Patna High Court
Guput Nath Kahar And Ors. vs Laxmi Narayan And Ors. on 28 April, 1988
Equivalent citations: AIR1989PAT259, AIR 1989 PATNA 259
JUDGMENT Suresh Chandra Mookherjee, J.
1.Defendants are the appellants.
2. In the suit, the plaintiff respondents sought for a declaration of their right, title and interest and recovery of possession in respect of devottar properties detailed in Schedule D of the plaint with mesne profits. A further prayer was made for a declaration that the deeds of sale, mokarari, gift. etc. executed in respect of those properties were fraudulent and sham transactions, without consideration and necessity, illegal, inoperative and not binding on the properties of the Math. A permanent injunction restraining the defendant respondent No. 2 from withdrawing the compensation money in respect of the said properties was also claimed. The suit was decreed in full by the trial Court. Against that, the present appeal has been filed challenging the findings of the Court below.
3. In view of the points involved in this appeal, it is necessary to state the facts in detail.
4. Plaintiff respondents case is, that the idols of Shri Lakshmi Narayan, Shiva Parvati and Ganesh, installed in the Math-temple of Sundar Bahuara owned and possessed the properties described in Schedule A of the plaint. The original Mahanth had a Chela named Mahanth Thakur Puri alias Shankar Puri. Thakur Puri had also a Chela named Sheoratan Puri. The later had two Chelas, named Mohanth Narbad Puri and Mahanth Nand Kumar Pun alias Kanak Kumar Rai. may be pointed out that this Xand Kumar Puri filed the suit as next friend of the plaintiffs,
5. On 24th April, 1910, a deed of gift was executed by Mahanth Thakur Puri in favour of his Chela Mahanth Sheoratan Puri for looking after the devottar properties of the Math of Sundar Bahuara as manager of Shri Lakshmi Narayan and other deities of the temple and also for making proper arrangement of rag-bhog etc. However, a restriction was imposed that the donee could not sell, mortgage or waste the properties of the Math and thereafter, the executant ceased to consider himself as a Mahanth and the devottar properties were, accordingly, managed by the minor Mahanth Sheoratan Puri. As this Mahanth was a minor, the survey authorites recorded the name of Thakur Puri alias Shankar Puri in the Khewat etc. but, in fact, the properties remained in possession of Mahanth Sheoratan Puri, Thakur Puri due to his love and affection for Sheoratan used to advise him, if sought for, regarding the management of the properties. According to the deed of gift, the succeeding Mahanth had also no right to transfer the Devottar properties or encumber it in any way, and if in the event of any such transfer it was to be treated as void and not binding on any person.
6. Mahanth Sheoratan Puri died in Benaras in 1953 leaving behind Narbada Puri and Mahanth Nand Kumar Puri alias Kanak Kumar Rai as his senior and junior chelas respectively. The later had performed his jalsamadhi. But Narbada Puri who died 7/8 years before the institution of the suit, being the senior eheia, succeeded as Mahanth of Sundar Bahuara Math. After his death Nand Kumar Puri alias Kanak Kumar Rai became the Mahanth and was acknowledged as such by all and he, accordingly, came in possession of all the devottar properties.
7. During the lifetime of Mahanth Narbada Puri defendant respondent No. 2 Narbadeshwar Pandey was appointed as a servant on a monthly salary of Rs. 20/- per month to look after the cultivation, litigations etc. of the temple and the Math aand he continued as such even when Nand Kumar Puri became the Mahanth. Nand Kumar Puri looked after the management from Sravati 1360 to Fagoon 1362, and then on account of his illness went to pilgrimage for a change as he had full confidence and trust in his servant Narbadeshwar Pandey. Narbadeshwar Pandey took advantage of his absence and with dishonest motive, in order to harm the devottar properties, surreptitiously, without knowledge of Mahanth Nand Kumar Puri, got his name mutated in register 'D' in respect of devottar properties and further in order to grab it, spread a rumour that Nand Kumar had died and without any authority in collusion with other defendants executed fraudulent sham sale deeds without any consideration and necessity in their favour and kept all these transactions secret. He also disposed of the movable properties of the Math as well as removed some of them to his village home, in the district of Gorakhpur and thereby, wasted the Devottar, proper ties. He bad developed illicit connection with a woman named Lalita (defendant No. 26) and also a prostitute Tara Devi (defendant No. 2). A number of sale documents, mokarari and gifts were also executed by Him in favour of defendant appellants, and withdrew the compensation money which he was not entitled to do.
8. Khata Nos. 7 and8 originally belonged to one Tulsi Koeri, who abandoned the village and so, as Malik, the ancestor of Mahunth Nand Kumar Puri came in posscssion over the same Khata Nos. 12 and 21 were recorded in the Khatiar in the name of Raghubir Kahar but actually that was devoter property. About 30 years before the institution of the suit, the previous Mahanth Sheoratan Puri exhanged this piece of land through a registered document with Gopal Nath Kahar and the deities accordingly came in possession of the exchanged and but defendant No. 1 illegally took pcssossion of it and not vacated it despite repeated demands. Further, some of the appellants got a pauper application filed through one Basudeo Puri in order to create evidence though he had no concern with the devottar properties. Nand Kumar Puri, on getting this information, filed an intervenor petition and Basudeo got the case dismissed for default. No Mahanth had any personal, exclusively and independent interest in the devottar properties, which belonged to Shri Lakshmi Narayan etc. of Math Sundar Bahuara.
9. Defendant No. 1 filed written statement and some documents but did not contest the suit. It is stated, inter alia, that the deities are non-existent entities and there is no such deity in any portion of the disputed properties at Sundar Bahuara or at any other place. A small piece of land within the campus of residential house was used as Samadhi as than meant for the sanyasi owners of the disputed properties. This land was split up in course of Survey operation and recorded as plot Nos. 142 and 145. Plot No. 145 was recorded under Gair Mazarua Aam Khata No. 22 and described as Mandir Mahadeo Asthan. Plot No. 145 along with plot No. 142 was within the Sahan attached to it. There was a pucca built room in plot No. 142 in which one Sulochana Kuer, a Sadhuni and devotee of Thakur Puri had a deity of Lakshami Narayan, but neither she, nor the deity had any title whatsoever to any piece of the disputed lands and so there is a mention of deity of Laxmi Narayan in the deed of gift dated 28-4-1910 executed by Sri Thakur Puri.
10. Thakur Puri was a Sanyasi and devotee of Shiv belonging to the Sampradaya of Sankaracharya. So, either as Sanyasi or personally he had nothing to do with Sri Lakshmi Narayan or any other deity of Vaishnav Sampradaya Sulochana Kuer used to receive help in the matter of Puja of Lakshmi Narayan and Thakur Puri was upprehensive that Sheoratan Puri would discontinue helping Sulochana Kuer and therefore, he made a provision is the deed of 1910 for the Pooja Path Raghbhog of Lakshami Narayan which was only a direction without creating any charge, encumbrances or title. On account of some personal differences Sulochana Kuer removed herself and her deity from the aforesaid premises and Thakur Puri demolished the room and gave the land in Plot No. 142 to Muslim tenants who were residing after cosntructing houses thereon. There was no Shiv ling or Shiv deity in Plot No. 145, but simply because it was a Samadhi Asthan built with a pucca Dome and Trishul over it, an emblem of Shiva Sampradaya and as such, it was recorded as Mahadeva Mandir. In any event, either in law or on fact there was or there could be any dedication or endowment of any property whatsoever.
11. Defendant Narbadeshwar Puri was an employee of Sheoratan Puri and Narmadapuri and was right-hand man of the later in the management of his properties, and the litigations with Vijoyanand Parbat, who was a rival claimant to the disputed properties. Narmada died in 1955 and before his death, the matter of succession was a source of worry to him and so he made Narbadeshwar Puri defendants his chela according to the customs and formalities of Sanyasi Shaiva Sampradaya in February, 1955. After the death of Narmada, Narbadeshwar Puri succeeded to the estate and came in possession and got his name recorded. Narbadeshwar Puri had also performed the Bhandara of Narbada Puri, which was attended to by a number of respectable persons including Sanyasies of other sects. Disputed lands had always been the personal properties of Thakurpuri and as such, it was treated as such. They were Atithies Sanyasi having the profession of zamindari, kastakari and preceptorship. By way of courtesy, they were sometimes called as Mahanthas and their place of residence was called as Math. It was also known as Math as it was an institution for imparting spiritual lessons. Math is not a juridical person capable of holding any property and it is only the Sanyasi preceptor, who is the owner of the property acquired by him. There had been no dedication or endowment as Thakur Puri, his ancestors, and descendants had been the owners of the properties and not trustees.
12. Sheoratan Puri had only one Sanyasi Chela Narbada Puri. These Sanyasi Atit his . used to have many Grihastha Chelas, but they could not succeed to the inheritance in any circumstance whatsoever. Only Sanyasi disciples assume name of Puris. Nand Kumar Puri was not a Sevait or a disciple or Sheoratan Puri. At best he continued to be a Grihastha disciple, but could not acquire any legalstatus in the matter of succession and inheritance. The document of the year 1910 made Sheoratan Puri as an absolute owner and not a Motawali or manager. There was no Devottar property attached to the estate of Puris of Sundar Bahuara. The condition restraining alienation etc. was only a pious wish of Thakur Puri and has no legal basis as the same is hit by Section 10 of the Transfer of Property Act. The subsequent conduct of Thakur Puri shows that the said document remained a dead letter as the record of rights was prepared in his name and he had fought eases in his personal capacity and had mortgaged some of the properties, hence. Sheoratan Puri came in the picture as successor of Thakur Puri, and, not as a donee. Nand Kumar Rai had always been a Grihastha and was never known as Nand Kumar Puri. He was not even a Chela of Sheoratan Puri and had no legal right of succession to the properties of Sheoratan Puri or Narbada Puri. He never became Mahanth and no property was ever in his possession. He is only an imposter.
13. Narbadeshwar Puri became a Chela and continued to manage the properties of Narbada Puri during his lifetime. He never worked in any capacity under Nand Kumar, who had nothing to do with the properties. It is wrong to say that the plea that Nand Kumar Rai had gone out on pilgrimage for recouping his health or for any other purpose is false. All the needs of transfer are genuine, bona fide transactions for necessity and for valuable consideration and those documents were executed to the knowledge of all. The allegation against Narbadeshwar Puri having illicit connection with Tara Bai and Lalita has been challenged and it is said that Tara Bai being the highest bidder among the rival candidates got the settlement from Narbadeshwar Puri as a bona fide transferee for valute. The name of Lalita Devi had been introduced into the Deed of gift of Muktinath Choudhary (appellant No. 14) without the knowledge of Narbadeshwar Puri. The property taken in exchange was not Devottar. The properties were legally in possession of the rightful owner and successor of Narbadeshwar Puri, who made a lavyful Deed of gift to a school.
14. Original defendant Nos. 3, 5, 13, 16, 19, 21, 25, 26 and 27, filed two separate written statements but jointly contested. In substance, they supported the case of defendant No. 1 and further stated that there is no Math or Mandir in Sundar Bahuara nor any deity installed in any Math. Narbada Puri made Narbadeshwar Puri his Chela. That Nand Kumar Puri managed the properties from 1360 to 1362 till he fell ill and went out in pilgrimage for change of climate is incorrect.
15. The defendants purchased the properties from defendant No. 1 who was competent to deal with the same after making proper enquiry and paying proper consideration and thus, they are purchasers for value. As a matter of fact, in order to meet necessary expenses of litigations etc. the defendant No. 1 had to execute some transfer deeds to raise funds, which are binding on the estate of Narbada Puri. The Khatian in the name of Raghubir Khar was correctly prepared. But Raghubir subsequently surrendered it.
16. Defendant No. 27, the Secretary of a Madhamik School asserted that defendant No. 1 was very religious and lover of education and so he had executed the deed of gift in favour of school for the lands covered in schedule 'KA' of the written statement and the document executed is binding on all.
17. A number of issues to decide the disputes raised on behalf of the parties were framed by the trial Court and on a consideration of the oral and documentary evidences the suit was decreed in full holding therein that the plaintiffs respondents have got right, title and interest in the Devottar properties and that the appellants had not acquired any right through purchases, gifts or settlements in respect of the suit properties from Narbadeshwar Puri. Further, it has been held that the appellants are in illegal possession of the properties and as such, they are liable to pay mense profit for wrongful possession of the land to the plaintiffs. The transaction of the suit properties entered into by Narbadeshwar Puri were also held to be illegal, inoperative, invalid and not binding on the plaintiffs respondents. Defendant No. 1 was also permanently restrained from withdrawing the compensation money or dealing in any manner with the Devottar suit properties.
18. The real controversy between the parties is in respect of the nature of the properties involved in the suit. In other words, the material question which arises in this appeal is whether the property in dispute is a public trust or not. The principle of law for determination of the question whether an endowment is public or private are fairly well settled. In this connection, it would be useful to quote the observations of the Supreme Court in Deokinandan v. Murlidhar, 1956 SCR 576 : (AIR 1957 SC 133) which are as follows (at Pp. 136-137) :
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. ........... When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, when the endowment can only be regarded as public, intended to benefit the general body of worshippers.
(See also the State of Bihar v. Sm. Charusila Dasi, AIR 1959 SC 1002 and Ramswaroop Dasji v. S. P. Sahi, AIR 1959 SC 951) Dr.Mukherjee in his Tagore Law Lecture on the Hindu Law Religious and Charitable Trust, 1970 Edn. at page 143 observed that "So far as Debutter endowment is concerned the essential test to distinguish a private from a public place of worship is, whether right of worshipping the idols is limited to the members of a particular family or group or extends to all persons professing the Hindu religion. "In this connection, some other decisions where the line of distinction between the public and private trust can be seen are AIR 1963 SC 1638, AIR 1971 SC 2057, AIR 1940 PC 7. AIR 1972 SC 57, AIR 1972 SC 1716 and AIR 1974 SC 1123.
19. From the principles laid down in the various case laws referred to above, it is manifest that each case of endowment as to its character has to be considered, on its own facts and circumstances since it is not always possible to have all the features of a public trust in every case. In the instant case, on behalf of the appellants it has been argued that it was all through the personal property of the original Sanyasi Thakur Puri and was treated as such and in that way it has been coming into the hands of the disciple/Chela of Thakur Puri. In other words, the appellants assert that the properties had/have been the personal properties of Purls of Sundar Bahuara whereas, the respondents say that the same are Devottar properties of religious trust. Admittedly, there is no document or direct evidence to indicate the origin of the property, but it is an admitted position that Thakur Puri had been managing it which also finds support from a large number of documents coupled with oral evidence adduced on behalf of the parties and also a registered deed of gift of the year 1910 Ext. 7 executed by him (Thakur Puri) in respect of the properties in favour of Sheoratan Puri subject to certain restrictions. As pointed out that where there is no direct evidence or any particular instrument to decide the character of an endowment one has to take recourse to other facts and circumstances. The right of Thakur Puri in executing the document has not been disputed by either of the parties but it is submitted on behalf of the appellants that it was the personal property of Thakur Puri who gifted it to his Chela and in that way it changed hands and ultimately came in the hand of defendant No. 1 Narmadcshwar who was no less than an owner and in that capacity dealt with it and he made certain lawful transfers to some of t he appellants, who are now owners of the respective areas covered by the documents executed by Narmadeshwar. Further, it is said that even the deed of gift of 1910 would indicate that Thakur Puri, the creator of the document had been all along treating the disputed property as his personal. In the circumstances, it is not necessary to discuss all the documents filed by the parties relating to mutation, government notice etc. in the name of the previous Puris prior to defendant No. 1 Narbadeshwar in respect of the properties in question since that part of the story is not in serious dispute. As a matter of fact, the learned counsel for the appellants has submitted that the powers of the previous Mahanth/Puris in dealing with the property is virtually not in dispute rather the only dispute is to decide the nature of the properties involved in the suit meaning, thereby, whether it is private or public. In the circumstances, I would propose to take up only those, evidences oral and documentary, which have direct bearing on the issue under discussion.
20. The Supreme Court in T. D. Gopalan v. Commr. of Hindu Religious and Charitable Endowments Madras, reported in AIR 1972 SC Page 1716 observed that "in short the origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that went to establish whether a temple was public or private.
21. According to the case of the respondents plaintiffs there is a temple in a Dart of the property in dispute where the idols of deities had been installed and there used to be regular puja path, ragbhog etc. The existence of the temple in any portion of the disputed land or even within the campus of the buildings, standing in Plot No. 145 has been seriously disputed and in this connection a number of witnesses (D. Ws. 1, 4, 5, 6, 10, 11, 12, 13, 14, 17, 21. 29 and 30) have been examined. One of the appellants Mukti Nath Chaubey was examined in the Court below as D. W. 12 and he admitted that there is a room in Plot No. 145 with gumbaj and trishul over it and then made an attempt to controvert the khatian entry by saying that the entry in the khatiyan as Mandir Mahadeo in Plot No. 145 was a mistake. Except this bald assertion, there is no cogent evidence that the khatiyan entry was wrong. Further, a case was sought to be made out in the written statement that gumbaj with trishul was a symbol of Samparday of Shankracharya, but no evidence of satisfactory nature in that regard has been adduced. On the contrary, besides the evidence of P. Ws. 1, 2, 7, 8, 9, 10, 11, 12, 13, 16, 17, 19, 20, 21, 22, 24, 25, 27, 28, 29, 30 and 31 that there were Math and Mandir in Sundar Bahuara and idols of Lakshami Narayan and Lord Shiva in the temple, there is evidence of a pleader commissioner who was deputed to visit the spot and submit report. The report of the pleader commissioner (Ext. A-1) indicates that gumbaj and trishul were found over the central room and iron ring was found hanging inside the room from the centre of the gumbaj, which was indicative of the fact that a ghanti (bell) might have been hanging from that ring is generally noticed in Shiva temples. Further, he found that in the centre of the room there was a pacca enclosure slightly lower in level than the floor of the room and there was a pucca drain for flow of water from that enclosure through the western wall This also give direct indication that Lord Shiva had been installed there and water poured over S hiva Linga used to flow through that pucca nali by way of outlet which is also generally seen in the Shiva temples.
22. The deed of gift of the year 1910 Ext. 7 executed by Thakur Puri in favour of this Chela Sheo Ratan Puri also shows that there was a Mandir and for that purpose he had specifically directed that the Ragbhog etc. should be performed rigidly and as a matter of fact, a restriction was imposed to sell, mortgage or incumber the properties of the Math. This pooja path etc. was not restricted to a particular family or members. Therefore, this document which was executed long long ago shows that there was a temple and for the proper management of its affairs and its properties, the said deed of gift was executed. Atleast, twodocuments(Exts. 7 and 13) clearly established the existence of idols of Lakshami Narayan and a Lord Shiva temple. In face of these, the stand of the appellants that there was no such temple or Math is apparently false. In the circumstances, the Court below has rightly held that there was existence of a Shiva temple and the deities within the campus of Math in Sundar Bahuara.
23. There is no evidence that puja path, offer to deities or similarly connected matters used to be confined to any particular family or group of person. In other words, there is no satisfactory evidence, though an attempt has been made to show that public in general were forbidden to worship in the temple. On the contrary, it has come from the evidence of P. Ws. that villagers had/have been worshipping the deities in the temple freely without any interference by the founder or their descendants/disciples. This alone is a strong circumstance to indicate that temple was a public one. It has, however, been argued, relying on a decision of the Supreme Court in Bihar State Board of Religious Trust, Patna v. Bisheshwar Das reported in (1971) 3 SCR Page 680 : (AIR 1971 SC 2057) that even if it is accepted that there was no restriction on any person to visit the temple either to worship or to offer something to the idols cannot mean that the Court should infer that the temple was a public one and that it could not be a decisive factor because worshippers are normally not turned away by the person or persons having control over the temple, ft is true that this cannot be a sole ground to decide the nature of the properties in dispute but then as indicated it can be taken to be one of the circumstances to decide the nature of the properties.
24. It has come in evidence that two persons had gifted certain lands to the ath.There is no reason for gifting some properties to the Math by those persons without any intention. On the facts and in the circumstances it can be presumed that they had actually intended to donate the propertyto the Math and with that end in view,executed the property in the name of the so called Mahanth who was managing the Math and its properties. It is significant to note that till before defendant No. 1 Narbadeshwar tarted managing the properties, there was no waste or sell or mortgage of any part of the property except some minor exchanges of land. But all the disputed transactions violating all the restrictions imposed by the creator of the deed took place soon after Narbadeshwar.who was a servant of Narmada Puri surruptitiously acquired full control over the management of the Math. If it were a ersonal property of Thakurpuri and he had gifted it to his chela out of love and affection,he would not have put any restriction in the gift. On a close reading of the entire gift in between the lines, it will appear, that theintention of the Thakurpuri was that the entire properties should be preserved for the temple,Math and the properties attached to that and the entire expenses for proper management of the deities, etc. should be met out of the income of the land. There is no indication that the executant either treated the properties to be his own or intended the same to be treated as such by the donee. No restriction of any kind was also imposed to visit the temple either for the purpose of worshipping the idols or for any other religious benefits. As a matter of fact, this document of the year 1910 suggests that all were devottar properties of the Math of Sundar Bahuara and least these properties are not properly looked after or managed, Thakurpuri gave specific direction in the matter of ragbhog etc. and imposed certain restriction as pointed out
25. A number of documents have been filed to show that the previous Puris had fought certain litigations, the Khatiyan entries were in their favour and some Courts notices were issued against them and therefore, it was not a public trust. This aspect of the matter has been elaborately discussed by the Court below and since I fully agree with the views expressed, no useful purpose would be served to rediscuss the same issue but at this stage I would like to observe, that there must be some person(s) to represent the Math and the deities and naturally, the name of the person who was actually looked after the management of the properties was recorded in the document/Khatiyan etc. Similarly, in Court matters, the said person was called upon to answer certain queries. As stated above, the Puris were not actually the Mahanth or Sebait, but as they were managing the affairs of the Math and its properties they were called as Mahanth and certain papers were recorded in their names but that does not mean that they are the owners of the properties recorded in their names.
26. In support of the claim that Narbadeshwar defendant No. 1 also became Chela and was installed as a Mahanth, the appellants relied upon the certain documents. Ext. V is an order in Land Registration case which has been filed to show that Narbadeshwar claimed the property after the death of Narmad Puri and similarly, some canal parchas, certified copy of rent fixation Ext. P, certified copy of register D, Ext. Q, besides the oral evidence have been referred to. The plaintiff's case was that when the health of Narmada Puri deteriorated, he went to Benaras and during that period, Narbadeshwar was looking after the properties as servant and not as Chela or Mahanth. According to the plaintiffs' persion, Narbadapuri had become Mahanth in the year 1953 after the death of Sheo Ratan Puri and the former died on 7th March, 1955. It is, thus, evident that during the short period Narbadeshwar Puri was managing the property, he claimed himself as Chela and in fact in the eyes of the public was de facto working as Mahanth and began to deal with the properties of the Math as such. In that situation, entries his name in Register D or in any other papers whether official or non-official are of no assistance to hold that he had become Mahanth. On the contrary, there is overwhelming evidence that Narbadeshwar Puri was mere a servant and nothing beyond that. As a matter of fact, I am in full agreement with the views of the Court below that neither Nand Kumar Puri was a Sanyasi disciple of Sheo Ratan Puri as alleged by him nor Narbadeshwar Puri was a Sanyasi disciple of Narbada Puri and therefore, neither of them was entitled to succeed to the properties left behind by Narbada Puri. Mere looking after the properties for certain period and getting his name entered in Government and other connected siristas will not give any right to that person and particularly when as indicated that there is overwhelming evidence that it was a public property.
27, Then again, as indicated, there is no specific document to show the origin of the properties but at least there is one document Ext. 7 a deed executed by Thakur Puri and not controverted or disputed by either of Malik of Natiya gave some land in gift. It has also come that a year prior to the execution of the the will in the year 1910 Thakur Puri had given all the Math properties in Arpan to Lakshami Narayan and at that time he had announced that all the lands belonging to the Math were being made devottar properties of Thakurji and no Mahanth would be entitled to sell, who will only work as a servant. Further, it has come in evidence that at the time of execution of Ext. 7 Sheo Ratan Puri was only 8 to 10 years old and Thakur Puri had given out that he had given that land to Sheo Ratan Puri to manage it with certain restrictions which as pointed out is staled in the deed. In this connection, the evidence of P. Ws. 27 and 28 may be referred to. The evidence coupled with the apparent intention of Thakur Puri while executing a document in the year 1910 in favour of Sheo Ratan Puri with certain directions and restrictions clearly established that the properties were Devottar and the same were not given to Sheo Ratan Puri as absolute owner. It has been rightly observed by the Court below that whatever might have been the nature of the property whether personal or of the Math before 1910, Thakur Puri had made religious endowment in the year 1910 and there is satisfactory evidence that Ext. 7 was executed by Thakur Puri after the oral Arpannam in favour of Sri Lakshami Narayan. As a matter of fact, no religious ceremony of Shankar or Sampardai is essential for a valid dedication. The religious trust by way of Deovttar comes into existence only when the properties dedicated for worship of an idol of Math. Once the 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. (See AIR 1954 Pat 586 and AIR 1% Pat 235). 'If the property had not been given absolutely to Lakshami Narayan, the directions and the restrictions imposed in the deed would not have been there. It is, thus, apparent that; Thakur Puri by that document wanted to make it public that the properties transferred under it were of Sri Lakshami Narayan and the income out of it should be used for ragbhog etc. Therefore, it can safely be said and as a. matter of fact, it has been established that Math of Sundar Bahuara, its temple and other, properties are devottar properties and ai religious endowment in that regard was created by Ext. 7. There is one more circumstance which cannot be over looked It is an admitted position that there was an attempt by the so called purchasers to take approval of the Board and in fact, an approval was given. No doubt, this approval was not lawful which will be discussed at the appropriate stage but the transferees i. e. the appellants by their own conduct accepted (lie nature of the properties to be public by surrendering to the jurisdiction of the Board in order to obtain an approval to validate the invalid transfers since in respect of public trust property, sanction of the Board was a must. Thus, considering the origin of the temple, the manner in which its affairs used to be managed, the nature of the gifts received by it, the direction given in the deed of the year 1910, the rights exercised by the devotees in regard to the worship therein, [he contributions made by the public and the Arpannama in favour of Shri Lakshami Narayan by Thakur Puri I find and hold that the Mandir, Math and the other properties attached to it are devottar properties and accordingly, the same is declared to be a public trust within the meaning of the Act.
28. A case has, however, been sought to be made out that all the transfers etc. were for the benefit of the deities and secondly, an approval of it was subsequently given and the trust Board also entered into a compromise with the persons who had purchased the properties and are/were parties to the suit. I would like to take up these two points one after another.
29. It has been repeatedly said that a restriction was imposed by Thakur Puri that the properties should not be sold, transferred etc. and against that clause a large number of transactions were made by Narbadeshwar. Ext. J/1 is a deed of settlement of the year 1957 in favour of Tara Bai for 5. 44 acres of land. Even if, it is assumed that Narbadeshwar on a wrong motion that he was Sebait sold the land that would not validate any of the documents as it is well settled that a power of Mahanth to alienate Devottar properties is like a property of the Manager for an infant or limited to cases of unavoidable necessity. According to the evidence of D. W. 23 Tara Bai through her negotiated for purchase of land at Rs. 800/-and Ext. J/l dated 22-3-1957 shows that the land was sold for Rs. 1500/- by Tara Bai. Ext. J/3 dated 8-4-1959 is a sale deed of 4. 25 acres for Rs. 800/- in favour of Akbar Ali for the purchase of bullock, repair of houses, but another sale deed Ext. J/11 was executed in favour of Balchand Chamar for Rs. 1275/- on 22-4-59 i. e. only after 14 days of the sale deed of Akbar Ali for the so called necessity. Ext. 6(a) is another document respecting sale of 0. 25 decimals for a sum of Rs. 357- and Exts. J/8. J/9 and J/10 were executed on 7-8-59 for a sum of Rs. 500/-, 365/- and 500/- respectively in respect of more than one acre of land in favour of appellant Jhangar Lohar. Chandrika Lohar and others. The necessity stated was for paying Deslgarda, repairs of Math and purchase of bullock. Ext. J/7 is another sale deed executed by Narbadeshwar only (sic)decimals of land for a consideration of Rs. 50/- to. meet necessary expenses. Besides these sale deeds, there are other sale deeds executed in the years 1961 and 1963. All these transactions started only one and half month after the death of Narbada Puri, It is, thus, apparent that in a reckless way the properties of the Math were disposed of for a song to different persons. Exts. N and N/l are two other different deed of gifts in respect of 31. 501/2 acres in favour of a school. These two deeds were executed after the filing of the pauper application in the present suit. It has come in evidence of P. Ws. 1, 2, 3, 5, 8, 9, 10 and 31 that Narbadeshwar Puri was a man of bad character and was addicted to wine and woman and so he wasted the properties. The manner in which the properties were sold, the value for which the properties were sold and the reckless purpose for which the same were sold, directly go to show that all these transactions were unlawful, motivated, fradulent, for wrongful gain and detrimental to the interest of the idols, Math and its properties and therefore, these documents can be said as invalid, illegal and unlawful.
30. So far as the compromise is concerned, it will appear that major part of the properties of the Math were sold and then there was a so called compromise with the approval of the Board. Once the nature of the properties has been established to be that of public trust, no paper can be valid unless there was due sanction by the competent authority. Admittedly, no previous sanction of the Board was taken before the lands were transferred and therefore, all the transfers are illegal On this score alone. In this context, a decision of this Court reported in 1967 BLJR 666 (Dhanushdhari Pd. Singh v. Awadh Rai) wherein it has been observed that if that transfer was not valid and if the compromise sought to make that invalid thing valid, the compromise cannot be said to be lawful even though the Board is also a party to such compromise. In recording a compromise, it is incumbent upon a Court to be satisfied that the terms of the compromise are lawful. Where a minor is involved in such a compromise, the Court's task becomes all (sic)this respect When a deity is involved, it is no less so. In the Instant case, this compromise was sought to be accepted by this Court under the provisions of Order XXIII, Rule 3, C. P. C. and in Support of it is said that the Board's approval was taken earlier. Affidavits and counter-affidavits in this regard have been filed. In an affidavited petition the Board has asserted that the approval given earlier was withdrawn as the transactions were unlawful. This has been disputed on the ground that once an approval was given, it cannot be withdrawn without hearing the parties. If an approval is given to make the invalid properties as valid, that approval cannot be lawful and the same must be held to be void ab initio. The approval in question was all the more unlawful, in view of the fact, that more than half of the properties of the Math were disposed of by a person who was not even authorised to deal with it and, thus, the transactions cannot be invalidated by taking a subsequent approval of the Board. Therefore, in either view of the matter, the compromise cannot be said to be lawful and is fit to be rejected and it is ordered accordingly.
31. A point has also been raised that the present suit by the plaintiff is not maintainable as he is not the Sebait, who is only competent to bring a suit. It appears that a similar point was also raised before the trial Court and it was negatived on the ground that although the plaintiff is not the Sebait yet in the capacity of worshipper he can represent an idol for recovery of its properties, A suit filed by a worshipper/Pujari challenging alienations made either by a S ebait or by a person in the assumed character of a Sebait on the ground that it was not in the interest of the deity is maintainable. In this context, a decision of theSupreme Court reported in AIR 1967 SC 1044 (Bishwanath v. Shri Tahkur Radha Ballabhji) and also a decision of this Court reported in AIR 1986 Pat 3 (Mahajan Mahto v. Gopnathjee) may be referred to.
32. Finally, it appears that during the pendency of this appeal, appellants Nos. 1, 3, 4 and 11 and respondents Nos. 9, 10, 11 and 12 died and their heirs were not substitued within time. It is, therefore, urged that it being a suit for declaration of title and recovery of possession, whole appeal has abated. In the circumstances, if the present appeal is allowed, there is likelihood of two conflicting decrees which is impermissible. Thus, the appeal is also vitiated by this vice as well. (See AIR 1977 Pat 29 Munshi Singh v. Babulall Singh and AIR 1980 Pat 77 Most Dhanti Devi v. Kartar Singh).
33. In the result, there is no merit in this appeal and the same is accordingly dismissed on contest against the contesting parties and ex parte against the rest, Advocate's fee is assessed at Rs. 1000/- (one thousand only. The judgment and decree of the court below are, hereby, confirmed. The appellants are directed to deliver vacant possession of the properties within three months from hence failing which, the respondents will be entitled to take appropriate action against the appellants to enforce the decree through the agency of the Court. The court below is directed to start a separate proceeding for mesne profit.