SM MAHANI DASI Vs. PARESHNATH THAKUR

JUDGEMENT

(1.) This second appeal by the plaintiffs is directed against the judgment of the District Judge, Cuttack, affirming a decision of the Second Munsif. Cuttack, in a suit filed under Order 21, Rule 63, Civil P. C. The plaintiffs' case was that plaintiff No. 1 Mahani Dasi and Chandamani Dasi, mother of plaintiffs Nos. 2 to 4, obtained on 6-7-1932, a transfer of a mortgage deed executed by one Kapur Chand (deceased husband of defendant No. 2) and his brother Kanhailal (defendant No. 3) in favour of one Hanuman Bux and Ratiram on 14-4-1927, for the sum of Rs. 3800/-. The plaintiffs filed Mortgage Suit No. 17 of 1934, in the Court of the Subordinate Judge, Cuttack, against defendants 2 and 3 and obtained a mortgage decree, in execution of which the mortgaged properties were put to sale and purchased by the plaintiffs. During the pendency of the mortgage suit, the plaintiffs had the two plots, now in dispute, namely C. S. plots 140 and 216, attached before judgment on 23-9-1934. Thereafter, the plaintiffs obtained a personal decree against the judgments debtors, as the amount realized by the sale of the mortgaged properties was insufficient to satisfy the mortgage-debt. In execution of this personal decree, the suit properties were brought to sale in Execution Case No. 258 of 1941. The first defendant, who is an idol going by the name of Pareshnath Thakur represented by defendants l-(a) to l-(f), filed a claim petition under Order 21, Rule 58, Civil P. C., claiming the disputed properties on the strength of a trust deed, Ext. P dated 1512- 1926, executed by (1) defendant No. 3, (2) Kapur Chand, the deceased husband of defendant No. 2, and (3) Kunja Behari Lal (defendant No. 1-(f)) who is one of the three alleged trustees of the above-named deity. This claim having been upheld the plaintiffs filed the suit, out of which the present second appeal arises, for a declaration that the suit properties belong to the Judgment-debtors and as such are liable to be put to sale in execution of the decree obtained by the plaintiffs. The contesting defendants are the idol and its trustees. The substantial contention put forward on behalf of the defendants is that defendant No. 1 is a deity dedicated to the Jain community of Cuttack town and that it was installed on C. S. plot No. 216 which formed part of the residential house of the late Iswarlal. Iswarlal died in the year 1923, and his three sons --Kapur Chand (husband of defendant No. 2), Kanhailal (defendant No. 3) and Kunja Behari Lal (defendant No. 1-(f)) executed Ext. P, dated 15-12-1926, conveying the suit properties in favour of the three trustees named in the trust deed. Of the three trustees, Chandulal was appointed President, Kapur Chand (one of the executants) was appointed the Secretary, and Jagulal (D, W. 2) was appointed the Treasurer. The defendants averred that these properties had been dedicated to the deity long prior to the execution of the trust deed, and that both before and after the execution of the trust deed they have been in the possession of defendant No. 1. It is accordingly contended that the judgment-debtors have no subsisting interest in the properties covered by Ext. P and as such they are not liable to attachment and sale by the plaintiffs-decree-holders.

(2.) The principal issue on which the decision of this case turns, is issue No. 3 which is as follows:

(3.) In second appeal, the substantial point urged before us is whether the evidence, both oral and documentary, would warrant an inference that the properties had, in fact been dedicated to the deity. As stated already, both the Courts below have based their findings on the recitals in the trust deed and on the oral evidence of D. W. 3. It should be made clear at the outset that no endowment is created if the deed is not meant to be acted upon and the founder had other or ulterior motives such as tying up of property in the family and keeping it out of the reach of creditors. The mere fact that an idol is proved to have been established does not, by itself, create an endowment of properties in favour of the idol. An idol may be installed and worshipped without any property being dedicated to it. An idol, like any living person, may be rich or poor. If property is dedicated a religious trust is created and the property vests absolutely in the idol though the management may be left in the hands of the trustees; but the title to the property itself is in the idol and not in the shebayat. It is equally well-established that the absence of a document creating a trust does not necessarily imply the absence of an endowment, though the absence of a formal deed throws a heavy onus on the party who sets up dedication, to prove that the property has been inalienably conferred upon the idol. Judged by these principles Ext. P, the deed of trust by itself creates no endowment; and it is necessary for the defendants to show by evidence 'aliunde' that there had been an existing endowment in favour of this particular idol to which the description "Devottar" can be applied. The Courts below have rested their decision by merely relying on a recital in the deed to the effect that certain properties belong to the deity. But this, by itself, is not sufficient to prove that there had, in fact, been a dedication. To prove this fact it must further be established that the executants had intended to divest themselves of their ownership" in the properties dedicated. The test of a bona fide or nominal endowment is "How did the founder treat the property, or how have the descendants treated it? Has the income of the endowed lands been continuously applied to the object of dedication?" The Courts have not tried the bona fide character or the nature of the endowment with reference to the use of the proceeds, either from before or after the execution of the deed of trust, exclusively for the purpose of the deity, and have confined their decision to an inference drawn from the recitals in the deed itself.