Patna High Court
Muneshwar Lal And Ors. vs State Of Bihar And Ors. on 22 August, 1977
Equivalent citations: 1978(26)BLJR286
JUDGMENT B.D. Singh, J.
1. This application by Muneshwar Lal and eight others has been filed under Articles 226 and 227 of the Constitution of India against the order dated 5th of April, 1976 (Annexure 7), the order dated 21st of August, 1976 (Annexure 8) and the order dated 11th of January, 1977 (Annexure 9) respectively passed by the Additional Collector, Rohtas (respondent No. 4) Commissioner, Patna Division (respondent No. 3) and the Additional Member, Board of Revenue, Bihar, Patna (respondent No. 2) holding, under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act) that the nine petitioners are not the landholders and, therefore, they are not entitled to any unit of land ; however, holding that Sri Murti Mahabir Jee Bhagawan, respondent No. 5, was the landholder and the said deity was entitled to one unit of land out of the total land measuring 60.92 acres in village Singhasarai in the district of Rohtas. In the application the petitioners have, therefore, prayed for quashing the orders contained in Annexure 7, 8 and 9 and for direction to the respondents 2, 3 and 4 to forbear from giving effect to those orders.
2. In order to appreciate the points involved in this application, it will be necessary to state some relevant facts. As stated by the petitioners in their application and as stated on behalf of respondent Nos. 1 to 4 in the counter-affidavit which was filed on their behalf on 4th July, 1977, the petitioners are the descendants from one common ancestor Munshi Dip Narain Lai of village Keshopur which was the ancestral place of the petitioners. The petitioners have given the genealogy of their family which is to this effect:
3. The proceedings under the Act relates to 60.92 acres of land as mentioned earlier. In the cadastral survey records of rights it was recorded as Bakasht Thickhead in the name of Dip Narain Lal and Ors., the common ancestors of the petitioners. According to the petitioners, the land remained throughout in the possession of the descendants of Dip Narain Lal. The ancestors of the petitioners had installed an idol of Mahabir Jee (respondent No. 5) inside their house and used to be worshipped as a family deity, Vishwanath Sahay and Mishri Lal, the two sons of Dip Narain Lai who are now dead, had executed a registered deed dated 10th of June, 1937. The nomenclature given to the said deed was "Deed of Waqfnama". The deed was written in Urdu script which enclosed a copy of the said translation with their application which is marked as Annexure 1. The subject-matter of the said deed is land measuring 60.92 acres situated in the village mentioned above, as well as one house in the. district of Varanasi in which the said deity, respondent No. 5 is installed, one of the terms mentioned in the deed is that Rs. 12/- per annum would be spent for Rag Bhog, sewa and puja of respondent No. 5, and the rest of the income from the subject-matter of the deed would be utilised by the members of the family and their descendants. The petitioners amongst others, sometime in 1961, instituted partition No. 96 of 1961 impleading respondent No. 5, as one of the defendants. Later, a compromise petition was filed by the parties and a compromise was recorded and a compromise decree dated 3rd of May, 1961 was passed partitioning the said properties. One of the terms of the compromise was that Rs. 12/- per annum would be spent over the Rag Bhog and Sewa Puja of respondent No. 5 as mentioned in Annexure 1. A copy of the final decree in the said partition suit is annexed and marked as Annexure 2. Later on, in revisional survey the entire land was recorded in the name of petitioners 1 to 5, being one part of the descendants of the late Vishwanath Sahay, and petitioners 6 and 7 being the descendants of late Mishri Lai as the other part, each part bearing equal share and the petitioners were mentioned as Shebait of respondent No. 5. An extract of the entry in revisional survey has been marked as Annexure 3. In trust case No. 531 of 1956-57 the Deputy Collector, Land Revenue, Bhabhua, by his order under the Bihar Land Reforms Act, 1950, dated 17-10-73 (Annexure 4) held inter alia that the deed (Annexure 1) was by way of family arrangement.
4. According to the petitioners, no notice as required under Section 6 of the Act was issued against petitioners by respondent No. 4. It was issued only in the name of Hargobind Lai one of the sons of Vish'vanath Sahay, who was dead at the time. According to the petitioners the entire land measuring 60.92 acres falls under class IV whereas according to the finding of the authorities some of them fall under class II, some under class III and some under class IV. A draft statement dated 4-7-75 under Section 10 of the Act was issued in Form V stating therein that Hargobind Lai as Shebait was entitled to one unit containing 18 acres of land (Class II) for respondent no 5, and the surplus land measuring 42.92 acres would be acquired under Section 15 of the Act. Having learnt about the notice, the petitioners appeared before respondent No. 4 and filed objection. They pleaded, inter alia, that the lands under Annexure 1 belonged to them and the deity was entitled only to Sewa Puja to the extent of Rs. 12/- per annum only to be spent over these items for respondent No. 5 as mentioned in Annexure 1 and the land fell under class IV. They also pleaded that they were entitled to the service of notice and the order ought to have been passed after giving them full opportunity. A true copy of the objection petition dated 3-1-1976 is annexed and marked as Annexure 5. After hearing the petitioners, respondent No. 4 passed the impugned order contained in Annexure 7. Aggrieved by the said order the petitioners filed appeal before the respondent No. 3 who dismissed their appeal by the order contained under Annexure 8. As against that the petitioners, preferred revision before respondent No. 2 who also dismissed the revision application by order contained under Annexure 9.
5. On behalf of respondent Nos. 1 to 4 a counter-affidavit was filed on 4-7-77, inter alia, supporting the impugned orders and stating that the petitioners were not entitled to be declared as landholders. They, according to Annexure 1, were merely shebaits. The entire properties mentioned as subject-matter under the deed (Annexure 1) belonged to the deity.
6. Learned counsel appearing on behalf of the petitioners has assailed the imgugned orders and has raised the following points for consideration by us:
(i) On a perusal of the deed contained under Annexure 1 with due regard to its recital and the surrouqding circumsrarices, it is clear that it was merely a family arrangement. The major portion of the assets used to be utilised by the family members and their descendants. The deity was entitled only to Rag Bhog and that also to the extent of a nominal amount of Rs. 12/- per annum.
(ii) From the terms of Annexure 1.-It was clear that it merely created a charge for the Rag Bhog and Sewa Puja of respondent No. 5 to the extent of Rs. 12/- per annum. Therefore, according to counsel for the petitioners, the authority under the Act has committed an error in disallowing the objection of the petitioners with regard to the fact that it was the petitioners who were the landholder under the Act and each one of them being major, they were entitled to one unit each.
(iii) The authorities have erred in not treating the entire 60.92 acres of land under class IV.
7. In my opinion, the first two points raised by learned Counsel for the petitioners depend upon the construction of Annexure 1. The nomenclature of Annexure 1, as mentioned earlier, reads as "Waqfnama by Vishwanath Sahay and Misri Lal". The relevant portion of Annexure 1 reads thus:
The idol (Deity) of Sri Mahabir Jee Swami has been installed by (Munshi) Hajarilal great grand-father of us the executants in the residential house. The sewa and puja (worship) thereof has all along been managed by the ancestors of us the executants, in succession, out of the income from the properties acquired by the said grand-father, and which are specified below, with the details that Rs. 12/- (Rupees Twelve only) per year is spent over sewa and puja of the deity, Sri Mahabir Jee Swami, and the remaining income from (the Waqf) property is spent over maintenance and education in the family ; and Rs. 1/- (Rupee One only) annually is sent to the Guru Maharaj who has been coming from the time of ancestors ; and -/8/- eight annas annually to the Panda of Gaya. Accordingly uptill now, we the executants also have all along been rendering sewa and (offering puja) to the deity, Sri Mahabir Jee and meeting the aforesaid expenditure as usual and in accordance with the instruction of our great grand-father aforesaid. But untill now, no document has been executed in this respect, so that this arrangement may all along continue generation after generation both in male and female lines. Hence there is always an apprehension that any one from among our male issues, may act contrary to the wishes of the ancestors with the result that the waqf property might be spoiled or loss might be caused to the same, and in that case, obstacle might be caused to the performance of religious work and pious obligation, and which may affect adversely, and the purpose of our great grand-father might be defeated. Hence, we the executants, considered it proper to execute a deed, duly registered, so that we the executants and also our heirs and representatives might be bound thereby. Hence we the executants, of our own accord and free will make a waqf of the property specified below, in favour of the idol (Deity) of Sri Mahabir Jee, installed in the residential house at Mauza Keshopur, pargana Barhwal, district Banaras and also for meeting the expenses mentioned above and we declare and put it in writing that we the executants, during our life time shall all along meet the expenses like our ancestors, over Sewa and Puja and festivity of the idol (deity) of Sri Mahabir Jee aforesaid and meet the aforesaid necessities out of the income thereof which would be received after payment of Govt. revenue. After the death of us the executants any one from among our heirs and representatives, i.e., from among our male issue, who shall be fit, shall himself perform Sewa and Puja of Sri Mahabir Jee Swami aforesaid like us the executants, and meet the expenses thereof out of the income or he shall get it done by other person i.e.. a Brahmin and Ors. in proper manner, after spending a little, out of the income from the property and he shall meet the other expenses, mentioned above, i.e., the expenses over the maintenance (of the family) after dividing the same according to share. Contrary to the aforesaid stipulation we the executants and other, managers and, our heirs and representatives neither have nor shall have any right to act in illegal manner which may cause loss to the waqf property or due to which (illegal Act) there may be likelihood of the present income being reduced. In such cases the other persons in the family of us the executants who shall not be a Manager or his heirs and representatives, by majority of opinion shall be competent to appoint any other person from among the family members, as Manager, as per stipulations laid down in this deed, so that no loss may be caused to the Waqf property and income therefrom may not be reduced, so that the work of Sewa and Puja of Sri Mahabir Jee aforesaid may not suffer and difficulty may not be caused in performing the same and meeting the expenses over the maintenance of the family. The idol (deity) of Sri Mahabir Jee Swami shall remain in possession and occupation of the Waqf property, as usual, under the management of us the executants. We the executants shall get the name of the deity, Sri Mahabir Jee Swami installed in the residental house at Mauza Keshopur' pargana Barhwal, district Banaras, recorded, in the Govt. papers, in place of our names, under the management of us, the executants. If we the executants fail to do so, the other heirs of us the executants shall be competent to file a petition and get the name of the deity, Sri Mahabir Jee Swami recorded in the papers of the Govt. papers and they shall abide by the stipulations of Waqf deed i.e., the Tambikanama, generation after generation descendible to children both in male and female lines. Any act, contrary to the stipulation of this deed regarding the Waqf property, shall be illegal inoperative. We have, therefore, reduced these few words in writing by way of Waqf deed, i.e., Tambikanama so that it may be of use when required.
8. On the other hand Mr. Kameshwari Nandan Singh learned standing counsel No. IV, appearing on behalf of respondents 1 to 4 contended that the executants of the aforesaid deed the relevant portion of which has been quoted above, made it clear that the property detailed in Annexure 1 dedicated to respondent No. 5 and that clearly indicated that the entire property under the deed had vested in respondent No. 5 as it was the deity who was registered in the various registers and the petitioners and other family members were recorded as merely shebaits and the intention of the executants was that none of the members of the family should alienate the property mentioned in the deed,
9. In my opinion, the contention of the learned standing counsel No. IV cannot be accepted, Reading Annexure 1 as a whole the relevant portion of which has been quoted earlier, it is clear that the intention of the executants was to spend only nominal amount of Rs. 12/- per annum over Puja Path and Rag Bhog of respondent No. 5. The major portion of the income out of the assets was to be spent over the members of the family as well their descendants. In the past also, it appears from the recital, they used to spend only a nominal amount over their family deity and the major portion of the income of the property was enjoyed by their ancestors. It is well settled that the intention of the maker of the documents has got to be gathered by leading the entire document as well as the surrounding circumstances. Recital also while construing documents in order to gather the intention plays a very important role. Reference may be made to a decision of the Supreme Court in the case of Fuzhakkal Kuttapy v. Bhargavi and Ors. , where it was observed that in construing a document it was always necessary to find the intention of the party executing it.
The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances, and how the parties or even their representatives in interest treated the deed in question might also be relevant. It was also well settled that the nomenclature given to a document by the scribe or even by the parties was not always conclusive. In the instant case also, the learned standing counsel No. IV emphasized on the nomenclature. It is true that in the nomenclature, as pointed out earlier, it is mentioned "Waqfnama" but by that alone it cannot be said that it was intended that the entire properties mentioned under Annexure 1 should be treated to have been vested in respondents No. 5. Their Lordships have also said in the above mentioned case that when there was a document of a composite character disclosing features of both mortgage and lease. It need not necessarily be taken as lease and the Court will have to find out the predominant intention of the parties executing the document, viewed from the essential aspect of the reality of the transaction.
10. Reference may also be made to the decision in the case of Bhekdhari Singh v. Sri Ramchanderji I.L.R. 10 Pat. 388.where Ross and Dhavle, JJ. considering the question of dedication in case of an endowment, observed that a dedication to be effectual must be real and not nominal and it must be shown that the grantor completely divested himself or every portion of the property which was the subject-matter of the grant. The question whether the idol itself should be considered the true beneficiary subject to a charge in favour of the heirs for their upkeep, or the heirs should be considered the true beneficiaries of the properties subject to a charge for the upkeep of the worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the instrument. It will be also relevant to refer the decision in the case of Har Narayan and Anr. v. Surja Kunwari and Anr. I.L.R. 43 All. 291. This case on appeal from the decision of Allahabad High Court was heard by the Privy Council where it was observed by their Lordships that although a will provided that the property of the testator "shall be considered to be the property" of a certain idol, the further provisions such as that "whatever may be saved after defraying the expenses of the temple and the pay of the servants, shall be used by our legal heirs to meet their own expenses" and the circumstances, such as that the expenditure upon the idol was fixed and would require only small proportion of the income, might indicate that the intention was that the heirs should take the property subject to a charge for the performance of the religious purposes named therein.
11. It will be useful to mention another case which had gone to Privy Council from decision of the High Court of Judicature at Fort William in Bengal. It is Ashutosh Dutta v. Doorga Churn Chatterjee and Anr. I.L.R. 5 Cal. 438, in that case a Hindu lady left by will to her sons lands belonging to her, to support the daily worship of an idol, and defray the expenses of certain other religious ceremonies with a provision, that in the event of there being a surplus after these uses had been satisfied out of the revenue of the said lands, such surplus should be applied to the support of the family. It was held by their Lordships that the provision amounted to a bequest of the surplus to the members of the joint family for their own use and benefit, and that each of the sons of the testatrix took a share in the property, which, after satisfying the religious and ceremonial trust, might be considerable and could not be presumed to be valueless.
12. The contention of Mr. Singh, learned standing counsel No. IV to the extent that there was prohibition in Annexure 1 to the petitioners to make any alienation or transfer indicated that the property covered under Annexure 1 entirely vested in respondent No. 5 is also not acceptable in view of the observation made in the Privy Council case of Ashutosh Dutt v. Doorga Churn Chatterjee and Anr. (supra) where their Lordships have further held that the directions given by the testatrix in her will to the effect that her heirs should have no power of "gift or sale over the property bequeathed, and that it should not be attached or sold on account of their debts, being inconsistent with the interest actually given were wholly beyond her power, and must be rejected as having no operation.
13. In the result, therefore, after having considered from various aspects, in my opinion, the impugned orders contained under Annexures 7, 8 and 9 recording that petitioners were not land holders under the Act, are not sustainable. As discussed above, the petitioners have right as landholders for the properties mentioned under Annexure 1 it is made clear that I have already held, accepting the observations made in the various aforesaid decisions, that in the instant case also under Annexure 1 merely a charge was created in favour of respondent No. 5 to the extent of Rs. 12/- per annum only with some other charges in favour of Guru Maharaj to the extent of Re 1/- annually and to the Panda of Gaya to the extent of-/8/- annas annually as indicated above. Therefore, the orders contained in Annexures 7, 8 and 9 are quashed and the case is remanded to respondent No. 4 to dispose of the proceeding afresh after hearing the petitioners and other persons concerned, if any, in the light of the above observations and to deal with the other objections raised on their behalf in the objection petition with regard to the number of the units which they are entitled to under the law, and with regard to the classification of land. Thus, the application of the petitioners is allowed with the above observations and directions. In the circumstances, however, there will be no order as to costs.
Hari Lal Agrawal, J.
14. I agree that the respondents have committed an apparent error in construing the deed in question and in this way misdirected themselves in passing the impugned orders against the petitioners. I, however, wish to add a few observations of my own.
15. The construction of any document cannot be put in the strait jacket of its nomenclature and it is the intention of the parties executing the document that has to prevail. The intention has to be gathered as a matter of course from the recitals and the turns of the documents itself as well as the surrounding circumstances. It is no doubt true that at some places, in the document which has been quoted in ex ten so in the judgment of my learned brother it has been stated that respondent No. 5 "shall remain in possession and occupation of the waqf property..." and that "get the name of the deity...recorded in the Government papers...in place of the executants," the dominant intention that prevailed the the two executants was to create only a charge in favour of respondent No. 5 on their properties and not to make a complete dedication of absolute grant in his favour. It has been recited in the document in question that the family deity (respondent No. 5) was installed in the residential house of the executants by their great grand-father and that the Sewa and Puja there-of has all along been managed by their ancestors in succession out of the income of the properties and,..the remaining income from the waqf property is spent over maintenance and education of the family.... The anxiety of the executants, therefore, was to make a permanent provision for the Sewa and Puja of the deity and also for the disbursement of certain other obligations, namely, payment to the Guru Maharaj and to the Panda of Gaya. They accordingly executed the deed in question. Apart from the fact that the executants had themselves stated that before the execution of the deed in question, the remaining income in other words the surplus income had been spent over the maintenance and education of their family, they themselves specifically provided for this state of affairs to continue in future as well and provided that "after spending...out of the income from the property he shall meet the other expenses...i.e. dividing the same according to their share."
16. Such a dedication is recognised in law and Mulla in his commentary of Hindu Law in Article 408A has described such kind of dedication as a "Partial Dedication". In such a case the dedication is qualified and the property descends in the ordinary way on the heirs and is alienable and partible, but subject always to the trust or charge in favour of the idol or beneficiary as the case may be.
17. This view finds support from several decisions. The Privy Council on two occasions in case of Hari Narayan and another (3) and Ashutosh Dutt (4) already noticed in the judgment of my learned brother, where the executants had provided for defraying the expenses of the temple, deity and other religious ceremonies, respectively, and also provided for the support, if any, after meeting the above expenses to be used by the legal heirs, it was held that the document simply created a charge for the performance of the religious purposes named in the document.
18. This Court also in the case of Bhekdhari Singh v. Sri Ramchanderji (supra) again considered in the judgment of my learned brother, accepted such kind of arrangement and observed that where a grantor does not completely divest himself or every portion of the property which was the subject matter of the grant but create simply a charge for the upkeep of the worship and expenses of the idol, the real beneficiaries were his heirs.
19. Applying the above principles to the document in question, I have got no hesitation to hold that although it has been described as waqf, the real intention of the executants was to make their legal heirs as the real beneficiaries of the properties subject, however, to some charges for the Seva and Puja of respondent No. 5 and to meet some other expenses. Once this view is taken then it follows as a matter of course that the impugned orders are bound to be set aside and quashed which have been passed under the impression that it was respondent No. 5 who was the real beneficiary and in this way the whole picture will now change in view of the construction of the document in question put by us and will give rise to consequences entirely different. The matter, therefore, requires a fresh consideration, as already directed.