1. By an agreement in writing dated January 16, 1947, the defendant agreed to sell to the plaintiffs the land hereditaments and premises situate at Vithalbhai Patel Road, Bombay, at or for the price of Rs. 2,25,000. On or about July 17, 1947, the plaintiffs' attorneys served requisitions on the vendor's title and the defendant's attorneys answered the said requisitions on or about August 8, 1947. The answers to the material requisitions are set out in paragraphs 5 to 9 of the plaint which it is not necessary for me to set out in detail in this judgment. The plaintiffs submit that doubts have arisen as to whether there is a custom, as alleged by the defendant, by which the defendant has full and absolute right and authority to sell or dispose of the property agreed to be sold and that his chela or disciple has no right or interest in the said property and is not entitled to challenge alienation of the said property by the defendant. The plaintiffs further submit that doubts have arisen whether the said alleged custom is sufficiently and satisfactorily proved and established by reason of the judgment of the Honourable Mr. Justice Chagla in Nazlibai v. Birbhangir Raja Vishveshargir (1941) O.C.J. Suit No. 1094 of 1941, decided by Chagla J., on October 3, 1941 (Unrep.) and by the evidence referred to in answers to the said requisitions.
2. By reason of the said doubts the plaintiffs have taken out this originating summons to decide the following questions:-
(1) Whether the defendant has made out a marketable title to the property agreed to be sold and referred to in paragraph 1 of the plaint free from all reasonable doubts ?
(2) Whether the requisitions of the plaintiffs in respect of the defendant's title to the said property have been sufficiently and satisfactorily answered by the defendant?
(3) Whether the plaintiffs are bound to accept the defendant's title to the said property and to purchase the same ?
(4) If any of the said questions (1), (2) and (3) be answered in the negative, whether the defendant is bound to refund and pay to the plaintiffs the sum of Rs. 12,500 deposited as and by way of earnest money by the plaintiffs with the defendant and to pay to the plaintiffs all costs charges and expenses incurred by the plaintiffs in preparation of the said agreement for sale dated January 16, 1947, and the investigation of title, advertisements, battaki correspondence etc. ?
(5) What provision should be made for costs of this suit ?
3. Now it is common ground that the defendant is a Dunglee Gosawee. In his book called the Law and Custom of Hindu Castes Mr. Steele has this to say about this particular community at p. 441, paragraph 31. According to Mr. Steele, the Gooroo in the case of Dunglee Gosawees may sell or mortgage the muth in which he presides, and his act is confirmed by the disciples, who generally redeem it. Sir Dinshah Mulla in his book on Hindu Law at p. 74, paragraph 58, points out that in the case of an ascetic (sanyasi) a virtuous pupil is the heir of the sanyasi.
4. In Nazlibai v. Birbhangir Raja Vishweshargir (1941) O.C.J. Suit No. 1094 of 1941 decided by Chagla J., on October 3, 1941, (Unrep.) the question arose in reference to an agreement of sale entered into by the defendant in this suit with the plaintiff in that particular suit as regards a certain property situate at the corner of 2nd Bhatwady and Girgaum Road. An originating summons was taken out in that suit also for a decision whether the defendant had made out a marketable title, and Mr. Justice Chagla came to the conclusion that a marketable title was made out. The contention was that the title was based on a custom prevalent in Hyderabad applicable to the community, viz. the Dunglee Gosawee Hindus, to which the defendant belonged. The custom alleged was that the Gosawees do not marry and the property devolves upon the disciple of the particular person who owns the property. The defendant claimed to be the sole disciple of Raja Vishweshwargir and as such he claimed to inherit all his property. The learned Judge said this:
It is the defendant's contention that the Gosawis are a secular sect, that they are not attached to any Muths, that they are the absolute owners of the property which they inherit, that they do business and that they buy and sell property as absolute owners and that the property that he inherited from his preceptor was not impressed with any trust of any sort whatsoever.
The learned Judge upheld those contentions. For coming to that conclusion Mr. Justice Chagla relied on the will made by Raja Rameshwargir who was the preceptor of Raja Vishweshwargir and the proceedings which took place in the Hyderabad Court in connection with obtaining a succession certificate. One Bansigir Chela Ghanshamgir, who was a landlord of Hyderabad (Deccan) and who belonged to the same community as the defendant, was called as a witness, and he deposed to the custom set out above. On that evidence His Lordship came to the conclusion that the custom was proved and a marketable title was made out.
5. In this case the plaintiffs are willing purchasers, but they felt some doubts whether the evidence which was called in Nazlibai's case was sufficient to justify the finding that the custom pleaded was proved. In order to bring satisfaction to the mind of the plaintiffs and to leave no room for doubt as regards the defendant's right to sell the property in suit, the defendant has called before me one Dilaramgir. He deposed that one Mukundgir was the chela of the defendant, and Mukundgir adopted the witness as his chela, that Mukundgirji died about eleven years ago and ever since his adoption, as chela by Mukundgirji the witness has been living with the defendant and that the defendant had consented to the adoption of the witness by Mukundgirji, and after the death of Mukundgirji the defendant accepted the witness as his chela and that the defendant had no other chela. He deposed to the custom of the community according to which the defendant has the right to sell or mortgage the properties. He also deposed to the fact that the properties were not held on trust but belonged absolutely to the Gooroo. According to the custom prevailing in the community, the witness disclaimed any interest in the properties in suit and admitted the right of the defendant to sell off these properties and to the enjoyment of the income thereof for his own personal use. The witness said that prior to the transaction in suit, the defendant had sold other properties as the absolute owner thereof both in Hyderabad (Deccan) and in Bombay. In cross-examination by Mr. Maneksha the witness said that the defendant had got no other chela.
6. Mr. Taraporewalla for the defendant tendered in evidence as exhibit No. 1 the plaint and the proceedings and the judgment in Nazlibai's case referred to above.
7. The object of calling Dilaramgir as a witness was that assuming that the property was property held on trust, Dilaramgir being the chela himself was the only person entitled to resist alienation by the defendant. He, however, has disclaimed by his evidence any interest in the property and, therefore, there is no danger of the title of the plaintiffs being challenged by anyone interested in the property.
8. On the evidence before me I have come to the conclusion that the custom is proved and that the defendant is the absolute owner of the property in suit and that he has got the right to sell this property.
9. Costs to be costs in the sale.