Patna High Court
Deo Saran Bharthi And Anr vs Deoki Bharthi And Anr. on 24 April, 1924
Equivalent citations: 80IND. CAS.980, AIR 1924 PATNA 657
JUDGMENT Jwala Prasad, J.
1. This is an appeal by the plaintiffs. The plaintiff No. 1 is the Chela of Mahanth Sheosharan Bharthi. The plaintiff No. 2 alleges himself to be a pujari of the temple of Shiva to whom the properties in suit are said to have been dedicated.
2. The plaintiffs' case is that Sheosharan Bharthi defendant No. 2 on 31st October, 1912, executed a deed of trust dedicating the properties in suit to the god Shiva and appointing defendant No. 1 as manager and trustee of the endowment and that the defendant No. 1 acted as such for some years. In 1915, he and Musammat Punia acting in collusion got defendant No. 2 to execute two registered sale-deeds, dated the 23rd and 25th November 1917, selling to defendant No. 1 the properties already dedicated to the god Shiva except one fourth share in certain jagir lands which was given to Musamrnat Punia under sale-deed, dated the 25th November 1917. It is said that defendant No. 1 is acting adversely to the trust and is setting up a title of his own and consequently he has committed a breach of the trust and is liable to be removed. The suit was instituted under Section 92 of the Civil Procedure Code after obtaining sanction of the Legal Remembrancer.
3. The defendant No. 5 Sheosaran Bharthi did not appear. The suit was resisted by defendant No. 1 Deoki Bharthi alone. He repudiates the allegation that there was any trust or dedication of properties to the god Shiva as alleged by the plaintiffs and he set up his own absolute title to the properties based upon the aforesaid sale-deeds executed by Sheosharan Bharthi in his favour and in that of Musammat Punia. He also took certain pleas in bar. Upon the pleadings a number of issues were raised in the Court below, but for the purposes of this appeal the following only need be mentioned. The finding on the other issues is not challenged.
1. Can the suit proceed under Section 92 of the Civil Procedure Code?"
2. Can the plaintiffs maintain this suit?
5. Whether the properties in suit were dedicated to the god Shiva as alleged in the plaint ?
6. Whether the defendant No. 1 is a trustee in respect of the properties in suit?
4. The Court below decided Issue No. 1 in favour of the plaintiffs and Issues Nos. 5 and 6 against them. In the result it dismissed the suit. The plaintiffs have come to us in appeal.
5. The learned Vakil for the respondents says that the Court below was wrong in deciding the Issue No. 1 in favour of the plaintiffs and that it ought to have held that the suit is not maintainable under Section 92 of the Civil Procedure Code.
6. The learned Vakil contends that Section 92 has no application to the present suit wherein the plaintiffs want a declaration that the properties in suit were dedicated to the god Shiva. His contention is that the section is confined only to a case where the prayer is merely to remove a trustee and to give necessary direction for the administration and management of the trust property. He relies upon the wordings in Section 92, which are as follows:
In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the sanction in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree.
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries etc. (h) granting such further or other relief as the nature of the case may require.
7. This section, according to Mr. Mullick, assumes that there is no dispute as to there being a trust express or constructive, and that the only question involved is as to the conduct of the trustee in the administration of the trust property. In support of his contention he relies upon the case of Jamaluddin v. Mujtaba Husain 25 A. 631 : A.W.N. (1903) 120. There the suit was brought as an ordinary suit cognizable by a Subordinate Judge for the purpose of a declaration that the property was endowed property and for removal of the Mutawalli on account of mismanagement of the trust. Upon the plea taken by the defendants, the Subordinate Judge dismissed the plaintiff's case upon the ground that Section 539 of the old Civil Procedure Code, which corresponds to Section 92 of the present Code, was a bar to the suit, no consent of the proper officer to institution of the suit having been obtained. On appeal the High Court of Allahabad held that the Court could only return the plaint to the plaintiff to be presented to a Court having jurisdiction to try the suit and ought not to have dismissed the suit. The decision virtually supports the view opposite to that contended for by Mr. Mullick. The case was considered and explained in Budh Singh Dudhuria v. Niradbaran Roy 2 C.L.J. 431 in that case upon facts similar to the present case it was held that in order to make Section 539 applicable it is nob necessary that the existence of the trust for public, charitable or religious purposes alleged by the plaintiff should be admitted by the defendant. If the trust is disputed, the question is decided by the Court upon evidence. To the same effect is the decision in the case of Jafarkhan Jatbarkhan Pathan v. Daudsha Mahomedshah Fakir 9 Ind. Cas. 358 : 13 Bom. L.R. 49.
8. It appears that where a trustee not only mismanages the trust property but sets up a title adverse to the trust, there is no reason why Section 92 cannot be invoked. That section is wide enough, and in clause (h), which I have quoted above, power is given to the court to grant any relief as the nature of the case may require. The primary object of the provision is the administation of trust property by removing the trustee, appointing a new trustee or making such directions as may be necessary for the protection and management of the trust property. In order to secure that object it may be necessary for the plaintiff as a member of the public interested in the preservation and management of the trust property to seek for reliefs, such as a relief of a declaratory nature like the one in the present case. We, therefore, overrule this contention of Mr. Mullick.
9. The case really depends upon the decision of issues No. 5 and 6. The Court below has held that there was no real dedication of the properties in suit to the god Shiva, nor was defendant No. 1 a trustee in respect of the properties in suit. The plaintiffs-appellants impugn the finding of the Court below and on their behalf it has been urged by Mr. Das, that the trust-deed dated the 31st October 1922, is conclusive as regards the creation of the trust and dedication of properties to the god Shiva. The learned Counsel goes so far as to contend that the deed being a registered document purporting to effect complete dedication of the properties to Shiva, no subsequent act or conduct of the dedicator, Mahanth Sheosaran Bharthi, defendant No. 2, is admissible to show that there was no real dedication. No authority has been cited in support of this proposition. A faint reliance has, however, been placed upon Section 122 of the Transfer of Property Act under which a gift of immoveable property must be effected by a registered instrument and a gift of moveable property may be effected either by registered instrument or by delivery. The provision in this section does not purport to legislate that the registration of a deed of gift in respect of an immoveable property is sufficient transfer of the property. It follows Section 122 of the Act, which lays down the requisite essentials of a complete gift, namely (1) the transfer of property, (2) made voluntarily without consideration by one person called the donor be another called the donee, and accepted by or on behalf of the donee. There must be, therefore, a voluntary giving by the donor and an acceptance by the donee. In the case of the donee, being incapable of signifying his acceptance by reason of age or of his being an impersonal being, recognized by law as incapable of being a donee such as deity, the acceptance required by the section may be done on his behalf by somebody else competent be act as an agent. The acceptance may again be signified by an overt act such as the actual taking possession of the property, or such act by the donee as would in law amount be taking possession of the property where the property is not capable of physical possession. Thus actual delivery of possession is not essential in all cases, for it is only one of the modes of indicating acceptance. This will explain the seeming contradiction in some of the authorities cited before us. These authorities are as follows: Kishto Soondery Debea v. Ranee Kishtomati (1863) Mar. Rep. 367 Dagai Dabee v. Mothura Nath Chattopadhya 9 C. 854 : 12 C.L.R. 530 : 4 Ind. Dec. (N.S.) 1219; Kalidas Mullick v. Kanhaya Lal Pundit 11 C. 121 : 11 I.A. 218 : 8 Ind. Jur. 638 : 4 Sar. P.C.J. 578 : 5 Ind. Dec (N.S.) 839; Watson and Company v. Ramchand Dutt 18 C. 10 : 17 I.A. 110 : 5 Sar. P.C.J. 535 : 9 Ind. Dec. (N.S.) 7; Lakshimoni Dasi v. Nittyananda Day 20 C. 464 : 10 Ind. Dec. (N.S.) 314; Abaji Gangadhar v. Mukta 18 B. 688 : 9 Ind. Dec. (N.S.) 968, Upendra Lal Boral v. Hem Chandra Boral 25 C. 405 : 2 C.W.N 295 : 13 Ind. Dec. (N.S.) 269, Ganpati Ayyan v. Savithri Ammal 21 M. 10 at p. 15 : 7 Ind. Dec. (N.S.) 364, Ram Chandra Mukerjee v. Ranjit Singh 27 C. 242 : 4 C.W.N. 405 : 14 Ind. Dec. (N.S.) 160, Babajirav v, Laxmandas 28 B. 215 : 6 Bom. L.R. 932, Jagindra Nath Roy v. Hemanta Kumari Debi 82 C. 129 : 31 I.A. 203 : 8 C.W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 8 Sar. P.C.J. 698 (P.C.), Parthasarathy Pillai v. Thiruvengada Pillai 30 M. 340 : 17 M.L.J. 379 : 2 M.L.T. 198, Gurdit Singh v. Sher Singh 14 Ind. Cas. 247 : 63 P.W.R. 1912 : 106 P.L.R. 1912 : 78 P.R. 1912.
10. In some cases actual delivery of the properties gifted was insisted upon and in others it was condoned. But there has been no real difference as regards the principle that there must be something shown to indicate an acceptance on the part of the donee, and as to whether there has been an acceptance and what constitutes acceptance depends upon the circumstances of each case. In this light I have read the authorities cited before me and I do not want to refer to them in detail. This disposes of the part the donee is required to play in a completed gift On behalf of the donor the essential ingredient as adverted to above is, that he should voluntarily and without consideration transfer the property to the donee. The giving away of the property as the essential ingredient for a valid gift implies a complete divesting of the ownership in the property by the donor. Section 122 only provides a further safeguard by requiring a gift of immoveable properties to be effected by a registered instrument. It cannot in any way affect the essential ingredients of a completed gift set forth in Section 122 and referred to above. A registered deed of gift cannot take the place of those essentials among which is the complete divesting of the ownership by the donor. Therefore it must be proved in each case, apart from the registration of the document, that there was a complete divesting of the ownership. A registered deed of gift, as any other such document, may be merely a nominal transaction, without any intention on the part of the executant to give effect to the terms falsely or fictitiously set forth in the document. In the cases referred to above in spite of the documents in question being registered ones, the question as to whether there was a complete gift was determined upon the proof or otherwise of there being a complete divesting of the ownership by the donor, Reference has been made in some of those cases to the Hindu gifts and more particularly to the dedication of a property to a deity by a Hindu. The Transfer of Property Act lays down general provisions governing gifts and dedications, and I have in vain ransacked the provision in the texts to find out any real distinction in principle between the essential ingredients requisite for a valid gift or dedication in Hindu Law and those laid down in the Transfer of Property Act. The dedication to a deity and the creation of a trust for religious purposes no doubt finds favour in the Hindu Law just in the same way as it does in other communities, and the essential ingredient that constitutes gift whether of moveable or immoveable property in the Hindu Law is the Sankalp and the Samarpan whereby the property is completely given away and the owner completely divests himself of the ownership in the property. In the Hindu Law as elsewhere there must be a real and true Sankalp and Samarpan. This view seems to have been entertained by the parties themselves in this case who are Hindus. The plaintiffs and their witnesses, apart from proving the registered deed, try to prove that there was a general meeting where the dedication of the property was effected by Sheosaran Bharthi in favour of the God Shiva. The plaintiffs being Hindus could not rest their case, as the learned Counsel on their behalf tried to do in this Court, simply upon the execution of a registered deed of gift as if it was an ordinary transfer of property by way of mortgage or sale. I could understand the contention of Mr. Das based upon the registration of the document if he had urged that the registration thereof shifted the onus upon the opposite party to prove that there was no gift or that it lightened the burden of proof that rested upon the plaintiffs to show that there was a true and real dedication. For my own part I would say that a registration of the document will only affect the onus so far as the execution thereof is concerned but will in itself be no proof of the real dedication of the property or the divesting of the ownership therein by the donor. The onus, therefore, according to my view, of proving real dedication, namely, the Sankalp and the Samarpan of the properties in favour of the donee, the God Shiva, rests upon the plaintiffs. The question of onus, however, does not arise in this particular case inasmuch as the evidence as summarised by the Court below has been one-sided, viz., that produced on behalf of the defendants. They have proved by overwhelming documentary and oral evidence that ever since the execution of the deed of trust, Sheosaran Bharthi the dedicator has been exercising acts of possession and, in fact, has been in actual possession up to the present moment just as he was before the deed in question was executed. The exhibits in the case consist of leases, mortgages and sales executed by Sheosaran Bharthi from 1912 when the deed was executed up to 1918: (Exts. A, B, D, E, F, F1, H, H1, and H2). No such document on behalf of the plaintiffs has been produced showing the dealings of the property by the donee on the footing that the properties were the dedicated properties of the God Shiva; not even the account of the income and expenditure has been produced showing that the donee received any income of the property or spent anything towards the purposes for which the dedication of the trust was created. The actual possession of the properties has been similarly proved to have been continued in Sheosaran Bharthi unaffected in any way by the trust deed of the year 1912 in question. The rent receipts Exts. C to C24 prove that the rents were paid by Sheosaran Bharthi and his name stood recorded in the landlord's Sarishta; there is nothing to show that any rent was paid by the donee to the landlord.
11. Now, is there anything to show that an attempt even was made by the donee to have his name mutated in the landlord's Sarishta? Soon after the alleged deed of dedication of 1912 came the preparation of the Survey Record-of-Rights and the dispute lists (Exts. K and K1 of April 1914, and the finally puhlishcd Record-of-Rights of January, 1916, (Ext. L) conclusively establishes the actual possession of Sheosaran Bharthi even after the execution of the deed of trust. As against the aforesaid unimpeachable evidence of actual and continuous possession of Sheosaran Bharthi from before and after the execution of the deed of gift, the plaintiffs have only two documents Exhibits 1 and 3, the first being a report of the Sub-Inspector of Police dated the 5th November 1915, and the second an extract from the register of criminal records sent to the Record-Room in the aforesaid case in 1917.
12. The Court below has commented adversely upon these documents and has held them to be spurious. It has also shown that the identity of the parties mentioned in those documents has not been satisfactorily established. Their relevancy and admissibility are also questionable. In no case the report can be accepted as evidence of the statement of the complainant and we cannot agree with Mr. Das that the statement relied upon by him can in law be used as evidence. The Sub-Inspector who recorded it is dead and no evidence is given that that was the statement actually made by the complainant. Again the aforesaid two documents which constitute simply one transaction, assuming them to be relevant and true, only show an attempt on the part of Deoki Bharthi to take possession of the property and to assert his right under the deed of dedication. But the actual divesting of ownership by Sheo Saran Bharthi cannot be established by these documents which relate to an event in 1915 as against the evidence of the defendants that between 1912 after the execution of the deed, and 1915, the date of the aforesaid event, Sheosaran Bharthi not only asserted his possession but has been in continuous actual possession of the property.
13. The oral evidence merits the same remark, namely, that the evidence on behalf of the defendants consists of competent witnesses such as the lessees, mortgagees and others having dealings with the property. These witnesses prove the possession of Sheosaran Bharthi uninterrupted in any way by the deed of trust; they prove that the deed was never given effect to and was merely a nominal and sham transaction. The plaintiff's witnesses cannot claim disinterestedness and independence which would merit any consideration of their evidence by the Court. Their evidence has been shown by the Court below to be discrepant and inconsistent with the case of the plaintiffs as laid in the plaint which they want to improve by setting up two events: (1) the previous dedication of the property, Sankalp and Simarpan in the presence of the people and (2) the subsequent execution of the deed of trust.
14. We have carefully gone through the oral evidence and considered the comments made on behalf of the parties. In fact, Mr. Das did not feel confident of the oral evidence tendered on behalf of the plaintiffs and consequently did not seem to rely upon it. We need not repeat the reasons given in detail by the learned District Judge who appears be us to have carefully and exhaustively gone into the evidence. Suffice it to say that we entirely concur with his estimate of the evidence. We prefer the evidence given on behalf of the defendants to that adduced on behalf of the plaintiffs. Upon the evidence, oral and documentary, therefore, no real dedication of the property has been proved, nor has it been proved that defendant No. 1 was a trustee of the properties in question.
15. Agreeing, therefore, with the view of the Court below, we dismiss the appeal with costs.
Kulwant Sahay, J.
16. I agree.