Karnataka High Court
Sri. Chidanandaswamy Bellary vs Shadaksharayya on 17 June, 2014
Equivalent citations: AIR 2015 (NOC) 683 (KAR.) (DHARWAD BENCH), 2015 (2) AKR 27
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
RFA No.600/2005
1
IN THE HIGH COURT OF KARNATAKA,
R
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA No.600/2005 (DEC/INJ)
BETWEEN:
1. SRI.CHIDANANDASWAMY BELLARY
SRI.GURU BRISTAYYASWAMI AVADHOOTMATH,
A PUBLIC TRUST REGISTERED UNDER
BOMBAY PUBLIC TRUST ACT,
NUMBERED AS A-1933, BIJAPUR,
REPRESENTED BY THE SECOND APPELLANT.
2. SMT.MATOSHRI SHARANI VEERAMMATAI,
AGED 45 YEARS,
PEETADHIPATHI AND TRUSTEE OF APPELLANT NO.1.
... APPELLANTS
(BY SMT.HEMALEKHA K.S., ADV.)
AND:
SHADAKSHARAYYA,
CALLING HIMSELF AS DISCIPLE OF CHIDANANDASWAMY
AVADHOOTMATH, RESIDENT OF HALAKURKI,
BADAMI TALUK, BIJAPUR DISTRICT-586101
... RESPONDENT
(BY SRI.G.R.ANDANIMATH, ADV.)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 07.02.2005
PASSED IN O.S.NO.37/94 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN.) BELLARY, DISMISSING THE SUIT FOR
DECLARATION, POSSESSION AND INJUNCTION.
RFA No.600/2005
2
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed under Section 96 of CPC challenging the judgment and decree passed in O.S.No.37/1994, under which the suit of the plaintiffs/appellants herein filed for declaration of title and permanent injunction has been dismissed after contest. Respondent is the sole defendant in the said suit. Plaintiff No.2 is stated to be the trustee of plaintiff No.1-Math. According to the plaintiff, schedule properties are the properties of plaintiff No.1-Math. It is further averred that, she was staying in the Math and was performing all the religious ceremonies, duties and functions under the guidance of Shri Guru Chidanandaswami Avadhoot who expired on 20.04.1992. According to the plaintiffs, Shri Guru Chidanandaswami Avadhoot was the Swamy of plaintiff No.1- Math and that, Jagadguru Paramahansa Shivaramswami Bhagyanaver conferred upon the plaintiff Sanyashi Diksha RFA No.600/2005 3 and consequenlty Peetarohana ceremony held on 21.02.1994. Defendant had made an attempt to stop the function by filing original suit in O.S.No.15/1994. Before the Principal Civil Judge at Bagalkot could pass an order of injunction on I.A.No.1, Peetarohana ceremony was held on 21.02.1994. Therefore, temporary injunction did not survive. According to the plaintiffs, defendant is not concerned with the Math properties in any way.
2. It is further averred that, defendant is not entitled to hold any functions or festivals on behalf of the plaintiff No.1 at Somalapur. The cause of action arose on 16.04.1994, when the plaintiff came to know of the proposed functions to be held by the defendant on behalf of the plaintiff No.1-Math from 22.04.1994 for about a week. Hence, suit came to be filed for the relief of declaration that plaintiff No.1 is the owner of the schedule properties measuring 1.10 acres in Sy.No.97/2, 5.39 acres in Sy.No.161/2 and 8.54 acres in Sy.No.161/1 of Somalapur Village, Bellary Taluk and for RFA No.600/2005 4 declaration that plaintiff No.2 is entitled to manage plaintiff No.1-Math and for consequential relief of permanent injunction restraining the defendant from obstructing the peaceful possession and enjoyment of the suit property and holding any religious functions on behalf of plaintiff No.1.
3. The said suit has been contested by filing detailed written statement. Defendant has averred that suit is bad in law. He has denied all the contents of the plaint and has called upon the plaintiff to prove the contents of the plaint strictly. The averment that she has become the Guru of plaintiff No.1-Math and Jagadguru Paramahansa Shivaramswami had conferred upon her Sanyashi Diksha has been specifically denied. It is further averred that, plaintiff No.1-Math owns immovable properties at Ilkal, Badami Taluk, Somalapur in Bellary district and that, defendant has accepted voluntarily Sannyas initiated by his Guru Late. Sri.Brishtaiahswami and both of them were engaged in Dharmopadesha preaching universalism to their disciple of RFA No.600/2005 5 Late Sri.Chidanandaswamy. The said Sri.Chidanandaswamy is stated to have established the Maths in Badami Taluk, Ilkal and Somalapur in Bellary district and in other places. Several properties have been acquired by way of gift or by purchase. Sri.Chidanandaswamy was visiting these Maths periodically for conducting religious ceremonies and management of the properties. Defendant is stated to have been trained by Guru Chidanandaswamy for several years and he is the only successor of his office, as he found him to be competent and a fit person. Such assurance is stated to have been made vide will dated 05.03.1992. As such, the defendant is stated to have become the successor in office.
4. On 20.04.1992, defendant was installed on the Gaddi and all the disciples and followers have accepted him as their guru and successor in office of late Sri.Chidanandaswamy. In this regard, an agreement dated 02.04.1993 i.e., the Oppige patra. As such, defendant adores as a Mathadhipathi and Manager of the Muth properties and has been performing all RFA No.600/2005 6 the religious duties. It is further averred that, schedule properties are the general endowment of the Muth and not subjected to any specific trust. It is further averred that, plaintiff being a lady, is precluded acting as Manager or Mathadhipathi and there is no custom in the Muth to appoint a lady as the Mathadhipathi as it is Avadhoota tradition. The alleged peetharohana ceremony is stated to be false. It is stated that, Bombay Public Trust Act is not applicable to the Muth situated within Bellary district as properties in Bellary district do not come within the purview of erstwhile Bombay provenance. Therefore, it is averred that, plaintiff No.1 is not a trust under Bombay Public Trust Act. The suit is stated to be barred by time. With these pleadings, defendant prayed for dismissal of the suit. On the basis of the above pleadings, following issues came to be framed.
i) Whether the plaintiff No.1 is the owner of the schedule properties?RFA No.600/2005
7
ii) Whether the plaintiff No.2 is a trustee of the Math and she is in possession and enjoyment of all its properties?
iii) Whether the plaintiffs prove that the defendant is not entitled to hold any festivals or any functions on behalf of the plaintiff No.1 at Somalapur as alleged?
iv) Whether the defendant prove that suit properties are not the subject matters of any Public Trust Acts?
v) Whether the defendant proves that late Chidanandaswamy has bequeathed all Mutha and Mutt properties to him during his life time through a will dated 5.3.1992?
vi) Whether the defendant proves that all the descriples and followers of late Chidanandaswamy have accepted the defendant as their Guru and RFA No.600/2005 8 successor in office of their Late Guru have confirmed the same by an agreement dated 02.04.1993?
vii) Whether the suit is barred by the law of limitation?
viii) Whether the court fee paid is improper?
ix) Whether the plaintiff is entitled to the reliefs sought for?
x) What decree or order?
Additional issue:
i) In the alternative, whether the plaintiffs are
entitled for the possession of the schedule
property from the defendant?
5. Second plaintiff is examined as P.W.1 and two persons have been examined on her behalf as P.W.2 and 3 and as many as 322 exhibits have been got marked on her RFA No.600/2005 9 behalf. Defendant is examined as D.W.1 and 4 witnesses have been examined on behalf of the defendant. 26 exhibits have been got marked on behalf of the defendant. Issue nos.1 to 3 and 7 to 9 have been answered in the negative and rest of the issues have been answered in the affirmative. Ultimately, suit has been dismissed after contest. It is this judgment which is called in question before this Court as per the various grounds as set out in the appeal memorandum filed u/S 96 of C.P.C.
6. It is contended that the trial Court has not properly analyzed the oral and documentary evidence in right perspective and has ignored or misread the material evidence placed on record. It is strongly contended that the trial Court has compared the admitted signatures found on the Will with the disputed signatures and it was not competent to do so though the court is considered to be expert of experts u/S 73 of the Evidence Act. It is further contended that the important documentary evidence i.e., photographs in regard RFA No.600/2005 10 to the peetharohana function relating to the installation of second plaintiff as the guru have been lightly ignored. There is no reference about the Will executed by Chidananda Swamy in his favour in the oppige patra and therefore the trial Court could not have upheld the Will. It is contended that the trial Court has come to a wrong conclusion that the second plaintiff, being a lady, is inhibited from becoming Guru and therefore the suit is not maintainable. It is further argued that it is un-understandable as to how the trial Court Judge could draw such inference without there being any basis to that effect in the very evidence of defendant and his witnesses.
7. According to the learned counsel for the appellant, the trial Court has adopted a wrong approach to the real state of affairs and that defendant is estopped from pleading contrary to the contents of Ex.D.26, the certified copy of the plaint filed in O.S. No. 15/1994. Ex.P.321, the Oppige Patra (consent letter) given by the disciples of the mutt in favour of RFA No.600/2005 11 the second defendant has not at all been considered in right perspective and judgment of the trial Court is opposed to law, facts and probabilities.
8. Learned counsel for the respondent defendant has submitted his arguments supporting the judgment of the trial Court. It is his argument that the line of succession would disclose that only males had been appointed as Guru and at no point of time a lady was appointed as mathadhipathi. It is further argued that Will has been proved by examining the propounder as well as the attestors and that in view of the consistency found in the deposition of the attestors, the trial Court has upheld the Will. He has prayed for dismissal of the suit.
9. After going through the records and hearing arguments the following points arise for consideration of this Court.
RFA No.600/200512
1) Whether the trial Court is justified in coming to the conclusion that there is an inhibition to appoint a lady as mathadhipathi in this case?
2) Whether the trial Court is justified in comparing the admitted signatures of the deceased Chidananda Swamy with the admitted signatures by invoking Sec. 73 of the Evidence Act without getting a report from the expert?
3) Whether any interference is called for by this Court and if so to what extent?
10. Point No. 1: Case of the plaintiff no.2-appellant is that she has become guru of the plaintiff no.1 mutt and that Jagadguru Paramahamsa Shivarama Swamiji Bhagyannavar conferring sanyasini deeksha on the second plaintiff and that a big function was held in the mutt premises as is evident from the photographs placed on record vide Ex.P.161 to 321. It is argued that these documents have not been taken into consideration while evaluating the evidence. It is true that in the evidence of P.W.2 who is examined as P.W.1 nothing is forthcoming about a lady being made as a peethapadhipathi by the earlier swamiji. But it does not mean that there is inhibition to make a lady as the mathadhipathi. It is un- understandable as to how the judge of the trial Court could RFA No.600/2005 13 draw such an inference without there being any specific inhibition in the custom of the mutt. Just because only gents have become swamiji inclusive of Sri Guru Chidananda Swamy, it does not give rise an inference that ladies are inhibited from becoming mathadhipathi of this mutt unless it is not at all a practice in the Avadhoot mutt.
11. Whether there was any inhibition to make a lady as the mathadhipathi in this mutt needs to be considered in the light of the tradition of the mutt. What is observed by the trial Court in para no. 25 of the judgment is that there is no custom to appoint a female as the head of the mutt. What is further observed is that there is no custom to appoint a female as the head of the mutt. What is observed by the trial Court is that the custom in the mutt was to appoint only males as the mathadhipathi. This observation appears to be not based on actual evidence or interpretation of this text relating to management of mutt of this type in this part of the State. Therefore, the observation made in para no. 25 stating RFA No.600/2005 14 that plaintiff no.1 mutt has no custom to appoint a female head, is not correct and proper. This is the basis for upholding Ex.D.1, Will. The learned Judge has held as follows:
"Even otherwise, plaintiff no.1 Mutt has no custom to appoint a female head. I do not find any valid reasons to discard the Will at Ex.D.1."
---
12. What is further observed by the trial Court is that installation of second plaintiff as Swamiji is not in accordance with the accepted customs of the mutt and therefore plaintiff no.2 cannot derive any title to the mutt by registration of the mutt as Public Trust. Anyhow the suit in question is not in respect of mutt situated in other part of the State and the immovable property attached to this mutt. Suit property in respect of mutt situated in Somalapur village of Bellary Taluk. The second plaintiff is not claiming any title to the property in question and no swamiji can claim absolute title to the properties attached to the mutt. A swamiji is a disinterested RFA No.600/2005 15 person so far as the properties of the mutt are concerned. A swamiji is always there to propagate spiritual values amongst public in general and more particularly disciples of the mutt. It is for the disciples to manage the properties of the mutt either by forming a trust or in any other manner known to law. In this view of the matter, the trial Court is not justified in coming to the conclusion that there is customary inhibition to make a lady as guru in the shishya parampara of the mutt in question. Hence point no.1 is answered in the negative.
13. Point No. 2: The entire case of the defendant is dependent upon Ex.D.1 the Will dated 05.03.1992 stated to have been executed by late Sri Chidananda Swamiji. Admittedly, Sri Chidananda Swamiji was the mathadhipathi of the mutt in question and he was held in high esteem by the followers of the mutt in question. What is argued before this Court is that Swamiji was competent to appoint anybody as the mutt head and this is in accordance with the custom. If that is so, Will in question will have to be proved in accordance with law, as it is the basis for such peetharohana. RFA No.600/2005 16 The authenticity of the Will marked as Ex.D.1 has been emphatically disputed by the plaintiff. Learned Judge of the trial Court has himself held in paragraph no. 22 that execution of Will is not mentioned in Ex.P.321 the oppige patra signed by the followers of mutt and that alone will not come in the way of accepting the Will. Ex.P.321 is stated to be the consent letter by all the disciples of the mutt in favour of the defendant accepting him to be the head of the mutt. There appears to be some force in the arguments of the learned counsel for the appellant in this regard. Further, the trial Court has held that the signatures of late Chidananda Swami is marked as Ex.D.1(a) and this signature is disputed by the plaintiff no.2. It is further held in paragraph no. 22 that unfortunately the same is not subjected for the opinion of the expert. Hence the learned Judge of the trial Court has compared this signature marked as Ex.D.1a with the admitted signatures of late Chidananda Swamiji found in Ex.P.319 and Ex.P.320 which are stated to be a letters addressed by late Chidananda Swamiji to the Co-operative RFA No.600/2005 17 Societies. Ex.D.319(a) and 320(a) are stated to be the admitted signatures of Chidananda Swamiji.
14. It is true that Court is the expert of experts u/S 73 of the Evidence Act. It has got power to compare the admitted signatures or handwriting with the disputed signatures or hand writing. But a caution has been given by the Hon'ble Apex Court way back in 1979 in the case of State (Delhi Administration) Vs. Pali Ram (AIR 1979 SC 14). What is held in paragraph no.30 of the decision in Pali Ram's case is that ordinarily it is not prudent for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. Therefore, the Apex Court has cautioned that the Court should not take up the responsibility of comparing the disputed signature or handwriting with the admitted RFA No.600/2005 18 signatures or handwriting unless a report is solicited from the expert since such an examination requires a scientific exercise.
15. This decision of the Supreme Court reported in Pali Ram's case has been followed with all force subsequently by the Supreme Court in the case of O. Bharathan Vs. K.Sudhakaran and another reported in (AIR 1996 SC 1140). It is further reiterated in O.Bharathan's case that comparing of disputed signatures on counterfoils by High Court Judge without the aid of an expert or person conversant with the same is not legal. It is further held that necessity for adhering to the sound advise and guidance in Pali Ram's case is all the more necessary in a case where hundreds of signatures are disputed and the striking dissimilarities noticed by the Court at the time of trial of the Election Petition. Thus, the decision in Pali Ram's case is a binding precedent under Article 14 of the Constitution. RFA No.600/2005 19
16. In this view of the matter, the trial Court is not justified in comparing the disputed signatures of late Chidananda Swamy with the admitted signatures by invoking Section 73 more particularly without calling for a report from the expert. Hence, the finding given on the Will is not legal and valid and it needs reconsideration. Hence point no.2 is answered in the negative.
17. Point No. 3: Taking into consideration the facts and circumstances of the case and the finding on point nos.1 and 2, interference is absolutely called for and appeal needs to be allowed and consequently matter needs to be remitted to the trial Court for fresh consideration of the matter, if possible by giving opportunities to both the sides to lead additional evidence, if any. It is made clear that the evidence recorded already will remain in tact for all practical purposes.
ORDER Appeal filed u/S 96 of CPC is allowed.
Consequently, matter is remitted to the trial Court for fresh consideration of the entire matter. The evidence already RFA No.600/2005 20 recorded will remain in tact for all practical purposes. Parties are at liberty to adduce additional evidence and the Court may permit parties to lead additional evidence if any, and in the event of an application being filed for seeking expert's opinion, the trial Court shall consider the same favourably. Learned Judge of the trial Court shall frame an issue in regard to the customary inhibition to make a lady as mathadhipathi in the shishya parampara of this mutt on the basis of the stand taken by the defendant in the written statement.
Learned Judge of the trial Court to make an honest endeavour to dispose of the matter before the closure of the Civil Courts for summer vacation in the year 2015. Parties shall appear before the trial Court on 01.08.2014 without fail and the entire LCRs shall be sent to the trial Court immediately.
There is no order as to costs.
Sd/-
JUDGE.
MBS/BVV-