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ALLAHABAD HIGH COURT
Sangeeta Chandra, J.
Prakash Chandra and Ors. —Petitioners
versus
Krishna Kumar and Ors. —Respondents
Writ - A No.13412 of 2011 with Writ - A No.16929 of 2011
Decided on 11.1.2019
(B) Indian Trusts Act, 1882—Section 6—Transfer of Property Act, 1882—Section 122—Gift to private trust or religious endowment—In a private trust or religious endowment beneficiaries are specific persons—In a public trust or endowment, general public or a sections thereof is beneficiary—Under Hindu law an idol can have no beneficial interest in endowment—Gods do not make use of property according to their desire nor are they seen to act for protecting the same—Gods have no beneficial enjoyment of properties—They can be described as owners only in a figurative sense—A gift to an idol consisted in abandonment by owner of his dominion over them for the purpose of their being used for the purpose which he intends—Purpose of making a gift to a temple does not confer any benefit on God or Deity but confers a benefit on those who worship in temple, by making it possible for them to have worship conducted in a proper and impressive manner—In this sense an endowment is generally recorded as a public trust. (Para 43)
(C) Civil Procedure Code, 1908—Section 92 and Explanation VI to Section 11—Public charities—A suit under Section 92 being a representative suit binds not only parties named in suit title but all those who share common interest and are interested in Trust—It is for this reasons that Explanation VI to Section 11 of C.P.C. constructively bars by res judicata, entire body of interested persons from agitating matters directly or substantially an issue in an earlier suit under Section 92 CPC. (Para 49)
Result: Writ Petitions dismissed.
Sangeeta Chandra, J.—These two writ petitions are being taken together by this Court as the issue involved is the same with regard to two shops adjacent to each other i.e. Shop No. 155 and 156 situated at Sabitganj Road, Mohalla Kuncha Sheeshchand, District Etawah.
02. The petitioners in Writ Petition No. 13412 of 2011 Prakash Chandra, Alok Chandra, Ramesh Chandra and Mahesh Chandra are all sons of late Basant Lal. They have filed this writ petition along with their two sisters namely Chandra Prabha and Chandra Shree, challenging the judgment and order dated 25.04.2009 passed by the Prescribed Authority/Civil Judge, (Senior Division), Etawah and the judgment and order dated 11.02.2011 passed by the Additional District Judge rejecting the Rent Appeal No. 06 of 2009 in P.A. Case No. 19 of 2003.
03. Writ Petition No. 16929 of 2011 has been filed by Suresh Chand and Rajesh Kumar both sons of Sone Lal along with their sister-in-law, widow of one Rajiv kumar (also the deceased son of Sone Lal), against the judgment and order dated 07.02.2009 passed by the Prescribed Authority/Civil Judge (Senior Division), Etawah in P.A. Case No. 20 of 2003 (Krishna Kumar vs. Smt. Shanti Devi & Others) and the judgment and order dated 11.02.2011 passed by the Additional District Judge, Etawah in Rent Appeal No. 04 of 2009.
04. It is the case of the writ petitioners that their fathers Basant Lal & Sone Lal were initially tenants of the two shops situated adjacent to each other.
05. The respondent-Krishna Kumar alleging himself to be the landlord of the two shops in question filed an application for release of the two shops on the ground of personal need, since his four sons and two daughters had grownup and he wanted the two shops for continuous business of catering. It was said in the Release Application that he has a business of fast food which he carries on by setting up temporary stalls in Haats, Bazars and Melas but due to his advancing age and sickness of his wife and having six grownup children to look after, he needed to set up permanent shop at Etawah for which he had purchased the two shops through a registered sale-deed dated 20.10.2000 along with the house adjacent to the said shops from Subhash Dixit and Jitendra Dixit r/o. Berun Katra, Sahabganj Khan, Etawah. It was alleged in the said plaint that the landlord had given notice to the tenants who held the two shops on rent @ Rs.10/- per month in the year 2002 and filed a Release Application thereafter under Section 21(1)(a) of the U.P. Act No. 13 of 1972 in the year 2003.
06. The defendants i.e. the writ-petitioners of these two writ petitions appeared and filed an objection as to the maintainability of the Release Application alleging that the shops were originally owned by one Subedar s/o. Lalman who had executed a Will on 03.02.1925 bequeathing all his property to Rajaram. Rajaram was the adopted son of Subedar. Subedar had constructed a temple, a well, shops and dharamshala in Mohalla Barun Katra, Sahab Khan, Etawah City and the temple, well and dharamshala were to be maintained by Rajaram from income of shops and other property of Subedar after his death. It was alleged that in the Will it was stated that Rajaram would not have a right to transfer the property and on the death of Rajaram, if he died issue-less, the property was to be looked after by a Committee of certain named persons of the city who would then also be liable to maintain the temple and dharamshala from the income of the other properties of Subedar and in case of death of any of the members of the Committee, the remaining members of the Committee had the right to co-opt some other well known religious persons of the city of Etawah. It was alleged that Rajaram died issueless and his widow Ram Devi started collecting rent. Ram Devi executed a Will on 13.11.1987 thereby appointing Subhash Dixit and Jitendra Dixit, her nephews, as her successors and also enjoined upon them the duty to maintain the temple out of
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