SATIS CHANDRA GIRI Vs. BENOY KRISHNA MUKHOPADHYA

JUDGEMENT

(1.) This is an appeal by the defendant, Satis Chandra Giri against two orders dated respectively the 9 May 1925 and the 7 July, 1925. By his first order which was made on an application dated the 1 November, 1924, the learned District Judge of Hooghly against whose order this appeal is presented directed that a Receiver should be appointed for the custody and administration of the properties of the endowment to which the application related. By his order of the 7 July, 1925 the Receiver who is now in possession was actually appointed. The application arises out of a suit commenced under the provisions of Section 92 of the C.P.C. The suit was commenced on the 10 September, 1922 and the application for the appointment of a Receiver was made on the 1 November, 1924 more than a year and a half after the institution of the suit. That, we think, is a matter that has to be borne in mind in considering the appointment of a Receiver, for in a case of this kind such an application should always, be promptly made. The suit relates to the Math or shrine which in para. (2) of the plaint is described as one of the famous places of worship of Hindus of all classes in Bengal and the suit relates to a claim (inter alia) to ascertain the properties belonging to the Math for accounts and for a declaration, that the properties appertaining to the Math, which are claimed by the defendant as his nil properties are properties of the Thakur. Turning to the plaint, the different charges and allegations which were preferred against the defendant's management of the Math of which he has been the Mohunt since the year 1893 will be found. In para. (11) of the plaint there is an allegation that large sums of money belonging to the Thakur have been misappropriated by the defendant. There is a further allegation that the defendant is carrying on a money lending business in the names of his relatives and of his own and in Schedule (e) to the plaint are set out what purport to be the particulars of the misappropriations which are alleged in para. (11). The learned Counsel for the appellant has pointed out that the particulars which we find in Schedule (e) are extremly vague, for instance no particulars of the Railway shares which are alleged to have been misappropriated are given, and neither the denominations of the promissory notes nor any particulars by which they can be identified are given, and the gold and silver articles, which are said to have been misappropriated, are not described and speaking generally with regard to Schedule (e) it seems to me very difficult for the defendant to deal with each alleged case of misappropriation set out in para. (11) of the plaint. Then in para. (12) there are allegations that the defendant had acquired landed properties out of the income of the debutter properties. These are set forth in Schs. (F) and (G). Then comes a further allegation that the defendant has granted a mokarrari lease of a valuable piece of land to the detriment of the Thakur. Paragraph 14 alleges that the defendant has not paid proper attention to the comforts and health of the guests, the pilgrims and the ascetics and that the pilgrims are not allowed to worship the Thakur without the permission of the defendant and are prevented from worshipping the Thakur freely. So far as this charge is concerned, it is in evidence that it is customary to make small charges to pilgrims who desire to worship the Thakur and the defendant claims as part of his case that he is entitled to do this, as this has been done from time immemorial and he relies on this as evidence of his contention that the shrine of the Thakur is not a public trust but is a private Math: In para. (16) are set out general allegations about the application of the income for the benefit of the defendant himself. In para. (17) it is alleged that there are no regular accounts of the income and expenditure of the Math and para. (18) contains charges very general in form with regard to the character of the defendant himself. We have referred to these paragraphs to show that the real charges that are made against the defendant are in general terms. I do not wish to express any opinion for a moment as to whether the charges can be substantiated at the trial or not, but in an application for the appointment of a Receiver, one has got to see the nature of the charges made and if one finds, as here, that they are somewhat vague in character, it is a ground for declining to interfere on an interlocutory application of this nature for the appointment of a Receiver. So much then for the plaint and the allegations that are made by the plaintiffs against the defendant.

(2.) I next turn to the written statement of the defendant. In para. 10 the defendant sets out various suits that have been brought against him from the year 1893 onwards seeking to dispossess him from the endowment and in that paragraph it is pointed out how these prior suits have been dismissed. Paragraph (15) contains a denial of the allegations made in the plaint that the defendant by virtue of the sect to which he belongs is not entitled to possess or enjoy properties for himself. Then comes para. (17)(a) which is important from the defendant's point of view. We have already referred to it and to the statement therein contained that the defendant challenges the public nature of the Tarakeswar Math. That, of course, is a question upon which we can express no opinion here but it is a question that has got to be taken into account in determining whether a Receiver should be appointed. Paragraph (18) again deals with the question of the nature of the endowment as to wbether.it is a public endowment or not and further deals with the allegation with regard to the entertainment of pilgrims and such like, Paragraph 19 alleges that it has been customary to exact from worshippers a charge of one pice at the door of the temple and one pice within the temple for worshipping the Thakur and this is relied on as I have stated as showing that it is not a public trust. Paragraphs 30 and 35 of the written, statement have been referred to in argument. In para. 30 the defendant states that he never claimed any of the properties of the Thakur as his nij properties and it contains a statement that on his attainment of the gaddi he found that certain properties were acquired and dealt with by his predecessor in the gaddi as his own properties and he states that he has since his appointment dealt with these properties as his own. But the paragraph contains a distinct and specific denial that he has ever dealt with any of the properties of the Thakur as his, own. Lastly we come to para. (35) in which the defendant states that so far as dealings with these properties are concerned he has merely followed in the foot steps of his predecessor and acted in accordance with the usage and custom of the math and of many similar institutions in India. The paragraph further deals with pronamis given, voluntarily to the defendant and that defendant states that he has dealt and is now entitled to deal with them as his own property.

(3.) For the purposes of this application the properties have been divided into 3 parts. The first part which we will call (A), relates to the temple and the Bazar of Tarakeswar and the offerings actually made to the deity himself. The second class which we will call (B), are properties acquired by the present defendant or his predecessor in the mohuntship which have all along been treated as debattur properties. The third class which we will call (C), are properties such as are referred to in para. (30) of the written statement which the defendant claims to deal with as his own properties free from any trust in favour of the Thakur. These properties include the palace in which the mohunt dwelt previous to his leaving Tarakeswar. So far as the (A) properties are concerned, it appeari that by an order of May, 1924 the mohunt having regard to the state of things notoriously existing at Tarakeswar at that time agreed in the interest of peace that a Receiver should be appointed and quite rightly I think the learned Counsel for the appellant does not desire to resile from that consent order of May, 1924. Consequently, the Receivership will continue so far as the temple, the debsheba, the Bazar at Tarakeswar and the offerings actually made to the deity are concerned. So far as the (B) properties are concerned in the course of the argument, I suggested to the learned Counsel that as the Receiver was responsible for defraying the necessary expenses of temple it would be well if these properties were treated as debattar properties and remained in the possession of the Receiver and I understand that the learned Counsel without actually assenting to this, is not prepared to oppose it. We, therefore, think that the Receiver's possession should continue as regards the properties (B), that is to say, the properties which have always been treated by the defendant and his predecessor as properties of the Thakur.