1. The point debated in this appeal is whether the properties in dispute are the absolute Devottar of the Deity Jagannath Mahaprabhu, pitf. l in the suit, or whether they are properties merely charged with service to the said Deity. Pltfs. 2 & 3, defts. 1 & 2, defts. 11, 12, 13 & 14 constitute members of a family whose common ancestor was one Bishuu Charan Das. These descendants of Bishnu Charan are described as marfatdars of the Deity, Sri Jagannath Mahaprabhu, & the suit properties have been described as Amrita Manhi of the said Deity who is pltf. l. The Settlement Records show that ever since the time of the Provincial settlement the suit properties, along with some other properties, were in the possession of the members of Bishnu Charan's family. They have also been accessively recorded in the three Settlement Registers as Amrita Manhi of Lord Jagannath. In the last Settlement, however, the marfatdars have been recorded as being in possession o5 seperate plots & it is not denied that the family which consists of three branches is in possession of different plots in three separate shares. The first deft. & the husband of the second deft. executed a permanent lease under Ext. A, dated 4-4-30 of 33 decimals of lands out of these properties in favour of defts. 8 & 9. On 4-4-92 the second deft, executed another permanent lease in favour of the same lessees by a deed, Ext. A 1 in respect of 17 decimals out of these properties. Between 1942 & 1944, again, defts. 1 & 2 executed two more leases, two kebalas & one usufructurry mtge. in favour of defts 3 to 7, 10 & 11. It would thus appear that defts. 3 to 11 are alienees from 'defts. l & 2 of properties which have been admittedly recorded as Amrita Manhi in the name of pltf. l.
2. Pltfs. 2 & 3 instituted the suit out of which this appeal arises-claiming a declaration on behalf of pltf. 1 that the several alienations made by defts. 1 & 2 are not binding on the Deity, Jagannath Mahaprabhu, & praying for setting aside the alienations & for possession as a consequential relief. The suit was instituted on 244-44. Defts. 3, 8 & 9 are the only alienees who contested the suit, the other alienees having remained ex parte. The substantial contention raised on behalf of the contesting defts. was that the suit properties are not the devottar properties of the first pltf. & that the alienors have been treating them as if they were their own personal properties for over twelve years & that consequently their right to alienate them is not open to challenge.
3. Both the Cts. below have concurrently found that the suit properties constitute the Devottar properties of pltf. l. But in view of the fact that the properties were admittedly being used as personal properties by the members of the marfatdar's family, they gave a declaration that they are not absolute Davottar but are merely charged with service to the Deity. The pltfs' prayer for setting aside the alienations made by defts 1 & 2 was rejected on the view that the properties not being absolute Devottar, were alienable subject to the performance of service to the Deity with which they were charged. The pltfs. have come up in appeal to this Ct. against this decision.
4. In second appeal, it is contended before us by the learned counsel for the reaps, that the very use of the word 'Amrita Manhi' in the Settlement Records connote3 partial dedication & that the view of the Ota. below is supported by the decisions in Basoo Dhul v. Kishen Chunder, 13 W. R. 200 and Parikhit Mohanty v. Dayanidhi, 2 Cut. L.T. 57. Secondly, it is urged that the suit is barred by limitation so far as the claim to set aside the alienations under Exts. A & A-l is concerned, as these were made more than twelve years prior to the institution of the suit.
5. It is unnecessary to load this judgment with too many details as the admitted facts are beyond controversy. It appears that in the year 1837, there was an enquiry by Govt. into the character of these properties & one Eaghunath Das, grandfather of the 6rst deft., claimed as marfatdar of pltff. 1, those properties as the Amritta Manhi or food offering of that Deity. That claim was recognised by Govt. & the lands were exempted from payment; of any public revenue. In 1880, Bavan Dag, father of the shebait deft, made a statement that these properties had been dedicated as the Amrita Manhi of Jagannath Mahaprabhu & that he was utilising the usufructs of the lands for that purpose. This statement was made in March I860 in a memorandum of appeal to the Dist. Ct. against a judgment obtained by a lessee of these properties from a member of the marfatdar's family. In 1890, pltff. l was recorded as the owner of the properties at the Provincial Settlement In view of these records, the. Cts. below were justified in taking the view that the properties belonged to the Deity.
6. It is not disputed that the properties ware dedicated to the Deity as 'Amrita Manhi' or food offering. But there is no evidence as to when & in what circumstances the dedication was made. It is, however, pointed out by the Contesting defts. that the evidence indicates that only Rs. 15 was being utilised for the 'PANGTHI BHOG' of Sri Jagannath by the family members of the marfatdar, although the lands recorded in she name of the Deity covered an extent of as many as one hundred acres. It is nest urged that the family of the marfatdars had no other property of their own excepting the property recorded in the came of pltff. 1. Thirdly, it is said that the residential house of the marfatdars stands on a plot of land belonging to pltf. 1. It is accordingly argued that the properties in dispute must have been the family properties of the shebait before they ware dedicated to the Deity as ''Amrita Mania' & that what was actually dedicated to the deity was not the property itself but only a portion of the income therefrom such as would be sufficient to meet the expenses of the ''PANGTHI BHOG'. This argument of the resps. which is conjectural, can only be answered conjecturally. As already pointed out above, it is impossible to decide-on the materials placed before us -how the original endowment had bean made. From one of the papers in Ex. 4 aeries it appears that same of the properties at any rate had been gifted by Makadam Maguni Panda for the &mrita; Manhi of Lord Jagannath & that Raghunath Das was the marfaidar in respect of these properties. The resps., therefore, cannot claim the properties to have been their ancestral properties. Nor can their subsequent dealings with the property as if it was their own personal property derogate from the completeness of the trust itself in favour of the leity, because a persistent abuse of trust cannot furnish the basis of a claim which the Ct. will recognise. It may be that the income of the properties is being used by the members of the family for their own maintenance, but this is in perfect accord with usage & custom. Whether they are entitled to appropriate the income of the properties, after making the customary offerings to pltf. 1, & whether they have a beneficial interest in the bhog so offered or in the balance of the income left after such offering, are matters which are wholly outside the scope of the present suit. On the materials placed before us we are bound to hold that no personal claim to the suit properties can be recognised & that the absolute character of the title vesting in pltf. 1 must be upheld.
7. The word 'Amrit Manhi,' literally means food offering & there is no warrant for holding that it indicates only a partial dedication. In the case reported in Basoo Dhul v. Kishen Chunder, 13 w. r. 900, it was proved that Budh Gir who had created the endowment had obtained the lands by private purchase & that he had charged them with an annual payment of 800 chhanas of cowries, equivalent to Rs. 80 for the food of Lord Jagannath & it was further directed that the remaining profits from the lands were to be appropriated by one Ballav Ghir, the marfatdar. The Govt. declared in 1794 that the lands were subject to payment of Rs. 80 for Jaoannath Msthaprabhu & that the remainder of the income was to be used by the gosain for his own purposes. Having regard to the vary clear & express terms of the endowment, the Ct. held that the property could be sold subject to the charge with which it was burdened, but it should be noticed that it was pointed out in that very case that property wholly dedicated to religious purposes could not be sold. I find nothing in that case to warrant the contention that the use of the word 'Amrtita Manhi' itself indicates partial dedication. That case was followed by Verma J. in Parikhit Mohan v. Dayanidhs. 2 Cut L. T. 67, to which reference has been made above. It doss not appear from this report whether the dedication was absolute or whether the property was subject to a charge as in the previous Calcutta ease. This case is certainly no authority for the proposition that 'Amrita Manhi' itself means that the property is subject only to a charge & doss not constitute absolute Devottar. In the absence of the grant itself I can see no legal authority for justifying a con. version of devottar property into secular property & upholding such a singular claim on the part of the marfatdar as against the trust. The onus rested upon the reaps, to show, by the clearest & the most unimpeachable evidence, the legitimacy of his personal acquisition.
8. In Srinivasachariar v. Evalappa Mudaliar, 49 I. A. 237: (A. I. R. (9) 1922 P. C. 325), the Privy Council had to deal with a case where a similar claim was put forward on behalf of a trustee on She strength of a patta granted to an ancestor of the trustees, with no indication that those particular items were temple lands or that the pattadar held them as Dharmakarta. In negativing this contention their Lordships observed:
'It must, of course, be plain that it would require circumstances unique to warrant the transformation of these endowment lands into the private property of the true tea.'
The distinction between an absolute dedication & a partial dedication has been pointed out in several cases & the test is whether the dedication amounts only to a charge upon the property to meet the expenses of some religious acts or ceremonies the surplus being left at the disposal of the Shebait. The cases reported in Ashutosh Dutt v. Doorga Churn, 6 I. a. 182 : (5 cal. 438 P. C.) and Nimai Churn v. Jogendranath, 21 w. R. 365 are cases where it was proved that the she baits had proprietary interest in the lands & that only portion of the income had been dedicated for religious worship. The contention of the resps. in the case before us cannot get any support from above two decisions on which considerable reliance was placed. The Ota. below were in error in holding that all that wag-endowed to pltf. 1 was only a portion of the income from the properties for the performance of a particular service & not the entire extent of the suit properties.
9. The only other point that requires to be considered is whether the two leases Exs. A & A-1 in favour of clefts. 8 & 9 are not liable to be set aside on the ground that they were executed within 12 years before the institution of the suit. It is conceded by Mr. M. M. Das, the learned counsel for the reaps., that the only article applicable to the case is Article 134A, Limitation Act, which prescribes a period of twelve years in suits to set aside transfer of immovable property comprised in a Hindu, Muhammadan or Buddhist religious or charitable endowment made by the manager thereof for valuable consideration. The period' of limitation commences from the date when the transfer becomes known to the pltf. It cannot be, & in fact it was not, contended that the possession of defts. 8 & 9 can by any means be regarded as adverse to pltf. 1. Both these lessees took their leases with full knowledge that the property was Devotter & that the lessors were only the shebait marfatdars of pltf. 1. It is well settled that the possession of a shabait is fin accordance with the title of the Deity & the lessors were holding the Deity's lands as his trustees & it is only this right that has been transferred to defts. 8 & 9 & the lands are held by them in that capacity. No question of adverse possession therefore arises. The only article applicable as has been held by the Cts. below is Article 184-A but in applying the Artiels to the facts of the case the Cts. below appear to have taken the view that the pltfs. must have known about the alienations ever since the time they were actually made because they belonged to the family of defts, 1 & 2. The pltfs., however, gave evidence in the case that they came to know of the alienations only in 1914. Even if reliance ie placed on Ex. 1 (a) a sale deed executed by one of the pltfs. in favour of deft. 8 in 1987 & knowledge of alienation is attributed to him on the strength of that sale deed, the suit would be well within time. There is no material for holding that the pltf. had any means of knowing the alienations earlier. In order to bring the case within the mischief of Article 134A, it is not enough that any one in the family of the pltf. must have known of the alienation. What that Article contemplates is the actual knowledge of the person himself who goes to Ct. as the pltf. There is no material to show that that was the case here & accordingly there is no bar of limitation to the maintainability of the suit, as regards any of the alienations.
10. The judgment under appeal is set aside & the pltfs. shall be entitled to a decree as prayed for. The appeal is accordingly allowed with costs.
11. I agree with my learned brother. The suit properties have bean admittedly recorded in three successive settlements as the Amritamanhobi property of the first plaintiff Shri Jagannath Mahaprabhu showing the deity as the owner of the properties. Strong evidanoe is required to show that the interesft of the deity in the properties is only a charge on the income thereof contrary to the prima facie import of the settle. ment entries. I agree with my learned brother that the use of the word 'Amtitamanhohi' is not sufficient to prove that the deity's interest in the property is only by way of a charge on the income. A perusal of the judgment in Basoo Dhul v. Kishan Chunder, 13 W. R. 200 and Parikhit Mohan v. Dayanidhi, 2 Cut. L. T. 67, does not support any such assumption, as has been pointed out by my learned brother.
12. I also agree with my learned brother that in oases of this kind the evidence that the Shebaits have been appropriating major portion of the income without utilising it for purposes of the deity, cannot be taken as relevant to show the terms of the original grant, because such appropriation of income might very well be nothing more than misappropriation. It may be that where a grant of this kind otherwise appears to be the grant of a mere interest of the property by way of a charge on the income, evidence of subsequent conduct of the shebaits may be given as evidence of the measure of the charge if that question remains in doubt. I wish to say nothing about it one way or the other. The difficulty in the way of the contesting defts. in this case is not merely that there is no evidence that the dedication was only of a mere charge on the income of the property, but even the evidence of user by the family of the Matfatdars that has been relied on, affords no clear material for decision as to the nature of the services for which the charge is available or the measure of the income which has to be appropriated for the same. It is impossible therefore to uphold the view of the Ota. below that the deity first pltf. has only a charge on the income of the properties. The suit properties must, therefore, be held to be absolutely dedicated to the first pltf. The alienations would accordingly be invalid.
13. I agree also with my learned brother that the requisite knowledge of the pltfs. under Article 134 (a), Limitation Act, has not been made out so as to bar the recovery of the properties covered by any of the alienations in the suit.
14. I accordingly concur in the order proposed.