Patna High Court
Mahant Krishna Dayal Gir vs Gosain Laldhari Gir on 15 May, 1917
Equivalent citations: 40IND. CAS.276, AIR 1917 PATNA 382
JUDGMENT Edward Chamier, C.J.
1. The appellant in this case Krishna Dayal Gir of Bodh Gaya is the mahant of a math or monastery of the Hindu sect of Girs, one of the well-known seven Saivite orders. The math is close to the celebrated Buddhist temple at Bodh Gaya, of which by a strange anomaly the appellant is superintendent. The respondent is mahant of a math of the same sect at Bakrour, a village which is a mile or two away on the other side of the river Phalgu.
2. The appellant alleges that the Bakrour math is a madhi of, that is subordinate to, the math at Bodh Gaya, that the mahant of Bodh Gaya is the "malik" of all the (property of the Bakrour math and that he ' is entitled to appoint and, for good cause shown, dismiss the mahant of Bakrour, that as the respondent has taken to immoral ways and is raining the property of the Bakrour math, he dismissod him in May 1912 but the respondent refused to give up possession. On these allegations the appellant claims the removal of the respondent and possession of the Bakrour math and its property. The respondent denies all the material allegations of the appellant. He admits only that the mahant of Bodh Gaya takes a leading part in the election of the mahant of Bakrour.
3. The Subordinate Judge dismissed the suit. He found that it was not proved that the math at Bakrour was in any way subordinate to the math at Bodh Gaya or that the respondent had taken to immoral ways or had wasted the property of his math. He found that two iqrarnamas of 1897 and 1900 on which the appellant relied had been obtained by undue influence and that a compromise between the parties in 1906 and a decree founded thereon were not binding on the respondent.
4. The respondent has produced a large number of documents beginning from the time of Bhabhut Gir, the first known mahant of Bakrour (Exhibits O to O 16, S, I, J, K, N, M, L, G, F, P, R, Q, B and W, I give them in chronological order), which show that the institution at Eakrour has always been known as a math or asthan not as a madhi, and has always managed its own affairs independently, that the head of the institution has always been called a mahant and has dealt with the property of the math uncontrolled by outsiders. One of these documents (Exhibit S) refers to the election of mahant Phul Gir, the fourth in descent from Bhabhut Gir, by the mahant of Bodh Gaya and other mahants, and it is common ground that on the death of a mahant of Bakrour his successor must be chosen from the chelas or disciples of the deceased.
5. Tilakdhari Gir, the last mahant but one of the Bakrour math, died in 1897 and was succeeded by his disciple Kali Charan Gir who was then about twenty years of age. This young man in November 1897 executed an iqrarnama in favour of the appellant, in which he admitted that the Bakrour math was subordinate to the math at Bodh Gaya and that on the death of a mahant of Bakrour it was the custom for his disciples to ask the mahant of Bodh Gaya to appoint a successor, accordingly on the death of Tilakdhari Gir that procedure was observed and the appellant decided to appoint him, Kali Charan, on condition that he executed an iqrarnama in favour of the appellant regarding the management of the institution as had always been done. The executant then goes on to undertake that he will manage the property of the math in consultation with the appellant and will not waste or damage the same and he agrees that if he wastes the property, his acts shall fee void and the appellant may take proceedings against him. It is also provided that if the executant initiates any disciple who is not qualified according to the custom of the Bodh Gaya math, the appellent may dismiss that disciple. In conclusion it is stated that with the approval of the appellant the executant has borrowed Rs. 4,000 from Gosain Ram Gir. This man was a fellow-disciple with the appellant of Hem Narain Gir, a former mahant of Bodh Gaya, and it is significant that on December 29th, 1898, Kali Charan Gir gave him a power-of-attorney in which he again admitted that the Bakrour math was subordinate to the Bodh Gaya math, and, after stating that on the advice of the appellant he had decided to give a power-of-attorney to Ram Gir, went on to give him extraordinarily wide powers with reference to the math and its property, undertaking that he would not remove him or interfere with him in any way and depriving himself Kali Charan of all power to interfere with the property of the math. Those documents ' speak for themselves. The Subordinate Judge found that the iqrarnama was obtained by undue influence, as indeed it probably was. On the one side was an inexperienced youth ready on any terms no doubt to accept the coveted position of mahant, and on the other was the most influential mahant in the province anxious as it would appear to extend his sway over the Bakrour math, and able probably by his position to carry the day against any obnoxious aspirant to the gaddi. I do not stop to consider further the question whether it is proved that this iqrarnama was procured by undue influence, for it is obviously not binding' on any successor in the office of mahant. If, as I am satisfied, the math at Bakrour had never been in any way subordinate to the math at Bodh Gaya, the execution of the iqramama was a- most improper proceeding. It was obviously intended to transfer all authority in the Bakrour math to the appellant.
6. Kali Charan Gir died in July 1500 and was succeeded by the respondent. On this occasion the respondent executed in favour of the appellant an iqrarnamah which went even further than that executed by Kali Charan Gir. It tied down the respondent much more firmly to the Bodh Gaya math besides repeating all the damaging admissions contained in the earlier document. Amongst other things it provided that the respondent should have no pover to sell or mort- . gage any of the property of the math or give any zar-i-peshgi lease or give any other kind of lease for a term exceeding seven years. The execution of this iqrarnama was even more improper than the execution of the document of 1897. It appears from the evidence of the respondent that he executed the iqramama in circumstances similar to those in which the earlier iqrarnama was executed. He must have known that he had little or no chance of baing appointed mahant if he did not execute the iqrarnama. I believe his statement that the appellant said to him that if he did not execute the iqrarnama, another disciple of Kali Charan would be appointed. Kali Charan had left heavy debts bahind him and the respondent was in a difficult position. He even had to borrow Rs. 500 from the appellant for his needs. The appellant has not come forward to explain the circumstances in which the iqrarnama was executed or to contradict the allegations of the respondent. In my opinion the execution of the iqrarnama was obtained by the appellant by the exercise of most improper influence which the respondent could not resist, and I agree with the Subordinate Judge that it is not binding on him.
7. More extraordinary proceedings were to follow. In 1905 the appellant brought a suit against the respondent making allegations against him not unlike those contained in the plaint in the present suit. Some evidence was taken and then there was a compromise on which a decree was passed. Two petitipns were filed, one by the appellant, the other by the respondent. The former is a short document in which the appellant said that as the respondent had apologised and admitted his fault and withdrawn his denial of the two iqrarnamas and had agreed to pay the appellant Rs. 1,550 and, interest, he, the appellant, bad forgiven him and decided to retain him in the office of 'madhidar.' The petition put in by the respondent is much longer. It begins with a statement that the respondent had for the purpose of preparing his defence made enquiries as to the powers which the Bodh Gaya math had over the Bakrour math and had put in his defence on the strength of statements which had been made to him. In paragraph 3 it is staffd that on an inspection of the documents filed by the appellant he, the respondent, had come to know that he had been misled by his informants, and that in fact the mahant of the Bodh Gaya math had always had power to appoint control and remove the madhidar of Bakrour, and the respondent was satisfied that he could not meet that evidence and could not succeed in the case and would be put to unnecessary and useless expense in defending it, therefore, he had asked pardon of the appellant who had been pleased to say that if the respondent withdrew his defence he would be pardoned. The respondent went on to say that if he did anything contrary to the iqrarnama the appellant might dismiss him and remove him from the math, and he prayed that the suit might be disposed of according to his petition. This petition appears to contain several misstatements of fact. The appellant does not appear to have produced any documents in that case showing that the Bakrour math was subordinate to the Bodh Gaya math In the present case he has certainly produced none. His Counsel suggested that he had not produced them in the present case because he thought it safe to rely upon the iqrarnamas.But Counsel for the respondent pointed out that the order sheet in the previous case did not disclose the existence of any such documents, and he offered to submit to an adjournment of the hearing of this appeal for two or three months to enable the appellant to produce such documents or to show that he had produced such documents in the former case. The offer was not accepted. There can be no doubt that the appellant has not and never had any such documents. The respondent has described the circumstances in which the compromise was effected. He says that he had been implicated in more than one criminal case which he attributed to the appellant, that while the civil suit was going on the appellant sent for him and threatened to have him sent to jail and harassed in other ways if he did not compromise the case. Two of the appellant's men Ram Chariter and Jaipal Gir "got the compromise drafted. Respondent signed it but was not allowed to read it over or show it to any one. The respondent alleges that neither Ram Chariter nor Jaipal Gir was there when the appellant told him to compromise the case. The appellant has not come forward to give his version of the affair. No one can explain how the false allegations in the compromise about the documentary evidence came to be inserted. The respondent's petition of compromise is not signed by Fazilat Hossain who was his Pleader in the case, but by a junior Vakil named Abdul Shakur. Fazilat Hossain says that he was not even consulted about the compromise. The appellant's petition of compromise is signed by his agent Jaiprl Gir. This man is admittedly alive but has not been called as a witness. He held a decree against Kali Charan Gir in execution of which he tried to sell the property of the math in the hands of the respondent in 1909, a curious proceeding on the part of a man who had on behalf of the appellant alleged that the property of tha math was being wasted by the respondent. The respondent was committed to the Court of Session on a criminal charge brought by Baldeo kahar but he had been honourably acquitted more than a year before the compromise. He speaks of another criminal case instituted by a kaharin but there is no proof that any such cause was ever instituted. It is not proved that there was any connection between the criminal cases and the making of the compromise, but it may well be that the respondent believed that Baldeo's charge had been, as he pleaded in that case, instigated by the appellant and he had no doubt a wholesome fear of the appellant's power for good or evil. Amongst other defences the respondent had pleaded that even if his iqrarnama was binding on him it did not give the appellant power to dismiss him on the case put forward by the appellant.It seems to me that on that plea alone the appellant's case was bound to fail and he must have known it. The iqrarnama gave power to dismiss only in the event of unsuitable chelas being initiated. It is noticeable that a clause in the compromise is intended to remove all possible doubt on that point. All the circumstances suggest that the respondent was unable in any way to resist the appellant. I am of opinion that the compromise was the result of pressure improperly exerted by the appellant. The respondent's petition of compromise is obviously not the petition of a free agent. It was designed to make the appellant's hold over the respondent still stronger than it already was.
8. The appellant contends that any defences that there may be in the compromise are cured by the decree which was passed on it and that the respondent is estopped from denying the appellant's power to dismiss him. We have been referred by Counsel for the appellant to a number of cases in which the question for decision was how far a decree obtained against a mahant or shebait is binding on the institution and "on his successor-in-office, and to cases in which it has been held that a deoree on a compromise is as binding as a deoree passed after a contest. Such cases appear to have no bearing on the present case, Here we have a compromise whereby the head of a religious institution gives away or sells its rights and renders himself and the institution subordinate to the mahant of another institution who had no business to interfere with him. The respondent had no authority whatsoever to enter into the agreement embodied in the iqrarnama and compromise. The deoree passed on it by the improper consent of the parties does not make the agreement lawful. The compromise ought never to have been sanctioned by the Court,
9. In Raja. Varmah Valia v. Ravi Vuramah Kunhi Kutty 1 M. 235 : 1 Ind. Jur. 134 : 4 1. A. 76 : 3 Sar. P.C.J. 687 : 3 Suth. P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 (P.C.) it was held by the Privy Council that in the absence of a proved custom the assignment by the wallers (managers) of a pagoda of the right of management thereof was beyond their legal competence under the Common Law of India, and in Gnanvsambanda Pandara Sannadhi v. Vela Pandaram 23 M. 271 : 2 Bom. L.R. 597 : 4 C.W.N. 329 : 27 I. A. 69 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : 8 Ind. Dec. (N.S.) 591 (P.C.) it was held by the same Tribunal that a sale by hereditary trustees of a religious endowment of their hereditary right of management and a transfer of the endowed property were null and void. In Gajapati v. Bhagavan Doss 15 M. 44. : 5 Ind. Dec. (N.S.) 380 the defendant on his appointment by the plaintiff as mahant of a math had executed a document whereby he undertook to render accounts to the plaintiff. The Court said:
We think the defendant's undertaking...to furnish accounts cannot operate to alter his status so as to render himself liable to dismissal for not furnishing accounts. If he was not by the terms on which he held his office liable to render accounts, he could not, by any voluntary promise on his part, impose on himself an obligation which had no legal existence. The obligation to render accounts does not appear to form part of the usage of the institution, nor does it appear that the provision...for rendering accounts was ever acted upon until the demand before suit. No instance of a zemindar having ever dismissed the head of this math, or having appointed a chela other than the one nominated by the head of the math, is proved. It is urged that it was open to the zemindar to appoint any chela at his discretion. In this case it is not necessary to determine the precise nature of the zemindar's right of appointment. It is sufficient to observe that he did appoint the defendant and his right of appointment is a qualified right and does not necessarily involve the power of dismissal. It was for the plaintiff to prove his right to dismiss the defendant and we agree with the District Judge that he has failed to do so.
10. In Prayad Das v. Mohunth Kriparam 8 C.L.J. 499 it was held that the head of a math could not transfer the right of management to another person or even transfer his rights to the mahant of a superior math.
11. These cases illustrate the rule that the lead of a religious or charitable institution has no power to bargain away his office or alter the constitution of the institution of which be is in charge. In Lakshmanaswami Naidu v. Rangamma 26 M. 31 the Court declined to give effect to a decree passed on a compromise whereby the judgment-debtor had agreed that his office in a certain temple might be sold in satisfaction of the decree. That was a very strong case for the Court was actually executing the decree.
12. The last case to which I shall refer is that of Great North-West Central Railway Company v. Charlebois (1899) A.C. 114 : 68 L.J.P.C. 25 : 79 L.T. 35. A company had entered into a contract which was ultra tires, and a consent judgment had been obtained on the contract in an action in which the question of ultra vires was not raised or discussed. Their Lordships of the Privy Council said:
It is quite clear that a company cannot do what is beyond its legal powers by simply going into Court and consenting to a decree which orders that the thing shall be done. If the legality of the Act is one of the points substantially in dispute, that may be fair subject of compromise in Court like any other disputed matter. But in this case both the parties, plaintiff or defendant in the original action and in the cross-action, were equally insisting on the contract.... Such a judgment cannot be of more validity than the invalid contract on which it is founded.
13. The right to remove the mahant of the Bakrour math has never rested with the appellant in the past and he cannot acquire that right or take it out of the hands of the Court or other lawful authority by inducing the mahant for the time being to agree to surrender that right to him. The Court is, in my opinion, bound to uphold the rights of the head of the math.
14. Lastly I am of opinion that the appellant has failed to prove by any satisfactory evidence that the respondent is living an immoral life or has wasted the property of the math. On this, having examined the evidence, I have nothing to add to what the Subordinate Judge has said.
15. The length to which the appellant is prepared to go is shown by the contention advanced on his behalf that the appellant is entitled to a decree merely because leases have been granted for more than seven years in contravention of the compromise.
16. I would dismiss this appeal with costs. Appeal dismissed