SATISH CHANDRA GIRI Vs. DHARANIDHAR SINGHA BOY

JUDGEMENT

(1.) These two appeals are against a decree dated 6 July and 24 August 1934, of the High Court of Judicature at Calcutta, modifying a preliminary decree dated 6 November 1939, of the Court of the District Judge of Hoogly. The suit in which the decrees were passed was instituted under S. 92, Civil PC, 1908, by certain persons claiming to be interested in the administration of the shrine of Sri Taraknath near Calcutta, against one Satish Chandra Giri, the appellant in the main appeal (No. 29 of 1934) (hereinafter called the appellant), who was described as the shebait or mahant of the said shrine. The shrine of Taraknath, though sometimes referred to in the present proceedings as a math, is in reality a temple containing an idol called Sri Taraknathji. Its origin is lost in antiquity. The High Court of Calcutta has in its judgment traced its history back to 1747 A. D., and there is no doubt that it is a very ancient, public, religious and charitable endowment, of which the appellant had been for many years the mahant. It is unnecessary for the purposes of this appeal to enter into the details of its antiquity. It is sufficient to say that the succession to the mahantship descended from one Mohan Giri, the mahant in 1799, who acquired properties while he held that office. These properties along with the mahantship came to be vested, through successive holders, in one Madhab Giri in or about the year 1864. On 17 November 1873 he executed a document in favour of his senior chela Shamchand Giri. By that document, Madhab Giri, who was at that time about to face a trial for sexual misbehaviour, appointed Shamchand Giri to manage, in the event of his incarceration, the properties of the temple during his absence. The properties were stated to be of twofold character : debottar (properties belonging to the temple) and nij (private properties of the mahant), of which a list was appended to the document. The document also provided that, on the return of Madhab Giri, Shamchand Giri was to hand over to him possession of both classes of property and render an account in respect of each, but if Madhab Giri died before his return, Shamchand Giri was to succeed him. Madhab Giri was convicted and sentenced on 25 November 1873. After his release in December 1876, he obtained possession of all the properties from Shamchand Giri, but the latter instituted a summary suit for possession against Madhab Giri and obtained a decree on 28 August, 1877, On 29 December 1877 Madhab Giri instituted a suit against Shamchand Giri, on the strength of the document mentioned above, for the recovery of the properties in Shamehand Giri's possession. There were inter alia two schedules annexed to the plaint: Sch. Ka, which was a list of debuttar properties and Sch. Kha, a list of the properties claimed as nij. Madhab Giri prayed amongst other things, that, according to the document of 17 November 1873, Shamchand Giri was bound to deliver possession and was not entitled to deny Madhab Giri's title or set up an adverse one and that it might be declared that the properties mentioned in sch. Kha were Madhab Giri's personal or private properties. Shamchand Giri contested the suit, mainly on the ground that he had no knowledge of the said document, that Madhab Giri had forfeited his title to the office of mahant by reason of his sexual misbehaviour and that Shamchand Giri had been duly appointed mahant in his place.

(2.) On 5 December 1878 the District Judge delivered judgment, holding that Shamchand Giri was not a duly appointed mahant, that Madhab Giri had not forfeited the mahantship on account of his misbehaviour, that the document of 17 November 1873 was genuine and Madhab Giri was entitled to keep possession of the properties therein mentioned. The District Judge further held that the properties in sch. Kha were not the nij properties of the mahant. In the result, he held that Madhab Giri was entitled to recover possession of the office of mahant, with the properties in both schs. Ka and Kha, which belonged to the endowment of the idol. Madhab Giri's claim to the properties in sch. Kha as his private properties was dismissed. A decree dated 5th November 1878, giving effect to the judgment, was drawn up. There was an appeal by Shamchand Giri and cross-objections by Madhab Giri. It is to be noted that in his cross-objections Madhab Giri raised no objection to the decision of the District Judge that the properties in schedule Kha were not the private properties of the mahant. Madhab Giri-thereafter applied for possession in accordance with the decree, making no distinction between the two kinds of properties and eventually he recovered possession of both. These facts may not operate as an estoppel against the appellant, but their evidentiary value cannot be denied in connexion with the appellant's contention in the present suit, that the said properties and their accretions are his private properties. Madhab Giri died on 11 March 1893. He left a will dated 5 March 1893, whereby he appointed the appellant his successor as mahant and also executor of the will. He devised the nij properties to the appellant absolutely. The appellant accordingly ascended the gadi and applied for probate of the will, which was granted by the High Court of Calcutta on 1 July 1895. In September 1922, four persons, who are now respondents 1 to 4 in the first appeal and appellants 1 to 4 in the second appeal here, and three others, who have since died, instituted the present suit (No. 28 of 1922) in the Court of the District Judge of Hoogly, against the appellant. During the pendency of the suit, three other persons were added as plaintiffs and they are parties to these appeals. All these persons are hereinafter referred to as plaintiffs. The suit was instituted under S. 92, Civil PC. There were 13 prayers, out of which the following are material at the stage of this appeal : 1. For a declaration that certain properties specified in the schedules annexed to the plaint were not the nij properties of the appellant, but belonged to the deity. 2. For a declaration that the appellant was not a fit and proper person to continue as mahant or trustee of the said trust estate and that he might be removed from such office by the order of the Court. 3. That in his place a fit and proper person be appointed as mahant and trustee of the temple and of its properties. 4. That all the properties adjudged to be trust properties be vested in the new mahant and that the appellant be directed to make over their possession to him. 5. For an account. 6. For the settlement of a scheme for the proper management and control of the trust properties.

(3.) The appellant contested the suit and denied the material allegations contained in the plaint. He filed a lengthy written statement. Shortly stated, his defence was that the temple was not a public, religious or charitable endowment within the meaning of S. 92; that the mahant managed the debuttar properties as "malik" (owner) that he took his predecessor's nij properties under an absolute bequest contained in his will, that he could and did acquire new properties, which were his nij properties, that he was not of immoral character, as alleged in the plaint, nor was he guilty of a breach of trust, nor of mismanagement or misappropriation of any part of the trust properties, that he was a fit and proper person to act as mahant, having acted as such for over 30 years and that he was not liable to render an account of the trust properties. On these pleadings, the District Judge framed appropriate issues and delivered judgment on 6 November 1929. He found all the issues in favour of the plaintiffs and also that the charges of immorality and misappropriation made against the appellant were proved. A decree was passed, of which the following are the material terms : 1. The Tarkeshwar endowment was a public, charitable and religious trust. 2. The properties mentioned in certain schedules to the plaint were debuttar properties of the temple. 3. The appellant was not entitled to have any nij property of his own and the properties claimed by him as nij, whether acquired in his own name or in the names of other persons, belonged to the temple. 4. The appellant was not a fit person to continue as mahant, that he was removed from that office and was to forthwith make over possession of all properties to the temple, to be vested in the receiver, pending further orders. 5. The appellant was to render accounts of both sets of properties, from the day he ascended the gadi to the present time. 6. A scheme for the proper administration and control of the trust estate was to be framed. Against the said judgment and decree the appellant filed an appeal (1 of 1930). Plaintiffs also filed a cross-objection on the ground that, upon the findings arrived at, the Court below ought to have directed accounts to be taken from the appellant on the footing of wilful default. The appeal and cross-objection were eventually heard by a Bench of the High Court of Calcutta (Manmatha Nath Mukerji and Sarat Kumar Ghose JJ.) who affirmed the findings of the District Judge and his decree, with the following variations : 1. The order for accounts against the appellant was set aside. 2. Certain properties claimed in the plaint and held by the District Judge to be debuttar properties were excluded from the decree. The appellant's appeal and the plaintiffs' cross-objection were dismissed. On the question of misappropriation and breach of trust by the appellant, the learned Judges held that the appellant had diverted trust funds for the purpose of self-aggrandisement and for the benefit of others who were not entitled thereto and that gross breaches of trust on a most gigantic scale had been proved against the appellant. On the issue relating to the appellant's moral character and habits of life, the High Court went into the details of the charges made against him and held them substantially proved. About the appellant's fitness to continue as mahant and his liability to be removed from his office the learned Judges observed that by reason of the continuous course of the misappropriation of trust properties in which the appellant had indulged on a most extensive scale, the breaches of trust which he had systematically committed in respect of such properties, the unfounded claim thereto which he had persistently put forward and in pursuance of which he had treated such properties as his own properties, and the life he had led which was repugnant to the intention of the trust, the appellant had rendered himself unfit to continue in such office. They further observed that infinitely more than what would justify the removal of a trustee of a public, religious and charitable endowment had been established, that, on the most charitable view of the appellant's conduct and his dealings with the endowment, it was impossible to resist the conclusion that the interest of the endowment peremptorily demanded the removal of the appellant from his office as mahant. In setting aside the District Judge's order for accounts against the appellant and in dismissing the plaintiffs' cross-objection on the same question, the learned Judges left it open to the deity or anybody, who would represent him in future, to recover such other properties as there might be belonging to the endowment and to sue the appellant for accounts. The question of framing a suitable scheme was considered by the District Judge after the other issues had been decided. He delivered a separate judgment framing a scheme for the administration of the endowment. It was the subject of a separate appeal to the High Court and was disposed of by a separate judgment.