Patna High Court
Somar Puri vs Shyam Narain Gir And Ors. on 4 May, 1954
Equivalent citations: AIR1954PAT586, 1954(2)BLJR381, AIR 1954 PATNA 586
JUDGMENT Das, J.
1. The plaintiff of the Court below is the appellant here. The appeal is from a decision of the learned second Subordinate Judge of Monghyr, dated 31-8-1946, in Title Suit No. 20 of 1944.
The appellant brought the suit for a declaration of title and recovery of possession of certain properties said to appertain to Nongarh, Math, and described in Schedules I to VII appended to the plaint, and for mesne profits and costs. The appellant claimed that he was the duly elected Mahanth of a Math or Asthal called Nongarh Math in the district of Monghyr, elected in accordance with the custom or usage prevailing in the said Math. His case was that there was a temple of Lord Shiva in village Nongarh.
Near about 1758 A.D. Sri Sri Amar Singh, the then Maharaja Gidhour, dedicated Mahal Nongarh tauzi No. 338, to Lord Shiva of the aforesaid temple. Thirty-two bighas of land situate in mahal Manjhwa, tauzi No. 8271 of the same district, where also there was a Shiva Temple, were similarly dedicated as Shivottar. It was alleged that both the dedications were for public, religious and charitable purposes, the purposes being (a) to make necessary arrangements for the worship of the idol of Lord Shiva, (b) for feeding, supporting and maintaining Sadhus, and (c) for giving alms to the poor.
Since the creation of the endowments the Mahanth of Nongarh Math managed the properties; and the custom of the Math is that one of the disciples of the preceding Mahanth or, if there is no disciple of the preceding Mahanth, any suitable disciple of any previous Mahanth or grand chela of any previous Mahanth, residing in the said Asthal, is selected by the people of the locality to become the successor-in-office of the preceding Mahanth, who is installed to the office of Mahanthship by observance of certain religious and customary ceremonies.
The appellant claimed that he was the disciple of Sri Pokhraj Puri, Gurubhai of Mahanth Shyam Lall Puri and disciple of Mahanth Gandhari Puri. After the death of Mahanth Gandhari Puri, Mahanth Shyam Lall Puri was elected to the gaddi in accordance with the aforesaid custom. After the death of Mahanth Shyam Lall Puri, Mahanth Lachuman Puri, disciple of Shyam Lall Puri, was installed in the gaddi by election according to the custom mentioned above. Mahanth Lachuman Puri began to live an immoral life and became addicted to drinks and other vices. He began to waste the endowed properties and make illegal alienations.
In 1935 a suit (Title Suit No. 3 of 1935) was brought under Section 92, Civil P. C. in the court of the District Judge, Monghyr, for an adjudiaction that the properties appertaining to Nongarh Math were endowed properties for public, religious and charitable purposes and also for removal of Mahanth Lachuman Furi. It was stated that the District Judge in that suit held that the properties of Nongarh Asthal were trust properties endowed for public, charitable and religious purposes; but as there were no grounds for the removal of Lachuman Puri, the suit was accordingly dismissed.
Mahanth Lachuman Puri died on 17-4-1940, without leaving any disciple. The appellant was then elected to the gaddi of Nongarh Math on 5-5-1940, and came in possession of the properties appertaining to the Math. It was stated that besides Mahals Nongarh and Manjhwa, there were about 100 bighas of raiyati lands situate in village Charan which had been acquired by previous Mahanths and had become part and parcel of the endowed properties.
In paragraph 10 of the plaint, details were given of the alleged illegal alienations said to have been made by Mahanth Lachuman Puri, and it was stated that Mahanth Lachuman Puri sold the entire Tauzi No. 338 to the defendant second party, Mahanth Shamsher Gir of village Sibsona, by two sale deeds dated 3-12-1936 and 8-11-1937. Mahanth Lachuman Gir also sold the entire 100 bighas of lands in village Charan to the defendant fourth party. Mahanth Lachuman Puri alienated some of the lands of Mahal Manjhwa as well. All these alienations were challenged by the appellant as unauthorised, fraudulent and illegal.
After the death of Mahanth Lachuman Purl, there was a scramble for possession and certain criminal cases and proceedings were instituted. The appellant alleged that though he came in possession of the Math properties, defendants first and second parties were always creating trouble and trying to take forcible possession. On 29-8-1944, a complaint filed by the appellant against the defendants first and second parties for an offence under Section 448, Penal Code, was dismissed by the Subdivisional Magistrate of Jamui, and the appellant was dispossessed of the Math and Math properties on that date.
It was alleged "that the defendants first and second "parties also took possession of certain moveable properties of the Math described in Schedule VII. On these allegations the appellant asked for a declaration of his title as the duly elected Mahanth of the Nongarh Math and for recovery of possession of the Math properties which had been illegally alienated by Mahanth Lachuman Puri or were illegally possessed by the defendants.
2. The suit was contested by the defendants first and second parties as also by defendant No. 4. Defendant No. 4 was the alienee in respect of the lands in village Charan. Defendants 1 and 2 are alienees of Mahal Nongarh. Their case was that mahal Nongarh was given to a Sanyasi, one Sri Gossain Kundan Puri, a remote ancestor of Lachuman Puri, as his private property. It was denied that there was any Shiva temple either at Nongarh or at Manjhwa. The properties were never dedicated for public, religious or charitable purposes, and what appeared to be a temple of Lord Shiva in Nongarh was really a temple-like structure enshrining the old Samadhi of Gosain Kundan Puri.
It was denied that there was any custom that the people of the locality selected a Mahanth in the manner alleged by the appellant; on the other hand, the defendants pleaded that the eldest chela used to succeed to the property and deal with it as his own private property. The defendants also denied the allegations made against Lachuman Puri and stated that all the transfers mentioned in paragraph 10 of the plaint were made bona fide and for consideration. It was alleged that Lachuman Puri had an absolute right to transfer the properties which were his private properties.
The allegation that the appellant was elected as Mahanth and came in possession of the properties in dispute was also denied. It was alleged that the appellant never came in possession, nor was he the successor-in-office of Mahanth Lachuman Puri.
3. On the aforesaid pleadings several issues were framed. They were:
"1. Whether the properties in suit are trust properties of charitable or religious nature, or are the personal properties of the Mahanth, who should be sitting on the seat of this Math?
2. Whether the alienations of the properties in suit, challenged by the plaintiff, are justifiable?
3. What is the character of the office of the Mahanth; whether it is hereditary or elective?
4. Whether the plaintiff has been elected and installed on the seat of this math?
5. Whether the decision in Section 92 suit is binding on the parties to the suit? If so, to what extent?
6. Whether the plaintiff is entitled to recover possession of the properties in suit?
7. Whether the plaintiff is entitled to mesne profits? If so, what should be the amount thereof?
8. What relief or reliefs, if any is the plaintiff entitled to?"
The issues which are important for the purposes of the present appeal are issues 1, 2, 3 and 4. Issue No. 1 related to the principal point in controversy between the parties, namely, if the properties in suit are trust properties of a charitable or religious nature, or personal properties of the Mahanth. On this issue the learned Subordinate Judge found that the properties in suit were the properties of the Nongarh Math and constituted a trust, the idol of Lord Shiva being the owner of the properties. He negatived the claim of the defendants, respondents before us that the properties were personal properties of the Mahanth.
On issue No. 2 also the learned Subordinate Judge found against the respondents. He held that the alienations challenged by the appellant were all unjustifiable and, therefore, illegal.
On issue No. 3 the learned Subordinate Judge expressed his finding in the following words:
"I, therefore, conclude that in this Math while preference has always been given to the eldest disciple of the reigning Mahanth the eldest disciple has been taking the seat subject to the approval of those who are concerned in the Math including a fraternity (of neighbouring Mahanths?) and he is to continue only during their approval."
On issue No. 4, which related to the question as to whether the appellant was in fact elected and installed in the gaddi in accordance with the prevailing custom of the Math, the learned Subordinate Judge found against the appellant. On a consideration of the entire evidence he found that the appellant had never been elected or installed in the gaddi of Nongarh Math, As the decision of the learned Subordinate Judge on this issue was decisive of the claim put forward by the appellant, the learned Subordinate Judge held that the appellant was not entitled to a declaration of his title or recovery of possession. Accordingly, he dismissed the suit with costs.
4. In the appeal before us four principal questions have been argued and discussed at the bar; (1) whether the properties in question are personal properties of the Mahanth or they are Math properties, namely, properties dedicated to Lord Shiva for the purposes mentioned by the appellant; (2) what is the rule or custom in the Math with regard to succession; (3) if there is a rule of election, was the appellant elected to be the Mahanth of Nongarh in accordance with that rule; and (4) whether the alienations or any of them were justified by legal necessity. I shall take up these points in the order in which I have stated them.
5. On the first question it is more important to consider the documentary evidence, particularly Ex. A the sanad granted to Gosain Kundan Puri, dated the 21st Pagun, 1165 Fasli, corresponding to 1708 A.D. Oral evidence with regard to an alleged dedication of about two hundred years ago can hardly have any basis of personal or contemporaneous knowledge of the dedication and witnesses of a partisan character are not likely to give evidence which is unfavourable to the party by which they have been called to give evidence. Therefore, I propose to start with the sanad. The sanad has been translated and is at page 1 of Part III of the paperbook. It reads:
"Respects and salutation of Swasti Sri Maharajadhiraj Amar Singh etc. to Sri Gossain Kundan Puri.
I have given the entire mauza Nongarh, pergana Bisthhazari, principal with dependencies, to you as Shivotter grant. It is desired that you will make proper cultivation of the said mauza and enjoy the usufruct thereof generation after generation without ill-treatment (of the tenants?). You should treat this document as a sanad of Shivotter grant and bless me; dated the 21st Pagun 1165 Fasli"
A transliterated copy of the sanad has also been placed before us; so far I can make out, the translated copy agrees with the transliterated copy in all essential particulars, there being small differences in some minor particulars only.
On behalf of respondents 1 and 2 a cross-objection has been filed contesting the finding of the learned Subordinate Judge on issue No. 1. Mr. B.C. De, appearing for respondents 1 and 2, has strenuously argued before us that on a proper construction of the sanad of 1758, it should be held that the property given to Gossain Kundan Puri was his personal property. He has emphasised the following circumstances relating to the sanad; firstly, there is no reference to any idol or temple of Shiva in the document; secondly, there is no reference to any trust or dedication in favour of any idol; thirdly, no Shebaitship or Mahanthship is mentioned; and, lastly, the sanad states that Gossain Kundan Puri will make proper cultivation and enjoy the usufruct generation after generation.
Mr. De has submitted that the problem in the present case is not one of inferring the true original grant, in the absence of the text of it, from evidence of what was subsequently done or left undone by the parties; the text of the original grant having been produced, the problem, according to Mr. De is one of construction of the document only. He has contended that the subsequent conduct or statements of succeeding Mahants or their chelas cannot be considered for the purpose of interpreting the document. I agree that where the terms of the document are un-ambiguous, it is not open to the court to say that the document means something else than what it clearly says, merely because the parties have gone on for a long time so understanding it. In -- 'Huiada Prasad v. Kali Das Naik', AIR 1914 Cal 813 (A), a similar question was raised, and Mookerjee J. referred to the well established rule that in the construction of ancient grants and deeds, evidence is admissible as to the manner in which the thing granted has always been possessed and used, for so the parties must be supposed to have intended; and it is open to the court to call in aid acts under the deed as a clue to the intention. This principle, however, does not apply unless there is an ambiguity, for even usage does not justify deviation from terms which are clear and plain (see -- 'North Eastern Rly. Co. v. Lord Hastings, 1900 A.C. 260 (B)).
In a case of ambiguity, however, the court can uphold that construction of a deed which justifies a long usage; but where there is no ambiguity, the court will not accept an erroneous interpretation, though consistent with usage, so as to sanction a manifest breach of trust. It is apposite to refer in this connexion to the characteristically illuminating observations made in --'Attorney-General v. Drummond', (1842) 1 Dr and War 353 at p. 368 (C):
"Tell me what you have done under such a deed, and I will tell you what that deed means."
6. Therefore, the first question that falls for consideration is if the terms of the sanad (Ex. A) are plain and clear, or if they are in any way ambiguous, Mr. De's contention is that the terms of the sanad are plain and clear. Mr. S.N. Dutt, appearing for the appellant, has supported the finding of the learned Subordinate Judge on issue No. 1.
Mr. Dutt has submitted that on a proper construction of the sanad, it should be held that the grant of Gossain Kundan Puri was not a personal grant but a grant by way of Shivottar, a dedication to Lord Shiva. Mr. Dutt has referred to the oral evidence in the record which was to the effect that there was an idol of Shiva in the temples at Nongarh and Manjhwa from time immemorial. He referred particularly to the evidence of P.W. 29 for the appellant who held a local inspection of village Nongarh in 1936 in Title Suit No. 3 of 1935 under the orders of the then District Judge. This officer, who was then a probationary Munsif, found a Shiva temple in the Nongarh Math; he found no indications pf a Samadhi. It is true that the witness did not find any Shiva Lingam, which had been removed; but there can be no doubt of the effect of the evidence of this witness. The witness found that there was a Shiva temple at Nongarh Math and not a Samadhi as was suggested by the respondents. The sanad (Ex. A) has, therefore, to be construed against this background that there was a Shiva temple at Nongarh.
Witness No. 3 for the respondents 1 and 2 admitted that there was a similar temple at Manjhwa Math also, though the witness falsely said that the temple contained a Samadhi. I may refer in this connexion to the evidence of the appellant (P.W. 27), who said that Nongarh Math was built in the time of Mahanth Kundan Puri, 200 or 250 years ago, and that Manjhwa Math was also built at about the same time. It is true that the sanad does not expressly mention a Shiva temple or the idol of Shiva. It is equally true that the sanad recites that the entire mauza Nongarh is being given to Gossain Kundan Puri, but with an important qualification and the qualification is expressed in the words "as a shivottar grant." The transliterated copy, which has been placed before us, uses the Hindi words "Shivottar ke del". The last line of the sanad again emphasises the same point, "You should treat this document as a sanad of Shivottar grant and bless me". The transliterated copy has the Hindi words: "Is dastabej ke sanad Shivottar ke janab ashirbad deb"
While on the one hand the sanad says that the village is being granted to Gossain Kundan Puri who will enjoy the usufrust from generation to generation, the document also states that the grant is a Shivottar grant and should be treated as a Shivottar grant. It is manifest that the terms of the sanad cannot be said to be absolutely conclusive. One must reconcile, so far as one can, the various terms of the document, and for that purpose it would be relevant to know how the thing granted has always been possessed and used.
There has been some discussion before us as to the use of the expression "Shivottar grant" and what it means. Our attention has been drawn to the decisions in -- 'Naurangi Lal v. Bam Charan Das', AIR 1930 Pat 455 (D); -- 'Ramsaran Das v. Jai Ram Das', AIR 1943 Pat 135 (E) and -- 'Khub Narain v. Ramchandra Narain', AIR 1951 Pat 340 (P) where the meaning of expressions like 'Vishnuprit', 'Sheoprit' and 'Sriprit' was considered. My learned brother Narayan, J. was a party to the decision in AIR 1951 Pat 340 (P). If I may say so with great respect, my learned brother rightly pointed out that the words 'Vishnuprit' and 'Sheoprit' etymologically mean 'love of Vishnu' or 'love of Shiva,' and they do not necessarily lead to the Inference that the donor intended that the properties would be gifts not to the Mahanth but that the properties would be used by the public and would be treated as a public trust. I agree that the construction of a document cannot depend on one isolated word taken from its context; the document should be construed as a whole. It is also well settled that where the question is one of construction of a written instrument, decisions based upon the construction of another document couched in similar but not the same language are not binding as an authority, (see the observations made in -- 'Madan Lal v. Ghasiram', AIR 1951 Pat 254 at pp. 259 & 260 (G)). The word 'shivottar' is a corrupt form of the word 'shivatra', just as 'debutter' is of the word 'debatra which etymologically is formed out of the root 'trai', meaning 'to maintain'. It is well settled that the mere fact that an idol has been established does not by itself create a 'debutter'. A religious trust by way of debutter comes into existence only when property is dedicated for worship or service of the idol or math. Once property is absolutely given by a pious Hindu for worship of an idol, the property vests in the idol itself as a juristic person; and no express words of gift either directly or by way of trust are necessary to create a valid endowment.
Dr. Mukherjea has said in his Hindu Law of Religious and Charitable Trust (1952 edition, page 161):
"In the conception of debutter two essential ideas are involved: in the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person; in the second place the ideal personality of the idol is in the nature of things linked up with the natural personality of the Shebait, manager or Dharmakarta who as persons entrusted with the custody and worship of the idol are obliged and empowered to do what may be required for the service of the idol and for the benefit and preservation of its property."
Although the image of the deity need not be in existence at the date of dedication, it is necessary that the donor should indicate with sufficient certainty the particular deity for the worship of which the property is dedicated.
7. In the case before us, the donor has clearly indicated that the grant to Gossain Kundan Puri is a 'Shivottar'; he has further stated that it should be treated or known (janab) as sanad Shivottar. I find it difficult to understand why such an emphasis was laid on the grant, unless it were a grant to Lord Shiva, either installed or about to be installed in the temple at Nongarh. The fact that the grant is described as a Shivottar grant is doubtless in favour of the appellant, even if it does not relieve the appellant of the whole burden of proving that the property was dedicated (see -- 'Madan Mohan Jin v. Manmatha Nath Bose', AIR 1915 Cal 789 (H)).
8. It is necessary to refer here to other decisions which have a bearing on the question at issue. In -- Shama Charan Nandi v. Abhiram Goswami', 33 Cal 511 (I) their Lordships of the Calcutta High Court had to consider a sanad which ran in the following terms:
"To the remembered and abode of all blessings Sree Bichitranand Mohunt Goswami of good character. This deed of debutter property is executed to the following effect: Being in sound health and easy mind I do grant to you by way of lakhraj debutter, the entire mouza Garfalbari in pergunnah Pandra together with all bhils, jhils, waste and danga lands jungles and culturable lands and whatever exists there on. By bestowing your blessings on us you do enjoy and possess the same with great felicity. If I or any of my heirs ever dispossess you, the dispossession shall be ineffectual. Dated the 11th Pous 1194".
Their Lordships pointed out that there was nothing in the sanad to show that there was a dedication to a god or gods except the use of the word 'debutter'. Their Lordships expressed the view that on the whole they felt difficulty in saying that the plaintiff had established that the property was 'debutter' property, and their Lordships decided the case on another ground, namely, the ground of limitation. The decision of their Lordships was taken to the Privy Council and the case was considered by their Lordships of the Privy Council in -- 'Abhiram Goswami v. Shama Charan Nandi', 36 Ind. App. 148 (PC) (J). Their Lordships of the Privy Council quoted the sanad and then observed:
"It was contended on behalf of the respondents that, although the grant was to the mohunt, and 'by way of lakeraj debottar', there was no complete or specific dedication of the mouza to the service of any idol, but that the gift was to the mohunt personally, and descendible to his heirs, in return for blessings bestowed on the donor and his family. There is, no doubt, much force in this contention, but, however ambiguously the intention of the donor may have been expressed, it is perfectly clear from the evidence in the case that the donee received the gift for the service of the particular idols whose shebait he was, and that the income of the mouza has even since been entirely appropriated to that service. The Subordinate Judge finds as a fact that 'its proceeds have all along been spent for the maintenance of the sheba of the said idols', & there is no evidence at variance with this finding. The mere fact of the proceeds of any land being used for the support of an idol may not be proof that those lands formed an endowment for the purpose (-- 'Muddun Lal v. Komul Bibee', 8 Suth. W.R. 42(2) (K),) but it is not a fact that may well be taken into consideration when, as in this case, the intention of the founder has to be gathered from an ancient document expressed, to say the least, in ambiguous language".
'Their Lordships also referred to a subsequent document where the Mahanth described himself as a holder of debutter property, endowed for the services of the deity.
In the case under our consideration there are certain other documents which, I think, place the matter beyond any doubt, & whatever ambiguity or doubt may arise from the terms of the sanad of 1758 is removed from my mind. I now proceed to refer to those documents. But before I do so, I must refer to the evidence of Mahant Shamsher Gir, respondent No. 2 witness No. 15 for the defendants. This witness said: Shivottar is that property which is dedicated to the idol shiva". Though the witness did not admit that the properties of the Math were dedicated for 'Pujapath' 'sheba' of people and 'Sadhus', he admitted that the properties of the Math were meant for the 'puja' of Debi Bhagwati, Shiva and Mahabir Swami. In 1880 a trouble similar to the present trouble arose in the Nongarh Math, and the then Mahanth Ramprasad Puri was removed for bad conduct. In that year, Gendhari Puri and other disciples of the Math filed a petition making certain allegations of incapacity and mismanagement against Mahanth Ramprasad Puri.
In paragraph 9 it was stated:
"The Nongarh Asthal is a debottar mahal and the Mahanth has got no right to take a loan or commit extravagance. Mahants are appointed only for the safety of debottar mahal".
In paragraph 4 of the said document it was stated that "Ramprasad Puri had no right whatsoever of taking a loan or of transferring the property or of withdrawing cases against debottar mahal nor can any such debt be legally binding upon the property of the Asthal."
In an ekrarnama of the same year (Ext. 14) it was recited that Mahanth Ramprasad Puri had been removed and it was stated:
"The custom and practice is" this that in the debutter Asthal the Mahanth on the gaddi or manager should look after the Asthal and per-form puja path and do meritorious acts etc".
Mahanth Lachuman Puri himself made a statement in 1932 in an application filed in a proceeding under Section 144, Criminal P.C., to the following effect:
"That your petitioner No. 1 Mahanth Lachuman Puri is the installed Mahanth of Nongarh Asthal and in the Asthal there is installed Shiva and Vishnu 'who are really the proprietors'."
I have underlined (here in ' ') the words which are important. Another document to which the learned Subordinate Judge has referred is Ext. P. That was a maintenance grant made by Mahanth Lachuman Puri in favour of Bishwanath Puri, one of the disciples of Mahanth Shyam Lall Puri. There was protracted litigation and contest between Biswnath Puri and Lachuman Puri as to the Mahanthship. In this document it was stated that the Manjhwa property was 'Shibottar Lakhraj land'.
9. As against these documents the respondents referred to the entries in Register D and the khewat which showed that the property was recorded in the name of the Mahanth and not of the idol or Math.
Mr. De also drew our attention to Ext. 2. Ex, 2 was an application for registration of his name made by Mahanth Lachuman Puri. There it was stated that the basis of the claim for registration was 'inheritance'. These documents do not, in my opinion, conclusively show that the properties were the personal properties of the Mahanth. The Mahanth was the manager of the properties, and the fact that his name was recorded in Register D or the Khewat does not necessarily show that the properties were personal properties. On the contrary, we have the statements of Mahanth Gendhari Pur: and other disciples of the Math in the year 1880 which are clearly to the effect that the properties were Math properties dedicated to Lord Shiva, of the two temples at Nongarh and Manjhwa.
Manjhwa was really subordinate to Nongarh, and the Mahanth of Nongarh managed the entire Math properties. So far as Charan lands are concerned, they were acquired by previous Mahanths and the evidence of the plaintiff's witnesses shows that they were treated as part and parcel of the Math properties. I agree with the learned Subordinate Judge that the evidence of Mathura Singh (witness No. 3 for the defendants fourth party) that the Charan lands, acquired in the time of Mahanth Shyam Lall Puri, were the Mahanth's personal property cannot be accepted as correct. The witness admitted that he did not know from where Mahanth Shyam Lall Puri got the funds; nor had the witness seen any of the documents relating to the acquisition.
10. There is a further point in this connexion. In Title suit No. 3 of 1935 to which Lachuman Puri and Gossain Shyam Narain Gir (disciple and farzidar of Mahanth Shamsher Gir) were parties this very question was raised and it was held that the properties were not personal properties but trust properties, endowed for charitable and religious purposes. That finding is, I think, binding on the parties or parties under whom they or any of them claim, litigating under the same title (the plaint of the suit is Ext. A-2 and the judgment is Ext. 21 (a)).
11. I may also say that the question whether the debutter is partial or absolute does not arise in this case; the Question here is if the properties are personal properties of the Mahanths or are properties of the Math, that is, of Lord Shiva, installed in the Math temples. If the properties are properties of Lord Shiva, there can be no doubt that the endowment is absolute. It is also not very much in dispute that the right of worshipping Lord Shiva in the Nongarh Math is not limited to the members of a particular family or group but extends to all persons professing the Hindu religion. Mahanth Shamsher Gir himself admitted that Nongarh Math is a Math of Sanyasis. The evidence of the appellant's witnesses shows that the dedication was for "rag bhog and puja path" of Lord Shiva (see the evidence of Somar Puri). Ext. 14 to which, I have already referred, also shows the nature of the debutter to be a public debutter.
12. For these reasons, I hold that the learned Subordinate Judge correctly decided issue No. 1.
13. I now proceed to consider the rule or custom of succession in the Nongarh Math. The custom or rule, which the appellant pleaded, was stated in paragraph 3 of the plaint:
"One of the disciples of the preceding Mahanth or if there is no disciple of the preceding Mahanth, any suitable disciple of any previous Mahanth residing in the said Asthal is selected by the people of the locality to become the successor-in-office of the preceding Mahanth who is installed to the office of Mahanthship by observance of certain religious and customary ceremonies".
The expression "people of the locality" is somewhat vague, and does not state clearly what is the 'body' which elects the Mahanth.
On the side of the respondents 1 and 2 it was pleaded in paragraph 10 of the written statement:
"There was or is no custom that the people of the locality had any hand in selecting any person as successor of the previous Mahanth. The eldest chela used to succeed to the property and used to deal with it as if his own private property and never as Manager or Trustee of Lord Shiva."
Mr. B.C. De, appearing on behalf of respondents 1 and 2, has contended that assuming that the Maharaja of Gidhour had founded the worship of the idol of Lord Shiva at Nongarh and had dedicated property for the purpose, he laid down the line of succession in the sanad (Ext. A); as the founder had disposed of the right of succession, it was not open to the appellant to plead a custom or rule in derogation of the terms of the trust (Ext. A). Accordingly, Mr. De submitted that succession to the office of the Mahanth at Nongarh was hereditary as indicated by the expression "generation after generation" occurring in the sanad. (Ext. A).
This contention of Mr. De does not appear to me to be correct. It is not correct to say that the then Maharaja of Gidhour founded the worship of the idol of Lord Shiva at Nongarh Math or Manjhwa Math, or that he founded any of the two aforesaid Maths. What the then Maharaja of Gidhour did by the sanad (Ext. A) was to dedicate as a pious Hindu some property as a Shivottar grant for the service and worship of Lord Shiva to Gossain Kundan Puri who presumably founded the Maths. Somar Puri (P. W. 27) said that the Maths were built in the time of Mahanth Kundan Puri 200 or 250 years ago, though he did not know who had set up the idols of Lord Shiva in those temples. I do not read Ext. A as founding the temples or Maths or even founding the worship of the idol of Lord Shiva at Nongarh. I read Ext. A as a grant by way of dedication of a certain definite piece of property for the service and worship of Lord Shiva in the Math at Nongharh, Therefore, the then Maharaja of Gidhour was in no sense a founder of the Math or of the worship. As a pious Hindu, he merely dedicated some property for the worship of Lord Shiva. Therefore, the devolution of the office of Shebait or Mahanth will depend in this case on the usage of the particular Math and not on what is stated in the sanad (Ext. A). The expression "generation after generation" in the sanad (Ext. A) will, in the context, mean according to the line of succession as regulated by the usage of the particular Math.
14. The oral evidence which has been given with regard to the usage is not very satisfactory & does not establish very strictly the custom or rule pleaded in paragraph 3 of the plaint. The learned Subordinate Judge realised this defect in the oral evidence given on behalf of the appellant, and confined himself mostly to a consideration of the documentary evidence on this point.
I shall presently discuss the oral evidence in greater detail with regard to the alleged election of the appellant. It is sufficient to state here that the oral evidence as to election of the Mahanth varies considerably; some of it shows that only the people of Nongarh voted in the election; some evidence shows that people of other neighbouring villages also took part in the election; a part of the evidence shows that some Mahanths also took part in it; and other evidence shows that some Pandits and learned men also took part in it. From the oral evidence given, it is impossible to come to any other conclusion than this that there is a custom of electing the Mahanth and the eldest disciple is usually elected unless there be reasons to the contrary; the evidence does not, however, clearly show what is the electoral body which makes the election. This in my opinion, is the effect of the oral evidence in the record.
15. I proceed now to consider the documentary evidence on this question. There are three important documents Exts. 14, 15 and 16, to all of which the learned Subordinate Judge has referred. I have also referred to Ext. 14 in another connection. Ext. 14 is the ekrarnama between Gossains Girdhar Puri, Netlal Puri and others, dated the 10-12-1880. It is one of the documents which came into existence in the year 1880 when there was trouble over Mahanth Ramprasad Puri. In this document it was stated that Mahanth Ramprasad Puri was removed from Mahanthship and Mahanth Gandhari Puri was given 'chaddar'. Ext. 15 is a power of attorney executed by Mahanth Gandhari Puri in favour of Netlal Puri on 19-12-1880. This document also stated that Mahanth Ramprasad Puri was removed from his office by reason of his bad character etc. In Ext. 16, which was a petition filed by Mahanth Gandhari Puri and others on 9-11-1880, it was stated:
"According to the permission and arrangement of Mahanth Kundan Puri aforesaid on the death of the said Mahanth, this custom has prevailed that from among the disciples that disciple who turns out to be able, wise and fit to manage the affairs of the court and villages and look after everything and the welfare of the disciples, has been selected by the disciples and the gentries of the neighbourhood and the Mahante of other Asthals to be the Mahanth gaddinashin and been put in possession of the entire moveable and immoveable properties".
It is worthy of note that the custom referred to in Ext. 16 is not in exact conformity with the custom pleaded in paragraph 3 of the plaint; according to paragraph 3 of the plaint the body which selects the Mahanth consists of the people of the locality; according to Ext. 16 the custom is that the Mahanth is selected by the disciples, the gentry of the neighbourhood and the Mahanths of other Asthals, presumably Asthals of the same type. There is some evidence in the record to show that the Nongarh Asthal was a Math of Sanyasis belonging to the school founded by Sri Shankaracharya.
I may also refer here to another document which is Ext. A-2. It is the plaint of Title suit No. 3 of 1935, and the present appellant was one of the plaintiffs in that suit. In paragraph 3 of that document the custom pleaded was the following:
"The custom of appointing successors of Mahanths has been that one of the disciples of the preceding Mahanth is selected by the general public and other Mahants of the locality to become the successor, who is installed to the post by the observance of certain religious and customary ceremonies".
It is worthy of note that paragraph 3 of the plaint of Title suit No. 3 of 1935 does not mention the disciples of the Math as having any say in the matter of the election of the Mahanth, unless they come under the expression "general public".
16. Another document which falls for considerations in this connection is Ext. 2, which was an application for registration of his name by Mahanth Lachuman Puri on the death of Mahanth Shyam Lall Puri which took place in 1927. In paragraph 13 of the application Mahanth Lachuman Puri said:
"In the month of Chait, 1334 Fasli the said Mahanth Shyam Lall Puri died leaving behind the petitioner as his heir. On his death according to the custom of the said gaddi the rais (respectable persons) of the village and the neighbourhood bestowed the chadar of Mahanth on the petitioner and put him on the gaddi."
This document establishes that there is a custom of election, but according to this document the persons who elect are respectable persons of the village and the neighbourhood. No mention is made of the Mahanths of the neighbouring Asthals.
17. Exhibit 7 is another very important document. This is an application in revision filed on behalf of one Chamru Singh. Chamru Singh was examined as a principal witness on behalf of the contesting respondents 1 and 2. In his evidence Chamru Singh said that he was the 'gomastha' of Mahanth Shamsher Gir for 21 years. There can, therefore, be no doubt that Chamru Singh was the accredited agent of Mahanth Shamsher Gir, In paragraph 7 of the grounds on which the application in revision was founded, it was stated as follows:
"For that the alleged election of Somar Puri, Sanyasi of Sankar sect, by the villages people is unknown in law and usage of Mahanth, the persons who are to elect being neighbouring Mahanths of the Sankar cult."
These statements in Ext. 7 can, I think, be used as admissions; they show that the principle of election does prevail in the Nongarh Math, though the electoral body, according to the statements, consists of the Mahanths of neighbouring Maths of the school of Sri Shankaracharya. An attempt was made to question the correctness of the statement made in Ext. 7.
The learned Subordinate Judge has dealt with the point, and I agree with the learned Subordinate Judge that there are no good reasons for holding that the statements referred to above were interpolated or surreptitiously introduced without the authority of Mahanth Shamsher Gir; on the contrary, there is evidence which shows that the statements were made under the instruction of Mahanth Shamsher Gir himself.
18. On behalf of the respondents a reference was made to Exts T series, orders passed in land registration cases, which showed that Mahanth Ramnarain Puri, Mahanth Shyam Lall Puri and Mahanth Lachuman Puri were mutated in the Land Registration Department on the ground of 'inheritance'. I agree with the learned Subordinate Judge that the expression 'inheritance' mentioned in the aforesaid documents does not destroy the other evidence which clearly shows that the line of succession is regulated by a custom or usage of election.
19. I take it that it is now well settled that a long series of instances in which a custom has been recognised is not the only mode of proving a custom; a custom may be proved by showing a clear, distinct and positive tradition in the Math, or by a long series of instances in which the custom has been recognised. From the documentary evidence which I have discussed above, it is clear to me that the office of Mahantship of the Nonghar Math is not hereditary; there is a custom or usage of election. This much only can be said with certainty; as to the electoral body the evidence is by no means clear or conclusive. The custom or usage as pleaded in paragraph 3 of the plaint does not appear to me to be in strict conformity with the custom or usage as stated in Ext, 16 or as stated in paragraph 3 of Ext. A-2. I think that the learned Subordinate Judge realised this difficulty, and his finding on issue No. 3 is accordingly somewhat vague and indefinite. He says:
"I, therefore, conclude that in this Math while preference has always been given to the eldest disciple of the reigning Mahanth, the eldest disciple has been taking the seat subject to the approval of those who are concerned in the Math, including the fraternity, and he is to continue only during their approval".
The learned Subordinate Judge does not make it clear what is the fraternity; nor does he explain what is meant by the expression "approval of those who are concerned in the Math". My own conclusion is that though the appellant has established the existence of a principle of election or selection, he has not established strictly the rule or custom which he pleaded in paragraph 3 of the plaint.
20. I now turn to the third and principal question of fact, namely, if the appellant was at all elected as the Mahanth of Nongarh Math on the 6th of May, 1940, or any other date. The learned Subordinate Judge has summarised the oral evidence on this point and this is a point on which oral evidence is important. I do not think that any useful purpose will be served by repeating what the learned Subordinate Judge has said Mr. S.N. Dutt, appearing for the appellant, has taken us through the entire oral evidence in the record and has very strongly submitted that the finding of the learned Subordinate Judge on this issue is incorrect.
21. He has submitted that the oral evidence should be judged not by an absolute standard of perfection but in the light of inherent probabilities, or what is likely to happen in the natural course of things. He has argued that on the death of Mahanth Lachuman Puri on 17th of April, 1940, a 'bhandara' must have been held, and if the usage of election prevailed in the Math, it should be natural for those concerned in the welfare of the Math to elect or select a successor to Mahanth Lachuman Puri. Mr. Dutt's argument has been that the oral evidence in the case should be judged in the light of these probabilities.
22-24. I would refer in this connection to the evidence of witness No. 6 for the appellant. Bhatu Mahton, witness No. 6, said that he was the jeth raiyat of Nongarh. In cross-examination the witness said that Lachuman Puri sold away every property of the Math including even the Math premises. He further admitted that the purchaser acquired possession in the lifetime of Lachuman Puri. We know that the two sale deeds by which Mahant Shamsher Gir acquired mahal Nongarh from Lachuman Puri are Exts. D-3 and D-4; one is dated 3-12-1936, and the other dated 7-11-1937. It is a little difficult to understand how an election could be held in the manner suggested by the appellant, or how the appellant could come in possession of the Math and Math properties in 1940, when his opponent, Mahanth Shamsher Gir, had already taken possession of the Math and Math properties of Nongarh in 1936-37.
If, therefore, the oral evidence is to be judged in the light of probabilities, it is extremely improbable that an election was held in 1940 in the manner suggested by the appellant, when Mahanth Shamsher Gir was in possession.
Let us first see how the appellant says that he was elected. He gives the following evidence with regard to his election:
"Some 30 to 32 people held a meeting after the bhandara was over and they elected me to this seat in that meeting. I do not remember their names. Among them were three Mahanths of Dharahera, Deokund and Balgudar, 10 or 12 were sadhus of the akhara, and the remaining 17 were men of Manjhwe, Sarsande, Nandnawa, and Gohri. 2 were of Nandnawa. They were Bhumihars. I think 4 or 5 were of Sarsande. They were Rajuts. 3 or 4 were of Gohri. They were Brahmins. 2 or 3 were of Majhwe. They were Brahmins. They held a meeting of their own accord. The three Mahanths initiated the talk that a meeting should be held. The bhandara was over till 2 p.m. The meeting commenced at 3 p. m. and it lasted for about an hour. Bishwanath Puri attended that meeting. There was no talk of any writing and no stamp or paper was purchased for putting the resolution of the meeting into writing."
The other evidence in the record contradicts the appellant's evidence on almost every point. These contradictions have been referred to by the learned Subordinate Judge. I propose to refer again to some of the salient contradictions. (After referring to some of the important contradictions, his Lordship proceeded)
25. The only conclusion that one can reach after a consideration of the evidence in the record is the conclusion which the learned Subordinate Judge reached, namely, that the appellant has miserably failed to prove that he was elected as the Mahanth of Nongarh Math.
26. This finding is decisive of the appeal. As, however, there may be an appeal from our decision, it is necessary that I should record my finding, as briefly as I can, on the fourth question raised before us, namely, if the alienations or any of them were justified by legal necessity.
Mr. Lalnarain Sinha, appearing on behalf of respondent No. 4, Mathur Singh, has particularly supported the alienation of Charan lands. The learned Subordinate Judge has discussed this question under issue No. 2. With regard to the two documents, Exts. D-3 and D-4, by which Mahal Nongarh was purchased by Mahanth Shamsher Gir, the learned Subordinate Judge has given the necessary details with regard to the consideration for the said two documents. I am completely at one with him in his conclusion that no legal or justifying necessity has been proved for these kebalas; nor any 'bona fide' enquiry by the purchaser into the existence of any legal or justifying necessity. As I am in complete agreement with the learned Subordinate Judge on this point, I do not think that any useful purpose will be served by repeating what the learned Subordinate Judge has said with regard to the purchases made by Mahanth Shamsher Gir.
27. Nothing more need be said about Exts. D-1, D-1/5 and D-1/6 the documents by which some Manjhwa lands were sold. The learned Subordinate Judge has dealt with them, and has clearly exposed the fact that the alienations were not made for any justifying necessity.
28. The document relating to the Charan lands is Ext. D-2. The consideration is Rs. 18,000, out of which a sum of Rs. 14,000 was set off for the payment of a sudbharna debt (Ext. B-2, dated 30-1-1924); a sum of Rs. 2,000 and odd was set off against dues on previous handnotes, the hand-notes being Exts. E series; and a sum of Rs. 1,500 was taken in cash. With regard to the sudbharna, the learned Subordinate Judge has pointed out that the mortgagee was in possession and no interest was running against the estate. It was, therefore, unnecessary to sell the Charan lands in order to redeem the mortgage. So far the hand-note debts and cash payment are concerned, the purposes mentioned were Baidyanath puja, Dasahra expenses, litigation expenses, cloth expenses and the like.
There is no reliable evidence that these purposes existed in fact, or could not be met from the income of the Math properties; nor is there any reliable evidence that the creditor was satisfied on a 'bona fide' enquirty about the existence of these necessities. Mr. Lalnarain Sinha has relied on the decision in -- 'Nilardi Sahu v. Chaturbhuj Das', AIR 1926 PC 112 (L). That was, however, a case of a mortgage in which the stipulated interest was one per cent. per annum, and the interest went on accumulating against the estate. I do not think that the principle laid down in that decision is applicable to the present case. Even applying the principle that it is the immediate and not the remote cause, the causa causans, of the borrowing which has to be considered, I do not think that the alienation of the Charan lands can be supported in this case.
29. The only other point which falls for consideration is a question of 'res judicata,' which has been urged by Mr. Lalnarain Sinha as arising out of the judgment passed in Title Suit No. 3 of 1935. In that judgment (Ext. 21-a), the learned District Judge had found that the Charan lands were sold for a reasonable consideration to satisfy previous debts, and the learned District Judge concluded by saying that he did not think that Mahanth Lachuman Puri had been guilty of any act which merits severe censure, and in the opinion of the District Judge no case had been made out for setting aside the alienation. Mr. Lalnarain Sinha contends that this finding operates as 'res judicata' against the present appellant. The learned Subordinate Judge has dealt with this point, and has pointed out that the capacity in which Somar Puri was one of the plaintiffs in Title Suit No. 3 of 1935 is different from the capacity in which he has brought the present suit. He has further pointed out that the question whether the alienation was binding on the Math was outside the scope of Title suit No. 3 of 1935. That was a suit for a declaration that the properties were trust properties and also for removal of Lachuman Puri on grounds of unfitness, misreasance, malfeasance etc. The question whether the alienations were for justifying necessity, and, therefore, binding on the estate was really not within the scope of the suit. I agree with the learned Subordinate Judge that for the two reasons given above, the bar of 'res judicata' does not operate against the appellant.
30. In view of my finding that the appellant has failed to prove the particular rule or custom which he pleaded in paragraph 3 of the plaint, and my further finding that the appellant has miserably failed to prove that he was elected Mahanth of the Nongarh Mahal in accordance with the prevailing rule or custom of the Math, the appeal must fail. I would accordingly dismiss the appeal with costs.
Narayan J.
31. I agree with my learned brother that this appeal must be dismissed.
32. But, as the judgment in AIR 1951 Pat 349 (P) is a judgment delivered by me, I should like to say a few words on the construction of the document which has been called the "sanad" of the year 1165 fasli. My decision in that case has been upheld by the Supreme Court in -- 'Rambehari Thakur v. Ram Chandar Narain Das, (Civil Appeals Nos. 4 and 5 of 1951', D/- 19-11-1952 (S.C.), and Das J. who delivered the judgment of the Supreme Court observed as follows:
"By the Sanads the lands were gifted to Mahanth Damodar Dass free from rent to be enjoyed by him and disciples after disciples. There is nothing in these documents to indicate that the gift was to any institution. On the contrary, the tenor of the documents indicates clearly that the gift was to the donee in his individual capacity. It is not disputed by the learned counsel that a Bairagi Mahanth can hold property on his own account. We find ourselves in agreement with the Courts below that the mere use of the word 'Vishnuprit' or Sriprit' in the documents does not at all indicate that the gifts were made to the institution as distinct from the Mahanth personally. In any event those words certainly do not indicate the character of the institution."
The sanad which is to be construed in this document reads as follows:
"Respects and salutation of Swasti Sri Maharajadhiraj Amar Singh etc. to Sri Gossain Kundan Puri.
I have given the entire mauza Nongarh, pergana Bisthhazarim principal with dependencies, to you as Shivottar grant. It is desired that you will make proper cultivation of the said mauza and enjoy the usufruct thereof generation after generation without ill-treatment (of the tenants?). You should treat this document as a sanad of Shivottar grant and bless me; dated the 21st Fagun 1165 Fasli."
There is undoubtedly some force in the contention that there is not much difference between the terms of this sanad and the terms of the grant which had to be construed in the case decided by me -- 'Khub Narain v. Ramchandra Narain (F)', and, in fact, when on the face of it the document shows that the properties were gifted to a particular Mahanth or saint it is a bit difficult to hold on a mere construction of the document that it was a dedication to an institution.
But, because the word "Shivottar" has been used and also because the document had to be construed against the background that there was a Shiva temple at Nongarh, I am not able in this case to construe the document in a manner different from the one in which it has been construed by my learned brother. Undoubtedly, there is some admission in this case to the effect that the properties of Math were meant for the 'puja' of the gods, and one witness has actually stated that Shivottar is that property which is dedicated to the god Shiva. Apparently there is not much difference between the words "Shivaprit" and "Shivottar", but if there are materials on the record of this case from which an inference can be drawn that the institution was really an institution where a particular god was to be worshipped the grant can be construed as grant made to the institution and not to Gosain Kundan Puri personally.
The decisions of the Privy Council in -- 'Clihotabhai Patel v. Jnan Chandra Basak', AIR 1935 P. C. 97 (N); -- 'Perma Nand v. Nihal Chand', AIR 1938 P. C. 195 (O) and -- 'Kartar Singh Bedi v. Dayal Das', AIR 1939 P. C. 201 (P) can all be cited in support of the view that the intention to create a trust must be indicated by words or acts with reasonable certainty and that the purpose of the trust, the trust property and the beneficiaries must be indicated and in such a way that the trust could be administered by the Court if occasion arose.
I had referred to some of these decisions in the case of AIR 1951 Pat 340 (F) and also to some earlier decisions of this Court on the point and had pointed out that a trust for a Hindu idol and temple simpliciter is not necessarily one for a public purpose. But all the same, I feel that in this particular case I will not be justified in taking a view different from the one taken by my learned brother so far as the construction of the document is concerned.
33. It is important to note that so far as this case is concerned, the finding that the plaintiff has failed to prove his election as the Mahanth of Nongarh Math is absolutely decisive of it. The suit cannot be maintained by the plaintiff if he has failed to prove his election as the Mahanth, and the Court below was, therefore, absolutely justified in dismissing the suit. I am in complete agreement with my learned brother so far as his findings on the other points are concerned.