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Chiranji Lal Vs. Sri Thakur Bare Madan Mohan Lalji and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1936All186
AppellantChiranji Lal
RespondentSri Thakur Bare Madan Mohan Lalji and ors.
Excerpt:
- - it is a well recognized principle of hindu law that an idol is capable of holding property and the property dedicated to an idol belongs to the idol and not to the shebait or priest. it is argued that the trustee nama must have dealt with an interest in immoveable property, for otherwise the trustees could have no right to maintain the suit, and such an argument at first sight makes a strong appeal to those who are accustomed to administer the english law with regard to trustees. he was anxious to make rules which would prevent the mutwalli of the temple from using the income in any manner he liked in defiance of the terms-of the will.rachhpal singh, j.1. this is a defendants' appeal arising out of a suit for possession. the facts which have given rise to the litigation between the parties can be stated as follows: lala bitthal das owned extensive properties including village lalpur in muttra district. on 23rd october 1914, he executed a will, under which he dedicated 20 biswa-zamindari in village lalpur to an idol known as 'sri thakur bare madan mohan lalji maharaj' situate in bengali ghat, muttra. the plaintiffs in the case are sri thakur bare madan mohan lalji maharaj and its mutwalli and manager goswami sri bitthal nath. the case set up by the plaintiffs was that an absolute gift of the village mentioned above was made in favour of the idol, plaintiff 1, by lala bitthal das and that according to the terms of the.....
Judgment:

Rachhpal Singh, J.

1. This is a defendants' appeal arising out of a suit for possession. The facts which have given rise to the litigation between the parties can be stated as follows: Lala Bitthal Das owned extensive properties including village Lalpur in Muttra District. On 23rd October 1914, he executed a will, under which he dedicated 20 Biswa-Zamindari in village Lalpur to an idol known as 'Sri Thakur Bare Madan Mohan Lalji Maharaj' situate in Bengali Ghat, Muttra. The plaintiffs in the case are Sri Thakur Bare Madan Mohan Lalji Maharaj and its Mutwalli and Manager Goswami Sri Bitthal Nath. The case set up by the plaintiffs was that an absolute gift of the village mentioned above was made in favour of the idol, plaintiff 1, by Lala Bitthal Das and that according to the terms of the will, plaintiff 2, the Mutwalli of plaintiff 1, was entitled to remain in possession of the endowed property. The plaintiffs' complaint was that after the death of Lala Bitthal Das, the defendants in the suit had taken wrongful possession of the aforesaid village and therefore the plaintiffs instituted a suit for possession of the same. The defence of the principal contesting defendant Lala Chiranji Lal was that he and some other persons had been appointed trustees under the aforesaid will and were entitled to take possession over the property in suit as trustees after the death of the donor.

2. The learned Subordinate Judge who tried the suit came to the conclusion that plaintiff 1, under the management of plaintiff 2, its Mutwalli, was entitled to the possession of the property in suit under the terms of the will of Lala Bitthal Das. The suit for possession was accordingly decreed. The principal defendant Lala Ghiranji Lal has come up to this Court in appeal against the decision of the learned Subordinate Judge. We may point out that the claim as regards the mesne profits and damages was given up by the plaintiff for the purposes of the present suit. The decision of the point in issue between the parties depends on the interpretation of the will of Lala Bitthal Das, which is printed at pp. 17 to 21 of the paper book. It is, therefore, necessary to set forth here briefly the terms of that will. In the first portion of the will, Lala Bitthal Das recites that his paternal cousin Parsotam Das had, in his lifetime, an intention of executing a will in respect of his one-third share in favour of his Isht-Deva Sri Thakur Bare Madan Mohanji Maharaj, installed in a temple in Bengali Ghat in the city of Muttra, the Mohatamim of which was Goswami Sri Gopal Lalji Maharaj, son of Goswami Kal-yan Raiji Maharaj, but he breathed hit last before he could express his intention in black and white. He goes on to recite.

3. The idea sprang up into my mind that Lala Parsotam Das could not fulfil his hearty desire and died. It was incumbent on me to fulfil his desire after his death; but I have not done so up to this time; moreover I too am thinking of executing a will in respect of the entire 20 biswas mauza Lalpur aforesaid, which is at present exclusively owned by me, in favour of Sri Thakur Bare Madan Mohanji Maharaj aforesaid who was the Isht-Deva of Parsotam and is also my Isbt-Deva in order that the desire of Lala Parsotam Das and mine may be fulfilled and the soul of Parsotam Das may attain rest.

4. Further on Lala Bitthal Das states in his will

I...have...executed this will in favour of Sri Thakur Madan Mohanji Maharaj, Mohatamim and Gaddi-Nashin of which was Goswami Sri Gopal Lalji Maharaj aforesaid, in order that it may be given effect to after my death.

5. Para 2 of the will runs as follows:

After my death, Sri Thakur Bare Madan Mohan Lalji Maharaj, whose Mohtamim and Mutwalli is at present Goswami Sri Gopalji Maharaj, shall be the owner of, i.e., shall be benefited by the income from the entire 20 biswa mauza Lalpur, pargana Muttra, together with the grove, houses, Garhi, stable, etc., i.e., all the inherent and adventitious rights and interests and buried treasure appertaining thereto, i.e., the whole of it without the exception of any right or thing situate therein, and the name of Sri Thakurji Maharaj aforesaid under the management of the Mohatamim and Mutwalli of the temple, will be entered in the Khewat in place of my name.

6. Para 3 runs as follows:

After my death, Lala Lokman Das.... Lala Radhe Lal... Lala Keshab Deo.... Lala Salig Ram... Lala Ballabh Das, Khattris by caste, residents and bankers of the city of Muttra, who are my co-religionists and in whom I have full confidence that they will without any avarice, act according to this will whole-heartedly and will spend (Sarf kiya kare) the income from the said village in consultation with Sri Goswami Sri Gopal Lalji Maharaj or whoever may be the Gaddi-nashin of the temple aforesaid, in the articles of Raj-Bhog, Sewa-Sringar, Bastra, and the requisites for the performances of the festivals of the Thakurji. The money derived as income should not be spent in any other work.

7. Para 4 runs thus:

Out of the Raj-bhog, Prasad will be daily given to five Vaishnavas in the Dharamshala situate in muhalla Ramji-Darwaza in the city of Muttra, known as that of Gopal Das Salig Ram.

8. Para 5 runs as follows:

The accounts, etc., relating to the income Iron the village aforesaid, and to the expenses will regularly continue to be prepared in the temple. Accounts relating to the income from the village and to the expenses incurred in the articles of Raj-bhog, Bastra and requisites for the performances of the festivals will continue to be prepared separately in the account books and those account books will be separately kept in the temple.

9. Para 8 is as follows:

The Gaddi-nashin, Mohtamim and mutwalli of the temple has accepted the condition No. 4. In case a Gaddi-nashin of the temple refuses or stops to feed five Vaishnavas every day, an amount which, may be found reasonable by the persons aforesaid, at a rate to the extent of Rs. 1-4-0 per diem, should be deducted from the income of the said village for feeding five Vaishnavas, and the balance spent on account of the Thakurji in accordance with the conditions laid down above. The amount deducted from the village income, for feeding five Vaishnavas will be spent in feeding five Vaishnavas every day in the Dharamshala aforesaid.

10. Para 10 runs thus:

As this village has been bequeathed for the expenses of Thakurji, no person, Mohtamim or Mutwalli of the temple shall, at any time, or in any case be competent to transfer the said village by way of sale, mortgage or trust, etc. Let it also be known that no person Mohtamim or mutwalli shall in any way, have right to transfer the property even for a particular necessity of the Thakurji.

11. Para 11 is as follows:

In this will, the right to sell, mortgage trust and transfer the said village has not been given to any person, manager and the gaddi-nashin aforesaid. No one can therefore, under his own authority, or with the permission of an officer, transfer the village aforesaid in any case, nor can anybody take any loan on it. Any act done against the terms laid down in this will, shall be invalid.

12. Para 12 runs thus:

One Karinda will be in consultation with the trustees, Mohtamim and mutwalli, appointed to make collections and assessment, and one member of my family or a relation of my family will supervise the village, and he shall be getting Rs. 20 per mensem out of the income from the village. If there be no fit person in my family or among the relations of my family, to do the work the trustees, Mohtamim and mutwalli of the said temple, shall appoint a man of my brotherhood and a sum of Rs. 20 per mensem shall be paid to him out of the income from the village.

13. Para 13 states as follows:

If per chance, the whole or any part of the area aforesaid is acquired by the Government at any time, for any purpose, the compensation, whatever, obtained in lieu of it, should be applied by the trustees in purchasing another property in the name of the Thakurji, under the management of the gaddi-nashin of the temple. The trustees should not spend the amount of compensation in any other work. They should until purchase of another property, invest the said amount on interest. The income of interest and the property should be applied in Sewa Sringar and Raj-bhog of Sri Thakurji Maharaj, that is to say all the conditions laid down above, should be applicable to that property and the money also.

14. These are the terms of the will of Lala Bitthal Dass. Now, we may proceed to consider the point in issue. The first contention raised on behalf of the appellant is that under the terms of the will, the village was not dedicated to plaintiff 1, but there was a dedication of only the income of the village for defraying the expenses in connexion with the objects specified in the will. We may mention that this was the plea taken by the appellant in para 21 of his written statement. The learned Counsel for the appellant, in support of his contention, relies on the following sentence in para 2 of the will, 'i.e., shall be benefited by the income from the entire 20 biswas....' It is urged that these words go to show that only the income of the village was made waqf and that de corpus of the property was not intended to be transferred. We find ourselves unable to agree with this contention. In order to gather the intentions of the donor we have to look to the terms of the entire will and then come to a conclusion. The intentions of the donor cannot be gathered by taking into consideration only an isolated passage in the will and by ignoring the other passages or expressions which are to be found in it. In our opinion, when the entire will is read as a whole, it becomes quite clear that the donor made a gift of the entire village. It will be seen that in the first portion of the will, the donor says:

Moreover, I too am thinking of executing a will in respect of the entire 20 biswa Mauza Lalpur aforesaid which is at present exclusively held by me in favour of Sri Thakur Bare Madan Mohanji Maharaj....

15. At another place he says:

I, while in a sound state of body and mind in full possession of my five senses, have of my own accord and free will, therefore executed this will.

16. In para. 1 the donor says:

So long as I am alive, I will remain in proprietary possession and enjoyment of the village aforesaid and shall have, during my lifetime, all the powers that I at present have, as usual. No body shall have any powers of any sort.

17. After this we come to para. 2 of the will which is most important. The donor says:

2. After my death, Sri Thakur Bare Madan Mohan Lalji Maharaj, whose mohtamim and mutwalli is at present Goswami Sri Gopalji Maharaj shall be the owner of, i.e., shall be benefited by the income from the entire 20 biswas mauza Lalpur, pargana Muttra, together with the grove, houses, garhi, stable, etc., i.e., all the inherent and adventitious rights and interests and buried treasures . appertaining thereto, i.e., the whole of it without the exception of any right or thing situate therein, and the name of Sri Thakurji Maharaj aforesaid under the management of the mohtamim. and mutwalli of the temple, will be entered in the khewat, in place of my name.

18. It is mentioned that Sri Thakurji will be the malik of the 20 biswas-share. No reservation of any kind is mentioned. Sri Thakurji is to be the malik of the entire village together with grove, houses, etc. This shows that the dedication was in respect of the entire village without any limitation or any restriction. The donor says that after his death in the Khewat the name of Sri Thakurji is to be substituted as owner. It appears to us that the words 'shall be benefited by the income from' are mere surplus. The donor appears to be emphasising that Sri Thakurji who will be the complete owner, will have the right to recover all kinds-of profits. If the donor had been making a waqf in respect of the annual profits then there would have been no necessity to say that after his death the name of the donee shall be mentioned in the khewat in his place. It is a well recognized principle of Hindu law that an idol is capable of holding property and the property dedicated to an idol belongs to the idol and not to the Shebait or priest. In Girijanund Datta Jha v. Sailajanund Datta Jha (1896) 23 Cal 645, their Lordships of the Privy Council made the following observations:

Decisions too clear and authoritative to be doubted or disregarded have repeatedly laid down that an idol in Hindu law is capable of holding property, and that property dedicated to an idol belongs to an idol and not to the shebait or priest. If it were necessary to give reasons in favour of a view so amply supported by authority, we should add that the opinion of Jagannatha goes merely to show that an idol can be the owner of property only in a figurative sense, possession being held by a manager or trustee, and that dedication of property to an idol is only a mode of creating a trust for religious purposes in perpetuity which is allowed by law.

19. The question as to whether in a particular case an absolute or partial dedication has been made depends upon the terms of the instrument under which the endowment is made. When we find that under the terms of the deed an absolute-estate is vested in the idol without any reservation or limitation, then the conclusion becomes irresistible that the dedication was absolute and complete. In the case before us we find that under the] terms of the will an absolute estate has been created in favour of the idol 'Sri Bare Madan Mohan Lalji Maharaj'. The testator in clear terms says that after his death the idol shall be the owner of the property dedicated and shall be entitled to the entire income of the 20 biswa-share with grove, houses etc., and the whole of it without the exception of any right or things situate therein, shall go to the idol. Taking into consideration this emphatic language, the only conclusion to which we can come is that the dedication was absolute and complete in every respect. The donee does not reserve any right for himself or his heirs in the village. He makes a complete gift of the property together with the profits thereof to the idol. It was contended before us that from the subsequent clauses in the will, an inference can be drawn that an absolute estate was not conferred on the idol. We have considered these clauses, but are unable to agree with the contentions raised on behalf of the appellant. Reliance was placed on para. 3 of the will. All that this says is that the donor has complete confidence in the so-called trustees and he discharges them with the duty to see that the income of the estate dedicated to the idol is spent towards the objects specified in the will. The same assertion is reiterated in para. 10 of the will. For the reasons given above, we hold that there was a complete and absolute dedication in favour of Sri Thakur Bare Madan Mohan Lalji Maharaj.

20. The next point urged on behalf of the appellant was that even if it be supposed that there was a complete dedication of the endowed property in favour of the idol, yet the legal estate vested in the appellant and others as trustees under the terms of the will and in that capacity they were entitled to retain possession of the endowed property. This argument which is based on the analogy of English Saw relating to charitable trusts, is how-ever fallacious and cannot be accepted. There is a fundamental difference between the juridical conceptions on which the English law relating to trust is based and those which form the foundations of the Hindu and the Mohammadan systems and that is the reason why the Indian Legislature in enacting the Indian Trusts Act (II of 1882) deliberately exempted from: its scope the rules of law relating to wakf and Hindu religious endowments. Section 1 of that Act, after declaring when it was to come into force and the areas over which it should extend in the first instance lays down:

But nothing herein contained affects the rules of the Mohammedan law as to wakf, or the mutual relations of the members of an undivided family as determined by any customary or persona] law, or applies to public or private religious or charitable endowments....

21. Section 3 of the Act gives a definition of the word 'Trust' in terms familiar to English lawyers. It says:

A 'trust' is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him for the benefit of another or of another and the owner; the person who reposes or declares the confidence is called 'the author of the trust;' the person who accepts the confidence is called the 'trustee;' the person for whose benefit the confidence is accepted is called the 'beneficiary;' the subject-matter of the trust is called 'trust property' or 'trust money;' the beneficial interest or the interest of the beneficiary is his right against the trustee as owner of the trust property; and the instrument, if any, by which the trust is declared is called the instrument of trust.

22. These observations were made by their Lordships of the Privy Council in Vidya Varuthi v. Balusami Ayyar 1922 44 Mid 831 at p. 811. The doctrine of English law that in charitable trust the legal estate vests in the trustees is not applicable to India. In Mohammad Rustam Ali v. Mustaq Husain 1921 42 All 609, Their Lordships in dealing with this question made the following observations:

It is argued that the trustee nama must have dealt with an interest in immoveable property, for otherwise the trustees could have no right to maintain the suit, and such an argument at first sight makes a strong appeal to those who are accustomed to administer the English law with regard to trustees. It needs however but a slight examination to show that the argument depends for its validity upon the assumption that the trustees of the wakf-nama in the present case stand in the same relations to the trust that trustees to whom property had been validly assigned would stand over here. Such is not the case. The wakf-nama itself does not purport to assign property to trustees.

23. In Hindu law, there is no such thing as the vesting of legal estate in trustees. In Vidya Varuthi v. Balusami Ayyar 1922 44 Mad 831 at p. 839, their Lordships made the following observations:

It is also to be remembered that a 'trust' in the sense in which the expression is used in English law, is unknown in the Hindu system, pure and simple...under the Hindu law, the image of a deity of the Hindu pantheon is, as has been aptly called, a 'juristic entity' vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are recorded as possessing the same juristic capacity and gifts are made to thorn eo-nomine...when the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily affected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, mode of enjoyment and the amount of usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a trustee in English sense of the term, although in view of the obligation and duties rested on him he is answerable as a trustee, in the general sense, for mal-administration.

24. According to the Hindu law as soon as dedication is made in favour of an idol, the property vests in the idol, but as an idol cannot manage the property, the practice is that the management of the property remains in the hands of the mutwalli or manager. The question as to who is to manage the property has to be decided with reference to the terms of the deed creating the endowment, but it has to be borne in mind that the position of the manager, whether you call him mutwalli or trustee or shebait, is different from that of a trustee as understood in English law and in whom the property is vested. According to the Hindu law, the mutwalli or shebait or manager is only a person managing the estate but the property vests in the idol and not the manager. This being our view, we must hold that it is not open to the appellant to contend that the legal estate vested in the persons styled as trustees' in the will under which the endowment in question was made by Lala Bitthal Das.

25. The next contention raised on behalf of the appellant was that under the terms of the will, the persons named therein have been given powers by the donor to remain in possession on behalf of the idol and to realize the rents and profits of the endowed-estate and to spend the same in consultation with the mutwalli of the idol. We proceed to consider this question. When a person makes an endowment in favour of an idol, then ordinarily the mutwalli of the idol will be the person who will be the manager and will manage the estate for the idol. It is however open to the 'author' of an endowment to nominate person or persons who would manage the endowed-estate and then hand over the profits realized to the mutwalli or the manager for expenditure in connection with the objects specified in the deed-of-endowment. Learned Counsel appearing for the appellant cited before us Ambalavana Pandara Sannidhi Avergal v. Sri Meenakshi Sundareswaral Devastanam of Madura 1921 18 ALJ 594, in which Their Lordships of the Privy Council held that:

An idol may have not merely general trustees-but also other subordinate representatives having the right to manage certain special portions of the property, and pay over the income so-collected to the endowment, and even to some-degree control its use and that such rights are not inconsistent with the existence of a general trustee....

26. What we have to see is whether in the case before us the author of the endowment laid any such scheme under which the appellant and other persons who styled themselves as 'trustees' have been given any such rights. On a consideration of the terms of the will, it appears-to us that the contention of the appellant cannot be accepted. We find that in para. 2 of the will, the donor after stating: that he was making a complete gift to the idol 'without the exception of any right or things situate therein,' recites that after his death the name of the idol under the management of Mohtamim and Mutwalli of the idol will be entered in the khewat in his place. In view of this statement, we find it difficult to hold that the author of the endowment intended that the so-called trustees should remain in rent-collecting positions of the endowed, property and hand over the profits realized to the manager of the idol for the purpose of expenses in connexion with the objects mentioned in the will. Had he any such intention, then we would have expected him to say that after his death, the name of the idol under the management of the trustees shall be substituted in the khewat in his place. It is true that in para. 3, the donor recites that he has full confidence in Lala Lokman Das and others and he charges them with the duty of acting according to the will whole-heartedly and to spend the income from the aforesaid village in consultation with the mutwalli, in the articles of Raj-bhog, Sewa-Sringar, Bastra and the articles for the performance of the festivals of Sri Thakur Bare Madan Mohan Lalji Maha-raj. But there are no clear words indicating that the possession is to remain with the trustees named by him. The expression 'will spend the income from the said village in consultation with the trustee,' is not in any way inconsistent with the right of the mutwalli to make collections. It can be said that when the donor used the above expression all that he meant was that the income of the said village after being realized by the mutwalli was to be spent by him and the trustee in consultation with each other. In this connexion, the terms recited in para. 5 of the will are important. The donor enjoins that the accounts of the endowed property are to be kept in the temple of the idol, plaintiff 1. It appears to us that this temple owns extensive properties and the donor's intention was that the income from the endowed village should not be amalgamated with the other income of the idol but should be kept separately and should be spent only on the objects specified by him in the will and in no other way. If it had been his intention that the trustees were to realize the income, then there would have been no necessity for him to have laid down a condition that the accounts should be kept in the temple.

27. The will shows that every day 'Raj-bhog' (feasts for an idol) was to be offered to the idol and then out of the feast, five Vaishnavas residing in the Dharamshala named in the will were to be fed. In para. 8 the donor recites that the mutwalli of the idol has agreed to this condition, but in case be does not perform it, the trustees will have a right to deduct a sum at ' the rate of Re. 1-4-0 daily and spend it on feeding five Vaishnavas. From this we cannot draw an inference that the trustees are to realize the rents and profits. No right of possession is given to the trustees. In case the mutwalli continues fully to perform the condition, the trustees have no power of any kind in the matter. They cannot claim any deduction out of the village income. In para. 13, it is stated that if the endowed property is at any time acquired by the Government, then the trustees in consultation with the mutwalli should invest the money paid by Government in purchasing other property in the name of plaintiff 1 under the management of plaintiff 2 and it would be subject to all the conditions enumerated in respect of the endowment. It appears that the donor was somewhat over-cautious and one great anxiety of his was to make such a settlement which could ensure the entire income derived from the endowed estate for the expenses of the objects specified by him in the will. He was anxious to make rules which would prevent the mutwalli of the temple from using the income in any manner he liked in defiance of the terms-of the will. He therefore charged the so-called trustees to see that his wishes-were carried out. He has however given no power to the trustees to assume possession over the estate.

28. The money realized from the endowed estate is to be spent by the mutwalli in consultation with them. That is all. At more than one place, the donor recites that the gift is absolute and is made to plaintiff 1 under the management of plaintiff 2. This indicates that he intended that though the estate was to vest in plaintiff 1, plaintiff 2, the manager, was to manage the estate. The strongest point in favour of the plaintiff is that an absolute estate is conferred on the idol under the management of the mutwalli without any reservation of any kind and it is expressly recited that the name of plaintiff 1 under the managership of plaintiff 2, is to be recorded in the khewat as owner. The trustees cannot show that there is anything in the will from which it may be gathered that the intention of the donor was that they should get possession and have power of management. There is only one limitation placed on the power of plaintiff 2, in respect of the management and that is that he has to spend the income of the endowed property in consultation with the trustees. It appears to us that the only power which the trustees, have is to insist that the income of the endowed estate is spent by plaintiff 2 for the objects specified in the will in, consultation with them. No power of any other kind has been given to them. In other words the trustees are asked to act as mere advisers and are enjoined to keep an eye on plaintiff 2's management of the endowed property. For the reasons given above, we are of opinion that plaintiff 2, in his capacity as manager of the endowed property, is entitled to get possession over it and this claim of his cannot be resisted by the appellant and other trustees. In our judgment the decree passed by the trial Court is correct and must therefore be affirmed. For the reasons given above, the appeal stands dismissed with costs of the contesting respondents 1 and 2.


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