JUDGMENT Prakash Krishna, J.
1. This is defendants' appeal. It arises out of suit No. 180 of 1975 filed against the present appellants claiming perpetual injunction against the defendants permanently restraining them not to interfere with the plaintiffs' right to worship as shebait of Dauji Maharaj situate at Mendu Darwaja Hathras.
2. To understand the controversy the following pedigree is relevant:-
Ganga Das | _______________________________ | | Shanti Ram Kewal Ram @ Kewal (died in 1949) Das (died issueless) | (Executed a will dt. 7.11.1944 in | favour of the Defendant No. 1) _____________________________________ | | Lala Ram @ Shyam Sunder Mahesh Chandra (Plaintiff) | Munna (Defendant No. 2)
3. The suit was instituted on the allegation that ancestor Ganga Das, the grand father of the plaintiff and great grand father of the defendant No. 2 established temple of Shri Dauji Maharaj at Mendu Darwaja, Qasba Hathras Smt. Chunia and Smt. Champa, the two ladies dedicated their entire properties to the aforesaid Shri Thakurji and Shri Thakurji became the owner of the dedicated properties. The dedication was made by a registered deed dated 26th February 1918. These ladies Smt. Chunia and Smt. Champa were of the family of Ganga Das and they appointed Shri Ganga Das as the successors as trustee and Sarvarakar of Thakurji. Shri Ganga Das during his lifetime served Thakurji by seva and pooja and managed the properties as Sarvarakar and he was assisted in his old age by Shri Shanti Ram, father of the plaintiff and Kewal Dass, the uncle of the plaintiff. Shri Ganga Das for the management of the trust properties executed a will dated 23.11.1937. The relevant directions of the will have been enumerated in para 4 of the will. It provided that Shanti Dass and Kewal Das will manage the properties alternatively every year and will receive the offerings etc. and perform the religious functions in the temple and will have right to appropriate the offerings of the devotees for their use after meeting the temple's expenditure. Shri Ganga Das died in the year 1941 and Shri Shanti Ram died in 1949 and Shri Kewal Das died on 23rd of June, 1974. The further averment is that after the death of Ganga Das the property was managed by his two sons Shanti Ram and Kewal Das as per the arrangement as laid down by Ganga Das. In para 8 of the plaint it has been pleaded that Kewal Das on 7th of November 1944 executed a will in favour of his sister's son, namely Hari Shanker, defendant No. l, bequesting the shebaitship of the temple with right to do seva and pooja of Thakurji and management of the trust property. The defendant No. l armed with the aforesaid will is trying to interfere with the right of the plaintiff to manage the property and as such the necessity to file the suit arose.
4. The suit was contested by the defendant No. l alone. In para 15 of the written statement it has been pleaded that after the death of Ganga Das the Mandir and its property was managed by his two sons as Shebait and after the death of Shanti Ram, Shri Kewal Das became the shebait. The plaintiff though during the life time of Kewal Das managed the temple for some time but he was not legally authorized to do so and as such the plaintiff not being a shebait is not entitled to maintain the suit. It has been further pleaded that the defendant No. 1 was appointed as Mohatsim of the Mandir and the disputed property by means of will dated 7.11.1944 and there is a custom that Mohatsim during his life time may appoint a person as Mohatsim to look after the property after his death. The defendants No. 3 to 8 illegally are realizing the rent from the tenants and the plaintiff being not heir of Kewal Das and as such is not entitled to maintain the suit. It was further pleaded that if Ganga Das could execute the will, Kewal Das could also execute a will. The plea that Kewal Das adopted the defendant No. l (appellant) according to the Hindu Shastra on Kartik Sudi 15 Wednesday, Sambat 1994 was also raised.
5. The following two issues were framed by the trial court:-
" (1) Whether Kewal Das could change the order of succession of the Shebait by will?
(2) To what relief, if any, is the plaintiff entitled?"
6. It may be noticed that none of the parties led any oral evidence in support of their respective cases. The defendant No. l has filed the will of Ganga Das and Kewal Das Ex - 1 and 2. Both these wills are admitted to the plaintiff. The bone of contention between the parties was whether Kewal Das could transfer his rights through will in favour of defendant No. l or not. There is not much dispute that ancestors of Ganga Das establish the temple and Smt. Chunia and Smt. Champa also donated their properties to the temple. Shri Ganga Das was managing the temple and worship etc. was being performed by Shri Ganga Das. The trial court by its judgment and decree dated 30th of August, 1978 dismissed the suit. It found that Ganga Das was the Sarvarakar and Mohatsim of the temple and was not its founder. The trial court was of the view that Ganga Das was not founder of the temple and if he could transfer the right of Shebaitship by a will, Kewal Das could also transfer the said rights by way of will. Ultimately the trial court came to the conclusion that Kewal Das could change the line of succession by will. The said judgment has been reversed in Civil Appeal No. 273 of 1976 filed by the plaintiff by the Court below. The appellate court has come to the conclusion that the true nature of the document dated 23 11.1937 executed by Ganga Das is not a "will", but it is in the nature of scheme of management to manage the temple and its properties. It was also of the view that if there is no provision in the deed of endowment about the mode in which the office is to be filled up then it shall depend on the wishes of particular institution and if there is nothing of any such kind then it shall revert to the heirs of the founder. It having found that Ganga Das never intended any transfer by his will dated 23.11.1937, the will so executed by Kewal Ram in favour of defendant No. 1 is ineffective and has no legal sanctity. To put it differently, the appellate court was of the view that the line of succession of the office of Shebait of the temple in question could not be changed by Kewal Ram by executing will dated 7.11.1944 in favour of the defendant No. 1.
7. Challenging the judgment of the appellate court the present appeal was filed and was admitted by this Court on 21.12.1978.
8. The appeal was earlier heard by this Court by Hon'ble Mr. Justice R.B. Mehrotra, J and as noticed by His Lordship in his order dated 15th March, 1995, the following three points were urged before him by the learned counsel for the appellant:-
(1)Shri Ganga Das succeeded to the post as Shebait and as such he could riot, by will restrict right of succession to the heirs of his two sons and as such the judgment of the appellate court is incorrect.
(2) The lower appellate court on the basis of the abovementioned will of Gangaram arrived at wrong conclusion that Kewalram had received the Shebaitship rights in respect of disputed temple through will, inreality, Gangaram had no right to make will and Kewal Rani got shebait rights only as successor of Gangaram.
(3)The last sentence of para 7 of the will of Gangaram has been added during the pendency of appeal by forging the will therefore by the interpretation of the will of Gangaram should be done, by ignoring that sentence.
9. To complete the narration of the events it may be noticed that after the judgment by the First Appellate Court, a review application was filed by the present appellant before the Court below on the allegations that a sentence at the end of para 7 has been added in the will of Ganga Das. It was added after hearing of the arguments in appeal by the first appellate court and before the delivery of the judgment. According to the appellant the following sentence has been added in the will of Ganga Das in clause - 7. Its English Translation is as follows:-
"After the death of he two sons their descendants will be managers one after other."
10. The Hon'ble R.B. Mehrotra, J preferred to adjudicate upon the plea of addition of the last sentence in para 7, first. Before His Lordship it was argued by the respondents that "had there been an interpolation or addition in the will it was duty of the appellant to move the appropriate application before the court below. No grievance regarding the interpolation was raised in the memo of the appeal filed before the High Court. The court below decided on 9.9.1978 and an application by the present appellant on 25th September 1978 before the Lower Appellate Court. The Lower Appellate Court passed an order that the said will along with its Hindi translation be kept in sealed cover. After hearing the learned counsel for the parties the Hon'ble Mr. Justice Mehrotra, J passed an order on 15th March, 1995, as His Lordship was of the view that the Lower Appellate Court should be entrusted with the duty of making factual enquiry with respect to the matter of the above sentence occurring in the certified copy of the will as raised by the of the appellants. The following issue was framed and was remitted to the Lower Appellate Court to record its finding thereon :-
"Whether after para - 7 of the certified copy of the will, under mentioned sentence has been fraudulently added."
"After the death of the two sons their descendants in succession one after another will be manager."
11. The court below decided the aforesaid issue by its order dated 20th of December 2000 and found that the aforesaid sentence in question was added after the judgment of the trial court and before the judgment by the appellate court. The contesting respondent has filed objections on the aforesaid finding recorded by the court below on the allegation that the Lower Appellate Court has wrongly accepted the report of the expert examined by the defendant appellants and it has wrongly rejected expert's report produced by the plaintiff-respondents. It has failed to consider the statement of Babu lal son of Hari Shanker and has misread and misinterpreted the statement of Kali Charan son of Shyam Lal. It lias been further stated that none of the parties produced the original will of Ganga Das executed on 23.11.1937 before the Lower Appellate Court and as such the finding recorded by it on the above issue is liable to be set aside.
12. Heard the counsel for the parties and perused the record. The learned counsel for both the parties agreed that the present appeal be heard and decided on the three points formulated by the Hon'ble Mr. Justice R.B. Mehrotra, J. as quoted in the earlier part of this judgment.
13. Shri Vinod Sinha, the learned counsel for the appellant submitted that the court below after remittal of the issue by this Court has recorded a findine that the last added sentence of para 7 in the will of Ganga Das has been added during the pendency of the appeal. Therefore; the judgment under appeal is vitiated. The court below has allowed the appeal by placing reliance upon the last sentence of para 7 in the will of Ganga Das. It was also submitted that since Ganga Das executed a will in respect of Shebaitship rights, the execution of will by Kewal Ram in favour of the defendant appellants cannot be held illegal or contrary to law. No fault could be found out if Kewal Ram also executed a will in favour of the defendant appellants.
14. In contra, Shri V.B. Upadhyaya, the learned senior counsel for the plaintiff-respondents, submitted that on a fair reading of the document dated 23.11.1937 executed by Ganga Das, it cannot be said that it is in the nature of a will of Ganga Das. The nature and contents of the document dated 23.11.1937 clearly show that it was an arrangement to manage the property during his life time and thereafter. Giving label of "Vasiyat" (will) by Ganga Das in the deed itself will not make it a will. He also submitted that under Hindu Law line of succession of Shebaitship cannot be changed by means of will by a Shebaith who is not founder of the trust. Elaborating the argument it was submitted that if the fine of succession as mentioned in the trust deed comes to an end, the trust property shall revert back to the heirs of the founder of the trust. He also challenged the findings recorded by the court below on the issue remitted by the High Court and submitted that in absence of the original document it cannot be said that there has been an interpolation or addition in its certified copy. Question whether there is an interpolation or addition in a certified copy, can only be decided with reference to the original document. In absence of original document and any other material the disputed addition of last sentence in para 7 of the will of Ganga Das cannot be decided.
15. Taking the first point, first, it is necessary to peruse and consider the deed of endowment dated 26.2.1918, executed by Smt. Chunia and Smt. Champa. This document provides that after Ganga Das, his two sons namely Shanti Ram and Kewal Ram will be Mohatsim. Therefore, Shanti Ram and Kewal Das became Mohatsim in their own rights, by virture of registered deed 26.2.1918. These two persons became Mohatsim not because of succession, being the sons of Ganga Ram.
16. I venture to decide the question as to whether Kewal Ram having got the office of Shebaitship by virtue of trust deed dated 26.2.1918, could have executed a will in favour of the defendant-appellants with respect to the temple and its property in question of which he was a shebait. The trial court adjudicated this "point on a short ground that since Ganga Das had executed a will on 23rd November, 1937 in respect of temple and its properties, the execution of will by Kewal Ram in favour of the defendants is perfectly valid. At this stage it may be noticed that neither Ganga Das nor Kewal Das were the founders of the trust. The trust was created by Smt. Chunia and Smt. Champa by a registered deed dated 26.2.1918. In the said deed the founders have provided that Ganga Das would be the Shebait and Manager and after his death Kewal Das and Shanti Das sons of Ganga Das would be Mohatsim of the trust property. The deed is silent about the succession of the office of shebaitship after the death of Kewal Das and Shanti Das. The learned counsel for the appellants has placed reliance on AIR 1985 S.C. 90S Shambhu Charan Shukla v. Shri Thakur Ladli Radha Chand Madan Gopalji Maharaj and submitted that shebaitship is in the nature of immovable property and as such it is inheritable and can be disposed of or transferred by a Shebait by a will, unless there is an usage or custom of a different nature in cases where founder has not disposed of the Shebaiti right in the endowment created by him. Further reliance was placed on Kali Kinkur Ganquli v. Panna Banerfee and Ors. for the proposition that Shebaiti rights are transferable. Placing reliance upon Ram Rattan v. Bajrang Lal and Ors. it was submitted that the position of a shebait is not merely that of Pujari He is a human ministrant of the deity. By virtue of the office a shebait is an administrator of the property attached to the temple of which he is shebait. The enjoyment of heredity of the office of shebait by a person by turn would be of the immovable property and the gift of such immovable property must be by a registered instrument only. Profulla Chorone Requitte and Ors. v. Satya C.R. was also relied upon.
17. On the other hand the learned counsel for the respondents placed reliance on (1) Shri Kishan v. Jagannathji ; (2) Bairagi Das v. Shri udai Chand ; (3) Chockalinga Sethurayar v. Arumanayakam and (4).Ram Das and Anr. v. Kalyan Das and Anr. , For the proposition that a shebait, under Hindu Law is not authorized to change the line of succession to the office of shebait as mentioned in the endowment deed, by executing a will. The succession to the office of shebaitship shall be governed as provided in the endowment deed. If there is no provision in the endowment deed it will devolve in accordance with law of succession. If a line of succession 'has been provided for in the deed and that has come to an end, the debuttar property shall revert back to the heirs of the deceased founder.
18. Shri B.K. Mukherjee in his book on the "Hindu Law of Religious and Charitable Trust" has stated that though a shebait is a manager and not a trustee, in the technical sense, it would not be correct to describe the shebaitship as a mere office. In the conception of shebaitship both the elements of office and property and personal interest are mixed up and blended together. Undoubtedly, the duties of a shebait are to be regarded as primary things, whereas the emoluments or beneficial interests enjoyed by him are only appurtenant to the said duties. In the decision in Profulla Chorone Requitte (supra) the Supreme Court in para 20 of the report has clarified the concept and the legal character and the incident of shebaitship. Para-20 reads as follows:-
"Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorized representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debuttar, his position is analogous to that of a Trustee; yet, he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolute dedicated to an idol, vests in the idol and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom, if not devised by the founder."
19. It has been further held that shebaitship being property, it devolves like any other species of inheritable property. It follows that, where the founder does not disclose the shebaiti rights in the endowment created by him, the shebaitship devolves on the heirs of the founder according to the Hindu Law, if no usage of custom of a different nature shown to exist. It has been further held that although, shebaitship is inheritable property, yet it cannot be freely transferred by the shebait. But there are certain exceptions to this general rule. The following are the judicially recognized exceptions to the general rule. Transfer of shebaitship right by gift or will has been held to be permissible in the following three cases:-
(a) The transfer of Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the deed of endowment, unless an ancient or reasonable custom or usage has been followed to be contrary.
(b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his deed of endowment, a particular shebait cannot change the line by succession by any deed or transfer unless the shebait transfers the totality of his rights in favour of succeeding shebait or shebauits during his life time.
(c) A transfer by Shebaiti right is also permissible for the benefit of idol or the deity or for imperious necessity under special Circumstances.
20. Shri B.K. Mukherjee in para 5.37 of Chapter 5 on page 232, 4th edition of the above book has mentioned the circumstances under which the office of shebait can be transferred: -
"(1) Where the transfer is not for any pecuniary benefit and the transferee is the next heir of transferer or stands in the line of succession of shebait and suffers no disqualification regarding the performance of the duties.
(2) When the transfer is made in the interests of deity itself and to meet some pressing necessity.
(3) When a valid institute is proved sanctioning alienation of Shebaiti right with a limited circle of purchasers who are potential shebaits of the deity or otherwise connected with the family.
21. The learned counsel for the respondents has laced reliance upon the following passage from the book of Shri B.K. Mukherjee: -
"5.30 Shebait's right of nominating his successor - The founder of an endowment can always confer upon a shebait appointed by him he right of nominating his successor. Without such authority expressely given to him, no shebait can appoint a successor to succeed to him in his office. The power of nomination can be exercised by the shebait either during his life time or by a willy but he cannot transfer the right of exercising this power to another person."
22. In the above legal back ground, the arguments raised by the counsel for the parties in support of their respective cases has to be examined. The appellant has heavily placed reliance upon Shambhu Charan Shukla v. Thakur Ladli Radha Chand Madan Gopal Ji in support of his contention that Kewal Das validly bequeathed the office of shebaitship by means of will dated 7.11.1944 in favour of defendant No. l, who is none else but sister's son of Kewal Das. [Kewal Das died issueless and the defendant appellants claimed that Kewal Das brought up him just like his son. Plea of adoption of the defendant No. 1 by Kewal Das as son has not been gone into by the courts below]. A careful reading of the aforesaid judgment does not support the contention of the defendant appellants. In that case one Purshottam Lal established the temple of Gopalji and was its founder. He died leaving behind him, widow Asharfi Devi. Asharfi Devi by her will appointed shebait of the temple. There was no other male family member in the family of Purshottam Lal. A dispute arose after the death of Smt. Asharfi Devi with regard to the management of the temple. The matter reached to the Supreme Court. The appeal in the Supreme Court was heard and decided by the Hon'ble Mr. Justice A. Varada Rajan and Sabya Sachi Mukherjee, J. J. The appeal was dismissed by the Supreme Court but on different reasonings. Both the Hon'ble Judges reached to the same conclusion but on different reasonings and separate judgments were delivered. The distinguishing feature of the case was that the founder Purshdttam Lal (founder) had not made any disposition regarding to the shebaiti right in his will whereby he created the endowment. On that premises it was held that after his death Smt. Asharfi Devi inherited the debuttar property as a limited owner and that right has become enlarge into an absolute right by the provisions of Section 14(1) of Hindu Succession Act and she could transfer the right by a will in favour of a person. The important fact to be noticed is that the founder had not laid down any line of succession of the office of shebaitship and he was survived by his widow alone. There was no other heir. In this back ground it was held that Smt. Asharfi Devi could appoint a shebait by will. In the case in hand the factual position is not so. In the registered deed dated 26th February, 1918 executed by Smt. Chunia and Smt. Smt. Champa by which they dedicated their properties in favour of deity, a line of succession has been mentioned by the executants of the deed. It is mentioned that Ganga Das would be the Mohatsim of the property in question and after his death Kewal Das and Shanti Das, sons of Ganga Das shall be Mohatsim. The deed is silent about the further succession of office of shebait. The learned counsel for the respondents strongly placed reliance on the aforesaid registered trust deed and submitted that the founders have provided the line of succession upto Shanti Das and Kewal Das. Shanti Das expired in the year 1949. After his death the debuttar property was being managed by Kewal Das. At that time the plaintiff Lala Ram was minor. It has also come on record that after attaining majority Lala Ram managed the property as shebait for some time. The learned counsel for the respondents submitted that after the death of Shanti Das, Lala Ram the plaintiff succeeded to the office of shebaitship being son of Shanti Das. Therefore, Kewal Das alone could not execute the will in question in favour of the defendant appellants. There is merit in the aforesaid argument of the learned counsel of the respondents. The preponderance of the judicial opinion is that right of shebaitship cannot be disposed of by a shebait, by way of will. The Supreme Court in the case of K.K. Gangoli (Supra) has held that a transfer of shebaitship has nowhere been countances by Hindu lines and assignment of religious office for pecuniary benefits of holder of office was held to be against public policy and contrary to the intentions of the founder. In para 19 of K.K. Gangoli's case it has been mentioned as follows:-
"A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeshwar v. Bhupeshwar (1907) JLR 35 Calcutta)." The Calcutta High Court in the case of Rajeshwar v. Bhupeshwar has observed as follows:-
"A Shebait is a manager or a quasi trustee for the benefit of idol. His office endures only for his life : his will only comes into operation on his death. What is, there, for him to alienate by his will ? Nothing."
23. In para 5.30 of Mr. B.K's Mukherjee book of Chapter 5 it has been stated that a founder of an endowment can always confer upon a shebait appointed by him the right of nominating his successor. When such authority is not specially given to him, no shebait can appoint a successor to succeed to him in his office. In this case by the endowment deed dated 26th February 1918 the founders have not conferred any express or implied authority to Ganga Das, Shanti Das or Kewal Das, shebaits, to appoint a successor to succeed to him in his office. Therefore, Kewal Das, in absence of conferment of express power to nominate a successor could not execute a will in favour of the defendant appellants.
24. The next question which arises as to what will happen if a line of succession as laid down by the founders has been extinct. The answer is given that in such cases debuttar property shall revert back to the heirs of the founders of the endowment. Shri B.K. Mukherjee in paragraph 5.31 has stated as follows:-
"Extinction of line of shebait - When the lien of shebait laid down by the founder is extinct, when the shebait to whom a power of nomination has been given does not exercise power, the managership reverts to the founder who endowed the property or his heirs. ' In case of the line of shebait is extinct, there is always an ultimate reversion to the founder or his heirs...."
In view of the above legal position the lower appellate court rightly concluded that Kewal Das was not authorised to execute a will in respect of shebaitship office in favour of defendant appellants.
25. An argument was raised by the learned counsel for the respondents that the trial court was wrong in treating the document dated 23.11.1937 as will of Ganga Das. It was submitted that on a fair reading of the aforesaid document, it is clear that it was merely an arrangement for the efficient and effective management of the debuttar property. The appellate court has held that it was merely a deed of arrangement, executed by Ganga Das which came into effect during his lifetime. In the preamble of this document it has been mentioned by Ganga Das that he has made substantial additions in the debuttar property by his hard work and labour and has been doing the Seva Pooja and realizing the rent and carrying on the repairs of the property, as Mohatsim. Now he has become 68 years old and is not in a position to put sufficient labour to manage the debuttar property. He has got two young sons namely Kewal Das @ Kewal Ram and Shanti Das @ Shanti Ram and are doing Seva Pooja as Mohatsim with his implied permission. He wants to make necessary arrangement in his lifetime so that there may not be any dispute in between the Mohatsim and Sarvarakar afterwards. He has made a provision that each one of them will be Mohatsim for one year at a time alternatively beginning with Ashadh Sudi Dooiz of every year. If a person fails to hand over the charge after the expiry of his term of one year he will be liable to pay Rs. 5/- per day as damages to the next person. Emphasis was laid by the counsel on the fact that these two persons were serving the temple as Mohatsim with the permission of Ganga Das and therefore it (document dt.23.11.1937) should be treated as deed of arrangement. I am unable to agree with the aforesaid contention.
26. To cull out the real purport of a document, it is fairly established that a document should be read as a whole. Besides the fact that the label of "Vasiyat" (Will) has been given to the document by the executant, in paragraph 9 thereof it is mentioned that this "Vasiyat" is being executed. Reading the document as a whole the irresistible conclusion is that it had all the ingredients of a will. Mere mention that his two sons are helping in the administration of the debuttar trust property will not make the document as a deed of arrangement. The reading of a document as a whole clearly shows that the document will come into operation only after the death of the executant and the executant remained the Mohatsim and Sarvarakar during his life time. This is further fortified from paragraph No. l of the died that nobody else has any right during the lifetime of the executant. Nothing much turns upon the nature of the document as in the endowment deed the founders namely Smt. Chunia and Smt. Champa have mentioned that after the death of Ganga Das his two sons Shanti Das and Kewal Das would be shebaits. Therefore even if the document is treated as a will of Ganga Das it is not much of significance, the right of Shebaitship has been conferred on Shanti Das and Kewal Das by the founders of endowment independently of the document dt.23.11.1937. These two persons had become shebait independently of the will/arrangement deed dated 23.11.1937 executed by Ganga Das. Therefore, it is not necessary for this Court to dilate on this issue any further. The point Nos. 1 and 2 are decided accordingly.
27. In view of the above conclusion it is not necessary for me to decide the question as to whether last line was added in para 7 of the will of Shri Ganga Das subsequent to the judgment by the trial court and before the delivery of judgment by the appellate court or not. The necessary facts have been given in the earlier part of the judgment. The appellate court remitted the finding that the disputed sentence in para 7 of the will of Ganga Das has been interpolated subsequent to the judgment of the trial court and during the pendency of the appeal before the appellate court Before the appellate court both the parties produced oral as well as documentary evidence and also hand writing experts. After taking into consideration the entire evidence, the court below has come to the conclusion that the disputed sentence was added subsequently. It has devoted 29 pages to arrive at that finding. The salient features and the attending circumstances of the case which have been taken into account to arrive at the aforesaid findings may be summarized as follows:-
" (1) The plaintiff respondent has not pleaded in the plaint that by virtue 'of the will of Ganga Das the office of shebait is inheritable by the descendants of Shanti Ram and Kewal Das.
(2) The plaintiff lost from trial court but in the memo of appeal no such ground based on clause - 7 ( together with the disputed sentence ) was raised.
(4) The disputed sentence does not fit with the text of the para-7.
(5) The said will is in Urdu language. Its original copy is not available. It appears that the original will was filed in some litigation before the Civil Court, at. the instance of Shanti Ram. In that litigation the original will of Ganga Das was filed. The defendants obtained a certified copy from the said file of Civil Court and filed it along with the copy in Devnagari script. The disputed sentence does not find place in its copy in Devnagari script.
(6) The contents of disputed sentence supports the case of plaintiff respondents and as such there is a strong presumption against him.
(7) The appellate court preferred to place reliance, upon the report of handwriting expert produced by the defendant appellants who has reported as follows:-
" Aisa Prateet Hota Hai Ki Is Dastavez Ko Le Ke Bad Mein Badhaya Gaya Hai Kyonki Ismein Typing Ink (Kali Ink) Nayi Prateet Hoti Hai. Purani Ink 47 Ga Mein Alag Se Likhi Prateet Hoti Hai."
28. Thus, from the report of the Handwriting expert it is clear that the addition in the document has been made later on; because, the ink used in it is in black colour and comparatively new to the old ink of 47 Ga and it appears to have been written separately.
29. The learned counsel for the respondents submitted that the lower court proceeded with the issue with an incorrect angle. The document in question was filed by the defendant appellants and it is only certified copy thereof. Unless and until the original is produced it cannot be said with certainty that there has been interpolation. Assuming that the sentence was added subsequently but it might have been added by way of correction in the certified copy by the official of the Court while comparing with the original before issuing it. Difference in ink and handwriting in such case is bound to be there. The said argument although cannot be said to be wholly irrelevant but does not hold good looking to the other facts and circumstances of the case. Had there been any such averment in the will of Ganga Das it was quite natural for the plaintiff to plead it. In normal circumstance he would have relied upon the said averment in the suit itself. It is difficult to accept that the said averment escaped the notice, of the plaintiff before the trial court. The said averment on the face of it runs counter to defendant's case and as such contesting defendant No. 1 (appellants) naturally will not make any such addition in the document. The appellants soon after the judgment by the court below raised the plea of alteration in the document, appears to be very natural. He acted in the matter with great promptitude. The judgment was delivered by the appellate court on 9.9.1978 and the review application was filed before it on 25th May 1978. The court below immediately put the document in question along with its Hindi translation in sealed envelop. It is unimaginable that a party shall make addition, alteration or interpolation in a document against his interest. It appears that the disputed sentence was added in the certified copy of the will but the interpolator forgot to make the addition in the Hindi translation of the will in question. Surprisingly the plaintiff at no point of time raised his finger before the courts below that the Hindi translation of the will of Ganga Das is in variance from that of Urdu language contained in the certified copy. The above unexplained indisputable circumstances of the case lead me to a conclusion that the finding recorded by the appellate court on the remitted issue is perfectly justified and correct.
30. However, the respondent is justified in his submission that the judgment of the court below is not based entirely on the disputed sentence of para 7 of the will of Ganga Das. A fair reading of the judgment of the appellate court leads to a definite conclusion that the appellate court has relied upon the said sentence only as an alternative. The judgment of the lower appellate court is based on the correct exposition of the law that Kewal Das could not have transferred the right of shebaitship by way of will.
31. The appellant forcibly argued that Ganga Das was his maternal uncle and grand father of the plaintiff. There is nothing objectionable if the defendant No. l is also permitted to manage the debuttar property. It was impressed upon the court that the defendant No. l and the plaintiff belongs to the same family. This contention has nothing to do with the merits of the case. In Hindu families a girl after marriage becomes the member of the family of her husband and ceases to be family member of her parents. In view of the established law that in case of extinction of line of Shebaitship, the property would revert back to the founder of the endowment for his heirs, the defendant No. l possibly cannot claim any right in the property in question not being a heir of the founders of the endowment.
32. In view of my finding that Kewal Das was not legally authorized to execute the will with respect to the shebaitship of office, in favour of the defendant appellants, the appeal has got no merit and is liable to be dismissed.
33. In the result the appeal is dismissed. No order as to costs.