SITAL DAS BABAJI Vs. PERTAP CHUNDER SARMA

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in this appeal is an image of Lukshmi Narain Jew established in the town of Naraingunj in the District of Dacca and the properties movable and immovable appertaining to the endowment of that diety. The plaintiffs-respondents claim to be the representatives of the founder and they commenced this action for recovery of possession upon the allegation that the line of mohunts came to an end and that the defendants were trespassers in unlawful occupation of the endowed properties. The first two defendants who alone substantially resisted the claim denied the title of the plaintiffs as representatives of the founder and alleged that they were themselves the lawfully appointed mohunts of the endowment. One of these defendants has died during the pendency of the present litigation and we are now concerned only with the case of the first defendant who is the appellant before this Court. The other defendants were brought on the record upon the allegation that they had improperly interfered with the management of the endowment and had set up the mohunts defendants for that purpose. No relief, however, was claimed against them and we are not concerned at this stage with the question of their liability, if any. In order to appreciate accurately the position of the respective parties it is convenient to refer to the following geneological tables one of which gives the line of the founder and the other sets out the line of mohunts. From these tables it will appear that Bhikan Lal was the founder of the endowment and that the first mohunt to whom he entrusted the management of the endowed properties was Chaitan Das. The plaintiffs claim to be the representatives of the founder and so far as the first of them is concerned, there can be no room for controversy that he is one, if not the sole, representative of the founder. The defendants, however, deny that the other plaintiffs can in any manner claim to be the representatives of the founder inasmuch as they are the sons of the daughters of the daughter of the grandson of the founder. So far as the defendants are concerned Lachmi Das claims to be the rightfully appointed chela of Santosh Das and Sital Das asserts that he is the duly initiated chela of Lachmi Das and has been appointed as mohunt by consent of the members of the sect to which he belongs. The substantial point in controversy between the parties is, whether Sital Das is the lawfully appointed mohunt of the endowment. If this question is answered in the affirmative, the plaintiffs or any of them as representing the line of the founder would not prima facie be entitled to possession of the endowed properties. If the question is answered in the negative, the point necessarily arises for examination, whether the plaintiffs or any of them are entitled to recover possession of the properties and to hold them as shebaits. The solution of this question may, it has been suggested, depend upon the answer to another question, namely, whether the endowment is of a private or public nature. A third question may also require consideration, namely whether in the events which have happened and which will be presently narrated the title of the defendants to the office of mohunt may not have been extinguished by limitation. In the Court below the Subordinate Judge has found, upon the first question, that the first defendant Sital Das is not the lawfully appointed mohnnt inasmuch as his spiritual preceptor Lachmi Das had not at any time attained the status of the initiated chela of Santosh, much less that of the duly installed mohunts of the endowment. So far as the second question which relates to the true character of the endowment is concerned, the Subordinate Judge has not come to any distinct finding, but he has held upon the evidence that the worship of the diety is maintained to a large extent by public subscriptions and charities and that the properties of the endowment have from time to time received substantial benefits and accretions from charitable gifts by members of the public. He has held, however, that whatever the character of the endowment may be, as the line of mohunts has come to an end, the plaintiffs as representatives of the founder are entitled to recover possession of the image and of the dedicated properties and to hold them as shebaits. Upon the question of limitation, he has held that the suit is not barred by limitation, but he has not discussed the position whether in the events which have happened, the title of the defendants, to hold as mohunt, may not have been barred by adverse possession on the part of the plaintiff. In this view of the matters the Subordinate Judge has made a decree in favour of the plaintiff as shebaits, but has excluded some of the properties included in the plaint. The first defendant has now appealed to this Court, and on his behalf the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the first defendant is the lawfully appointed mohunt; secondly, that as the endowment is of a public nature, the representatives of the founder have no special statuts and, thirdly, that the plaintiffs have been awarded a decree on a case not set out in the plaint nor made out in the evidence. On behalf of the plaintiffs-respondents, all those positions have been controverted, and, it has further been argued that as from 1872 to 1899 they have managed the endowment as shebaits the title of the defendants, if any, to the office of mohunt has been extinguished by adverse possession. Before we deal with the questions in controversy, it is necessary to examine for a moment the history of the origin and management of the endowment.

(2.) The endowment appears to have been created by Bhikan Lal Sarma towards the latter end of the 18 Century. He established an image of the diety Lakshmi Narain Jew in the town of Dacca and dedicated his own estate for its worship and maintenance. Subsequently, he appears to have established this image in suit in the town of Naraingunj and at one stage of the proceedings a question appears to have been suggested, whether the institution at Naraingunj was a branch of the parent institution at Dacca. This question, however, has not been investigated and an enquiry into this matter is not absolutely necessary for the decision of the points raised before us; but so far as we can gather from the record, the Naraingunj endowment was in its inception a private endowment, subordinate to the Dacca Institution, though in course of time, the former may be said to have acquired a more or less public character by reason of the influx of pilgrims and devotees who have made gifts of property from time to time. We may, however, proceed on the assumption that the Narainganj Institution is. independent of the one at Dacca. There are no materials on the record which would enable us to determine with any approach to certainty the terms on which the foundation was created. We do not know what power, if any, either of management or of nomination to the office of mohunt, was reserved in himself by the founder. The defendant has in his possession documents which might perhaps have thrown some light upon this question. He admits that he has a deed of gift written in Persian but he has not filed it. We start, therefore, with this information only that more than a Century ago, Bhikan Lal established this endowment and placed it in charge of Chaitan Das a mohunt of the Ramayat sect. The next item of information we get is that after the death of the founder as also of the first mohunt, in the time of Gopal Prosad, when Laehman Das became the mohunt, he got a sanad of release from Gopal Prosad. This was apparently in the form of a debutter-grant made on the 27th April 1813. This we gather from the recitals in a judgment delivered on the 17 August 1855 in a possessory dispute which led to Criminal proceedings under Section 3 of Act IV of 1840. This would tend to indicate that a recognition of the title of the mohunt by the representatives of the founder was deemed to be necessary when by succession a new mohunt come to hold the office in 1813. This deed also, if it is still in existence, must be in the custody of the defendant and for some unexplained reason has been withheld. About 40 years later, upon the death of Lachman Das, disputes arose again as to the possession of the endowed properties. When Lachman Das died, apparently the only persons then alive in the line of mohunts were the grand chelas of his spiritual brother Janaki Das. Gopal Prosad set up Ram Prosad Das as the mohunt in whose favour ho executed a deed of gift. This led to disputes and criminal proceedings were commenced as already mentioned. The result of the proceedings was that Hari Das and Santosh Das were maintained in possession, and they appear to have continued in occupation of the endowed properties from 1855 to 1868. Shortly before the death of Santosh which took place on the 30 May 1868, Raja Babu executed a deed in favour of his wife Prosunna Kumari and his nephew Prannath by which ho authorised them to manage the endowment as shebaits. This induced Santosh Das to present an application, apparently to the Collector, on the 30 July 1867. In this he admitted that the founder Bhikan Lal and the first mohunt Chaitan Das had performed the service and worship of the idols with the income of the debutter property according to the terms of the sanad, that after their death, Gopal Das had become the shebait and performed the service and worship, and after his death Raja Babu had been appointed shebait to perform the service and worship of the idol in Dacca. He complained, however, that Raja Babu being incapable of doing the work of shebait had renounced his shebaitship and had made an application for substitution of Prosanna Kumari and Prannath as shebaits in his place. Santosh Das urged that this was not right and that if Raja Babu renounced the shebait-ship, he was entitled to be the shebait of the idol established in the house at Dacca. He, therefore, claimed that he might be recognised as the shebait of the idol in Dacca as he was also the shebait of the idol of Naraingnnj. What happened to this application, is not known, but it is admitted that in the records of Collector, Prosanna Kumari and Prannath have been registered for many years past as shebaits. Santosh Das, as we have already said, died shortly after in 1868. At that time, Lachmi Das, now alleged to be his chela was not in the temple, and possession was taken by his Baishnavi Mistress Ram Dassi who set up a will alleged to have been executed by him. Meanwhile Prosanna Kumari and Prannath applied for a certificate under Act XXVII of 1850 for authority to perform the services not only in Dacca but also in Naraingunj and to collect the debts due. The certificate appears to have been subsequently granted to them in 1871. In the interval Ram Dassi had had commenced an action on the basis of the alleged will of Santosh Das, which was dismissed on the 26th May 1872. The Munsif held that as she was an unchaste woman and belonged to a different caste, it was not likely that she could have been appointed shebait by Santosh and that the evidence adduced to prove the genuineness of the will was altogether worthless. Immediately after, there was a compromise between Ram Dassi. on the one hand and Prosanna Kumari and Prannath on the other and on the 20 November 1872 both the parties filed applications before the District Judge in the appeal preferred against the decree of dismissal of the suit of Ram Dassi. The effect of this compromise was to declare that Prosanna Kumari and Prannath were the shebaits of the debulter estate and that Ram Dassi was to be appointed to manage the endowment. The result of this settlement was that Ram Dassi continued to hold possession of the endowed properties under Prosanna Kumari and Prannath from 1872 till her death on the 12 December 1899. Shortly after her death, disputes broke out again and the plaintiffs alleged that the first two defendants who falsely claim to be mohunts, with the assistance of the other defendants, two of whom are members of the legal profession and the third is an influential landlord of the locality, managed to obtain possession of the properties The plaintiffs, therefore, commenced this action on the 26 November 1908 for declaration of their title to and recovery of possession of the endowed properties as shebaits.

(3.) The first point which requires consideration is whether the first defendant is the lawfully appointed mohunt of the endowment. The Subordinate Judge has come to the conclusion upon the evidence that he is not the shebait or mohunt. The evidence upon this part of the case was criticised in considerable detail before us and has been subsequently subjected by ourselves to minute examination. The result is that the view taken by the Subordinate Judge proves to be manifestly well-founded. It is obvious that Sontash Das up to the time of his death in 1868 was the lawful shebait and mohunt of the endowment. Lachmi Das, who is now alleged to have been his chela and entitled to the office of mohunt upon his death, was not present in the temple of the time of his death. His Baishnabi Mistress Ram Dassi upon his death set up a false will and was defeated in the litigation which she commenced for possession of the temple and its properties. Subsequently, as we have already stated, she abundoned her claim and was placed in possession as manager under Prosanna Kumari and Prannath as shebaits. So far as we can gather from the evidence, Lachmi Das came to the temple about 1875, that is, seven or eight years after the death of Santosh. It is also fairly clear that this was the first time that he came to the temple. He could not, therefore, have been the initiated chela of Santosh Das. On the other hand there is evidence to show that he became the chela of Ram Dassi which would not, of course, confer on him any legal status. His subsequent conduct during many years is entirely inconsistent with the theory now put forward that he was the chela of Santosh Das and as such entitled to succeed to the office of mohunt. During the time of his stay in the temple from his first arrival in 1875 to the death of Ram Dassi in 1899, his position was that of the manager of the endowment under Ram Dassi. It is most natural, therefore, that, as indicated in the evidence, he should be, somewhat loosely in common parlance, spoken of as the mohunt. If Lachmi Das had been the duly initiated chela of Santosh Das and as such entitled to succeed to the office of mohunt, it is inconceivable that he should have omitted to assert his right during a period of 25 years. On the other hand he uniformly contented himself with a subordinate position wholly inconsistent with that of the spiritual head of the endowment. Thus, for instance, from a deposition given by him on the 4th September 1904, though he called himself the spiritual son of Santosh Dass, it is clear that he was nothing better than the manager on behalf of the defendant in that case. Again, it appears from the evidence of Mohim Chandra Ganguli a pleader at Naraingunj, that litigations in respect of the endowed property were conducted in the name of Ram Dassi while Lachmi Das merely acted as her manager. Apart from this, however, the oral evidence of the initiation of Lachmi Das by Santosh is wholly unreliable. No doubt some of the witnesses for the defence speak of Lachmi Das as the chela of Santosh Das. But the evidence is not uniform and Purna Chandra Pal, a zamindar of some respectability, examined on behalf of the plaintiff, says in cross-examination that Santosh Das had no chela of his own. It is clear also that witnesses who are alleged to have been present at the time of the initiation and who might easily have been called were not examined. Whether, therefore, we consider the direct evidence of initiation or the evidence of conduct of Lachmi Das, the conclusion is irresistible that he was not the duly appointed chela of Santosh Das. The part which he played in the various litigations relating to the endowment, and the position which he occupied for many years in the temple are inconsistent with the theory that he was entitled to the spiritual headship of the endowment. We must, therefore, affirm the finding of the Subordinate Judge that Lachmi Das was not the chela of Santosh Das and that the first defendant Sital Das, as the chela of Lachmi Das, has no title to the office of mohunt.