Order on Civil Misc. Application No. 71362 of 2015 Order on Civil Misc. Application No. 60315 of 1998 Order on Civil Misc. Application No. 77972 of 2007
1. Learned counsel for the parties state that they do not want to press these applications and have requested that appeal may be finally heard.
2. In view of the statement of the learned counsel for the parties the above noted applications are dismissed as not pressed.
Order on Appeal
1. Heard Sri Virendra Kumar, learned counsel for the appellant and Sri Anuj Agarwal holding brief of Sri Pankaj Agarwal, learned counsel for the respondents.
2. This is plaintiffs' second appeal against the judgement and decree dated 31.3.1998 passed by Shri V.K. Jain, IInd Additional District Judge, Saharanpur in First Appeal No. 225 of 1978 (Umesh Das and others Vs. Murti Shivji Maharaj and others) decreeing the original Suit No. 5 of 1972 which was partly decreed by judgement and decree dated 7.4.1998 by Shri Gangu Ram, Civil Judge, Saharanpur.
3. Plaintiffs instituted the suit for declaration that plaintiff Nos. 1 and 2 are owners of the property mentioned in Schedule 'Aa', 'Ba' and 'Ja' detailed at the foot of the plaint and defendants have no right to transfer the property in anyway. Alternative prayer for possession of disputed property of Schedule 'Ja' to the plaintiff Nos. 1 and 2 through the plaintiff nos. 3 to 6. was made. Finally prayer for injunction restraining the respondent No.1 from transferring the property of Schedule 'Aa' and 'Ba'of plaintiff No.1 and 2 or any part thereof to the defendant no.6 or any other person in anyway was prayed.
4. The plaintiffs' case in brief is that about 200 years ago there was one Ramanandi Vaishnav Hari Das in Bindravan, who had a large number of disciples and followers in all over India; that his followers and disciples established large number of Maths in various places for his followers and followers of Baba Haridas dedicated the property for construction of the Asthal and Kutis; that for promotion and advancement of spiritual knowledge of Baba Hari Das Mission several Asthals were constructed at different places by disciples and followers of Hari Das and idols of deities were also installed therein and were maintained from income of endowed properties and offering.
5. The Charan Paduka of Baba Hari Das was established in Gangoh about 100 years back and a Kuti was constructed and an idol was established. The people of Gangoh were worshiping Charan Paduka and idol and the concerned land was donated by the persons who were ancestors of plaintiff nos. 3 to 6. This Kuti was situated in outskirt of Kasba Gangoh. There was fear in night hence an Asthal was constructed in Abadi of Kasba Gangoh. That land was also donated by the ancestors of plaintiff nos. 3 to 6. In this Asthal an idol of Shivji Maharaj was established and Samadhi of Baba Hari Das was also established. For Pooja and stay of other worshipers, a house was constructed for their living. Whatever money and other things received in offerings are utilized as expenses on Pooja, Bhog, Batti etc., of the Idol. In Sambat 1966 one Smt. Mathuri wife of Banwari Lal and grandmother of plaintiff nos. 3 and 6 constructed a big Chabutara and a temple in which the Idol of Shivji Maharaj was established and there is an inscription over the door of the temple. With this temple towards north and west two shops were constructed from the money received from worshipers. All expenses were incurred in construction of shops by Smt. Mathuri and other people of Gangoh. In 1962 from public money five shops were also constructed. The people of Kasba Gangoh are doing worship in the temple day to day. Hence all properties including house, shops belong to Idol Shivji Maharaj and Kuti Baba Hari Dass. The Kuti and Asthal were established by one Har Sukh Das in 1867 and Jai Ram Das and Badri Das Bairagi were Pujari and Administrator; respectively thereof. This work was continued by inheritance by Chelas. Since long time defendant no.1 is continuing as Pujari and Manger of all the properties of Idol Shivji Maharaj. Now he is a very old and remains ill all times. The defendant no.1 is not the personal owner of properties and he has no right to transfer any portion of the property. He started showing all the properties as his personal property. He transferred two shops towards north by registered sale deed dated 17.11.1971. These shops were not sold for legal necessity of Idol, plaintiff No.1 or Kuti Baba Hari Das plaintiff no.2 and the sale deed is void and has no legal force against plaintiff Nos. 1 and 2. Defendant No.5 has no right to purchase this property and has got no title in the property in dispute. It has also come to the notice of plaintiffs that defendant No.1 has entered into an agreement with defendant No.6 to sell some property of Idol for which he has no right. If the defendant no.1 sells the property then the idol Shivji Maharaj will suffer great loss and there will be multiplicity of suits. Plaintiff Nos. 3 to 6 are founders of plaintiff Nos. 1 and 2 and they have a right to protect the right and interest of plaintiff Nos. 1 and 2. Hence they are filing the suit . Apart from plaintiff Nos. 3 to 6 all the residents of Kasba Gangoh have a beneficial interest to protect the rights and interest of plaintiff Nos. 1 and 2. Hence the suit is filed under Order 1 Rule 8 C.P.C., in a representative capacity. The plaintiffs prayed for a decree of declaration that defendant no.1 is not the owner of property of plaintiff Nos. 1 and 2 mentioned in item Nos.'Aa', 'Ba' and 'Ja' at the foot of the plaint and has no right to transfer the same in future. They also prayed that a decree of possession be awarded in favour of plaintiff Nos. 1 and 2 for the property mentioned in item no. 'Ja'. Further a decree of permanent injunction is sought against defendant nos. 1 and 2 mentioned in the item nos. 'Aa', 'Ba' and 'Ja' at the foot of the plaint against transfer to third person.
6. The defendant Nos. 1 to 4 filed written statement. All the allegations except paragraph Nos. 1, 14, 17 and 18 were denied. It is admitted that Baba Hari Das was a famous Sadhu. It is also admitted that defendant no.1 sold two shops to defendant No.5. It is also admitted that defendant no.1 entered into an agreement to sell some property. It is also admitted that defendant no.1 has executed a 'Will' in favour of defendant Nos. 2 to 4. Rest of the contents of plaint are denied. In special pleas it is pleaded that the suit is undervalued and court fee paid is insufficient. The total value of the property in dispute is about Rs, 6,00,000/-. It is alleged that plaintiff Nos. 1 and 2 are not the owners of the property in suit and they have no right to file the suit through plaintiff Nos. 3 to 6 . It is also alleged that defendant no.1 is the sole owner in possession over the property in dispute. No other person and the plaintiffs have right to file this suit. Baba Haridas was a Bairagi and Harsukh Das, Jasram Das and Badri Das were his Chelas. Jasram Das and Badri Das died without legal heir. Harsukh Das made Heera Das his Chela. After the death of Harsukh Das, Heera Das was owner. He also made his Chela Naval Das. Naval Das also died and he made his Chelas Ram Das and Mathura Das. Ram Das died and Mathura Das defendant no.1 is alive and is the owner of property in dispute. Baba Hari Das was owner of property in dispute and his name was entered in Khewat. By virtue of succession as Chela now defendant no.1, Mathura is the owner. In property item No. 'Ba' there is Samadhi of Baba Hari Das. There were number of worshipers of Baba Hari Das and a huge amount was donated to him by worshipers which cannot be said to be public property. It is also alleged that Naval Das and Bansi Das were Chelas of Heera Das. After the death of Heera Das there was a partition between Naval Das and Bansi Das.The property of Kasba Gangoh and village Mainpuri came into share of Naval Das and property of village Bandarjura came in share of Bansi Das. After the death of Bansi Das one Mangal Das as Chela became heir. After the death of Mangal Das, defendant no.1 became heir and owner in possession of property of Bansi Das. The defendant no.1 could not manage the property of village Bandarjura. Then he transferred it in April, 1962 and by that money he constructed five shops on a portion of property item No. 'Ba'. It is wrong to say that in construction of these shops public money was invested. In constructions of house and Chabutra also the expenditure were incurred by Harsukh Das. Jas Ram, Badri Das and his Chelas and no public money was invested. All the properties mentioned in item No. 'Aa', 'Ba' and 'Ja' were the personal properties of Baba Hari Das and then their Chelas by succession in personal capacity and it was not waqf property. It is also wrong to say that the temple on the property item No. 'Ba' was constructed by Smt. Mathuri and it is not inscribed on the door of the temple. The defendant no.1 is living in property item No. 'Ba' since time of his ancestors. He is receiving the rent from the shops and he is real owner.
7. Defendant no.5 also filed written statement separately. He has also alleged the same pleas as pleaded by defendant Nos.1 to 4.
8. The plaintiffs filed replication in which all the pleas of defendant Nos. 1 to 5 have been denied and supported the pleas as mentioned in the plaint. Nothing new has been alleged in the replication.
9. Defendant No.6 has also filed separate written statement. He denied all the allegations of plaint and pleaded in special pleas that plaintiffs have no right to file this suit and they have no cause of action. He has pleaded that no agreement to sell has been executed in his favour and he has been impleaded as defendant unnecessarily.
10. On the pleadings of the parties, the Civil Judge framed following issues :-
I. Whether the suit is undervalued and court fee is paid insufficient?
II. Whether the plaintiff Nos. 3 to 6 have right yo sue?.
III. Whether the property in dispute is dedicated and endowed property, as alleged by the plaintiffs?
IV. Whether Late Baba Hari Das was exclusive owner of the disputed property? If so, whether it devolved in the defendants as alleged by the defendant ?.
V. Whether the defendant has perfected title with respect to the disputed property by adverse possession as alleged?
VI. Whether the defendant no.5 is bonafide purchaser for value in respect of property detailed in Schedule 'Ja' of the plaint ? If so, its effect?
VII. To what relief, if any, are plaintiffs entitled?
VIII. Whether the defendant No.1 was Mahant of the disputed property? If so, he had right to sell the property in suit ?
11. Issue No.1 has been decided by learned Civil Judge on 1.9.73 and held that suit is not undervalued and court fee paid is sufficient. Issue Nos.3 and 4 have been decided in favour of plaintiffs and he held that the property in dispute is dedicated and endowed property and Baba Hari Das was not exclusive owner and does not devolve on the defendants. Issue No.2 was also decided in favour of plaintiffs and held that plaintiff No.3 to 6 have a right to sue. Issue No.5 has also been decided against the defendant no.1 and held that defendants have not perfected the title with respect to the disputed property by adverse possession. Issue nos.6 and 8 have been decided in favour of the plaintiffs and held that defendant No.5 is not the bonafide purchaser for value of the property item No. 'Ja' and also held that the sale deed is without title and ineffective against the defendant. It is also held that the defendant no.1 was only Mahant and he had no right to sell the property in suit. The suit was decreed partly for declaration that plaintiff nos. 1 and 2 are owners in possession of all properties and defendant No.1 has no right to transfer the property in any way. The suit for permanent injunction was dismissed.
12. The trial court dismissed the suit for relief of permanent injunction and no cross appeal was filed by the plaintiff before the appellate court, therefore, the decree of the trial court became final regarding relief of permanent injunction at the stage of trial itself.
13. Aggrieved by the judgement and decree of the trial court, plaintiff preferred First Appeal No. 225 of 1978 before the lower appellate court. The lower appellate court did not framed any point of determination but has decided the appeal holding that plaintiff Nos. 3 to 6 who have donated property for construction of 'Kuti' and temple cannot claim any right to manage the suit property since there is no law which permits the donors to manage the property in which no trust was created by the donor, who was ancestor of plaintiff Nos. 3 to 6, to manage the property and, therefore, they cannot be permitted to interfere with administration of the suit property, only the Mahant and chela are entitled to manage the property by succession. The temple and 'Kuti' in dispute belong to the public and Mahant remains only administrator of the property and cannot become owner of the properties of Idol Shivji Maharaj and Kuti Baba Haridas. The 'Kuti' and the temple have been constructed by the fund of the public and the land was donated by one of the worshipers, who belong to public.
14. The two shops sold by the defendant No.5 Mahant is illegal and Mahants has no right to sell property of temple unless it is shown that there was legally necessity of sale to manage the temple or it facilitated the management thereof. The sale deed is void document. The purchasers cannot claim any adverse possession against the idol.
15. Further finding has been recorded that there is no prayer in the suit for cancellation of sale deed, therefore, it cannot be cancelled. Finally the appellate court has held that properties of the Idol and Kuti Baba Haridas shall be managed by Mahant and, thereafter, by his Chelas by succession, they shall have right to administer the property in future till their removal.
16. The appeal was partly allowed holding that suit for possession over property being subject matter of impugned sale deed is dismissed but declaration was granted that plaintiff Nos. 1 and 2 i.e., Idol of Shivji and Kuti Baba Hari Das are owners in possession of the property mentioned in schedule 'Aa' and 'Ba' of the plaint but the defendant Nos. 1 and 2 ,namely Umesh Das and Narottam Das and other Chelas have a right to administer the property by succession till their removal.
17. This second appeal has been preferred by the plaintiff against the judgement and decree passed by the appellate court. This appeal is listed under Order 41, Rule 11 CPC. for admission. The relief sought in this appeal is that the decree of the appellate court may be set aside and the possession and management of the suit property may be directed to be given to the plaintiffs.
18. This appeal is listed under Order 41, Rule 11 C.P.C. today. Learned counsel for the parties have agreed that the appeal may be heard and finally decided today on the substantial questions of law framed in the memorandum of appeal. Learned counsel for both the sides have stated that they do not want any time for preparing the case and they are willing to address the Court on the substantial questions of law framed in this appeal today itself. Accordingly, this appeal is being admitted and heard on the following substantial questions of law :-
1. Whether the cancellation of a void document is necessary?
2. Whether Jai Prakash, defendant No.5, has acquired any right, title or interest on the basis of void sale deed?
3. Whether Section 41 of the Indian Evidence Act is applicable in this case ?
4. Whether the appellate court can suo moto reverse the findings in respect of sale deed which was not challenged by Jai Prakash, defendant No.5 aggrieved by the trail court decree?
5. Whether a person can file an appeal who was not the party in the suit?
6. Whether Umesh Das and Narottam Das are Chelas of Mahant Mathura Das (deceased)?
7. Whether the appeal was not maintainable?
8. Whether Chela are entitled to manage the endowed property, who is not a Mahant?
Learned counsel for the parties have been heard.
19. In this case, it is clear that the suit properties were created as a result of endowments by the ancestors of the plaintiff Nos. 3 to 6. The properties were dedicated to the idol for the sacred purpose. It is also on record that when the endowment was made no deed providing for management of the suit property was made in writing nor any trust was created for management of the same. Under the law also, there is no requirement of a deed and in this case, the dedication to the idol is absolute and not partial. The endowment was created without providing for passing of any benefit or income accruing therefrom in favour of the descendants of the dedicator while creating the endowments. A Hindu dedication has the following peculiarities:-
(1) A dedication to the religious or a charitable trust under Hindu law is not a gift or a transfer of property.
(2) A dedication does not require writing or registration. No formal words or ceremonies are necessary to effect a dedication.
(3) A dedication does not require acceptance on behalf of the idol or charity.
(4) A dedication will not fail even though there is uncertainty in the name of the idol or uncertainty in the quantum of income that has to be applied to the trust.
(5) A dedication will not fail even if a gift is made to an idol which is not in existence at the time of the testator's death Mohan Singh Vs. Hat Singh, 32 All 337, nor a dedication to a temple which is yet to be built to a deity.
(6) A dedication will not fall even if there is destruction or a mutilation of the image of the deity Raghavachari Vs. Narayan, AIR 1974 Mad 166. A dedication is not affected by the Rule against Perpetuities and Accumulations.
(7) A dedication is irrevocable even at the instance of the donor Deoki Nandan Vs. Mulidhar, AIR 1957 SC 133.
(8) The dedication of property is not a sacrament but a secular act. The only difference between a dedication and secular gift is that in former no acceptance is necessary; mere renunciation of ownership by the donor with a particular object being sufficient to create an endowment Ram Swaroop Vs. Thakur Ram Chandra, AIR 1953 Nag 35.
(9) Declaration in unequivocal term is sufficient. Where a tablet was fixed declaring that house was set apart for using as staying place for marriage parties of Khattries, it was held as sufficient to constitute the dedication Jay Dayal Vs. Diwan, ILR 1938 Lah 704.
20. The rule against perpetuties embodied Section 14 of the Transfer of Property Act is not applicable to properties dedicated for public religious and charitable purposes. Section 14 of the Transfer of Property Act is as follows:
"No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong."
21. Section 18 of the Transfer of Property Act enacts that "the restrictions in Sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind". The Hindu law has always regarded gifts for religious or charitable purposes as exempt from the rule against perpetuity.
22. The dedication to a deity is actually a renunciation of the ownership of the private individuals in the property. In effect, it is dedication of the Almighty. A Full Bench decision of Madras High Court said in the case of Narasimha Vs. Venkatalingam, ILR 50 Mad 687, held that a gift to Almighty is not a gift to a living person and therefore, it is neither a gift nor a conveyance under the Transfer of Property Act.
23. Endowments in favour of the temples were the earliest forms of religious trusts. Maths came very much later.
24. The temples signify the faith and reverence of the devout Hindus; they symbolise the human instinct for divine protection; they are centres of a tremendous living faith; they unfold a unique story of devotion and heroism.
25. Many saints have lived in this world who showed spiritual path to the people and where endowments for worship is created over the mortal remains of such saints, it is known as Samadhi. Samadhies are places of public worship. Statutory recognition has been given to the saints in some States like Andra Pradesh charitable and Hindu religious institutions and endowments at 1987.
26. A Math is totally different from a temple in its concept. In the beginning when sanyasis took the responsibility of teaching the people moral and religious preachings, they must have either taken shelter in temples or got built separate huts, temples or away from them. This was the start of Math. Thus a Math became a place for preparing sandhus, sanyasis to preach the religion, spiritualism. This temple and Math in India are supplementary to each other. A temple is practical aspect while a Math is theoretical part. The presiding element in a Math is a as ascetic or religious teacher, with his disciples and co-disciples, he forms a spiritual family. In the case of temple, the grantee is the idol. In the case of Math, the beneficiary is fraternity of religious men headed by superior of Mahant while in the Math the idol is the center part of the institution.
27. The legal status of Mahant is still confusing and not settled. In Vidyapurana Vs. Vidyanidhi, ILR 27 Mad 435, the Madra High Court stated that the head of the Math was a corporation sole having an estate for life in the endowments and that head of the Math is like a Bishop. The decision was doubted and there was a reference to the Full Bench of the Madras High Court in Kailasam Pillai Vs. Nataraja, ILR 33 Mad 205. The Full Bench replying to the question "does the head of a Math hold the properties constituting its endowments as a life tenant or a trustee?" said "that it cannot be predicated of the head of the Math that he holds the properties as a life tenant or a trustee but that the question must be determined in each case upon usage and custom".
28. The Privy Council in Ram Prakash Vs. Ananda Das, ILR (1916) 43 Cal 707, observed:
"The Mahant is the head of the institution. He sits upon the gaddi, he initiates candidates into the mysteries of the cult, he superintends the worship of the idol and the accustomed spiritual rights; he manages the properties of the institution, he administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself."
29. In Vidyavaruthi Vs. Baluswamy, AIR 1922 PC 123, the Privy Council clarified that the real position of the Mahant is neither a corporation sole nor a life tenant. He is also not a trustee in the English sense. "Called by whatever name, he is the manager or custodian of the institution and the property which he holds is not vested in him: it is vested in the institution and is held by him as manager on behalf of the same." In view of the obligations and duties resting on him Mahant is answerable as a trustee in the general sense for proper administration.
30. The Supreme Court in Commr., H.R. and C.E. Vs. L.T. Swamiar, AIR 1954 SC 282, said:
"He is certainly not a trustee in the strict sense. He may be as the Privy Council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be correct to describe Mahantship as a mere office. It will not be correct to say that a Mathadhipati holds the Math property as a life-tenant or that his position is similar to that of a Hindu widow in respect to her husband's estate or of an English Bishop holding a benefice."
31. As early as in 1954, the Supreme Court in Commr. H.R.E., Madras, Ibid, recognised that in the conception of Mahantship, both the elements of office and property, duties and personal interest are blended together and neither can be detached from the other. The said declaration of law was reiterated in catena of cases and cannot be disputed. It was clearly laid down that a Mahant's duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents. It was further recognised that the said purpose cannot be served if the restrictions are such as would bring the Matathipathi down to the level of a servant under a State Department.
32. Again in S.T. Swamiar Vs. Commr., H.R. & C.E., AIR 1963 SC 966, the Supreme Court observed:
"Mahant is not a mere manager or custodian nor is he a trustee in the strict sense holding the office of Mahant by custom and usage of the institution. He has besides large powers of management and disposal, certain proprietary rights over the property of the Math."
33. In the decision of the Supreme Court in Shri Krishan Singh Vs. Mathura Ahir, (1981) 3 SCC 689, the following observations have been made. "The property belonging to a Math is in fact attached to the office of the Mahant, and passed by inheritance to no one who does not fill the office. The head of a Math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words 'the burden of maintaining the institution' must be understood to include the maintenance of the Math, the support of its head and his disciples and the performance of religious and other charities in connection with it in accordance with usage."
34. From these principles it will be sufficiently clear that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the Math.
35. It can be seen now that the use of the expression "estate for life" in the above case has again introduced an uncertainty on this concept. The expression "estate for life" was used by the Madras High Court in Vidyapurana Vs. Vidyanidhi (Supra) and the subsequent decisions have not approved of the said ruling. AIR 1922 PC 123, definitely lays down that a Mahant is not a life-tenant. The Shirur Math case, also states that the Mahant is not a life-tenant.
36. An "estate for life" and a "life-tenant" are well-known concepts having fixed connotation. Nothing is vested in the Mahant because the properties are vested in the institution according to the decision of the Privy Council in Vidyavaruthi Vs. Baluswamy (Supra). Then it may not be possible to call him either a life-tenant or the holder of an estate for life. If he is considered to be a life-tenant, his estate cannot pass on to his successor who may be his nominee, which is an incident of life tenancy.
37. Ever since the rulings of the Privy Council in Muthu Ramalingam case, 1 IA 209 and Greedharee Das case, 11 MIA 405, It has been settled law that the Mahants and their Maths are governed only by the custom and practice of their Maths. This custom is not the same as the general customary law as the term is understood. This custom is nothing but usage of each institution with respect to the manner of appointing a Mahant, nominating a successor and the performance of other functions and duties relating to the Math, Ram Prakash Vs. Anand Das, ILR (1916) 43 Cal 707 (PC). The Privy Council in Rama Muthuramalingam Vs. Periyanayakam, 1 IA 209, pointed out that the court should try to ascertain the special laws and usages, if any, of the particular institutions whose affairs have become the subject of litigation.
38. The Supreme Court in Mahant Bhagwan Bhagat Vs. G.N. Bhagat, (1972) 1 SCC 486, has stated the factors for determining succession. Once a Math is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution. In a Math it is the custom or practice of a particular institution which determines as to how a successor is to be appointed. The onus lies on the Mahant to substantiate the custom as to succession claimed by him. In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mahant during his lifetime or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. In other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mahant or when the funeral ceremonies of the latter are performed. When the Mahant has the right to appoint his successor, he may exercise the right by an act inter vivos or by Will. In many cases when a successor is appointed by Mahant, he is installed in office with certain ceremonies. This cannot be deemed to be essential. Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant. The first is that if the grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed: and in the third place, the party who lays claim to the office of a Mahant on the strength of any such usage must establish it affirmatively by proper legal evidence.
39. A Guru of a Math gathers around him three classes of persons namely - Chelas, Sisyas and disciples. The disciples will be the general public ho are attached to the sect or the tenet to which the Math may belong. They are only in the position of worshipers in a temple. But the sishyas are part of the establishment and are admitted as sisyas by the guru for the purpose of carrying on the work of the Math. They may be even large in number. A chela is not an ordinaly sisya. He is the nominee of the guru for succession to the gaddi said the Supreme Court in Srinivasa Das Vs. Surajanarayan Dass, AIR 1967 SC 256. Until then, the distinction between a chela and a sisya was not kept up even by the higher courts. They have been used as interchangeable expressions.
40. Therefore, there can be only one chela in a Math. In some reported cases a claim was made that the claimant is a senior chela and was entitled to be nominated. Such claims are fallacious as according to the Supreme Court a Chela is one who is a nominated sisya. There cannot be many Chelas. No dbout in one case before the Supreme Court in Prithi Nath Vs. Birkha Nath, AIR 1956 SC 192, there was evidence to show that in the Maths belonging to avdhut jogis there has been a practice to admit many chelas, even as many as 20 chelas. But that is a peculiar usage. But the normal practice and rule is to have one chela who will be the nominated sisya.
41. The affiliation of a chela to Mahant in a religious institution is different from the adoption of a son, Kartar Singh Vs. Dayal Das, AAIR 1939 PC 201. A chela is generally nomitanted by the ruling Mahant during his life-time. The affiliation of a chela is mainly for the purpose of continuing the traditional obligations of the institution and holdings and managing its property. The performance of the biraja homa and the imparting of moola mantra by the guru to the disciples is of the essence of the affiliation of the chela has been laid down by some of the cases mentioned below. They have dealt with the Shastrik requirements of affiliation on the basis of the evidence of usage available in those cases. In Ramdhan Vs. Dalmir, 14 CWN 191, it has been held that the mere initiation as a chela is not the same thing as the final affiliation of a person as a chela and that there is ordinarily a period of probation between the two. This however was a case where the usage of the institution required that a period of probation should be undergone.
42. Since the determining factor for a valid initiation of a chela is the usage of the institution, it is not necessary to make an elaborate investigation of the Shastrik requirements said the Orissa High court in Ram Mohan Das Vs. Basudeb Dass, AIR 1950 Ori 28.
43. The chela in sudra Maths have their own period of probation after initiation. In Ganna Sambanda Vs. Kandasamy, ILR 10 Mad 375, the Madra High court has vividly described the ceremonies conducted in the dharmapuram adhinam which is a sudra Math. An aspirant for becoming a chela is required to under go a period of probation when he is taught prayers called "samaam and vishesham" . At the end of the probationary period the probationer is initiated in the presence of the idol by the Pandara Sannadhi who givens him the mool mantram. There is a further ceremony at which the disciple makes a gift of his body and soul to the pandara sannadhi.
44. The principles application to mortgages and sales of the properties of an infant heir by its manager will govern the cases of mortgages or sales of Math properties, Hanooman Persaud Vs. Babooee, 6 MIA 393 (PC).
45. A Mahant is not entitled to sell a portion of the Math property and invest the sale proceeds in money-lending or other business on the ground that the Math will be benefited by larger returns by way of interest. In Palaniappa Chetty Vs. Deivasikamony, 11 IA 147, the Judicial Committee observed: "However attractive and lucrative money-lending may be in India, it is needless to point out that a shebait would not be justified in selling debutter land solely for the purpose of getting capital to embark in the money-lending business".
46. In Jado Singh Vs. Nathu Singh, AIR 1926 All 511, Their Lordship held that the term benefit to the estate can be applied to a transaction like the sale of inconveniently situated, encumbered and unprofitable property and to purchase in its stead other property, Sadhu Saran Prasad Vs. Brahmadeo Prasad, AIR 1921 Pat 99. In Sital Prasad Singh Vs. Mander, AIR 1939 Pat 370, it was held that the expression "benefit to the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. An alienation by way of sale by a Mahant of debutter property for the construction of a temple for the better housing of the idols was a meritorious act and was justified on the doctrine of benefit, Ramsaroop Dass Vs. Ramnachhaya, AIR 1945 Pat 326.
47. While a Mahant can sell as portion of the property belonging to the institution for legal necessities or benefit, he has no power to alienate the institution itself. Such a transaction is void ab initio. In one of the earliest cases decided by the Privy Council in Damodar Das Vs. Lakahan Das, ILR (1910) 37 Cal 885, such a transaction was held void, resulting in the commencement of adverse possession from the date of transfer. The transfer of the Math and its properties is also void ab initio, Bisseshwar Dass Vs. Sashinath Jha, AIR 1943 Pat 289.
48. In Balmukund Vs. Kamalwati, AIR 1964 SC 1385, the Supreme Court approving the liberal view in Jagat Narain Vs. Mathurada, (1928) ILR 50 All 969 and Sital Prasad Vs. Ajvel Mander, (1939) ILR 18 Pat 306, has held that for a transaction to be regarded as being one for the benefit of the estate it need not necessarily be of a defensive character and the test would be, whether the transaction is one which a prudent owner would enter into in the course of management with foresight and without being reckless or arbitrary. An agreement to sell a fractional share which the family owned in certain lands could not be upheld as there was neither allegation nor proof that the family could not conveniently manage and enjoy the fractional share belonging to the family.
49. In Manikka Narasimhachari Vs. Ramasubbier, (1970) 1 MLJ 337, the Madras High Court has held that the words "benefit to the estate" have to be understood in a liberal sense as opposed to the earlier narrow view that it must be of defensive character to protect the estate from some threatened danger or destruction. The proper test is, whether the transaction could be upheld as an alienation by a prudent owner with the knowledge that is available to him at the time of the transaction. When once the test to be applied is that of a prudent owner, the question whether the transaction is beneficial to the estate must necessarily depend upon the facts and circumstances of the particular case. The managing member or the trustee is not entitled to sell the property merely because the price fetched is attractive or for the purpose of investing the price with a view to get larger income than derived from the property itself. But the sale of unproductive property for an advantageous price or sale of property which is exceedingly difficult of enjoyment has been upheld as being one for the benefit of the estate or the trust.
50. A manager of a public trust religious or charitable, cannot gift the property to a chela or alienate it, Gurbux Singh Vs. Bishan Dass, AIR 1970 Punj 182.
51. When an alienation by a Mahant by way of mortgage or sale is attacked, the burden is on the alienee to prove that it was for the benefit of the institution or was for legal necessarily. In this regard also, there is no difference between the case of an alienee from the manager of an infant heir and an alienee from a Mahant, Murugesan Vs. Manickavsaka, 40 Mad 402.
52. An alienee has to prove that there was necessarily in fact or that he made proper and bone fide enquiries as to the existence of such necessity and did all that was reasonable to satisfy himself about the existence of a necessity. In the case of a borrowing, it is not enough to show that the amount borrowed was spent for some purposes connected with the Math. It is necessary for the lender to prove the existence of legal necessity so as to justify the borrowing, Narasingha Swami Vs. P. Sahuani, AIR 1957 Ori 86.
53. The alienation by the Mahant of the endowed properties are void or voidable depending upon the character of the transaction.
(1) Where an alienation is of some items of endowned properties for valuable consideration, but for purposes that are not for legal necessity or benefit to the institution, the same enures for the lifetime of the Mahant and becomes voidable at the instance of the succeeding Mahant, Ram Charan Vs. Naurangi Lal, AIR 1933 PC 75.
(2) When the alienation is of the entire endowment with all its properties totally, the same is void ab initio, Gnaansambanda Vs. Velu, 23 Mad 271 (PC).
(3) When a Mahant alienates the properties of the Math as his personal properties, the same is again void ab initio.
(4) Sate of the properties of the Math in execution of a decree against the Mahant is void, Subbaya Vs. Mohammed, AIR 1923 PC 175.
(5) Gifts of endowed properties are also void.
54. When the alienation is voidable a suit can be filed for setting aside the alienation and for recovery of possession of the properties by the succeeding Mahant under Article 96 of the Limitation Act of 1963, which provides a period of twelve years from the "date of death, resignation or removal of the transferor or the appointment of the plaintiff as manager of the endowments whichever is later", Gurusiddhaswami Vs. D.M.D. Jain Sabha, AIR 1953 Cal 514.
55. The Limitation Act prescribes a period of twelve years for recovery of possession of properties belonging to a Hindu religious and charitable endowments transferred to a third party and the time-limit of twelve years is prescribed for recovery of the property from the date of death or removal from the office of the previous manager, S.N. Pachamuthu Nadar Vs. Tillaiyadi Pillayar Temple Charity, AIR 1971 Mad 253.
56. An alienation of a trust property by the Mahant as his personal property is void ab initio. In Hemanta Kumari Vs. Iswar Sridhar Jiu, AIR 1946 Cal 473, Mukherjea, J., held: "if the manager transfers the property beloning to the deity as his own property asserting his own persona interest in the same, his act is adverse to the trust. The transferee in such cases would acquire no title to the property and his possession would be unlawful from the beginning. A long line of cases has clearly expressed the distinction between alienations made by the turstee in his professed capacity as a trustee and alienations by the trustee of trust property treating it as his personal property".
57. In the case of Kuber Singh Vs. Phunnan Rai, AIR 1935 All 255, this Court held that in the absence of proof of collusion or fraud, a decree passed against the Mahant of a Math is binding on the succeeding Mahant and the institution as well.
58. The jurisdiction of Civil Courts to remove a Mahant from his office is well established. The two capacities of the Mahant - namely, those of a spiritual head and administrator of its properties - are closely intermingled and where it is found that the Mahant cannot faithfully discharge his function without danger to the endowment, he can be removed from both the offices. Where the duties of an office are purely spiritual and moral, entirely unconnected with any office, with no pecuniary benefit attached to it, the Civil Court may not have jurisdiction to interfere. But where the office has attached to it valuable endowments and control over extensive funds, the position will be different.
59. Even it the Mahantship on its spiritual on its spiritual side is regarded as purely an office of dignity, notwithstanding that the functions of such office are associated with religious rites and ceremonies, the Civil Court will have jurisdiction to entertain a suit, as being of a Civil nature under Section 9 of the Civil Procedure Code, Satish Chandra Giri v. Dharanidhar Singh Roy, (1940) 1 MLJ 371.
60. A removal of a trustee is often made when misconduct is proved. But even when no misconduct is established, when the continuance of the trustee would prevent the due execution of the trust he may be removed, Perumal Nayak v. Swaminatha Pillai, ILR 19 Mad 498. In Thiruvambala Desikar v. Manickya Vachaka Desikar Seshagiri Ayyar, J., laid down the principles which should guide the Courts while dealing with Mahants: "If the head of the Math or the junior is proved to be living an immoral life, he is liable to be removed. There can be no condonation of such an offence, as in the case of breach of trust by trustees where it has sometimes been held that the full leech should be given an opportunity to mend his ways before bringing in an empty leech to feed on the trust resources. Celibcy and scruplous avoidance of sexual indulgences are the essence of the position held by these presons. Devotees of both sexes resort for initiation to them and it would cut at the root of the whole system if the heads of the Maths are permitted to live profligate lives. The power possessed by the King is delegated to the Courts: when a clear case is made out that a religious ascetic who ought to set an example of sexual purity is leading and immoral life, the Courts will find no difficulty in dismissing him from office. But if does not follow that suspected immorality entails forfeiture,"
61. The Privy Council in Satish Chandra v. Dharnidhar, AIR 1940 PC 24, considering the argument made before it that the moral character of the Mahant cannot be considered by the Court in a suit for the removal of the Mahant under Section 92, Civil Procedure Code, held: "Their Lordships are unable to agree with this contention. The question of his character was not considered in vacuo, but as directly relevant to some of the issues which arose under Section 92, e.g., his fitness to remain in office and his liability to be removed therefrom. It may be noted that the decree of the lower courts directing the appellant's removal from office was not based entirely on his immorality."
62. The head of a Math is answerable as a trustee in the general sense for maladiminstration since he has to administer the endowed properties as trustee for general, pious and religious purposes and obligations attached to his office. If these are not merely voluntary, i.e., if the head is bound to carry them out, he must be answerable, Nillappa Achari v. Punnai Vanam Achari, AIR 1927 Mad 614.
63. A Mahant who sets up an adverse title to the properties of the Math is liable to be removed, Ajudhia Das v. Laky Malik, AIR 1923 Lah 131; Miyaji v. Sk. Ahmed Sahib, ILR (1908) 31 Mad 212; Chintaman v. Dhondo, 15 Bom 612.
64. For the recovery of endowed property, the action can be initiated by a person having legal authority to do so. Religious endowments are not natural persons. They are artificial ones having having been given juristic status. The action will have to be taken by anyone either in their name or one's own name but for the benefit and protection of endowment. These persons can be:
1. Shebait,
2. Trustee, Manager or Pujari,
3. persons having interest
4. worshipper,
5. State or its officers.
65. We are discussing their rights under separate sub-heads. But one thing is very clear that anyone cannot initiate the action. This is an important basic principle prevailing at present, but the same needs reconsideration as the times have changed a lot and the old tradition of avoiding usurping the debutter property to one's own use is disappearing. It appears necessary that right to initiate action needs more liberalization. It will be more appropriate that endowed properties are to be recovered from the clutches of unauthorized persons in the similar way as public premises. The complaint may be made by anyone. In some of the local laws we find special procedures.
66. Some cases took the view that a deity is not a minor to make the provisions of Order 32 of the Code of Civil Procedure applicable to it and bring a suit with a next friend of a deity. In Surendra Krishna v. Ishwari Bhubhaneshwari, AIR 1933 Cal 295, Rankin, C.J., observed:
"The doctrine that an idol is a perpetual minor is, in my judgment, an extravagant doctrine, contrary to the decision of the Judicial Committee in such cases as Damodar Das v. Laxman Das" ILR (1910) 37 IA 147."
67. In Sree Sree Sreedhar Jew v. Kanta Mohan, AIR 1947 Cal 213, it was held that the rules relating to a suit by a minor contained in Order 32 of the Code of Civil Procedure cannot be followed in a suit on behalf of an idol since the idol is not a perpetual minor. Hence a suit cannot be filed on behalf of an idol by any person other than a shebait, since the idol is not a perpetual minor. Hence a suit cannot be filed on behalf of an idol by any person other than a shebait, since the right of suits is vested in the shebait or shebaits.
68. The authority of these decisions is doubtful in view of the Supreme Court ruling in Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044. The Supreme Court held that an idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interests. It is a pragmatic, yet a legal solution to a difficult problem. The Supreme Court referred to the well-known decision of the Privy Council in Pramatha Nath v. Pradyumna Kumar, AIR 1925 PC 139, which held that under certain circumstances the idol can be represented by disinterested persons. It is well known that for a shebait to file a suit, no permission of the court is necessary. It is only where persons other then shebaits file suits, an ad hoc power of representation for them is necessary. In Ram Lal v. Board of Revenue, (1990) 1 RLR 161, a Division Bench of the Jaipur Bench of the Rajasthan High Court considered whether a deity or an idol can be considered as a person and also a minor under Section 46 of the Rajasthan Tenancy Act, 1955. It was held that an idol is a juristic person and the word 'person' in Section 46 of the said Act includes a deity/idol and an idol has a right to hold the property including agricultural land. It was also held that an idol is a perpetual minor and for this proposition, reliance was placed on the decision of the Supreme Court in Bishwanatgh v. Shri Thakur Radha Ballabhji, AIR 1967 SC 1044.
69. Since the power of suit is vested in the shebait, in case where a suit is brought on behalf of the idol by a person other than a shebait, like a worshippers, donor or a de facto trustee, the question arises whether he has to be appointed as a next friend of the idol before the institution of such a suit for bringing an action. In Tharith Bushan v. Shridhar Salagram Sinha, AIR 1942 Cal. 99, it was held that such an appointment as next friend was necessary, Sree Sree Sreedhar Jew v. Kanta Mohan, AIR 1947 Cal 213. Sen, J., in Sri Sri Annapurna Debi v. Shiva Sundari, AIR 1945 Cal 376, was of the view that there is no warrant for the proposition that a person not a shebait must be appointed as a next friend. A Bench of the Culcutta High Court in Sushama Roy v. Atul Krishna Roy, AIR 1955 Cal 624, dissented from the above view and held that it was not in the interest of an idol that any person other than a shebait should be permitted to file the suit and that since a decision in a suit brought on behalf of the idol would be binding on it, it was necessary that a suit should be permitted to be filed in the court by the person who comes forward with a plaint and that in proper cases, the court might issue notices to all persons interested before granting permission, Sri Iswar v. Gopinath Das, AIR 1960 Cal 741; Sri Ram v. Chandeshwar Prasad, AIR 1952 Pat 438: ILR 31 Pat 417. The pronouncement of the Supreme Court in Ramaraghava Reddy v. Seshu Reddy, AIR 1967 SC 436, makes it clear that an appointment of a next friend nominated by the court is necessary for a suit on behalf of the idol. Their Lordships referred to the decision of the Judicial Committee in Pramatha Nath v. Pradyumna Kumar, AIR 1925 PC 139, where in a suit between contending shebaits about the location of the deity, it was ordered that the idol should be represented by a disinterested next friend appointed by the court, and observed that it is obviously desirable that the deity should file the suit through a disinterested next friend nominated by the Court.
70. A worshipper, as such, has not an unqualified right to sue for a declaration that a property is the debutter property of the idol. It may be that in cases where the shebait is negligent or alienates debutter property in breach of trust, a worshipper may have such a right, Thakur Dwara Sahawman v. Jivan das, 108 IC 270; Girishchandra Saw v. Upendra Nath Giridas, AIR 1931 Cal 771: 135 IC 273; Abdur Rahim v. Mohd. Barkat Ali, AIR 1928 PC 16. Whenever the shebait has an adverse interest or is indifferent, a worshipper or a donor of the property can file a suit on behalf of the idol, Pashupathi Nath Seal v. Pradyumna Kumar, 63 Cal 454; Maruthi v. Gopal Kumar, AIR 1932 Bom 305; Kazi Hassan v. Sagun Bal Krishna, 24 Bom 170; Venkatarama Ayyanagar v. Kasturi Ranga Ayyanagar, AIR 1917 Mad 112: 38 IC 73; Kisan Bhagwan v. Sri Maroti Sansthan, AIR 1947 Nag 233. A prospective shebait or any member of the donor's family in the case of a family endowment can maintain a suit on behalf of the idol, Panchkari v. Amode Lal, AIR 1937 Cal 559; Sashi Kumar Devi v. Dhirendra Kishor Roy, AIR 1941 Cal 248.
71. In view of the above considerations, the first substantial questions of law is decided holding that cancellation of void document is not necessary in this case since the sale deed in dispute is clearly without title and authority executed by Mahant in favour of the defendant No.5.
72. The second substantial question of law is decided holding that Jai Prakash has not acquired any right, title or interest on the basis of void sale deed because he has failed to discharge the burden of proof that the sale deed executed by Mahant in his favour was for any legal necessity of the endowed property and, therefore, the sale deed is a void document.
73. As discussed above, Mahant has no right to sell the property of the temple unless it is shown that there was legal necessity of the same to manage the temple. Mahant was only custodian of property and not the owner and therefore, no right, title or interest could pass in favour of the vendee by execution of any sale deed by Mahant.
74. Third substantial question of law regarding Section 41 of the Indian Evidence Act has no application to the present case nor any arguments have been advanced on this question. Therefore, it is decided holding that it has no relevance.
75. Substantial questions of law No.4 is answered to the effect that lower appellate court has illegally reversed the findings in respect of the sale deed, which has resulted into exclusion of property mentioned in Schedule 'Ja' to the plaint from being declared as property of plaintiff Nos. 1 and 2 and therefore, such finding of the lower appellate court is declaration to be illegal.
76. Substantial questions of law Nos. 5 to 8 are significant since Umesh Das and Narottam Das have filed first appeal claiming themselves to be Chelas of Mahant Mathura Das, defendant No.1 and objection in this regard was raised by the plaintiffs before the lower appellate court, but without deciding the objection, the lower appellate court decided the civil appeal preferred by the aforesaid Chelas of deceased defendant No.1, Mahant Mathura Das. If, at all Umesh Das and Narottam Das were Chelas of Mahant Mathura Das, they were required to file an application seeking leave of the court for filing first appeal. No such applications seeking leave of the court to prefer first appeal was made. Therefore, the first appeal preferred by the aforesaid Chelas of defendant No. 1, Mahant Mathura Das, was not maintainable. The appeal has been decided without deciding the question whether the appellants have locus to prefer the first appeal. Late Mathura Das, Mahant died after passing of the decree of the trial court and before filing of the first appeal. Therefore, the issue of legal representative of Late Mathura Das, Mahant was required to have been decided by the lower appellate court before proceeding to decide the First Appeal. The lower appellate court held by the order dated 13.11.1997 that it is to be decided whether the appellant Nos. 1 and 2 are Chela or not and whether they have succeeded to the property of deceased Mathura Das, Mahant, but when the first appeal was decided, this issue was left out by the lower appellate court and no finding was recorded in this regard. Therefore, the first appeal preferred by appellant Nos. 1 and 2 was not maintainable while it was maintainable on behalf of the appellant Nos. 3 and 4. Prem Das and Naresh Das, who were defendants in the suit.
77. In view of the above finding regarding substantial questions of law framed in the appeal, it is clear that the first appeal preferred by the Chelas of late Mathura Das, Mahant was not maintainable. Even after the decision of the appeal, the issue regarding the validity of the claim of the appellant Nos. 1 and 2, Narottam Das and Umes Das, Chelas of late Mathura Das is not decided. This Court is of the view that the remand of this case to the trial court or lower appellate court for deciding this issue would not be in the interest of the suit property since even the receiver appointed by the lower appellate court, who has continued till now, has expressed his inability to continue as receiver of the suit property and to manage the property in question and has made an application dated 15.9.2014 that he does not wants to continue as receiver of the suit property any more. Therefore, the remand of the case to any of the courts below for trial on the issue would not be in the interest of justice any more.
78. The plaintiff Nos. 3 to 6, who are the legal heirs of the doner of the suit property and who instituted the suit for protection of the property of plaintiff Nos. 1 and 2 are directed to take decision whether the alleged Chelas, namely, Umesh Das and Narottam Das are Chelas of late Mathura Das Mahant, or not and in case they succeeded in proving the same, they shall be continued. However, if they do not succeed in proving that they are the Chelas of late Mathura Das, Mahant, they will be removed and new Mahant shall be appointed by the plaintiff Nos. 3 to 6 and their successors. Late Mathura Das Mahant has been found to be a person, who was not fit to be Mahant of the suit property and therefore, the entrustment of the suit property for management to his alleged Chelas is required to be done with great care. Since the doner of the suit property did not created any trust or executed any deed for management of the property, in writing, therefore, it is very difficult to regulate the management of the property belonging to plaintiff Nos. 1 and 2. Intervention of State Officers may not be of much help and therefore, only the plaintiff Nos. 3 to 6 and their successors are held entitled to look after the appointment of the Mahant of Murti Shiv Ji Maharaj and Samadhi of Baba Haridas. Apart from the appointment and supervising of the functioning of the Chela/Mahant of the suit property, the plaintiff Nos. 3 to 6 and their successors would have no other right and interest in the suit property.
79. The judgment and decree of the lower appellate court is set aside. This Second Appeal is allowed with the above modifications mentioned in para Nos. 77 and 78 of this judgment in the decree of the trial court exercising the powers vested under Order 41, Rule 33 CPC.
79. Parties shall bear their own costs.
Order Date :- 30.7.2018 Ruchi Agrahari/Atul Sri.