1. The appellant Kamalnarayan was the defendant in the Court below. The present suit was filed by the two respondents Ram-kishorelal and Ramamijlal for a declaration that the defendant Kamalnarayan had committedbreaches of a public trust in respect of a village called Telibandha, which it was alleged had been endowed to Shri Ramchandraji Deosthan, Dudadhari Math, Raipur, and for a further declaration that on account of those breaches the defendant Kamalnarayan had rendered himself liable to be removed from his post as sarbarakar or trustee of the said Deosthan, and for his removal. They also asked the Court to direct the defendant to render accounts of the said endowed Property from 1936 up to date and also for a direction that the sum which the defendant had received from the sale proceeds of the land situated at Telibandha amounting to Rs. 1,06,774-1-0 be deposited in Court. The plaintiffs also requested the Court that Ramkishorelal (plaintiff No. 1) be appointed sarbarakar in place of Kamalnarayan.
2. The suit purported to be one under Section 92 of the Code of Civil Procedure read with Section 6 of the Charitable and Religious Trusts Act, 1920. Previous to the filing of the suit, proceedings had been taken before the Additional District Judge, Raipur, under Section 3 of the latter Act, and permission was accorded by the Additional District Judge to the four applicants before him to file the suit under Section 6 of the said Act. It appears that two of the original applicants before the Additional District Judge did not or could not join in the present suit and hence the two plaintiffs alone brought the suit.
3. The trial Court decreed the entire claim of the plaintiffs and hence this appeal. The following genealogy shows the relationship of the parties to this appeal and also shows the names of the various dramatis personae who had taken part in other litigations in the family from 1896 onwards :
JAGANNATH SAO (d)
Dinanath Sao (d)
Sobharam Sao (d) Keshoram Sao (d)
| | | | | |
Sarjuprasad (d) Gokulprasad (d) Jamnaprasad (d) Ramdin (d) Gajanand Nandkishore (d)
| | |___________________________ Sao (d) |
| | | Ramkishorelal (Plff. 1)
| |__________________________ | ________|___________
|_______________________________ | | | | |
| | | | | | Bishnoo Somitralal Ramvatar
Ramsaranlal (d) Ramdhir- Krishna- Ramanuj- | | Prasad
| dayal (d) saran lal (Plff. 2) | |
Kamal _____|_____ | |
Narayan | | | |
Ramsunder Shyamsunder | |
| | | | |
Ramlal (d) Ramsahal (d) Maksudanlal Radhakishan |
| | |
Mathura Prasad Gouri Prasad Bhanu Prasad
4. The facts of the case are as follows : There is situated at Raipur a well-known math called the Dudhadhari Math. Within the premises of the Math there stands a temple dedicated to Shri Ramchandraji which is called the Shri Ramchandra Swami Deosthan. The case of the plaintiffs is that the village Telibandha was dedicated for the service of this deity and that the defendant Kamalnarayan was the sarbarakar ofthat temple in 1947 when the suit was filed. The allegations which are made in the plaint with respect to the creation of this alleged trust cover a period of a century from 1857 to the present date, and the matter has been on more than one occasion before the Courts, though unfortunately there has been no decisive determination of the dispute, because on earlier occasions the caseswere either compromised or were decided by arbitration.
The plaintiffs allege that the village was dedicated in 1857 by Dinanath Sao, the predecessor-in-title of the parties. They produce a trust deed (Ex. P-28), which will hereafter be referred to as the Patha, since it has been so named throughout the record of the case. The defendant denies this Patha and puts the plaintiffs to a strict proof thereof. There are two other documents bearing upon the subject of dedication, and they are Exs. P-111 and D-1. The former is an award by the Panchas on 17th December 1896, by which the property was divided into three lots and placed in the possession of three separate groups of the family, each group continuing joint within itself.
The decision throughout the record as the Panch Faisla or the Pancha Faisla of 1896, and it shall hereafter in this judgment be referred to as such. The Panch Faisla was the subject-matter of further disputes in Courts, and this led to a reference to the arbitration of one Shri K. M. Bagchi, a Pleader of Raipur, who gave an award (Ex. D-1) on 14th May 1898. We shall refer to it as the Bagchi award, as has been, done in the record of the case.
5. According to the plaintiffs, Dinanath Sao made an express dedication of village Telibandha to the Deosthan in 1857 by the Patha (Ex. P-28). We have stated above that the defendant denied the existence of this Patha, and considerable argument was heard by us as to whether the document has been proved, and further whether it is a forgery. Much will depend upon the nature of the proof given in the case by the plaintiffs, and it is admitted by the counsel for the appellant that if the Patha were held proved then the dedication would stand proved.
6. Between the Patha and the Panch Faisla of 1896 there does not appear to be any document bearing upon the alleged dedication of this village. There is, however, another village called mouza Hirmi which was dedicated by Dinanath Sao to this Deosthan and many documents from the hakkiyat misal and other revenue records relating to that mouza have boon accepted in the case : see Exs. P-53, 56, 92, 94, and 105.
7. When the Panch Faisla of 1896 was delivered there appeared to be no definite quarrel existing. The family at that time disrupted and three shares were carved out of the entire property. In the lists which were prepared, Telibandha was not mentioned, and a special paragraph was devoted in the Panch Faisla to its status. Parties interpret that paragraph differently.
8. Immediately after the Panch Faisla it appears that disputes arose when mutation was sought on the strength of the Panch Faisla, and the matter was carried to the civil Court. A suit purporting to be filed by three minor brothers of Ramsaranlal as plaintiffs was taken to the stage of evidence and thereafter was compromised because of an award given by Shri Bagchi in 1898. The reference to Shri Bagchi was out of Court, and the award was neither filed in Court nor was it registered. Shri Bagchi's award is also interpreted differently by the parties. Subsequently, there was another partition in 1901 by which some of the parties who had remained joint separated and a further and final partition took place in 1913, by which the village came finally into the hands of Ramsaranlal, the father of the present appellant-defendant.
During the lifetime of the predecessors of the present defendant, the property in Telibandha remained intact. It was only when prices went up due to the impact of the Second World War and also when Raipur City expanded that the defendant Kamalnarayan sold certain parcels of the land to strangers, and the present dispute arising first in an application under the Charitable and Religious Trusts Act and the present suit, came to the front.
9. The genealogy shows that the family began with one Jagannath Sao, who had an only son of name Dinanath Sao, Dinanath Sao had two sons, Sobharam Sao and Keshoram Sao. Dinanath Sao died in 1862. Plaintiff No. 1 belongs to the branch of Keshoram Sao, while plaintiff No. 2 belongs to the branch of Sobharam Sao. In the partition of 1896 three shares were made, and Ramsaranlal and his three brothers and Jamunaprasad remained joint. The others separated and formed into two separate groups. We are not concerned with the partition of the other property in the family, and we need not therefore give details of how the rest of the property went. We are only concerned with the manner in which Telibanda was dealt with, and that is contained in Ex. P-111.
In the next partition which took place in 1901, the family of Jamunaprasad on the one hand and Ramsaranlal and his brothers on the other separated. No record of that partition has been exhibited in the case, but it seems that at that time nothing happened which will have a bearing upon the dispute present before us. We know, however, that Telibandha came to the branch of which Ramsaranlal was the eldest brother. In 1913 the four brothers seperated, and Telibandha came to Ramsaranlal, from whom the present defendant has inherited it and dealt with it in a manner which has led to the suit.
10. In a case of this type where an express, dedication is pleaded and a document creating that dedication is relied upon, the first duty of the Court is to see whether the document has been adequately proved and is genuine. The Patha of 1857 was not signed by Dinanath Sao, and the trial Court correctly did not apply Section 90 of the Indian Evidence Act to it. Since the Patha was denied by the defendant, the burden lay upon the plainlifis to prove the document. Various methods were adopted to prove that document and we shall presently deal with the evidence which has been led.
The trial Court on a review of all the evidence held that the Patha in Question had not been adequately proved, and it also opined that there were erasures and overwritings in it which made it very difficult for the Court to accept it as a genuine document. The learned counsel for the appellant started this case accepting this finding, but the Patha was pressed upon us for acceptance by the learned counsel for the respondents. It behoves us therefore to examine the evidence tendered in proof of the Patha and its genuineness.
11. In discharging the burden the plaintiffs relied upon circumstantial evidence and the testimony of an expert, Shri Jai Gimi (P. W. 3). Other oral testimony which was relied upon was not directly in connexion with the Patha as such. The plaintiffs brought into the case an account book (Ex. P-132) said to be written by Dinanath Sao as comparative material for the use of the expert. They also relied upon two signatures in the hakkiyat misal of mouza Hirmi: Exs. D-56and P-95-C. The signatures, it appears, were admitted to be of Dinanath Sao in the Court below, and before us not much attempt was made to show that they were not genuine.
They formed therefore comparative material for the use of the expert and the Court. Ex P-132, however, was not admitted to be in the handwriting of Dinanath Sao, and it led to an additional burden upon the plaintiffs to establish that the account book was in fact written by Dinanath Sao. Unless this was done it could not be used for comparison. The evidence on this part of the case came from one of the plaintiffs (No. 1) Ramkishorelal (P. W. 6), who stated that when he was a young man the account book was given to him by Gajanand Sao as a model from which he should learn the art of book-keeping. According to Ramkishorelal, Gajanand Sao told him that account book was written by two persons, viz., Dinanath Sao & Sobharam: (see paragraphs 1, 2, 3 and 9 of the evidence of Rarnkishorelal (P. W. 6) ). He is supported in this by Bishnuprasad (P. W. 10) who stated that the account book was discovered between 1908 and 1911.
He stated that Ramsaranlal and Gajanand Sao told him that they were written by Dinanath Sao and Sobharam. Both the witnesses were unable to say that the two handwritings were separately shown. There is no other evidence proving that Ex. P-132 was written by Dinanath Sao, and as a comparative material it would fail, unless the evidence of Rarnkishorelal (P. W. 6) and Bishnuprasad (P. W. 10) can be accepted. The task which the plaintiffs had of proving that Dinanath Sao was the author of the Patha was not rendered any the easier by producing Ex. P-132, unless there was evidence to show beyond doubt that the account book, or at any rate a part of it, was written by Dinanath Sao.
The evidence is hearsay and interested. There is nothing to show which portion of Ex. P-132 was written by Dinanath and which by Sobharam. It is surprising that for educating a boy of 13 years of age (paragraph 3, page 90 of the paperbook) an account bock 83 years old was given as a model, when later books must have been available. In our opinion this evidence is artificial. Dinanath died in 1862, and none alive could have known his handwriting. Mathura Prasad (P. W. 1) was not questioned about Ex. P-132, though he tried to prove Dinanath's handwriting on the Patha (Ex. P-28) by reference to an alleged statement of Ramsaranlal and not on his own knowledge.
That statement about the handwriting can at best be received with great caution, and in view of the long lapse of time when testimony was tendered it cannot be implicitly relied upon. We hold that this evidence is not reliable at all and thus we reject it. There being no adequate proof of the authorship of the account book, we think that the opinion, if any, based upon Ex. P-132 must be ruled out of account.
12. There is left over for comparison only the two signatures. Those two signatures were very small writings. Dinanath Sao did not sign his name in full. In one he signed it as Dinanath and that gave the expert only three or four letters to compare with the Patha. In the other he added the further words 'Mahajan Ke'. The interval between, the two signatures was great, and it is common knowledge that handwritings of persons are never uniform, especially when they are old. In the absence of adequate comparative material, the evidence of the experts on both sides is considerably hesitant.
Both of them, however, stick to their own view of the matter, but the expert examined by the plaintiffs was frank enough to concede that if the writing in Ex. P-132, which was of some magnitude, was put aside, then his opinion based only on the two signatures could not be definite that Dinanath Sao was the author of the Patha: see paragraph 23 of the evidence of Jal Gimi (P. W. 3). In other words, even the expert of the plaintiffs was not in a position to say categorically on the strength of the two signatures that the writer of the Patha was Dinanath Sao.
We are of opinion that in the special circumstances of this case Ex. P-132 could not be a secure foundation for comparison of handwritings. That document, as we have already said, stood, unproved, and the burden of proving Ex. P-132 was just the same as that of proving the authorship of Ex. P-28. That burden could not be discharged by taking the evidence of Ramkishorelal and Bishnuprasad (P. Ws. 6 and 10) into account and we think that Ex. P-132 should be excluded from comparison. (After discussing, the evidence further in Paras 13-19, the judgment proceeded:)
20. The learned Judge in the Court below has noticed that the date of the Patha is mentioned at no less than four places, but that at all these places the year has been rubbed out. No doubt, the Patha is written on a very antique paper in Mahajani ink. But the paper may be old and not the writing. It is not impossible to get such paper from fly-sheets in old volumes or otherwise in an ancient family such as is before us. The document is suspicious inasmuch as erasures should have coincided with the date. Of course, the argument of Shri Mangalmurti that the figure 8 could not have been altered into 9 because 1813 Samvat would take the document to 1757 when the village did not belong to the family, is very strong.
All the same, when a document is cited on the side of a party, definite proof of its genuineness has to be given, and we think that all the relevant circumstances which we have detailed above clearly indicate that the document was never known to anybody in the case and was never produced, and that its sudden production in 1940 is, to say the least, somewhat amazing. We do not funk that the writing on the document can be said to be as old as the paper, and indeed if we were inclined to take this document into account we would have expected some more definite evidence than there is in the case, to establish before us that it was either a genuine document or written by Dinanath Sao.
We accordingly give it as our finding that the document Ex. P. 28 has not been satisfactorily proved to be in the handwriting of Dinanath Sao. We hold that the authorship of that document has rot been proved. We further say that the document, from its suspicious appearance, from the erasures of the dates, and from the' casual manner in which it is written, does not appear to us to be genuine.
We also say that the fact that this document was not mentioned earlier or at any rate in Ex. D-43 when, its existence, according to the plaintiffs, was disclosed by Ramsaranlal, and that it did not see the light of the day before 1940, clearly shows that it was not relied upon or known to the party at any earlier stage than 1940. When we add to it the fact that at any rate on the admission of one of the plaintiffs the document was in his possession after 1913, wedo not see how it could have been kept away from the various litigations which took place between the parties and no reference to it was made even thereafter. We accordingly rule Ex. P. 28 out of consideration as has been done in the Court below, and confirm the finding of the trial Court on this point,
21. The learned trial Judge after holding that the Patha could not be relied upon, went on to give a finding that some dedication prior to 1896 was proved, though the identity of the original dedicator and the time of the original dedication were not clearly established in the case. He held also that the dedication found by him was confirmed by all the members of the family in 1896 when the Panch Faisla was given. The learned counsel for the appellant contends that it is nobody's case that there was any dedication between 1857 and 1896. He contends that the learned trial Judge was in error in reasoning back from the Pancha Faisla of 1896 to give a finding that there was some dedication at a prior date, when there was no evidence and there was no mention of such a dedication in the Pancha Faisla.
22. There is no evidence whatever to show that any other dedication took place, either prior to 1857 or thereafter, till the Panch Faisla. In the Panch Faisla there is a mention that from the time of Dinanath Sao the expenses of the worship of the temple were being met from mouza Telibandha, & one cannot reason from this that there was a dedication of the village as such. Probably, a tradition grew in the family that the temple which was constructed by Jagannath Sao andDinanath Sao was to be maintained and the income of Telibandha was considered as a suitable nucleus from which to meet the expenses. There being no proof of any dedication there was nothing to confirm beyond the tradition in the family that the expenses of the temple should be met from the income of Telibandha. The respondents however contend that the Panch Faisla itself must be treated as a dedication of the village for the services of the temple. For this purpose we have to see what the Panch Faisla provides for.
23. The Panch Faisla divides the property between the members of the family. In two paragraphs which precede the partition of the assets there is a mention of two villages, mouza Borsi of Tahsil Sunga (there is another village Borsi in Raipur Tahsil, which is different) and mouza Telibandha. With regard to mouza Borsi, there is nothing to show that it was ever dedicated to charity, either directly or indirectly. In the paragraph dealing with certain charges for which cash was set apart, there is a mention that mouza Borsi was given, to Ramsaranlal. The status of Telibandha was determined in an entirely separate paragraph, and it is necessary to reproduce it. It reads as follows:
'Mouza Telibandha alias Karwatoli in tahsil Raipur sixteen annas, Asli Men Dakhli (i.e. principal village with the outskirts under control), together with all rights and interests (of) proprietorship, has been given to Ramsaranlal with the consent of and at the instance of all the sharers for the undermentioned purposes. From the profits and income of mouza Telibandha Bamsaranlal shall incur the expenses for samaiyas (occasions), celebrations, Bhog-Rag, Bal Bhog of daily routine and white-washing and plastering, etc., and other work of Shri Ram-chandra Swami, Math Shri Dudhadhari, according as the same (expenses) have been continuing (to be met up to this day from the time of Dinanath Sao, Sobharam Sao and Sarjuprasad Sao).
If (this) work that is being done from long before fails to be done, then out of all these six shares, any sharer, who may be fit to do that (work) and carry it on, shall take this mouza Telibandha together with all rights and interests into his possession and carry on the work of the temple just as it has continued to be done from ever. In that (matter) no rights belongs to any sharers and to Ramsaranlal. Ramsaranlal or any (other) sharers have neither Rot, nor will they have, any right to transfer, either in whole or in part, mouza Telibandha, principal together with Dakhli, together with all the rights and privileges, by sale, gift, mortgage, will, or in any other manner whatsoever, because mouza Telibandha has been reserved from ever for the aforesaid purposes and it shall continue to be so only.'
24. This translation was scrutinized with great care by counsel appearing on either side and also by us. It was agreed that the translation is a faithful one and can be relied upon. It will be noticed that in the opening portion mouza Telibandha together with all rights and interests of proprietorship was given to Ramsaranlal with the consent of and at the instance of all the sharers. It was mentioned that it was given for the purposes therein undermentioned. The next sentence is significant. There is a reference to the practice of the family that samaivas and Bhog-rag etc., of the temple of Shri Ramchandra Swami were being made and that Ramsaranlal was to continue to incur the expenses for the temple 'from the profits and income of mouza Telibandha'.
It was then mentioned that if the work of looking after the temple which was going on for a long time was not done, then anyone of the six sharers who might be thought fit to do the work should carry it on and should take the mouza together with 'all rights and interests into his possession and carry on the work of the temple just as it has continued to be done from ever'. It Was further observed that in that matter no right belonged to any sbarer or to Ramsaranlal. In the last sentence there was a mention that neither Ramsaranlal nor any other sharers had or would have any right to transfer, either in whole or in part, the mouza, 'because mouza Telibandha was reserved from ever for the aforesaid purpose and it shall continue to be so only.'
25. Both sides interpret the document differently. According to the respondents this amounts to a dedication of mouza Telibandha and it was inalienable and did not belong to Ramsaranlal. According to the appellant, who emphasizes the conveyance of all rights and interests of proprietorship, the document transfers full ownership to Bamsaranlal and only couples it with a charge in favour of the temple. Shri P. R. Das, who appears for the appellant, contends that the clause against alienability is void under Sections 10 and 11 of the Transfer of Property Act. He also contends that the clause about other sharers taking the property in their hands from Ramsaranlal is contrary to the rule against, perpetuities. He contends, therefore, tha t conferral of full proprietorship on Ramsaranlal can be deduced from this document and the tradition of the family was at last turned into a charge upon the village.
He cites, in support of his contentions, the observations in Tancred v. Delagoa Bay and East Africa Railway Co., (1889) 23 QBD 239 at p. 242 (A); Burlinson v. Hall, (1884) 12 QBD 347 at p. 350 (B); Gobinda Chandra Pal v. Dwarkanath Pal, ILR 35 Cal 837 at p. 844 (C); and Konwar Doorganath Roy v. Ram Chunder Sen, 4 Ind App 52 (PC) (D). He also relies upon Ashutosh Dutt v. Doorga Churn Chatterjee, 6 Ind App 182 (PC) (E); Venkataramanna v. Brammanna Sastrulu, 4 Mad HCR 345 (F); and Jafri Begam v. Syed Ali Raza, ILR 23 All 383 at p. 391 (G). According to him the distinction made by Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts at page 176 between absolute and partial debutter is noticeable in the provisions of this Panch Paisla. The property in the hands of Ramsaranlal did not become extra-commercium but was burdened with a charge of the expenses of the temple.
26. The learned counsel for the respondents contends that the document amounts to a dedication of the village for the purposes of the temple and creates a trust. He contends that no form of declaration was needed and the property must be deemed to be placed on the alter of the god. He relies upon Byankat v. Ramchandra, ILR (1942) Nag 468: (AIR 1941 Nag 317) (H); and Manohar Ganesh Tambekar v. Lakhiniram Govindram, ILR 12 Bom 247 (I), (which was confirmed by the Privy Council in Chotalal v. Manohar Ganesh Tambekar, ILR 24 Bom 50 (PC) (J) ). He contends that there was a trust thus created with Ramsaranlal as the shebait for this purpose.
27. In our opinion, the matter must be judged from the point of view their Lordships of the Privy Council adopted in another case. In Gangi Reddi v. Tammi Reddi, 54 Ind App 136 at p. 144: (AIR 1927 PC 80 at p. 84) (K), they pointed out that it is always necessary
'to draw the distinction between meeting all the expenses of a charity out of a particular property, and applying all the receipts of that property to the charity.'
Their Lordships in that case pointed out that inasmuch as the entire income of the mortgaged property was not being used for the purposes of the choultry a trust could not be inferred and that the expenses; of the choultry only amounted to a charge upon the mortgaged property. In some of the cases which Shri P. R. Das cited the same principle has been borne in mind also, though not expressly laid down. Indeed, the matter goes back to Gunga Narain Sircar v. Brindabun Chunder, 3 Suth WR 142 (L); and Shaikh Mahomed Busheeroollah Chowdhry v. Hedaet Ali Chowdhry, 8 Suth WR 42 (M). If we apply this best to Ex. P-111 (Panch Faisla of 1896) we find that on the one hand mouza Telibandha. was given over to Ramsaranlal with all rights & interests of proprietorship which means and has always meant, the conferral of full proprietary title upon a person.
There is nothing in the document to show that the income from the village was dedicated to the temple, so that a trust either in respect of the village or even in respect of the income could be established. All that the document says is that from the profits and income of mouza Telibandha Ramsaranlal was to incur the expenses of the temple. Now, the income may be less or it may be more than the expenses of the temple. If it was less, Ramsaranlal could spend the entire Income without admitting the trust.
The evidence shows that the income from the village was not enough for the purpose and Ramsaranlal used to spend the income from other sources on the temple: See paragraph 2 of the evidence of Mathuraprasad (P. W. 2) and paragraph 19 and others of the evidence of Ramkishorelal (P. W. 6).
Indeed, though a separate khata for the expenses of the temple was maintained in the account books of the family, there is ample evidence to show that the expenses were met, not directly from the khata of Telibandha as such but from the gharu khata; that is to say, the general fund of the family: See the reply by the plaintiffs to interrogatories dated 23-2-1949, page 44 of the paper-book, and witnesses generally. This clearly shows that if the income of the village at any time exceeded the expenses for the temple there was no provision how the excess was to be employed, and in view of the conferral of full proprietary right upon. Ramsaranlal, he could keep the income to himself and use it as he thought best: see Mathuraprasad (P W. 2), paragraph 19.
It cannot be assumed that the income of the village or the expenses of the temple would have remained a constant factor in the years to come. If there we're words to show that the entire income of mouza Telibandha was to be devoted to the service of the temple a trust could have been easily spelled out and the village itself would be regarded on authorities to have been dedicated to the temple. The wording of the document clearly shows that the expenses of the temple were to be met from the profits and income of mouza Telibandha.
No doubt, Telibandha was reserved for the services of the temple, as the last clause indicates, but that would be the case if it was intended that the expenses of the temple should be a charge upon that village. In our opinion, the document does not show more than a partial dedication in the sense in which Mukherjea in his valuable book has distinguished that kind of dedication from an absolute dedication. The rulings on which Shri P. R. Das relied also support the same proposition.
28. Perhaps the counsel for the appellant did not cite 54 Ind App 136: (AIR 1927 PC 80) (K), to which we have referred, because in that case there was a mention that the income from the mortgaged property was more than was required to maintain the charity in that case, while in the present case the income of Telibandha was at one time insufficient and the whole of it was used for the purpose of the temple along with other money belonging to Ramsaranlal and the family. In our opinion, this is not the decisive factor in the circumstances of this case. What one has to see is whether the dedication, if any, is of the entirety of the income from some parcel of property. It is trite that when all the rents and profits of immovable property are assigned to a particular person, the property itself is taken to be so assigned.
This is true also of dedications to charitable uses, and if all the income from the particular immovable property is assigned for the use of a charity then a dedication of the property can be said to have been made. This however, does not arise when the assignment for the purposes of the charity is not of the entire income but a direction is given that a particular charity has to be supported from the income of a particular property. In the latter case, there is onlya charge created upon the property, and that charge may, in effect, exhaust the entire income without the property being treated as dedicated.
29. The distinction which their Lordships of the Privy Council made is again reflected in Hemanta Kumari v. Gauri Shankar, AIR 1941 PC 38 (N), and is mentioned by Mayne in his Hindu Law, 11th Edition, at page 924, paragraph 793. In Mulla's Hindu Law this distinction is also adverted to; but Mulla seems to have misapprehended the effect of their Lordships' observation in 54 Ind App 136: (AIR 1927 PC 80) (K). He has laid emphasis upon the fact that in that case the charity did not exhaust all the income. Their Lordships in spite of Gangi Reddi's statement that he was spending the entire income did not hold that there was a dedication and all that their Lordships said was that the finding on the accounts by the trial Court was unfortunate.
30. This leaves over for consideration what the effect of two of the other provisions of the Panch Faisla is. The first is about inalienability. Shri P. R. Das accepted the Panch Faisla, quite correctly, as a family arrangement, and the learned counsel for the respondents did not take up any other stand. When a partition takes place through the Panchas and the lists of partition do not mention a particular mouza, which is treated separately, the agreement about the mouza may well be regarded as a compromise and a family settlement. In the present case, the properties going to the three shares were separately put in three lists. Mouza Borsi and Telibandha were mentioned separately, but Borsi was shown in the list of Ramsaranlal.
But both were shown as assigned, to Ramsaranlal. With regard to mouza Borsi, there is no dispute, and its mention outside the list again is of no consequence because no charge or dedication in respect of any charity was laid upon that village. With regard to Telibandha, there is the present dispute, and it becomes a matter of construction what did the Panchas purport to do with it. We have shown above that the Panchas acted with the consent of the sharers, and even if mouza Telibandha was not mentioned in any of the lists, it must be treated as subject to a family settlement, or, in other words, included in the Pancha Faisla as a family arrangement.
The family arrangement might be binding upon the parties to it, but the inalienability clause would not bind successors. If Ramsaranlal bound himself by his agreement not to alienate the property, it would be binding upon him; but a restraint against alienation cannot derogate from a complete proprietary right. The property because that of Ramsaranlal. He bound himself for his lifetime not to alienate the property. He, however, could not bind his successors; to whom the entire proprietary right would descend. In such a case, the clause about inalienability would fail after the death of Ramsaranlal, and all that would remain is the assignment of the mouza to Ramsaranlal in full proprietorship, coupled of course, with the charge upon it.
Whoever took the property after the death of Ramsaranlal would take it subject to the charge, but he would be free to make alienations subject to the charge. In our opinion, the clause with regard to inalienability fails on the ground that it offends Sections 10 and 11 of the Transfer of Property Act. Cases similar to the present areto be found in Mulla's Transfer of Property Act, 4th Edition, pages 89 and 94; but in no case was the inalienability clause agreed to in a family arrangement carried beyond the life time of persons who had agreed thereto. In all these cases, the family arrangement as to inalienability was held binding but only upon the persons who were parties to the arrangement.
31. The same is to be found in the case relied upon by Shri P.R. Das, viz., 6 Ind App 182 (E). It is not necessary to examine the facts of that case, partly for the reason that a case is not an authority on a conclusion of fact and partly because the facts themselves were not entirely the same. We, however, cannot overlook the method of approach which their Lordships of the Privy Council indicated in that case and some others which we had added to the list, and having borne the method of their Lordships in mind and the distinction which their Lordships made in determining an issue of fact, we are of opinion that the Panch Faisla did not create an absolute dedication, nor did it confirm one which had been existing, but that it was a family arrangement in which Telibandha went in full proprietorship to Ramsaranlal and was inalienable in his hands but not in the hands of his successors.
32. This brings us to the provision in the Panch Faisla which enabled the other sharers to take the village in their hands from Ramsaranlal. The contention of Shri P. R. Das is that it offends the rule against perpetuities. We do not think that it does so, but we are quite clear that this was added in terrorem, so that the duty laid upon Ramsaranlal should be carried out and not neglected. It was not meant to be acted upon according to the letter of the provision but according to the tradition that someone should be able to look after the temple and the deity.
It appears that Ramsaranlal wanted that he should have full rights of proprietorship in Telibandha and the members of the family desired that there should be no doubt left as to who was to bo responsible for spending on the deity. The Panchas, therefore, combined the two and wrote the Faisla to ensure both. We do not think that this condition shows that mouza Telibandha was dedicated. All that it shows is that a charge was created on mouza Telibandha in favour of the deity, and if the work was not carried out then the person holding the village should give it to another to fulfil the charge.
33. Immediately after the decision of the Panchas Ramsaranlal appears to have resented all these restrictions in the Panch Faisla upon him. Before the registering officer the dispute was once again raised. We get an account of the dispute from Exs. P-34 to P-38. Putting aside the objections which Ramsaranlal had raised about the manner in which the arbitrators had proceeded to decide the partition dispute before them, it is found that he contended that he was given smaller village while bigger villages were taken by others. The other two branches seem to have contended that Ramsaranlal and Jamnaprasad had received Telibandha.
One side desired that the Panch Faisla be given effect to as it stood or otherwise the whole of the partition should be gone into again by the Panchas to redivide the property. Ramsaranlal appeared to agree to the latter course, and he wanted that the decision of the Panchas should be obtained quickly. There is some dispute as to what Ramsaranlal desired, and therecord of Shri H. C. Base, the presiding officer, is not quite clear as to what each party meant to say. But it appears that the final order was made on 12-7-1897, that is the day on which the parties raised these contentions. Perhaps Ramsaranlal gave in or was overruled before the registering officer. The order (Ex. P-38) is exceedingly brief and does not show what the upshot of the dispute really was.
34. Immediately thereafter, a suit was filed by the minor brothers of Ramsaranlal for the division of the property. That was civil suit No. 57 of 1897. The plaint (Ex. D-5S) in the suit is before us, but not the written statement. The order-sheet (Ex. D. 26) show that a writtenstatement was in fact filed and that evidence was being recorded. The issues in the suit have also been exhibited in this case (Ex. D-19). We need not go into the details of what was contended by the parties in that suit, because the matter was compromised out of Court. Shri Bagchi, the pleader for the minor plaintiffs, was asked to give an award, and it is dated 14-5-1898 (Ex. D-1).
On the strength of that award the suit was dismissed as compromised out of Court. From the Bagchi award, however we get an inkling of the dispute which, remained to be settled. Shri Bagchi held that mouza Borsi and Telibandha were not kept out of the partition but were included in the partition and were given to Ramsaranlal and those who were joint with him. Shri Bagchi also held that no right over either mouza remained in any party other than those persons. He, however, added that the duty of carrying out the Bhog Rag, repairs, etc., of Shri Ramchandra Swami temple were placed upon Ramsaranlal and others who were joint with him.
He added that from the time of Dinanath Sao the worship etc. of the temple had continued to be done from the income of Telibandha and that for that reason the value of Telibandha was not included in the partition. He made it clear that Telibandha had in fact been given to Ramsaranlal and others joint with him in full proprietary rights, that they were not liable to render accounts to anyone, and that none could demand the same from them.
He expressed an earnest hope that Ramsaranlal and others who lived together would accept the burden of the temple cheerfully and carry on the worship as before.
35. The trial Court held that the Panch Faisla of 1896 was vindicated and nothing was decided by Shri Bagchi (paragraphs 36. 45). We do not agree with this conclusion. It will be noticed that one of the contentions of those opposed to Ramsaranlal was that this village was not included in the partition. Shri Bagchi negatived this plea. He held that it was included in the partition, but that its value being very little because of the burden upon it, it had not been taken as a valuable asset in trying to equalize shares.
He, however, removed any misconception, about its being the property either of Shri Ramchandra Swami deity or of the family by stating that it had been given to Ramsaranlal and others who lived joint with him in full proprietorship,and that no right of anybody remained in the mouza. He also removed the clause about accountability, and in fact by his decision he handed over the full proprietorship of the mouza to Ramsaranlal and others who continued to live joint with him. The decision of Shri Bagchi isa valuable piece of evidence to show that at that moment all outstanding disputes between the parties case to an end.
The proprietorship of Ramsaranlal and others was established over the village; the rights of others to take back the property or to ask for its partition was also removed. The others saved themselves from any responsibility in the matter of the upkeep of Ramchandra Swami temple, and Ramsaranlal and others who were joint with him became immune from any interference by others. The document unfortunately was not incorporated in the decree by wnich the suit was dismissed as compromised. It was also not registered, but registration was not compulsory in those days, and indeed, all that the agreement did was to remove those clauses which were in fact not operative either because of law or because they were only in terrorem.
It was, therefore, wrong for the trial Court to think that the Panch Faisla was vindicated and the dedication of mouza Telibandha was reaffirmed. There is no mention in the Bagchi award of any dedication as such. If there was a dedication there would have been no need for Shri Bagchi to express the hope that the family tradition would be continued by Ramsaranlal and that the expenses of the temple would be met as they had been from the time of Dinanath Sao. The effect of the Bagchi award therefore was to confirm the conclusion which we have reached with regard to the incorporation of the Panch Faisla, viz., that Telibandha was given to Ramsaranlal and those joint with him in full proprietorship, and that the expenses of the temple were to be a charge upon that village.
It is significant that even in the Bagchi award the entire proceeds of the village were not ordered to be spent upon the temple but the expenses of the temple were to be met from the income of Telibandha. The distinction which the Privy Council made between complete and partial debutter, therefore, was maintained, and in fact was further emphasized. The Bagchi award was accepted and acted upon: See Ex. D-34, paragraph 6, statement of Ramanujlal (Plaintiff No. 2); paragraph 2l, evidence of Mathuraprasad (P. W. 2); Ex. P. 81 at page 248 of the paper-book (statement of Gajanand in C. S. 359 of 1912).
36. This brings us to an argument based upon the actings of the parties. The actings of the parties were taken note of from time to time by arbitrators, who incorporated the effect of the conduct of the parties in their awards. The evidence in the case shows that there was no direct expenditure of the income of the village on the temple but that the income of Telibandha went into the coffers of Ramsaranlal and others as in fact it had been going into the coffers of the undivided family even before the partition of 1896. From the general account of the family which is described as the gharu khata the expenses of the temple were met, and they continued to be so met even after 1898, when the Bagchi award was given.
No question was ever raised by any member of the public that the village was dedicated to the temple as Hirmi was dedicated to its service. In all the revenue papers which were executed thereafter the name of Ramsaranlal was shown as the proprietor, though 'waste' Ramchandra Swami. Of course the record of the revenue authorities is not conclusive of title. It is only a record of possession and is made for fiscal purposes. We, therefore, need not attach much importance to the fact how the revenue authorities recorded this village in the revenue papers, because both sides agree that no inference as to title can be drawn therefrom.
The other actings of the parties are of no consequence. Those who had left Ramsaranlal and others did not concern themselves with the village nor with the Ramchandra Swami temple. They had in effect lost all interest in the village and felt that they were relieved by the agreement of the family from spending anything towards the upkeep of the Ramchandra Swami temple. During the life time of Ramsaranlal the expenses of temple appeared to have been met, but later a dispute arose between the Mahant of the Dudhadhari Math and family, after which the Mahant refused to take any aid from the family, and in fact the aid completely stopped, and the family ceased to visit the temple.
37. We have now to refer to the partition of 1913 at which Ramsaranlal and his brothers separated from Janmaprasad. At that time Jamnaprasad's branch appears to have been concerned over the Ramchandra Swami temple, in which it, along with Ramsaranlal's branch, had taken an interest and had undertaken the responsibility for its maintenance. At the time of that partition Telibandha, went again to Ramsaranlal, and Jamnaprasad's branch was anxious that the responsibility of maintaining the temple should not be put at their doors.
It therefore asked Ramsaranlal to declare once again, that he would be responsible for maintaining Ramchandra Swami temple because he had received Telibandha. Ramsaranlal at that time is said to have given a document (Ex. P. 133). That document was not signed by Ramsaranlal, but it stated that Ramsaranlal's branch would be responsible for spending for the purposes of the temple. It is necessary to quote from it:
'Shri Dudhadhari temple has been, constructed by our ancestors.'
'When we brothers separated from one another privately then for the purpose of doing the work in respect of samaya vo vakt (i.e., occasions and celebrations) of the temple and meeting the expenses for plastering and white-washing, etc., which has continued to be done from our household from ever, I (have) received the village Telibandha.'
'No one is entitled to sell or otherwise transfer this mouza (village) or any part (of it) even. It is on record in the registered Panch-faisla (award).'
38. The intention of this document was to admit the charge on Telibandha and no more. Ramsaranlal, if he wrote this document, was anxious to assure those who were leaving him that though he had received Telibandha he was aware that the expenses of the temple were to be met from the income of that village. The last clause in that document was shown as an admission on the part of Ramsaranlal about inalienability.
But it suffers from the same defect which we have pointed out in connexion with the Panch Faisla of 1896. This agreement of Ramsaranlal would be binding upon him but not upon his successors. Indeed, the writing is unsigned and docs not show more than a declaration that it was never intended that Telibandha should be separated from the charge upon it.
39. Certain subsequent conduct of the parties was relied upon to help in the interpretation of the documents relating to mouza Telibandha, Centemporanea expositio is helpful where the documents are ambiguous, but as observed by their Lordships of the Privy Council this method is always fraught with danger: see Raghojirao Saheb v. Lakshmanrao Saheb, 39 Ind App 202 at P. 211 (PC) (O). However, we look at the subsequent conduct for what it is worth. The first consists of statements made by Ramhirdelal in, civil suit No. 359 of 1912, and civil suit No. 93 of 1916. There are Exs. P. 85 and P. 86.
In these Ramhirdelal made certain statements regarding dedication of mouza Telibandha. Ramhirdelal, however, appeared to be hostile to Ramsaranlal, with whom he admitted he was not on 'dining terms', though he was on 'talking terms'. We need not attach too much importance to statements which might have been made from ulterior motives and were more or less in one's own interest: see Venkatapathi Raju v. Venkatanarasimha Raju, ILR (1937) Mad 1 at pp. 10 and 13: (AIR 1936 PC 264 at pp. 268 and 269) (P).
40. The next evidence of acting comes in a civil suit filed in 1925 by Krishnasaran, Ramsunder and Shamsunder for joint possession of eight annas' share of mouza Telibandha and for recovery of profits after rendition of accounts and removal of defendant No. 1 (Ramsaranlal) from malguzariship and management of the village. Ramanujlal, the present plaintiff No. 2, was also made the second defendant. The plaintiffs in that case stated that the village was not divided and was given to Ramsaranlal, subject to a charge for the expenses of Shri Ramchandra Swami temple. The plaint of that suit is Ex. p-29 dated 10-8-1925. Ramanujlal on that occasion filed a written statement (Ex. D-34), in which most of the facts were admitted, but it was stated by him that the defendants were not accountable in view of the Bagchi award and that Ramsaranlal was not liable to be removed from his management of the village.
There are certain statements made in the case (Ex. D-14) which throw some light upon the matter. But they are inconclusive inasmuch as those statements were made by the parties concerned entirely in support of their own case. The suit, however, came to an end by compromise and Ex. D-15 is the judgment in the suit. It is stated there that the first plaintiff seemed to have realized that he had launched a hopeless suit and he agreed to have the suit dismissed and to bear the costs incurred on behalf of the minor plaintiffs. From this litigation we do not get any help, and there is hardly anything which militates against the view we have taken that mouza Telibandha was given to Ramsaranlal, though subject to a charge.
41. The subsequent conduct of Ramsaranlal is significant. As early as 27-8-1895 he gave a plot to the Deputy Commissioner for the construction of his bungalow: Ex. D-47. In September of the same year he gave another plot to Seth Ramchand Ramrathanji Marwari for the construction of a bungalow for the commissioner: Ex. D-48. In September 1904 he sold a plot to the Church Committee: Ex. D-49. In March, 1941 he sold another plot to an Extra Assistant Commissioner of Forests for the construction of a bungalow by him: Ex. D-50. In November 1922 he sold yet another plot to the Assam Labour Board: Ex. D-51.
These are acts of an owner, and it seems surprising that for a period of 27 years when property was being sold by Ramsaranlal no suit should have been filed by the other members of the family, who were always bent upon litigation at the slightest excuse. It appears that so long as the expenses of the temple were being duly met the family members were not concerned as to how Telibandha was handled. They were only anxious to see that the temple was being maintained by the branch to which mouza Telibandha was given and was not a liability on themselves.
42. As We have already said, contemporanea expositio is not a safe guide. We do not think that there was any ambiguity in any of the documents which read consistently and are quite clear in what they say. In these circumstances the evidence of actings of the parties is irrelevant: See North Eastern Rly. Co. v. Hastings (Lord), 1900 AC 260 (Q).
43. There remains only one or two other matters to which we should make a reference. The first is the partition lists, Exs. D-6 and D-7, in which there is no mention of mouza Telibandha, though there is a mention of asamis from Telibandha. We heard considerable argument as to what the word 'asami' means in this context. One side contended that it meant only debtors, while the other side contended that it meant also tenants.
We do not consider this of much significance, because in the lists themselves there is an equalization of shares without reference to Telibandha. Also, the asamis of Telibandha are mentioned in connexion with a Raipur shop, and not Ramsaranlal and others who were given Telibandha. We do not think that such pieces of evidence can create a dedication in favour of a temple when there are documents to show that no dedication was meant but only a charge was created.
44. The last matter to which we were referred was a statement made by Kamalnarayan himself (Ex. P-82) when a portion of the land was being compulsorily acquired for the Assam Labour Board, Raipur. In that statement made on 5-2-1922 he said that there were documents in the family to show that the village Telibandha was granted to that branch in lieu of their performing the duties of Bhog-Rag etc., and that there was no right in the family to transfer or alienate any portion of it. The statement, no doubt, shows that Kamalnarayan understood that he was incompetent to make a transfer of the property. The statement was made out of a desire to save the property even at the last moment from compulsory acquisition.
The self-interest is patent, and we cannot say that Kamalnarayan (defendant) conceded the entire case of dedication by that statement. No doubt, the Panch Faisla had made that condition, and Kamalnarayan was using that to good effect for the purpose of saving land from compulsory acquisition. This statement cannot undo the entire history of the mouza, and an admission, if any, made therein stands completely explained. We, therefore, do not take it into account against the defendant.
45. We have examined the entire material of the record of the case and have found no evidence of dedication. The utmost that can be said in favour of the case of the plaintiffs is that there was a tradition in the family that the temple of Ramchandra Swami, should be lookedafter by the family and the mouza was kept charged with the burden of maintaining the temple. As Shri P. R. Das pointed out, a Gilbertain situation has arisen because the Mahant of the Dudhadhari Math does not want this family to have any dealings with the temple, nor does he require them to spend any money.
The charge, if any, can be enforced only at the instance of the public or of the Mahant. There is no question of supporting the Dudhadhari Math, because the Mahant does not want any person to take any hand in the management of the temple. It appears that the attitude of the Mahant developed because the family was claiming that the temple was constructed by Jagannath Sao and Dinanath Sao. The ownership of the temple and its public character were not decided in the civil suit, because the Mahant was not a party. It appears from the evidence-that the temple is visited by the public, who have not been denied access to it at any time.
We are, however, not concerned with the character of the temple. It may be a public temple, but the trust in respect of that has not been proved. We hold, therefore, that no dedication, either express or constructive, has been proved in this case. At best, the village Telibandha was charged with the expenses of maintaining the temple; but that is quite a different matter.
46. We accordingly hold that the suit of the plaintiffs was not entitled to succeed. We allow the appeal, set aside the judgment and decree passed in the Court below and order the dismissal of the suit with costs throughout.