1. This is a defendant's Second Appeal against the reversing judgment of Sri C.C. Coari, District Judge of Cuttack, decreeing the plaintiffs' suit for declaration of the deed of Sebasamarpanpatra as invalid.
2. The deity (Madan Mohan Jiu) is situate in village Kaima with nearly 27 'Marfatdars', (SIC) belonging to Das family being 'Pataras' by (SIC) One of the 'Marfatdars' was Bhima Das. (SIC)account of his old age and on amount of reason that his son was absent from the (SIC) on many occasions, he executed a deed of 'Sebasamarpanapatra' in respect of his two annas share of the 'marfatdari' right of the deity, the deed being dated 1-11-33 in favour of the present appellant (Baikari the defendant No. 1).
3. The plaintiffs' substantial attack was that the 'marfatdari' rights are not alienable, and, as such, the deed was invalid.
4. The defence was that the suit was barred by limitation & was not maintainable tinder the provisions of Section 54 of the Orissa Hindu Religious Endowments Act. But the main point of defence was that the deed was not an invalid deed and in the circumstances of the present case the transfer was a valid transfer inasmuch as it was for the benefit of the institution and the donee was interested with the endowment and had made previous contribution to the endowment as well.
5. The learned trial Court had dismissed the plaintiffs' suit finding that the deed was a valid transaction. He had also found that the custom of alienability had been proved. The judgment of the trial Court has been reversed on two main grounds, namely (i) that the transfer of 'marfatdari' rights in favour of a stranger is invalid, and (ii) that the defendants are not able to prove the custom of alienability of the 'marfatdari' rights.
6. Mr. B.K. Pal, appearing on behalf of the appellant, urges the point basing his argument on the position of law that if really the transfer' is without any consideration of pecuniary gain to the donor and if it is really for the benefit of the institution and for proper carrying out of the worship, the deed has got to be accepted as valid in law as in the present case it has been in favour of a man who cannot be deemed to be a stranger to the institution as he had made previous contribution to the institution. He bases his argument on the findings of facts arrived at by both the Courts below.
It is not disputed really that the appellant (defendant No. 1) made some contribution previously to the institution. He belongs to the village and as it appears from the statement of deceased Bhima Das, contained in the deed of 'Seba Samarpana Patra' itself, that on account of his extreme old age he could not be able to carry on properly the management of the deity's worship and that his son was also living away. Substantially, the 'Seba Samarpana Patra' may be taken to be with the intention of making proper management for the worship, but to my mind, it is perfectly clear from the position of law that that alone is not sufficient to validate an alienation of 'marfatdari' rights in favour of a stranger.
The law has been uniformly held to be a valid position ever since the time of the leading case reported in -- 'Rajah Vurmah v. Ravi Vurmah', 1 Mad 235 (PC). I will only refer to a decision of the Patna High Court in a case coming from Cuttack decided in the Cuttack Circuit, reported in -- 'Richha Ram v. Balabhadra Das', 1 Cut L T 15, laving down the principle that in the absence of a custom or some condition in the deed of endowment to the contrary, the office of the 'shebaitship' cannot be transferred. So there are only two exceptions for the purpose of validating a transfer of 'marfatdari' rights: (i) if there be a custom to that effect, and (ii) if there be a condition in the deed itself validating such transfers.
The same view has also been expressed in another case decided at Cuttack reported in --
'Sree Gopinath Deb v. Srimati Nila Dibya', 1 Cut L T 51, where Mr. Justice Fazl Ali (as he then was) had also explained a previous decision of the Calcutta High Court reported in --'Nirod Mohani Dassi v. Shibadas Pal Dewasin', 36 Cal 975, which has been strongly relied upon by Mr. Pal. In the present case as we rind the position is indisputable that this defendant is a stranger to the family and belongs to a different caste, that the 'marfatdars' are all of the Das family and are 'Pataras' by caste. The mere position that the defendant was taking interest in the endowment or that he had made some contributions previously cannot make him entitled to all the privileges in respect of 'marfatdari' rights which belong to the members of the line of succession in the Das family.
Mr. Pal relies upon a decision of the Calcutta High Court reported in -- 'Nirmal Chandra v. Jyoti Prasad', AIR 1938 Cal 709 for the proposition of law that special circumstances conducive to the benefit of the idol validate an alienation of the 'shebaitship inter vivos'. The position there is entirely different on account of the reason that the endowment started with a very meagre financial condition, and one Bidhu had made substantial contribution to the endowment by virtue of a deed.
The provisions in the deed were to the effect that the 'Marfatdars' should be entitled to nominate their successors in their absence '(Abartnmane)'. It is this provision in the deed itself which makes the whole difference. That is also consistent with the view taken by their Lordships in the case reported in '1 Cut L T 15' laying down the two exceptions, custom and condition, in the deed of endowment itself. The decision reported in 'AIR 1938 Cal 709', therefore, does not help Mr. Pal in his contention to validate the 'Seba Samarpana Patra' in the absence of any deed of endowment or, as a matter of that, in the absence of any provision of alienability.
The next case, relied upon by Mr. Pal, is '36 Cal 975'. There their Lordships laid down the principle that an alienation '(inter vivos)' of the office of 'shebait', to a closely connected member of the family who seems to have more interest in worship without any idea of personal gain, is valid under the Hindu law. It is clear from the facts stated in the judgment of their Lordships that the donee had already eight annas interest in the 'marfatdari' rights. He was also a reversioner in respect of 5/6ths of the remainder. As such, he could not possibly be deemed to be a stranger to the family of the 'marfatdars'.
On a consideration, therefore, that on account of his personal qualification to be more competent to manage the worship of the idol and without any idea of personal gain, the 'Samarpan' in his favour by some other 'marfatdar' was taken to be a valid transaction. The third case relied upon by Mr. Pal was the case of -- 'Khetter Chunder v. Hari Das', reported in 17 Cal 557. To me as it appears the principle laid down there has no bearing for the purpose of our case. In that case, it was a private endowment and that with the concurrence or the whole family, the family transferred the deity and the 'marfatdari' rights to another family for the purpose of carrying on the regular worship of the idol. The transfer was held to be a valid transaction.
The whole rationale of the judgment was on account if the endowment being a private one and the transfer being with the concurrence of the whole family. Here, of course, it is a transfer by one of the 'marfatdars' only of his two annas interest to a stranger, as I nave already found, in the absence of any other 'marfatdars' who are carrying on their duties. In conclusion, therefore, the transaction, in question, dated 1-11-33, cannot be upheld in law.
7. A further point was taken up by Mr. Pal. that the custom of alienability has been proved and the judgment of the lower appellate Court ' is vitiated on account of not having considered the important circumstances in proof of custom. The first and the formidable difficulty in the way of Mr. Pal is that the custom has not been pleaded at all in spite of the fundamental position that a party relying upon a particular custom has got specifically to allege it in his pleadings. The fact that there was an issue and that both the Judges in the Courts below have considered the matter, in my opinion, does not go a great way to cure the defect of not pleading the custom.
But after examining the evidence of custom also I find that besides the transaction which is attacked in the particular suit, there was only one more transaction of transfer of the year 1934 (Ex. A). The learned lower appellate Court, alter considering this transaction, has found that the evidence is Very scanty and insufficient for the purpose of establishing the custom. Mr. Pal wants to rely upon the fact that all the co-sharers had not really resisted the transfer and had, in fact, admitted him to the rights of worship and a 'marfatdar' along with them for fairly a long period of 10 years and this circumstance will throw much light over the existence of the custom.
It has been found as a fact that he was working as a co-marfatdar, but to my mind that alone does not carry the matter a long way the purpose of establishing the custom. The mere fact that other co-sharer 'marfatdars' did not resist or impeach the transaction earlier cannot be taken to be a very strong piece of evidence to discharge the very heavy onus lying on the party alleging the custom.
8. In conclusion, therefore, the appeal failsand is dismissed. There will be no order is tocosts. It is to be observed that the decree inthe present suit, will be confined only to therights which were claimed by the defendant byvirtue of the deed of the year 3933 (Ex. D).The decree will not affect if the defendant No.has any other right independent of the deeddated 1-11-33.