R. Prasad, J.
1. This is a defendant's first appeal. It is directed against the judgment and decree of the learned Civil Judge, Allahabad in original suit No. 6 of 1953 dated 28th September 1957.
2. The plaintiff-respondent Mahant Yaduvansh Deo alias Gopinath filed the suit on certain facts to be narrated hereafter and prayed for the following reliefs-
(a) That the deed dated 11th January, 1951 registered on the 18th January 1951, be suitably rectified or set aside in the light of the submissions made in this plaint which is valued at Rs. 31,320/- and the defendant be directed by an injunction to give up the management of the movable and immovable properties of the Sangat, mentioned in the First and the Second schedules of this plaint, and the administration of its other affairs to the plaintiff, and be restrained from interfering with the plaintiff's administration and management of the Sangat, its properties valued Rs. 3,792/- being one-tenth of the total valuation of Rs. 37,920/-.
(b) That the defendant may be ordered to render accounts of his agency period to the plaintiff from the date of his taking over as such till the date of handing over which is valued at Rs. 1,907/8/-, the profit from the properties for 15 months from the date the deed in question was registered i.e. 18th January, 1951 to the date of filing the suit.
(c) That a receiver may be appointed to take charge of the administration and management of the affairs and properties of the Sangat pending the present litigation. A separate application is also being made for the same. No valuation for this relief is necessary as in the Court-fees Act only a fixed amount of Rs. 18/12/- is provided for the appointment of receiver.
(d) That if the plaintiff be found to be out of possession of the Sangat properties, mentioned in the First and the Second Schedules of this plaint, then possession may also be given over the same which is valued at Rs. 37,920, and
(e) That the costs of the suit may be granted to the plaintiff.
3. The facts with which the plaintiff came to Court put briefly are as follows: -
On the 25th December 1940, the plaintiff was installed as Mahant of Udasin Sangat, Daraganj, Allahabad city and from that time he administered the affairs of the Sangat till the 5th April 1950. On 5th April 1950, the plaintiff was arrested by the Daraganj Police, Allahabad city and was lodged in Naini Central Jail lockup as an under-trial prisoner in connection with certain criminal cases but was finally released on the 6th March, 1952 after obtaining acquittals. The defendant is the Mahant of another Udasin Sangat at Amritsar. When he heard of the arrest of the plaintiff, he came down to Allahabad and with the intention of usurping the plaintiff's Mahantship, interviewed him in Jail and made such representations to him as were calculated to create fear in the mind of the plaintiff. He represented to the plaintiff that the criminal cases against him were very serious and unless properly defended, they might end in conviction. He also offered financial help for the pairvi of the cases as well as to properly administer the affairs of the Sangat during the absence of the plaintiff in Jail. The plaintiff was extremely puzzled and on account of the distress in his mind, he could not exercise any foresight. The result was that he was readily led away by the representations of the defendant and reposed confidence In him. The defendant, however, played deception on the plaintiff. It was suggested by the defendant that with a view to raise money for the pairvi in the criminal cases and with a view to properly administer and manage the affairs of the Sangat and its properties, the plaintiff should appoint the defendant by means of a registered deed as his managing agent during his absence, and that he would render accounts to him when the plaintiff returned from jail and would further hand over the management to the plaintiff. Placed under the circumstances as the plaintiff was, he agreed to the proposal of the defendant and appointed him as his managing agent on the 11th January, 1951, by signing a deed of appointment which was got prepared by the defendant outside the jail on the 10th January 1951. The defendant never intended, in fact to help the plaintiff in the time of difficulty but his real intention was to usurup the gaddi.
The signature of the plaintiff was obtained on the document without allowing the plaintiff to have knowledge of its contents or without allowing the plaintiff to appreciate the implications thereof. The recitals made in that document are false and fraudulent. At any rate, the clause in the deed which was to the effect that Mahant Mandeoji Mahant Akhara Kashiwala had all the rights and that he could manage the affairs of this institution in any way he liked, and that after the acquittal of the plaintiff, it would be in the option of Mahant Mandeoji either to return the Mahantship to the plaintiff or to decide the matter in any way he liked, was fraudulently inserted in the deed and was never brought to the knowledge of the plaintiff, The plaintiff never intended to relinquish or release his rights, title and interest relating to the office of Mahantship, Daraganj Sangat in favour of the defendant. Seven days after the document was prepared, it was presented for registration in the office of the Sub-Registrar, Allahabad on the 18th January, 1951, The plaintiff was brought from jail to the office of the Sub-Registrar in police custody. The Sub-Registrar read over the deed to the plaintiff. When the plaintiff found its language ambiguous and confusing he immediately made a statement before the Sub-Registrar and got the same incorporated in the registration endorsement, to the effect, that on being released from jail, he would get back his right of ownership with power to keep the management in his own hands or to appoint any other person for the purpose. When the plaintiff was released from jail on the 6th March 1962, he attempted to get back possession from the defendant but the defendant refused to hand over possession to the plaintiff- The plaintiff, thereafter, served a registered notice dated 12th April 1952 on the defendant. In reply to that notice, the defendant stated that he became full fledged Mahant of the Daraganj Sangat under the deed mentioned above. The deed did not express the real intention of the plaintiff and most of its contents are against the intention of the plaintiff.
4. On such allegations, the plaintiff prayed for the reliefs which have teen mentioned above and filed the suit in forma pauperis.
5. The suit was contested by the defendant. He filed a written statement traversing most of the allegations in the plaint. It was, however, admitted that the plaintiff was in management of the property till the 5th April 1950. According to the defendant, the Math called Chhota Udasin Sangat Gaddi Baba Mela Ram is a branch of Akhara Kashiwala of Amritsar which had similar branches at Banaras, Bindraban, Rameshwaram and other places. The Mahant of Amritsar Math is the Shri Mahant of all its branches and exercised controlling influence over all the Maths and has power to appoint and remove Mahants. Mahant Charandeo was the last Mahant of Daraganj Sangat, who was appointed by Shri Mahanth Hargyandeo, the then Mahant of Amritsar Math. Mahant Charandeo died on 5th December 1940 and at that time, the defendant was the Mahant of Amritsar Math.
6. On learning of the death of Mahant Charandeo, the defendant came to Daraganj Sangat with a view to appoint a successor to the deceased Mahant. According to the custom prevailing in all the Udasin Sangats, it was not necessary that the Gaddi should go from Guru to the eldest chela or to any chela of the previous Mahant. It was open to the Shri Mahant to appoint any Sadhu of the Guru Sampradaya to which the parties belonged. The plaintiff did not and could not succeed to the Gaddi of the Sangat on the death of Mahant Charandeo as of right. The defendant, however, appointed the plaintiff the Mahant of the Daraganj Sangat on 14th April 1942 when the plaintiff executed a deed of agreement. The fact that the Daraganj Sangat was a branch of the Amritsar Math and that the Mahantship was to be given by Shri Mahant was admitted in the said agreement. The agreement showed that such a Mahant was to be of good conduct and was not to marry nor was he entitled to transfer the Math property in any manner. It was also conceded in the agreement that the Mahant would be liable to be removed from the Gaddi in case he went against practices prevailing in the Sangat or against the terms of his appointment given in the agreement. On being thus appointed the Mahant of Daraganj Sangat, the plaintiff obtained possession of the Sangat property. The plaintiff filed a copy of that agreement in the Municipal Board, Allahabad and obtained the mutation of his name in respect of the properties attached to the Sangat. For many years, the defendant had no occasion to come down to Allahabad, but it appeared to the defendant that the plaintiff had taken to bad ways, soon after his appointment, as Mahant. He had started wasting and alienating the properties belonging to the Math. He had sold away, by means of various sale deeds, a number of houses belonging to the Sangat. The defendant then gives a list of the houses or parts of houses alleged to have been thus sold away by the plaintiff.
7. After the year 1948, complaints were made to the defendant about the way of life of the plaintiff and also about mismanagement of the Math and its properties. It was also communicated to the defendant that the plaintiff got himself married and was further under police surveillance. The defendant was also informed that the plaintiff had been arrested on serious charges of dacoity and other offences. It, therefore, became necessary for the defendant to come down to Allahabad in order to find out the state of affairs existing in the Sangat. He discovered that the Guru Samadhi and Guru Gaddi for worship and Puja Pralishtha of Baba Shri Chandraji was really occupied by people of wholly undesirable character, not only males but females as well. On making enquiry, the defendant came to know that the reputation of the Sangat had gone to gutters and the defendant, therefore, realised that the only possible method of regaining the reputation of the Sangat was by removing the plaintiff from Mahantship and by turning out the people who were then occupying the Sangat premises, and further by bringing back the Sadhus after making suitable arrangements for their residence and feeding. The defendant at once proceeded to assume the management of the Sangat and its properties and to remove the plaintiff from the Graddi and from the possession of the properties of the Sangat. This the defendant is said to have done by the 10th May 1950. The defendant then met the plaintiff in jail and informed him of his removal and the action taken by the defendant. The defendant then approached the Municipal Board of Allahabad for removal of the name of the plaintiff from the Sangat properties and for mutation of his own name in its place. The defendant proposed not to appoint any other Mahant of the Gaddi till the affairs were brought back to their former condition and the reputation of the Sangat re-established.
8. With regard to the deed of relinquishment, the case of the defendant was that such a deed was necessary as the Municipal Board wanted a formal document showing that the possession of the properties had been given to the defendant and that the plaintiff had ceased to be in possession thereof. When defendant saw the plaintiff in jail for the first time the plaintiff pleaded for mercy, but finding that of no avail, the plaintiff pleaded for his wife and the two children to be permitted to remain and be maintained by the Sangat at least till the plaintiff returned from foil. To this proposal, the defendant agreed. The deed of relinquishment was not brought about by fraud or undue influence or inducement of any kind. The statement that the plaintiff had made at the time of registration was entirely at the instance of the people who were interested in not allowing new management to come into existence in the Sangat. Whenever, the defendant had occasion to have a talk with the plaintiff in jail, it was always in the presence of jail officials and there could be no possibility of practising or exercising any fraud or undue influence. It is incorrect that the document was executed for the purpose of the management of the Sangat properties during the absence of the plaintiff in jail or was for the purpose of raising money for the prosecution of plaintiff's case. Both under the prevailing custom as well as under the terms of the agreement, the defendant had absolute right to appoint and remove a Mahant and to make arrangement for the management and up-keep of the Sangat and its properties. The income of the Sangat was to be spent in the worship and the feeding of the Sadhus. The main source of the income of the Sangat was from rent of the various houses owned by the Sangat. Soon after the plaintiff assumed management, income from property diminished considerably. This was so not only on account of transfers made by the plaintiff but also on account of neglect and disrepair of the Sangat properties. The defendant spent large sums of money in improving the property and the income as a result thereof increased. The defendant would have to be involved in various litigations for the recovery of the properties transferred by the plaintiff. Worship in the Sangat had been resumed and Sadhus had again come back to the Sangat. The plaintiff did not have any right to transfer any property of the Sangat and the management of the plaintiff had proved extremely detrimental to the interest of the Sangat. The plaintiff did not have the right to claim back the management. Further, in case the plaintiff reverts to the management, the transfers made by him would remain unchallenged. This again would be a further loss to the Sangat. The income from the properties was quite sufficient for all its legitimate purposes. There was absolutely no necessity at all for the plaintiff to dispose of any property of the Sangat. The defendant was entitled to remove the plaintiff from Mahantship and the plaintiff was no more entitled to get back either the Mahantship of the Sangat or possession of its properties. The removal of the plaintiff having been legally and finally effected, he ceased to have any right in the Sangat except that of an ordinary Sadhu of the Sampradaya. The plaintiff in view of his action and conduct had completely disentitled himself from claiming the relief set out in the plaint. Some of the items of the properties in Schedule II of the plaint were not found when the defendant took over the management and in case they did exist, the plaintiff is clearly accountable for the same to the Sangat.
9. On behalf of the plaintiff, attempt was made to file a replication but from the vernacular order-sheet of the court below dated 4th February 1954, it appears that the court did not accept the same, because on behalf of the defendant objection was raised to the filing of the same. On such pleadings, the learned Civil Judge, framed the following issues:--
1. Whether the deed of relinquishment dated 10th January 1951 was got executed from the plaintiff by fraud and undue influence as alleged by him? If so, its effect?
2. Whether the plaintiff was appointed Mahant of the Udasin Sangat by the defendant in terms of the agreement dated 14th April 1942 as alleged by the defendant? If so its effect?
3. Whether the Sangat in question is the branch of Akhara Kashiwala of Amritsar as alleged by the defendant? If so, has the defendant a right of appointment or removal of the Mahant of this Sangat?
4. Has the defendant removed the plaintiff from the office of Mahant as alleged by him? If so, its effect?
5. Whether the property of Schedule II of the plaint existed and came in possession of the defendant as alleged by the plaintiff?
6. Whether defendant is liable to render accounts to the plaintiff? If so, in respect of which item of the property?
7. To what relief if any is the plaintiff entitled?
10. On Issue No. 1, the learned Civil Judge took the view that what was agreed upon between the parties was that the plaintiff would execute a deed of management in favour of the defendant at the instance of the latter so that he could raise money from the Sangat properties and defend the plaintiff in the criminal cases pending against him. The defendant later on got a deed of relinquishment prepared on his own instructions without giving opportunity to the plaintiff to know really that he was relinquishing his right of Mahantship and the defendant got the signature of the plaintiff on the said deed. The plaintiff relying on the defendant that he would get the deed of management prepared as agreed upon between them, put his signature on the said deed knowing that it was the same about which there had been an agreement between the parties. The deed, therefore, is tainted with fraud and undue influence and is liable to be set aside at the instance of the plaintiff. The learned Civil Judge further found that the deed was also invalid on the ground that although it was in effect a gift-deed, it was not attested by two witnesses as required by Section 123 of the Transfer of Property Act.
The learned Civil Judge then held that the head of a Math did not have the right to alienate his office by sale, gift or will, nor could he appoint a successor unless authorised to do so by the deed of endowment or the usage of the institution. Alienation by way of gift or will of a religious or secular office without receiving any consideration was, however, permitted in favour of a person standing next in the line of succession. In this case, however, the learned Civil Judge found that the defendant Mahant Mandeo could not be said to be a person standing next in the line of succession. He could not be the successor of the plaintiff. No relinquishment of the office of Mahantship, therefore, could be validly made in favour of the defendant. This according to the learned Civil Judge was a further reason for coming to the conclusion that the deed of relinquishment is not binding on the plaintiff.
11. Issues Nos. 2 and 3 were dealt with together and although there is no definite finding on issue No. 3, during the course of discussion of those two Issues, the learned Civil Judge has observed that from the deed of agreement dated 14th April 1942, it would appear that the Sangat of Daraganj was branch of Akhara Kashiwala Amritsar and was connected with the latter in that capacity. In respect of issue No. 2, the learned Civil Judge recorded the finding that the plaintiff was not appointed the Mahant of Daraganj Sangat by the defendant. On issue No. 4, the Court came to the con-elusion that it was not proved that the defendant had removed the plaintiff as alleged by him. Issue No. 5 is said to have not been pressed and on issue No. 6, the Court below found that the defendant was liable to render accounts to the plaintiff.
12. As a result of its finding, the Court below decreed the plaintiff's suit for setting aside the deed dated 11th January 1951; for the ejectment of the defendant from Daraganj Sangat property mentioned in Schedule I of the plaint; for injunction restraining the defendant from interfering with the plaintiff's management of the Sangat in suit and its properties and for rendition of accounts during the period from 11th January 1951 till possession was delivered to the plaintiff over the Sangat property. It appointed Sri Bal Mukund, Vakil Commissioner for the purpose of taking accounts. It also directed that a copy of the decree be sent to the Sub-Registrar in whose office the deed dated 11th January 1951 had been registered under section 39 of the Specific Relief Act. Court-fee was directed to be recovered by the State Government from the defendant and a copy of the decree was ordered to be forwarded to the Collector, Allahabad under Rule 14 Order 33 of the Code of Civil Procedure.
13. The first question in order of importance which needs consideration in this appeal is whether the deed of relinquishment dated 10th January 1951 was obtained from the plaintiff by practising fraud or by exercise of undue influence as alleged by the plaintiff. The specific fraud pleaded by the plaintiff is to the effect that although the plaintiff had agreed to execute a deed of management with a view to give the power of management to the defendant to look after the Sangat and its property during the absence of the plaintiff in jail, the defendant fraudulently got a deed of relinquishment executed without bringing the contents thereof to the knowledge of the plaintiff. As regards undue influence, the case of the plaintiff is that as he was in a distressed state of mind on account of his being in the lock up in connection with certain criminal cases and as it was necessary to raise fund to defend himself in those criminal cases and as the defendant promised to help the plaintiff in that matter and also to look after the management of the Sangat and the properties in his absence, the plaintiff was left with no option but to repose confidence in the defendant and to act upon his instructions. With a view to find out whether it was really a deed of management that was intended to be executed by the plaintiff, it is necessary to consider the contents of the terms of that deed. A certified copy of that deed is marked Ex. 1 in this case. The recital in the deed relevant for the purpose is as follows:--
'arsa cband mah se mere chand dushmanon ne ranjishan mujhe ek mukadma faujdari men phansa ker giraftar karadiya hai aur zer hirsat hoon lihaza intezam asthan Chhota Udasi Daranganj me khalal waqe ho raha hai aur aenda bhi nuksan hone ka andesha hai niz yeh bhi andesha hai ki mere badkhwahan kisi hele se jaedad manqula wa ghairmanqula asthan mazkoor ko bhi nuksan pahncha wen jiski waja Nirvan Melaram sampati ko nuqsan hoga lihaza bakheyal intezam was tahaffuz jaedad Asthan Chhota Udasi Daraganj jo Nirvan Melaram sampati chal aur achal hai us se dast bardar hota hoon -- Mahant Mandeoji, Mahant of Akhara Kashiwala Jinko asthan mazkoor ke mutalliq pura akhtiyar hasil hai woh jis taur se munasib samjhe uska intezam kare bad mere mukadma faujdari se bari hone per Mahant Mandeoji mazkoor chahe to mujhe mahanti wapas dewe ya jis taur se chahe faisla nirnain kare.'
14. The necessity for the execution of the deed is, therefore, said to have arisen on account of the fact that the plaintiff had been wrongly involved in criminal cases and was under detention on account of which circumstance proper management of the Asthan Chhota Udasi Daraganj and its properties was not possible. The purpose for executing the deed is said to be 'bakheyal intezam aur intanaffuz jaedad Asthan Chhota Udasi Daraganj' i.e., to say for the management and maintenance of the Asthan, and its properties. Although this is said to be the purpose for executing the deed, it proceeds illogically to say 'is se dast bardar bota hoon'. Relinguishment was hardly necessary for fulfilling the purpose for which the document purports to have been executed, namely, proper management and maintenance of the property of the Asthan. Such purpose could logically be fulfilled by making arrangement for management and maintenance of the Asthan during the absence of the plaintiff. In spite of the use of the words 'dast bardar' in the deed, the contents of the same do suggest that the idea behind the transaction was to make some effective arrangement for the proper management, upkeep and maintenance of the Asthan and its properties.
Further, the contents noted above go to suggest that the parties were contemplating to revert the plaintiff to the Asthan after his release from the jail or acquittal from criminal cases. In case, it was really intended to be a complete relinquishment of the office, the question of the plaintiff reverting to the Asthan really could not arise. Such a contemplation can very well fit in with an arrangement for the purpose of proper management, maintenance and upkeep of the Asthan during the absence of the plaintiff. The real intention of the parties is to be judged from the contents of the document as a whole and not from the use of any specific word or phrase therein. Reading the document as a whole, we do not find it possible to say that the appreciation of the contents and terms of the document made by the learned Civil Judge, is not correct. We agree with the learned Civil Judge that the tenor of the deed thus suggests that the real intention of the plaintiff was to make arrangement for the management of the Sangat and its properties during his absence.
15. The plaintiff made an attempt to clarify his intention when he made statement before the Sub-Registrar at the time of registration of the deed. It is unfortunate that the Sub-Registrar has not been examined as a witness in this case. The exact language used by the Sub-Registrar for indicating the objection of the plaintiff is as follows---
'Muqir Mahant Yaduvans Deo ne bayan kiya ki Mukadma se bari hone ke bad mere malkana mere ko wapas kar diva jae -- intezam kar chahe ap rahe ya aur kisi ko mukarrar kare.'
The manner in which the Sub-Registrar had made a note of that objection is highly unsatisfactory. Ordinarily one would think that the whole statement that the plaintiff might have made before the Registrar would read something like this:--
'mujh se veh tai hua tha ki mukadma se bari hone ke bad mera malkana mujhe wapas kiya jawe.'
The way in which the Sub-Registrar has reproduced the objection gives the impression that the plaintiff was making a prayer to the Sub-Registrar himself to return his malkana to him after his acquittal in the criminal cases. That, the plaintiff, could not do. We are, therefore, of the opinion that absolute reliance on the language used by the Sub-Registrar for noting down the protest of the plaintiff cannot be placed. There was also some controversy between the parties before us whether the words used by the Sub-Registrar are 'rahe' or 'rahen' and 'kare' or 'karen'. That difference in the language, however, is not very material. What is obvious is this that after the contents of the deed were read over to the plaintiff by the Sub-Registrar as admitted by the plaintiff, the plaintiff did raise an objection to the contents of the deed and, that, that objection did relate to the question whether the contemplation of the parties was that the plaintiff on his acquittal in criminal case was to revert as a Mahant and to take possession and control of the Asthan and the properties or not. It is, therefore, clear that the plaintiff did indicate that the recitals made in the deed were at least in some sense not in conformity with what had been agreed upon.
If the plaintiff must be visited with the legal consequences of the registration of that deed, the protest raised by him before the Sub-Registrar must be read as a part of contents of the deed, that was eventually registered. That episode does lend support to the case of the plaintiff to a certain extent. It is not disputed that the defendant did pay visits to the plaintiff in jail, the defendant did discuss matters relating to the Asthan with the plaintiff in jail, the document was got prepared by the defendant out of jail, and that when the defendant was taken to the office of the Sub-Registrar, he was in police custody. The plaintiff was undoubtedly in a distressed state of mind and, therefore, it was natural that he would welcome the offer of assistance from any quarter during that period. The court below also rightly gave some importance to the consideration, that immediately after his release from custody, the plaintiff started his attempts to get back possession of the Asthan and the properties. There is absolutely no proof of the fact that the statement given by the plaintiff before the Sub-Registrar was really at the instance of any other person as suggested on behalf of the defendant.
16. The circumstances mentioned above would by themselves not have led us to the conclusion in favour of the plaintiff, had it not been for the existence of certain other circumstances in the case which we now propose to discuss. The representations made in the deed of relinquishment do not fit in even with the state of affairs, which, according to defendant's own case, existed on that date. It may be recalled that according to the case of the defendant, the plaintiff had already been removed from the office of Mahant, and possession of the Asthan and its properties had already been taken by the defendant on the 10th May 1950. On the date when the deed of relinquishment was executed and registered, the plaintiff, according to the case of the defendant, was neither the Mahant, nor was he in possession and control of the management and properties of the Asthan. The plaintiff, therefore, on that date had no rights to relinquish and was not in possession of the Asthan and its properties to be handed over to the defendant.
There is no explanation on behalf of the defendant to explain the anomaly of this position. The only explanation that has been offered on behalf of the defendant is that a deed of relinquishment was necessitated because, the Municipal Board authorities would not record the defendant's name in the Municipal register unless a deed had been obtained from the plaintiff. There is no difficulty in rejecting the explanation at once. The Municipal Board was not at all concerned with the question of right and title to immovable property. It had only to find out as to who was in possession of the properties in question. Consent of the recorded owner, namely, the plaintiff would have been sufficient to compel the Municipal authorities to record the name of the defendant. Such a consent could validly be communicated through a letter or by means of some power of attorney. It is unthinkable that the name of the defendant could not be recorded in the Municipal register without there being in existence a regular and duly registered deed of relinquishment by the plaintiff. If the defendant had already dispossessed the plaintiff and had taken possession of the properties, there is no explanation why this real state of affairs was suppressed in the deed of relinquishment. Not only was that state of affairs suppressed but diametrically opposite state of affairs was shown to exist. It is, therefore, clear that the representations made in the deed of relinquishment do not really represent the true state of affairs that was in existence at that time.
It may be that this Court today after Investigation comes to the conclusion that the case of the defendant, that he had removed the plaintiff from the office and had taken possession of the properties, is not correct. But so far as the defendant is concerned according to him on the date when the deed of relinquishment was executed, such was the then existing state of affairs. Our suspicion against the validity of the deed of relinquishment is further strengthened by the consideration of the conduct of the defendant himself. It may be noted here that when Mahant Charandeoji died, the defendant made an application before the Municipal Board seeking his name to be recorded in place of the name of Mahant Charandeoji deceased. A copy of that application has been filed and has been marked as Ex. 21. It is dated 22nd March, 1942. In the first paragraph of that application, it has been said that the houses, the numbers of which were given above were the property of new Akhara and Mahant Gur Charandeo Udasi was holding the same as a representative of the Naya Akhara. The second paragraph says that Mahant Gur Charan Deo died and that the said houses had, therefore, passed on to the representative of the Akhara i.e., the petitioner. In the third paragraph, it is urged that the petitioner was the nearest heir 'chela' of the Mahant and was entitled to the mutation of his name in respect of the houses. In the fourth paragraph, it has been said that there was no person at Allahabad who could claim the right. In the fifth paragraph, it has been said that it was the recognised custom amongst the Udasis that the Chela who was nearest in degree and who was recognised in the Panchayat of Mahant, could succeed to the property of outgoing Mahant, and in the sixth and last paragraph, it has been said that Yadubans Deo (the plaintiff) was neither a chela of the Mahant nor did he have any right to the properties in question.
17. When the defendant was in the witness-box, he was confronted with this application. He conceded that he was not disciple of Guru Charandeo. He asserted that he had not described himself as the chela of Guru Charandeo in any application. He admitted that on 22nd March, 1942, he had filed an application in English in the municipality for getting his name recorded against the Sangat property. The contents of the application were then translated to the witness in vernacular, and the witness admitted that he had filed an application to that effect. He went on to say that he was the nearest heir of Mahant Charan Deo on account of his being a Shri Mahant, but that he was not a chela nor was he, his nearest heir on account of his being a chela. He then proceeded to add that he did not get himself described as chela. He, however, did not recollect by whom he got the application written out. He did not know whether the scribe was a friend of Yadubansh Deo Mahant. He continued that he got it mentioned in the application that Yaduvansh Deo was not the disciple of Charandeoji. He then proceeded to say that ten or twenty days before the execution of the agreement of 1942, he came to know for the first time that Yaduvansh Deo Mahant was a disciple of Charandeoji. It is, therefore, not possible to Hive credit of truthfulness to the defendant. We further agree with the learned Civil Judge that the deed of relinquishment cannot be given effect to as a gift for want of attestation according to law as well as on account of the fact that the relinquishment of the office of Mahantship could not be made in favour of a person other than the person who would be next entitled to succeed.
17A. We are, therefore, of the opinion that the finding arrived at by the learned Civil Judge that the deed of relinquishment is tainted with fraud and undue influence is correct and the deed is, therefore, liable to be set aside and quashed.
18. The next question that arises for consideration in this appeal is as to what really is the effect of the agreement dated 14th April 1942, arrived at between the plaintiff and the defendant. The original agreement has been filed in this case by the defendant and has been marked Ex. A.5. It is necessary to quote some portions of the actual language used in that document It has been executed by Mahant Yaduvansh Deo (plaintiff) chela of Mahant Charandeo. It begins by reciting:--
'Jo ke mere Guru Mahant Charandeo Ji Marhoom ka baikunth vas 5 December 1941 ho gaya fit is agreed by the parties that the correct year is 1940 and not 1941) choonki mere guru ke taluqqat devon...... samperdai Mahant Mandeo Ji Chela Harbans Deoji ke akhara Kashiwala ............ Sbahar Amritsar hai jo ke Akhara Baba Malaram ki shakh hai Mahant Charandeo ka Chela Taslim kiya aur mana aur minjanib Akhara Kashiwala waqe shahar Amritsar Mamlooka rasm wa rawai Udasi saro pao diva isliya badurusti ...............iqrar karta hoon jaisa ke mahant Hargayan Deo Ji se Mahant Charan Deo Ji ke hath rasm wa rawaj kar ke Mahant kiya tha aur har tarah se ab main musmmi Mahant Yaduvansh Deo ko karta honn-
(1) Yeh ke main bhi qabl apne Guru Charan Deo Ji ke Akhara Kashiwala waqe Amritsar se tulluq rakhkhoon ga aur rahoon ga aur na Asthan misl sabiq badastoor sabiq rasm wa rawai kerta Akhara ke rakhkhoon ga Akhara Kashiwala waqe Amritsar darwaja Sultanpind se rahe ga.
(2) Yeh ke Akhara mazkoor is wasool ke mutabiq me rahega aur shadi no karoonga aur har tarah se nek chalan rahkar apne Guru ki Gaddi ka nam nishan qaem rakhkhoonga.
(3) Yeh ke Daraganj Gaddi ki kisi jaedad ko kisi tarah se talaf no karoonga aur na usko kisi ke inteqal se muntaqil na karoonga.
(4) Yeh ke dar soorat karne khelaf warzi shariat maskoor ba daffat number 1, 2, 3 ke mutazakkera bala Mahant Mandeo Ji chela Mahant Harbansdeo Sadhu Udasi ko minjanib wa niz ke Mahant Mandeo Ji ko akhtiyar hasil hoga bar taraf kerdeven manmuqir Mahant Yaduvans Deo Ji ka yeh kahna hai ki is iqrar name ke wasool per main batariq wa qaeda ki mutabiz kerta rohoon ga aur is men koi dusra haqdar gaddi ka Mahant hoga aur agar hamko waqt zarurat kabhi zarurat hogi to main Mahant Mandeo Ji ke rai se kam anjam kerta rahoonga aur jo kuchh ke main karoonga Mahant Mandeo Ji ke rae se karoonga agar main bila rai liye hoe Daraganj ki kisi jaedad ko rahen wa bai karaanga to najaez tasawwar hoe aur agar koi shikayat kare to bila janch ke na manijawe aur jo kuchh pahle ya is iqrar name ke bad likoon ya likh chuka boon woh sab najaez samjha jawe lihaza yeh chand kalma batariq iqrar name ke likh diya ke sanad rahe aur bawaqt zarurat kam awe faqat.'
This document is an unregistered one. Both the language and the import of (sic) document are vague and full of mistakes. It may be recalled that the case of the defendant is that the plaintiff was for the first time appointed the Mahant of Daraganj Asthan by means of the above agreement. On the other hand, the case of the plaintiff is that he had already been duly appointed Mahant on the death of Mahant Charandeo Ji being his only chela. The tenor of the document, however, suggests that the plaintiff who had described himself, in this document as Mahant Yadubansh Deo had already become the Mahant of the Daraganj Asthan when this agreement was executed. At any rate, it is clear that there is nothing in the language of the same which suggests that it was by means of this document that the plaintiff was appointed the Mahant of the Daraganj Asthan for the first time. It is equally clear from the materials on the record that according to the custom of the institution, it was the chela of the outgoing Mahant who would ordinarily succeed to the Gaddi. The case of the defendant to the contrary does not appear to be correct. Had it not been so, the defendant would not have felt it necessary to say in his application dated 22nd March, 1942 (Ex. 21) which he had filed before the Municipal Board, Allahabad to which we have already made a reference earlier, that he was the nearest heir (Chela) of the Mahant and entitled to the mutation of his name in respect of the houses. He realised that in order to succeed to the Gaddi on the death of Gur Charan Deo, it was necessary that the aspirant should be his chela. It is not in controversy now that the plaintiff is the chela of Mahant Gur Charan Deo, although in his application (Ex. 21), the defendant had falsely alleged that Mahant Yadubansh Deo was neither the chela of the Mahant Gur Charan Deo, nor had he any right to the property. It has not been suggested why the plaintiff as the sole chela of the deceased Mahant could not succeed to the Gaddi on the death of his Guru, Guru Charan Deo. In view of such circumstances, we are of the opinion that the case of the defendant that the plaintiff was appointed Mahant of Daraganj Asthan by means of this agreement, is not correct. On the other hand, we find that the plaintiff had already been appointed Mahant of the Asthan when this deed of agreement dated 14th April 1942 was executed.
19. The other recital in the agreement is that there were some sort of talluqat between Mahant Gur Charan Deo and Mahant Mandeo (defendant) of Akhara Kashiwala at Amritsar. What was the extent of the connection and what powers did the defendant have over the affairs of the Daraganj asthan on account of this connection, are not at all clear from the recitals of the agreement. The mere use of the word 'talluqat' at any rate, does not establish that the Daraganj Asthan is a branch of which the parent institution is Akhara Kashiwala of Amritsar. On the recital in this agreement, therefore, it cannot be said that the Daraganj Asthan has been shown to be a branch of Akhara Kashiwala of Amritsar. It is also not clear from the language of the agreement whether Mahant Mandeo the defendant and the Mahant of Akhara Kashiwala at Amritsar had the power to remove the Mahant of Daraganj Asthan. It may also be noted in this connection that beyond the uncorroborated testimony of the defendant, there is no reliable evidence to prove that the Daraganj Asthan is really a branch of the parent Math at Amritsar or that Shri Mahant of Amritsar has the power to appoint and remove the Mahant of the Daraganj Sangat
20. Mahant Mandeo in the witness-box stated that he was Sri Mahant of Naya Akhara Kashiwala Amritsar; that that Akhara was established by Sri Nirwana Mela Ram Udasin; that Daraganj Sangat is its branch; that there are other branches also; that his Guru was Sri Mahant Harbans Deo; whose Guru was Mahant Tarun Deo; that Daraganj Sangat was also established by Mela Ram; that the property of all the branches of Naya Akhara Amritsar belonged to Naya Akhara, Kashiwala, Amritsar and that Shri Mahant of Amritsar has got a right to appoint and remove the Mahants of the Sangats and the branches. This statement of the defendant has not been corroborated by any other independent (sic)dence. It may be that the Daraganj Sangat is a branch of the Amritsar institution but the materials on the record of this case are wholly insufficient to persuade us to give a finding to that effect.
In the absence of evidence, we are bound to hold that it has not been proved in this case that Daraganj Sangat is really a branch of the Amritsar institution Kashiwala or that Sri Mahant of Amritsar has the power to remove the Mahant of the Daraganj Sangat. All that has been recited in the agreement aforesaid is that Mahant Yadubansh Deo will continue have connection with the Amritsar institution. An undertaking has been given in that agreement that he will not marry and that he will maintain proper conduct. There is a further undertaking that the plaintiff will not dissipate the properties of the Sangat nor will alienate the same. It is also recited that in case of breach of conditions 1, 2 and 3 given in the agreement, Mahant Mandeo Ji would have the right to remove him. There is a further term to the effect that if any complaints are made against the plaintiff, it will not be accepted as correct without enquiry.
21. The learned counsel for the respondent has urged that the plaintiff had succeeded to the office of Mahant not by virtue of this agreement but by virtue of the fact that he is the chela of deceased Mahant Charandeo, The terms and conditions given in that agreement, therefore, according to him cannot really be treated as the terms and conditions of his succession to the office of Mahant as the chela of his Guru deceased Mahant Charan Deo. According to him, it was not open to the plaintiff and the defendant to enter into an agreement of this nature which may have the effect of altering or modifying the original terms and conditions of the succession of the plaintiff to the office of Mahant of the Daraganj Asthan. The agreement according to him, cannot have the effect of repealing the original conditions and terms on which the office was held by the plaintiff.
22. In support of his contention, Mr. Ambika Prasad has placed reliance on a decision of the Patna High Court in the case of Krishna Dayal Gir v. Laldhari Gir 40 Ind Cas 276 = (AIR 1917 Pat 382). The facts of that case were that the appellant Mahant Krishna Dayal Gir of Bodh Gaya was the Mahant of a Math of Hindu sect of Girs. That Math was close to Buddhist temple at Bodh Gaya. Mahant Krishna Dayal Gir somehow was also the superintendent of the Bodh Gaya temple. The respondent Laldhari Gir was the Mahant of a Math of the same sect at Village Bakrour, a mile or two away on the other side of the river Phalgu. The appellant claimed that Bakrour Math was a subordinate Math of Bodh Gaya, and that the Mahant of Bodh Gaya was the malik of all the property of Bakrour Math and that further the Mahant of Bodh Gaya was entitled to appoint and for good cause shown, dismiss the Mahant of Bakrour. It was alleged that as the Mahant of Bakrour had taken to immoral ways, he had been dismissed by Mahant of Bodh Gaya sometime in May 1912. The respondent, however, refused to give possession. On such allegations, the appellant claimed the removal of the respondent and the possession of the Bakrour Math and its properties. The respondent denied all the material allegations of the appellant and all that he admitted was that the Mahant of Bodh Gaya used to take a leading part in the election of the Mahant of Bakrour.
The suit was dismissed by the subordinate Judge. The Subordinate Judge had found that it had not been proved that the Bakrour Math was in any way subordinate to Bodh Gaya Math or that the respondent had taken to immoral ways. He also found that two agreements of the years 1897 and 1900 on which reliance had been placed by the appellant, had been obtained by undue influence and further that a compromise between the parties in the year 1906 and the decree founded thereon were not binding on the respondents. Chamier, C. J. surveyed previous decisions relevant to the question which was a question similar to the one that we are now considering in the instant appeal and observed, that those cases illustrated the rule that the head of a religious or charitable institution has no power to bargain away his office or alter the constitution of the institution of which he was in charge. His Lordship proceeded to observe that the right to remove the Mahant of Bakrour Math had never rested with the appellant in the past and he could not acquire that right or take it out of the hands of the Court or other lawful authority by inducing the Mahant for the time being to agree to surrender that right to him.
23. We have already pointed out that independently of the agreement, there is no evidence in this case to show that Sri Mahant of Amritsar had the power to remove the Mahant of the Daraganj Sangat. We have also expressed the view that this agreement itself is not the transaction which brought about the appointment of the plaintiff as Mahant of the Daraganj Sangat. The agreement, therefore, is hit by the principle of law laid down in the case of 40 Ind Cas 276: (AIR 1917 Pat 382) (supra) by the Patna High Court.
24. The above view also finds support from the observations of the Supreme Court made in the case of Abdul Kayum v. Mulla Alibhai : 3SCR623 . The facts of the case before the Supreme Court were, however, different from the facts of the instant case but it was observed that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. It was also observed that a person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Our reference to observation of the Supreme Court in the aforesaid case, however, should not be taken to mean, that we are equating the status of the Mahant as a trustee simpliciter.
25. It has already been noted that another term of the agreement is, that, in case any complaint against the reigning Mahant of Daraganj Sangat was made to Shri Mahant at Amritsar, the same shall not be accepted as correct without enquiry. The defendant does not claim to have made any enquiries from the plaintiff in respect of any specified complaint although in his written statement, he has alleged that he received complaints. We are, therefore, unable to hold that the recital of the agreement by itself establishes that the Daraganj Sangat is a branch of the Kashiwala institution at Amritsar or that the defendant held the right to remove the plaintiff from the office of Mahant of Daraganj Sangat. We also hold that the plaintiff was not appointed Mahant by the aforesaid agreement but that on the date when the agreement was executed, he was already holding that office. It is, however, not necessary for us to enter into the question as to how and by whom was that appointment made. All that we feel sure of, is that the plaintiff is the sole chela of Charandeo deceased and that according to custom of the institution, he had a right to succeed to the office of Mahant after the death of his Guru Charandeo.
26. The last question that must be considered in this case is whether in spite of the fact that the deed of relinquishment has been found to be not binding on the plaintiff and has been found to be one which is liable to be cancelled and set aside, no decree for possession be passed in favour of the plaintiff, as according to defendant, the plaintiff has forfeited the right to the office on account of his having become patit by marriage and on account of his having committed breach of trust by denying the existence of the trust itself, on account of the fact that he has alienated and transferred some of the trust properties and also on account of the fact that he is guilty of negligence in the performance of his duties as Mahant, and further on account of the fact that he is now placed under police surveillance.
27. On the one hand, it has been urged on behalf of the defendant-appellant that it has been fully established by reliable evidence that the plaintiff has entered into matrimonial alliance in spite of celibacy being a condition precedent for holding the office of Mahant, and that he had procreated two sons; he has dissipated and transferred the properties of the Asthan; and finally that he had denied the very existence of the trust by claiming to be full owner of the properties of the trust. All the above considerations so also the consideration that he is a person who has been kept under police surveillance, according to defendant, result in plaintiff's forfeiting the right to the office of Mahant, and that, therefore, he is not entitled to regain possession over the trust and its properties. It has been further contended that the defendant has also established that the plaintiff has already been removed by the defendant and that possession of the Asthan and its properties had already been taken by the defendant. On the basis of the last mentioned submission, it has been urged that the question of removal of the plaintiff does no more arise.
28. On the other hand, on behalf of the plaintiff-respondent what has been urged is that the defendant has failed to establish the charges brought by him against the plaintiff, and that the defendant has failed to prove that the plaintiff had been removed from the office of Mahant as alleged by the defendant. The last submission in this connection made on behalf of the plaintiff is that the suit giving rise to this appeal, not being one under Section 92 Civil Procedure Code, it is not open to the defendant to ask this Court to remove the plaintiff from the office of Mahant after making enquiries into the charges of misconduct and breach of trust brought against him. Likewise, it has been urged that the plaintiff could be refused a decree for possession over the trust and its properties only after the court has made enquiries into the charges of misconduct and breach of trust brought by the defendant against the plaintiff, and as such an enquiry cannot be made in the present case, this Court cannot refuse to pass a decree for possession in favour of the plaintiff. It has then been urged that the defendant is himself not a person who was ever entitled to obtain or retain possession over the Asthan and its properties, and in that view of the matter also, the plaintiff cannot be denied the relief for possession over the Asthan and its properties by dispossessing the defendant.
29. The plea thus raised by the defendant is one of confession and avoidance. It is undoubtedly open to a defendant to raise special defence by raising plea in confession and avoidance. For instance, in a suit on the basis of a contract, it is open to the defendant to admit the contract and the contractual liability and to avoid the effect of that admission by raising the plea of frustration or performance. In that case, it will always be for the defendant to affirmatively establish that the contract had either been frustrated or performed. If the defendant succeeds in doing that, he would certainly be entitled to relief for the obtaining of which such a plea was raised. The Court is bound to consider such a plea of avoidance, provided the Court is competent to go into the questions on which that plea is based in that particular proceeding. In case, a consideration of that plea necessitates going into question which the particular court is not competent to go into in that proceeding, the Court must refuse to entertain that plea or to enquire into those pleas.
So far as the instant case is concerned, it may be borne in mind that this is not a suit under Section 92 of the Code of Civil Procedure. According to that provision, the question whether a particular trust is a public or private trust or whether the trustee or Mahant is guilty of misconduct and breach of trust or the question whether the Mahant has forefeited right to the office on account of misconduct and breach of trust are all questions which have to be gone into in a properly constituted suit under Section 92 of the Code of Civil Procedure. Sub-section (2) of Section 92 of the Code lays down:--
'Save as provided by the Religious Endowments Act, 1863 (or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B State), no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that Sub-section.'
Sub-section (2), therefore, makes it clear that a suit for removal of a trustee; or for appointment of a new trustee, or for vesting any property in a trustee; or for directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property; or for directing accounts and inquiries, or for declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; or for authorising the whole or any part of the trust property to be let, sold, mortgaged of exchanged, or for settling a scheme, or for granting such further or other relief as the nature of the case may require, cannot be filed except tinder Clause (1) of Section 92 of the Code of Civil Procedure.
30. The question in this case, however, is whether a special defence raised in a suit, which is not a suit under Section 92 of the Code of Civil Procedure and which requires the Court to enter into an enquiry of questions which are covered by the provisions of Section 92 of the Code of Civil Procedure could be entertained and enquired into. We are of the opinion that the principle underlying Section 92 Clauses (1) and (2) of the Code of Civil Procedure is equally applicable to defence also. Our first reason for arriving at that conclusion is that there does not appear to be any rational basis for holding the view that a defence by which a defendant seeks to obtain such relief as can be granted to a plaintiff only in a suit under Section 92, Code of Civil Procedure should not be equally barred in a suit which is not a suit under Section 92 Civil Procedure Code. We are at present not considering the question whether such a defence can or cannot be entertained in a suit, which is a suit under Section 92 Civil Procedure Code as such a question does not arise in this appeal. The other reason for our arriving at the above conclusion is that in our opinion when a plea in confession and avoidance is raised by the defendant, his position is analogous to the position of a plaintiff, particularly in relation to the plea of avoidance. It is for the defendant in such a case to establish the correctness of the plea, and it is only when that is done that he would be entitled to the relief which he seeks by raising that defence.
The relief that the defendant seeks in the instant case by raising that defence is that his possession over the trust and its properties be maintained. In that view of the matter also, we consider that it is not open to us to enter into an enquiry of questions which are required to be gone into in a suit under Section 92 of the Code of Civil Procedure. The conclusion at which we have arrived finds support from the decision of this Court in the case of Ram Dayal v. Mt. Saraswati : AIR1927All526 . We are, therefore, of the opinion that after having arrived at the finding that the deed of relinquishment is liable to be set aside and cancelled, we cannot refuse a decree for possession to the plaintiff, nor can we enquire into the correctness of the charges of misconduct and breach of trust brought forth by the defendant against the plaintiff in this suit.
31. There is yet another consideration for arriving at the above conclusion. We have already expressed the view that on the materials in this case, it is not established that the defendant was a person who was entitled to remove the plaintiff from the office of Mahant in spite of agreement between the parties, which is relied upon by the defendant. If the defendant himself is not a person who was entitled to obtain and retain possession, after the exit of the plaintiff, there does not appear to be any good reason for refusing a decree for possession over the trust and its properties to the plaintiff. The plaintiff has not been dispossessed by a person holding any better title. The submission such as the one which has been made on behalf of the defendant could have some force in a case where the plaintiff had been dispossessed by a person who was entitled to take and retain possession after the plaintiff had been removed or had ceased to have the right to retain possession.
In case the plaintiff is liable for removal from the office of Mahant on the ground that he has become patit having married himself, or on the ground that he is guilty of breach of trust or on the ground that he is placed under police surveillance, it would certainly be open to persons having interest in the trust, to file a properly constituted suit under Section 92 Code of Civil Procedure after obtaining necessary sanction from the Advocate General of the State, for his removal and for all other reliefs which could possibly be claimed in such a suit. That result cannot be achieved in an indirect manner by raising special plea in defence in this suit, which is not a suit under Section 92 of the Code of Civil Procedure.
32. We have next given serious thought to the question whether after arriving at the conclusion at which we have arrived, it would be appropriate for us to enter into enquiry with regard to the correctness of the charges brought by the defendant against the plaintiff in this case. The important consideration for our refusing to enter into those questions in this case is that any finding given by us in respect of those charges may result in some prejudice to the cause of the parties in future.
33. We have, therefore, decided not to enter into those questions in this case and leave them to be decided in a properly constituted suit under Section 92 of the Code of Civil Procedure.
34. For all the above reasons, the appeal is liable to be dismissed.
35. The appeal is dismissed and the judgment and decree of the court below are confirmed. The respondent will get the costs of this Court from the appellant.
Court-fee will be recoverable from the defendant as directed by the court below.