MAHANT GORELAL MAHANT GURUDAS Vs. NAGA RAMKHILAWANDAS

JUDGEMENT

(1.) This second appeal arises out of a suit (1) for the removal of defendant No. 1 by an injunction restraining him from having anything to do with the management of Bhagwan Shri Radhakrishna temple at Lormi and from interfering with its management and (2) for dispossession of the defendant from a house site. The suit was instituted by one Smt. Umabai who died during its pendency in the first Court. The Second Civil Judge, Bilaspur dismissed the. suit. The plaintiff's appeal was also dismissed by the First Additional District Judge. Bilaspur. One Ramkrishna Das built a temple on a piece of land adjoining his house and consecrated an idol of Shri Bhagwan Radhakrishna in it. On his death in 1914/15 his estate consisting of 24 or 25 villages devolved on his younger brother Mahant Garud Das. In the year 1936 Garud Das distributed all property among his sons, keeping some for himself. The said temple was included in the share of Garud Das. During his life time Garud Das administered the affairs of the temple and engaged a Pujari. Garud Das died in 1938. It had been his desire to dedicate some immoveable property to the deity installed in the temple. However, he could not implement it in his life -time but instructed and authorised his wife Smt. Umabai to dedicate village Banghi, so that the temple would become self supporting for ever. In fulfillment of the said desire of her deceased husband she executed and got registered an indenture on October 27, 1945 (Ex. P -3) whereby the entire village Banghi, Tehsil Mungeli, District Bilaspur, was dedicated to the deity. By the same indenture she appointed Mahant Ramlaxmanacharya as ''Sarvarakar and Pujari" and also appointed a supervisory committee of four Panchas besides constituting herself the Sarpanch. It is undisputed that Ramlaxmanacharya went away from the temple and it is unnecessary to go into its reasons. Later on Smt. Umabai appointed Naga Ramkhilawandas, defendant No. 1 (hereinafter called "the Naga") as the Sarvarakar by a deed of appointment dated December 30, 1952 (Ex. P -1). The new Sarvarakar was given all rights of management of the property for his life and after him his CHELA was to be the Sarvarakar; no supervisory body was constituted. Not only was the appointment permanent and hereditary but by a specific declaration she divested herself as also her heirs, after her, of the power to remove the Sarvarakar. These are established facts. On September 10, 1954, Smt, Umabai instituted this suit which was in two parts. It will be convenient and appropriate; to deal with them separately. 4 The first part of the suit is for the removal of the Naga on the allegation that the appointment was ULTRA VIRES and also on the ground of mismanagement To appreciate the points that have been canvassed before me in this appeal it is necessary to mention a few facts at the outset. On the plaintiff's death her sons Mahant Gorelal (Appellant No. 1) and Mahant Sarveshwardas were brought on record. It appears that the latter died during the pendency of the first appeal whereupon appellants Nos. 2. 3, 4 and 5 were brought on record in his stead. Although Mahant Gorelal and Mahant Sarveshwardas (hereinafter called the sons) amended the plaint when they were brought on record, they adhered to the allegations in it and continued the suit for the same relief's. It was contended that Smt Umahai had only a limited estate and she had no power to appoint a Sarvarakai for any period beyond her life -time. It must also be made clear that there is no dispute that the temple was founded by Ramkrishnadas nor is the dedication of village Banghi by Smt. Umabai challenged. The very fact of appointment of the Naga is also not questioned, except the nature, scope and effect of the appointment. The allegation of mismanagement has been decided against the appellants and the learned counsel appearing for them did not address me on that point. In the second appeal the limited question for determination is whether the sons were entitled to remove the Naga from Sarvarakarship on Smt. Umabai's death. Although the word 'Satvarakar: is used in the deed of appointment (Ex P -1) learned counsel for both sides have called him 'SHEBAIT'. as that expression is known in legal parlance. The exact legal position of Shebaits may not bf capable of precise definition but its implications are fairly well established A Shebaits is by virtue of his office, the administrator of the property attached to, the Temple of "which he is the Shebaits. It is a peculiar concept. A Shebaits is not a mere manager. While endowed properties belong to the idol, Shebaits is 'property' of the Shebaits. It will be useful to reproduce the relevant extract of the deed of appointment (Ex. P -1): - Main is dastavez ke zariya tahrir kar Iqrar karti hun ki Shri Naga Ram khilawandas Guru Shri Bhagwandasji Vaishnav sakin Lormi Mandir ka uchit prabandh karen va uske jaydad ka poora poora intazam karen jisse Bhagwan ke Pooja Path men koi vighna na padne pawe aur Bhagwan ke daan men mili hui koi jaydad barbad na hone pawe jisse mere punya men badha na pahunche lihaza main bahaisiyat Sarpanch va Malik Mandir ke yah Sarvarakar tehrir kar deti hun ki Naga Mazkoor mere ukta Mandir men bahaisiyat Sarvarakar ke poora poora prabandh va jaydad ka intazam karen va inke baad wafat inke Chela merp Mandir ke Sarvarakar honge va ab inhe mere Mandir se koi bhi kisi bhi halat men alahida va alag nahin kar sakega. Yadi vah mere baad wafat men ya mere koi deegar varisan kisi prakar uzarwar etraz karen athwa koi jhagda dalen ya Sarvarakari se alahida karna chahen to vah qanoonan jhoota aur najayaz hoga. What I am precisely called upon to decide is whether the said appointment continued to be operative, and binding on the appellants, after the appointer's death. For that purpose Smt. Umabai's title has first to be examined. Now the following propositions of law are settled: (1) Though a She manager and not a trustee in the technical sense, it would not be correct to describe Shebaitship as mere office. The Shebait has not only duties to discharge m connection with the endowment but he has a beneficial interest in the debater property. He enjoys some sort of right or interest in the endowed property which partially partakes the character of a proprietary right. Thus in the conception of Shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests Shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. (2) The devolution, of Shebaits depends on the terms of the deed or will by which it is created and in the absence of any such provision, Shebaiti follows the line of inheritance from the founder and passes to his heirs unless there has been some usage or course of dealings which points to a different mode of devolution, e. g. devolution on a single heir. (3) Female heirs also succeed to Shebaiti according to the rules of the distance under the Hindu Law. If a Shebaits died leaving behind him a widow but no male issue, the widow would succeed to Shebaitship as a co -heir under ordinary law, but her right in respect of the Shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are pertain limitations and restrictions attached to and inherent in Shebaiti right itself and they exist irrespective of the fact as to whether the Shebaitship devolves upon a male or a female heir. But although as regards pawing of alienation the disability of the male and female "Shebaits may be identical, there is yet a distinction between them as regards the other Hmitation or characteristic of a "Hindu Woman's estate." After her death the Shebaiti right would not pass to her Stridhan heirs but would go to the heirs of the last Shebaits. This position would of course alter if the widow survived after June 16, 1956. (4) If a Shebaits died after the commencement of the Hindu Women's Rights to Property Act, 1937, leaving behind him a widow and a son or sons, they would inherit together but her interest would be a "limited estate" unless she lived after the coming into effect of the Hindu Succession Act, 1956. See Smt. Angurbala v. Debabrata : AIR 1951 S.C. 293 : 1951 SCR 1125, Kalipada Chakraborty v. Smt. Palani Bala Devi : AIR 1953 S.C. 125, Mahant Motidas v. S.P. Sahi : AIR 1959 S.C. 942, Bhabatarini v. Ashalata : 70 I.A. 57 : AIR 1943 P.C. 89, Gossammee Shri Gridhareejee v. Rumanlolljee, 16 LA. 137. In the present case no one pleaded any special usage or course of dealing. Ramkrishnadas, the founder, was the first Shebaits and he was succeeded by Garud Das, Garud Das too made no disposition of the Shebaitship. Therefore, on the death of Garud Das in 1938 (when the Hindu Women's lights to Property Act, 1937, had come in force), the heirs of Garud Das were Smt. Umabai, Mahant Gorelal and Mahant Sarveshwardas. They jointly inherited the Shebaiti from Garud Das. But all her life she had only a restricted interest; she died before 17 -6 -1956. Having reached that conclusion, it is to be seen whether Smt. Umabai was within her right in appointing a Sarvarakar permanently and for generation after generation and, further, whether such appointment was binding on the coheirs. When the office vests by descent in more than one person, it is lawful for the parties interested to arrange among themselves for the due execution of the functions belonging to it in terms or in some settled order and sequence. It is a conceded fact that during her life Smt. Umabai was left by the sons to execute all functions of the Shebaits. I am quite clear in my mind that the following are necessary corollaries of the principles already summed up :

(2.) WHERE a female holds Shebaits limited estate", any appointment made by her ceases to be operative and effective on her death; The same position holds good where a widow succeeding as a co -heir, by virtue of the Hindu Women's Rights to Property Act, acts as the Shebaits during her life by an arrangement between her and her sons, unless there is a specific conferment of power in excess of her ordinary power as a co -heir. In this view of the matter, although Smt. Umabai was alone dealing with the Shebaiti under some implied arrangement on behalf of herself and her sons, yet in the absence of any pleading or proof of the sons conferring the enlarged powers on her, whatever may be the words employed by Smt. Umabai in Ex. P -1, the appointment of the Naga came to an end on the death of the appointer on 12 -2 -1956. And this will also be the conclusion even if Smt. Umabai were the sole heir in preference to her sons (which position does not really emerge from the pleadings but has to be mentioned in passing because of the inartistic and un -thoughtful wording of para. 7 of the plaint). Shri Padhye strenuously urged that Umabai was the "founder" of the endowment and she had the absolute right to appoint anyone as the Shebaits, permanent and hereditary. I am not at all impressed by the argument. It is true that although Ramkrishnadas consecrated the idol, that mere fact did not by itself create a Debater. "A religious trust by way of Debater can come into existence only when property is dedicated for worship or service of the idol; when there is no endowment in favour of an established idol, no trust in the legal sense of the term can possibly come into being; it is only the moral duty of the person who founds the deity or his heirs to carry on the worship in such a way as they think proper." (Dr. Mukherjea at page 159). Property can be given to an idol either at the time when it is consecrated or at any subsequent period and not only such property may be given by the founder or a Shebaits, it might also consist of offerings or gifts by others. There is no evidence that Ramkrishnadas dedicated any property to the temple but it is mentioned in paragraph 5 of the Naga's written statement that village Dholgi had been dedicated to the idol by Garud Das. Thus he was the founder of the Debater. Smt. Umabai dedicated village Banghi later on. Any person who subsequent to the foundation dedicates any property to the deity does not thereby become its founder; his benefaction is merely an accretion, to the existing foundation. It was no doubt held by Vivian Bose J. (as he then was) in Gangaram v. Duboo, ILR 1936 Nag. 111 :, AIR 1936 Nag. 223, that where a founder of a Devasthan or its Wahiwatdar, who has a right to determine the course of the devolution of office of the Wahiwatdar, hands over all the Wahiwatdar's rights to another and divests himself of every vestige of interest in the matter, he cannot subsequently file a suit based on his personal right to sue for a personal right of management of the Dewasthan, apart from section 92, Civil Procedure Code. That decision does not apply here for the reason already stated. But even if Smt. Umabai were the founder, she could only divest herself; to put it differently, she could only hand over the restricted interests which she had in the Shebaiti. Having only a widow's estate, apart from other things, the appointment made by her ceased to operate after her death on 12 -2 -1956. My attention has been anxiously engaged by paragraph 13 of the plaint. There it was stated by the original plaintiff that it was on the first defendant's entreating her and her sons to engage him as a 'Pujari' and on pressure having been brought by some local inhabitants that she, with the concurrence of her sons, appointed him for doing worship of the idol: "Pooja archa karne ko rakh liya". This paragraph of the plaint remained untouched when the sons were brought on the record. Thus it is an admission of the appellants that the Naga was introduced in the temple with their concurrence. But that admission by itself does not advance the Naga's case any further. There is neither pleading nor proof that the sons had consented to an appointment which would operate even after her death, or to the conferment of those rights and powers which are contained in the deed of appointment (Ex. P -1). The suit was resisted only on the grounds that Smt. Umabai, finding that she and her committee could not properly carry on the management of the temple and that her sons and presumptive heirs did not evince any interests in the temple, became apprehensive about the future of the temple and in order to ensure proper management for all times to come she made the office of Sarvarakar permanent and hereditary in her capacity as the Shebaits of the temple and Sarpanch of the temple committee; that in conformity with the incidence of permanency attached to the office it was specifically stipulated that the Naga would not be removed on any account either by her or by her heirs; that Umabai disposed of all her rights as Shebaits of the temple; and that she and the founder's family stood divested of all Shebaitship rights and this fully and exclusively vested in the Naga since his appointment as Sarvarakar. (See paragraph 9 of the written statement in answer to paragraph 13 of the plaint). It is quite clear from this that the defence was entirely founded on Smt. Umabai's divesting herself and the "founder's heirs" of Shebaitship rights. It is also clear from that paragraph of the written statement that the expressions "presumptive heirs" and "founder's family" indicate admission on the part of the Naga that the founder was either Garud Das or Ramkrishnadas and that Smt. Umabai was holding Shebaiti as a limited estate. At any rate, in the written statement (even when it was amended in consequence of Smt. Umabai's death and the bringing on the record of her sons) estoppel was not pleaded nor was it averred that the plaintiffs were bound by the terms of the deed of appointment. A new point now cannot be allowed to be set up in second appeal when it is one of fact; and in fact no such point was endeavored to be raised by Shri Padhye. In cross -examination of either Gorelal or Sarveshwardas no questions were asked suggesting their consent or concurrence to such an appointment. The sons did not subscribe to the deed of appointment (Ex. P -1). It is clear from the statement of the Naga himself that at the time of the execution of Ex. P -1 by Smt. Umabai, neither Gorelal nor Sarveshwardas was even present. "Niyukti patra Umabai ke makan men Ramkumar, Narainprasad tatha Shyamsundar ke samane likha gaya. Iske siwa Umabai ke 2 -4 naukar yane Prayagsingh aur Pyarelal waghera the, ve jeewit hain." All that is admitted in paragraph 13 of the plaint is that the mother "in consultation with the sons" appointed the defendant "to do pooja archa". The words which I have put within inverted commas cannot be stretched to mean that they consented to the deed of appointment itself or to the Naga's appointment as Shebaits or Sarvarakar. An admission can bind the party only to what is admitted but, without more the admission cannot be extended further on suppositions. For all these reasons the first part of the plaintiffs' suit must succeed. The second part of the suit is that the defendants started constructing a new house in the compound of the temple without the plaintiffs' permission. On being asked to stop the construction, they challenged the plaintiffs' title. It was alleged that the defendants had no right to make any such construction and it was prayed that the plaintiffs be reinstated in possession, allowing the defendants to remove the material from the site. In my opinion this part of the suit has been rightly dismissed by the Courts below. There is a concurrent (sic). of fact by both the Courts that the disputed site on which the construction was made was (sic),. along with a Kachcha structure, from one Mst. Kalabai at Lorrni by the Sanskrit Pathshala Committee. During the pendency of the suit a deed of exchange as executed between Smt. Kalabai P. W. 3 and Smt. Umabai. This is an unregistered document and the defendants are no party to it. It has been rightly found to be of no consequence. Even according to the statements of Kalabai and Gorelal the disputed land originally (i. e. before the transaction of exchange dated 11 -4 -1955) belonged to her. Smt. Umabai and her sons had, therefore, no right in the disputed land and the suit was misconceived as regards this part. In the result the appeal partly succeeds and the judgment and decree cf both the Courts below are set aside, except as regards the disputed house -site on which the defendants were making construction. The appointment of the first defendant as Sarvarakar of temple Shri Radhakrishna Bhagwan Lormi is held inoperative and ineffective, at least as from the date of Smt. Umabai's death viz. February 12, 1956. An injunction shall issue restraining Naga Ramkhilawandas to have anything to do with the management of the said temple. The parties shall bear their own costs throughout.