BHAGABAN PRUSTI Vs. NARAYANA PRUSTI

JUDGEMENT

(1.) This is a second appeal by the plaintiffs, which arises out of a suit brought by them for a declaration that they are co-shebaits and co-mar fatdars, with the defendant, of four deities, Sri Sri Giridharl Jiu Thakur, Sri Sri Gobind Jiu Thakur, Sri Sri Gopal Jiu Thakur and Kamalai Thakurani, installed in village Kaima Bada of the district of Cuttack. The plaintiffs and the defendant are three brothers forming a joint Hindu family. Two of the aforesaid four deities, namely, Sri Sri Giridhari Jiu Thakur, and Sri Sri Gobind Jiu Thakur, appear to have been installed in a math which was founded by one Haridas, a celibate Vaishnava, for the purpose of promotion of the Vaishnava religion. The institution appears to have been founded by three sanads in the years 1151, 1154 and 1164 Fasli. Certain properties mentioned in Schedule kha of the plaint were endowed for the purpose. The succession to the headship of the math passed from guru to chela till the death of one Padma Charan <JGN>Das</JGN> , the Guru Adhikari of the math in 1907. Thereafter, a dispute arose between two persons Anadi <JGN>Das</JGN> and Brahman and, <JGN>Das</JGN> , and, as a result of a compromise, both of them were recorded as joint Adhikaris of the math. In the year 1909, these two Adhikaris executed what has been called a seba-samar-panpatra in favour of the defendant Narayan Prusti and four other persons. By this seba-samarpanpatra the right of management as well as the endowed properties appear to have been transferred to the defendant Narayana Prusti and four other persons. This transfer was made to pay off a creditor Balaram <JGN>Das</JGN> of Patpur, who had obtained a decree for a sum of Rs. 1120-10-0 against the marfatdars. On the same day on which the seba-samarpanapatra was executed the transferees executed a mortgage bond for Rs. 1000 in respect of the endowed properties in Schedule kha. This mortgage was executed in favour of one Bhaban Sahu. By this mortgage the decree-holder Balaram <JGN>Das</JGN> was paid off. In 1912, a second seba-samarpanpatra was executed by the other four transferees in favour of the defendant Narayan Prusti for a consideration of Rs. 3000. By this sebasamarpanpatra, the other four persons gave up their right in favour of Narayan Prusti.

(2.) In 1926, Anadi <JGN>Das</JGN> and Brahmananda <JGN>Das</JGN> instituted a suit (No. 13 of 1926) for setting aside the two seba-samaspanpatrm of of 1909 and 1912 respectively, and for possession of the endowed properties. This suit appears to have been dismissed on the ground of limitation, and on a finding that the defendant had acquired the shebaiti right by adverse possession. The case of the plaintiff is that Narayan Prusti had acquired the above shebaiti or marfatdari right as a member of the joint family, and on behalf of the joint family. It is alleged that the expenses for the worship of the deities and for other ceremonies and improvements had been defrayed from the joint family funds. It is also stated that the consideration for the two seba-smarpanpatras had come out of the joint family funds. I Should have noted that two of the other deities, Sri Sri Gopal Jiu Thakur and the goddess Kamalai Thakurani, were installed in 1919, and Schedule kha 1 and kha 2 properties were endowed for these two deities. The plaintiffs case is that these two deities were installed" by the joint family out of joint family funds, and the properties were purchased out of joint family funds. The plaintiffs alleged that in the current settlement the defendant had got his name recorded as marfatdar in respect of the properties; therefore, the plaintiffs brought the suit for a declaration - that they were co-shebaits and co-marfatdars along with the defendant. The defendant denied the allegations made above, and alleged that the joint family had no concern with the shebaiti right; nor had any expenses been incurred out of joint family funds. The defendant also alleged that the endowment was a public religious endowment, and the shebaitship could not in law or fact go to more than one person. In the Court of first instance, the plaintiffs obtained a decree on the finding that the plaintiffs were co-shebaits or co-marfatdars. The Court of appeal below reversed that finding, and dismissed the suit. Hence the present second appeal. When the appeal was first heard by this Court, the case was remitted to the learned District Judge for recording his findings on the following two questions; (1) Whether the religious institution with which we are concerned in this litigation is capable of having more than one shebait or marfatdar. (2) Whether upon the evidence it can be held that, the plaintiffs have acquired the marfatdari interest along with the defendant by adverse possession and whether the finding of the Subordinate Judge that the joint family fund was used for ?acquiring, improving and carrying on the seva-puja is justified by the evidence on the record.

(3.) The learned District Judge has now given his findings on the two questions referred to above, and they are in favour of the appellants. The learned District Judge, who had originally heard the appeal, had dismissed the suit of the plaintiffs mainly on the ground that the right of management by a shebait could not be transferred by sale or gift; nor could it be acquired as an incident to property.