HULADA PRASAD DEGHORIA Vs. KALIDAS NAIK

JUDGEMENT

(1.) This is , an appeal by the first defendant in a suit for recovery of possession of immoveable property on declaration of title. The Courts below have con-currently found in favour of the plaintiffs, and have given thorn a decree on declaration that their title has not been affected by the sale in execution of a rent decree in a fraudulent suit for recovery of alleged arrears of rent. On the present appeal, one substantial question of law has been argued touching the Validity of the title of the plaintiffs, which is based ultimately on two permanent leases granted by a shebait in respect of the properties of a religious endowment., The facts, antecedent to this litigation, though of complex character, may be briefly narrated, in so far as such recital is necessary for the appreciation and determination of the question of law raised before us.

(2.) The disputed properties lie within the zamindary of the Maharaja of Pachete. In the early years of the 19th century the then Maharaja made two grants in favour of one Deb Nath Deghoria, the predecessor of the appellant. The first of these grants was described as a debutter pattah of village Jamir Kari given for the sheba of goddess Kalyaneswari. The grantee was directed to bless the grantor and to enjoy the land peacefully :. In the second deed, village Debipore was granted as rent-free debutter through the grantee for the sheba of the same, goddess, and the grantee was directed to enjoy the land from generation to generation after performance of the sheba of the goddess. The controversy between the parties relates to the true nature of these grants. On behalf of the defendant-appellant, it has been contended that the dedication was of the completest character known to law, to use the language of their Lordships of the Judicial Committee in Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 : 31 I.A. 203 : 1 A.L.J. 585 : 8 C.W.N. 809 : 6 Bom.L.R. 765 that the properties consequently vested absolutely in the goddess and it was not competent to the shebait to grant a permanent lease of any portion thereof as was done to the predecessor of the plaintiffs. On behalf of the plaintiffs-respondents it has been argued, on the other hand, that the properties, after the grants, retained their secular character though they became impressed thereby with a religious charge, as in the case of Ashutosh Dutt v. Doorga Churn Chatterjee 5 C. 438 : 6 I. A. 182 : 5 C.L.R. 296 : 4 Sar. P.C.J. 58 : 3 Suth. P.C.J. 694 : 3 Ind. Jur. 571 : 3 Shom L.R. 32. The Courts below have concurrently accepted the contention of the plaintiffs-respondents which, in their opinion, is consistent with the terms of the deeds and also with the manner in which the dedicated properties have been held and enjoyed for nearly a century. This view has been assailed on behalf of first defendant, who claims to be the present shebait of the endowment, and maintains that the properties in suit are the absolute debutter of the goddess. In support of this view, reliance has been placed upon the decision of their Lordships of the Judicial Committee in Abhiram Goswami v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C. 1003 : 36 I.A. 143 : 14 W.N. 1 : 11 Bom.L.R. 1234 : 6 A.L.J. 857 : 19 M.J. 580 : 10 C.L.J. 284. In our opinion, the decision mentioned does not assist the appellant. The two deeds are at least ambiguous, for although the properties are described as debytter, yet they are given to the grantee, who is to enjoy them from generation to generation on performance of the sheba of the goddess. The view may reasonably be maintained that the grants were not made to the goddess herself but were made to Deb Nath Deghoria in order that he might, on performance of the sheba of the goddess, enjoy the properties from generation to generation. In these circumstances, the. Court, may determine the true character of the endowment from the manner in which the dedicated properties have been held and enjoyed [Gunga Narain v. Brindabun 3 W.R. 142., Muddun Lal v. Komul Bibee 8 W.R. 42. : Ram Chandra v. Ranjit Singh 27 C. 242 at p. 252 : 4 C.W.N. 405. : Madhab Chandra v. Sarat Kumari 6 Ind. Cas. 26 : 15 C.W.N. 126. : Tulsi Das v. Siddhi Nath 9 Ind. Cas. 650. and Mohan Lalji v. Tikait Sri Gordhan Lalji 19 Ind. Cas. 337 : 17 C.W.N. 741 : 11 A.L.J. 548 : 17 C.L.J. 612 : 15 Bom.L.R. 606 : (1913) M.W.N. 536 : 14 M.L.T. 27 : 35 A. 283 : 40 I.A. 97.]. But it has been strenuously contended on behalf of the appellant that the Court is not entitled to look to the conduct of the parties for assistance in the construction of the grants. This argument is opposed to the well-established rule that, in the construction of ancient grants and deeds, evidence is admissible as to the mariner in which the thing granted has always been possessed and used, for so the parties thereto must be supposed to have intended [ Weld v. Hornby 7 East 195 : S.R.R. 603 : 3 Smith 244 : 103 E.R. 75. Rex v. Osbourne 4 East 327 : 102 E.R. 856.]. As Tindal, C.J., observedin Deo dePearson v. Ries 8 Bingham 178 at p. 181 : 131 E.R. 369 : 1 Moo. & Sc. 259 : 1 L.J.C.P. 73. the Court may call in aid acts under the deed as a clue to the intention. This principle, as was pointed out by Lord Halsbury, L.C., in North-Eastern Railway Co. v. Lord Hastings (1900) A.C. 260 : 69 L.J. Ch. 516 : 82 L.T. 423 : 16 T.L.R. 325., does not apply unless there is an ambiguity, for even usage does not justify deviation from terms which are plain [Attorney-General v. Rochester Corporation 5 DeG. M. and G. 797 at p. 832 : 43 E.R. 1079 : 104 R.R. 237. : Attorney-General, v. Sidney Sussex College (1869) L.R. 4 Ch. App. Cas. 723 at p. 732 : 33 L.J. Ch. 656.]. Consequently, while in a case of ambiguity, the Court will uphold that construction of a deed which justifies a long usage as to the application of trust funds, the Court will not, where there is no ambiguity, accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust [Drummond v. Attorney-General 2 H.L.C. 837 at pp 831, 833 : 14 Jar, 137 : 81 R. R. 433 : 9 E.R. 1312.]. The matter may be put briefly in the words of Sugdeu, L.C., in Attorney-General v. Drummond (1842) 1 Dr. and W.353 at p. 366 : 58 R.R. 292. "One of the most settled rules of law for the construction of ambiguities in an ancient instrument is that you may resort to contemporaneous usage to ascertain the moaning of the deed : tell me what you have done under such a deed, and I will tell you what that deed means." To this must be added the qualification formulated by Lord Crenworth, L.C. in Sadleir v. Biggs : (1853) 4 H.L.C. 435 at p. 458 : 94 R.R. 172 : 10 E.R. 531. in the following terms : " If there is a deed which says, according to its true construction, one thing, you cannot say that the deed means something else, merely because the parties have gone on for long time so understanding it." In the case : before us, the terms of the deed are at best inconclusive, and the Courts below have properly referred to the manner in which the dedicated properties have been held and enjoyed. It appears that within a few years of the grants in favour of Debnath Daghoria, the properties were partitioned between him and his brother, Shib Nath Deghoria, and on 2nd August and 4th September 1829, the representatives of the two branches of the Deghoria family, executed two permanent leases in respect of their different shares. These leases were not challenged for at least sixty years, either by any of the shebaits or by the successive Rajahs of Pachete who are intimately concerned in the proper maintenance of the endowment created by one of their ancestors. These leases form the root of the title of the plaintiffs, and the Court will be slow to listen to the suggestion that they wore granted by the : then shebaits in excess of their authority, and consequently constituted acts in the nature of breaches of trust. The Courts below have further found that the properties have been throughout held and enjoyed by the Deghorias as secular properties subjected to a religious charge, and that while a part of the income has been applied for the performance of the worship of the goddess, the remainder has been used by the members of the family for their own purposes. Under those circumstances, the Courts below have rightly concluded that the properties in dispute are not absolute debutter properties of the goddess, but are the personal properties of the Doghorias subject to the charge of the worship of the goddess. In this view, the permanent leases of. 1829 are not liable to be impeached and afford a solid foundation for the title of the plaintiffs.

(3.) We may add that on behalf of the respondents it was argued that the question of the true character of the endowment was immaterial, because, as the permanent leases of 1829 have never been impeached, any suit now instituted for cancellation of those leases and for resumption of the properties from the lessees or their representatives would be successfully met by the plea of limitation. This contention is supported by the decision of this Court in Jagamba Goswamini v. Ram Chandra Goswami 31 C. 314 and by that of their Lordships of the Judicial Committeee in Damodar Das v.Lakhan Dass 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom.L.R. 632 : 20 M.L.J. 624 : 37 I.A. 147 : 37 C. 885 : (1910) 1 M.W.N. 303. as explained in the case of Madhu Sudan Mandal v. Radhika Prosad Das 16 Ind. Cas. 927 : 16 C.L.J. 349 : 17 C.W.N. 873.. The permanent leases have consequently become indefeasible by lapse of time, and from this point of view also there is no answer to the claim of the plaintiffs.