with the revision wherein he admits that
there is a temple of Shri Shiv Ji built on the
1376 INDIAN LAW REPORTS ALLAHABAD SERIES
Thatiya road in his viallge for which there
is no land for the arrangement of worship,
yoga etc.

13. From the perusal of the aforesaid
documents it transpires that the Shiv Ji
Mandir in Thathiya road in the concerned
village was not built by Ram Prasad. Later
on he being issueless, wished to dedicate
his property, details of which have been
mentioned in the deed, for all kinds of
expenses, repair and colour, yoga etc of the
said temple. Accordingly he had dedicated
his property to the said temple and also
imposed the condition that he will be
manager of the said temple and attached his
property to it and after his death Shri
Swami Ramcharan Chela Bhagwandas will
be the priest of Shivji temple. It has also
been mentioned that during lifetime of Ram
Prasad,
Swami
Ramcharan
Chela
Bhagwanadas died and later on another
deed was executed by Ram Prasad on
29.4.1982 in which contrary to the
averments of the previous deed, he has
stated that Shiv Ji Mandir was built by him
at Thatia road and he had gifted his
property for the purposes of worship, Arti,
Yoga, festival and repair etc. He has also
admitted that he has become very old and
now he is unable to perform the work of the
temple. Jageshwar Prasad Katiyar son of
Ram Das Katiyar, does help him in his
work and also keeps proper arrangement
for his food and lodging etc. Thus he
amended initial waqfnama dated 2.12.1959
and
appointed
Jageshwar
Prasad
as
manager and trustee and also given him
right to appoint any person as manager and
trustee in his lifetime.

14. As per the contention of the learned
counsel for the revisionist, Jageshwar Prasad
died in the month of April, 2014 and before
his death he had executed will deed dated
8.2.2014 wherein he has referred the deed
executed by Ram Prasad. He also mentioned
that Ram Prasad had appointed him
Sarwarakar through letter of authority dated
29.4.1982 and he was also given right to
appoint Sarwarakar because there is no one in
the family of Ram Prasad, therefore, under
the right he appointed his wife as Sarwarakar
after his death and also that after the death of
his wife his sons will be Sarwarakar and after
them, their sons shall be Sarwarakar and it
shall be continued generation to generation.

15. In this case no proceedings under
Section 73 of the Indian Trust Act has been
adopted but an application has been filed for
appointing
the
applicant-revisionist
as
Sarvarakar, under Section 74 of the aforesaid
Act, making brother-in-law as defendant who
has although denied the averments of the
application in written statement but it is very
precise wherein no complete facts have been
mentioned. It has also been noticed that when
in the year of 1959 initially the trust was
created by Ram Prasad, Shivji Temple was
already into existence at Thatiya Road. It
appears that the temple was built for pubic at
large and Dharmshalas were made for the
benefit of public at large and for proper
maintenance, properties of list C were
donated to the temple. Admittedly Ram
Prasad had no issue, therefore, it appears that
his intention was to create the trust for the
benefit of public in general and only
maintenance right was provided to Jageshwar
Prasad. It is also noteworthy that both the
deeds of 1959 and 1982 were registered
deeds. The question arises as to whether the
Sarwarakary rights could be created by way
of an unregistered will or any registered
instrument is required.

16. Certainly the applicant Smt.
Meena Devi and the opposity party Babu
Ram are the family members. The trust was
1 All. Smt. Meena Devi Vs. Babu Ram & Ors.
1377
not created for the benefit of their family.
Therefore, a burning question arises as to
whether the said trust is private or public in
nature. If the property in suit is a public
property for public charities then Section
92 CPC would come into picture and the
provisions of Indian Trust Act would not
apply.

17. The opposite party has also denied
the execution and signature of Jageshwar
Prasad on the alleged will deed. According
to the revisionist the alleged will deed had
been executed by Jageshwar Prasad in the
month of February 2014 and just thereafter
in the month of April, 2014, Jageshwar
Prasad had died. The question arises as to
whether at the time of execution of the
alleged will deed, Jageshwar Prasad was a
person of sound mind and health or not. The
burning question also arises as to whether
the alleged deed is in consonance to the deed
executed by initial trustee Shri Ram Prasad
or not. It appears that it was not the intention
of Ram Prasad that the property should go to
a particular race or the family. No restriction
was imposed by Ram Prasad regarding entry
of any person of Hindu community in the
aforesaid temples. The opposite parties have
come with the case that the alleged will deed
dated 8.2.2014 is forged and fictitious which
bears no signature of Jageshwar Prasad. It is
also a question that it is an unregistered deed
on which basis whether the plaintiff can be
appointed as Sarwarakar. Primafacie the
impugned trust appears to be a public trust
and the applicants are the original residents
of village Balarpur, they worship in the
temple and according to them, they also look
after its property, therefore, they are the
beneficiary. According to the applicants both
the parties are in collusion so they can usurp
the trust property, therefore, applicants be
arrayed as party to bring the correct fact
before the Court.

18.

The
learned
Court
below
considering the applicants to be necessary
party,
allowed
the
application.
Being
aggrieved, the revisionist has preferred this
revision.

 Order 1 Rule 10 CPC is as under:

10. SUIT IN NAME OF WRONG
PLAINTIFF.

(1) Where a suit has been instituted in
the name of the wrong person as plaintiff or
where it is doubtful whether it has been
instituted in the name of the right plaintiff,
the Court may at any stage of the suit, if
satisfied that the suit has been instituted
thought a bona fide mistake, and that it is
necessary for the determination of the real
matter in dispute so to do, order any other
person to be substituted or added as
plaintiff upon such terms as the Court
thinks just.

(2) Court may strike out or add
parties-The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may appear to the Court to be
just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the name,
of any person who ought to have been
joined, whether as plaintiff or defendant, or
whose presence before the Court may be
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions involved in
the suit, be added.

(3)No person shall be added as a
plaintiff suing without a next friend or as
the next friend of a plaintiff under any
disability without his consent

(4)Where defendant added, plaint to
be amended--Where a defendant is added,
the plaint shall, unless the Court otherwise
directs, be amended in such manner as may
1378 INDIAN LAW REPORTS ALLAHABAD SERIES
be necessary, and amended copes of the
summons and of the plaint shall be served
on the new defendant and, if the Court
thinks fit, on the original defendant.

(5) Subject to the provisions of the
Indian Limitation Act, 1877 (15 of 1877),
section 22, the proceedings as against any
person added as defendant shall be deemed
to have begun only on the service of the
summons.

Order 1 Rule 10 CPC enables the
court to add any person as party at any
stage of the proceedings, if the person
whose presence before the court is
necessary in order to enable the court
effectively and completely adjudicate upon
and settle all the questions

19. In Balasaheb Vs. Venkat, (2006)
SCC 530, it is held that-

"in application for impleadment under
Order 1 Rule 10 CPC, the only question
that comes to be decided as whether the
presence of the applicant before the court
may be necessary in order to enable the
court
to
effectively
and
completely
adjudicate upon and settle all the disputes
involved in the proceedings."

In Amit Kumar Vs. Farida, AIR
2005, SC 2209, it is held that-

"a person can be added as a party in
two cases, viz (a) if he ought to have
joined as a party to the suit and has not
been so joined; (b) if the suit can not be
decided without his presence."

In Anil Kumar Vs. Shiv Nath
(1995), 3 SCC 147, it is held that-

"out of several tests for deciding the
question if a third person should be
allowed to be added as a party in a suit,
the important tests are; (1) whether the
result of the suit will affect the third party
applicant; (2) whether the court will be
required to answer any issue other than
those arising or would arise from the suit
from the pleadings of parties to the suit;
and (3) whether the presence of the party
will facilitate effective and complete
adjudication of all questions involved in
the suit. A party may be added although
no relief has been claimed against him.
His presence is necessary for a complete
and final adjudication. He is thus a
proper party."

In
S.T.C.
Vs.
Chittoor
Cooperative, AIR 1990 Del, 142, it is held
that-

'there may be cases when some
person has to be impleaded as party
defendant for proper adjudication of the
dispute although no relief can be claimed
against him.

In
Ratan
Muni
College
Vs.
Additinal
Civil
Judge,
AIR
1995
Allahabad 7, it is held that-

"theory of dominus litis should not
be over stretched. The Court may order
that a party be joined at any stage of the
proceeding to completely and effectively
adjudicate the dispute even if a party to
the suit does not choose to implead."

In Udit Vs. Additional Member
Board of Revene AIR 1963, SC, 786 it is
held that

"Court can suo-motu or on the
application of a party can add or implead
a proper party for completely settling the
dispute".

In Kasturi Vs. Iyyamperumal, AIR
(2005) 6 SSC 733, it is held that-

" for determining whether a party is
a necessary party or not, the following
two facts are to be satisfied;

(1) there must be a right to some
relief against such party in respect of
conditions involved in the proceeding;
and
1 All. Smt. Meena Devi Vs. Babu Ram & Ors.
1379

(2) no effective decree can be passed
in the absence of such a party."

In Basanligappa Vs. Nagamma, AIR
1969 Mys 313, it is held that-

"the provisions of this rule shall be
applicable in so far as they are not
inconsistent with the provisions of a special
statute."

20. Thus it can be said that even in the
proceeding of Indian Trust Act order 1 Rule
10 CPC is applicable.

21. On the basis of above discussion,
this Court is of the opinion that the Court
below has correctly allowed the application
of
the
applicants
and
directed
the
revisionist to implead them as defendants.
It is also noteworthy that several questions
have been arisen out from the above
discussions which could only be decided by
impleading the applicants/opposite parties
in the application moved by the revisionist
under Section 74 of the Indian Trust Act.
Thus, the impugned order does not suffer
from any error or illegality and the revision
is liable to be dismissed.

22. Accordingly, the revision is
dismissed with cost. Stay order dated
5.10.2016 is hereby vacated. Let a copy of
this order be sent to the Court below for
proceeding further.
----------