P.V.B. Rao, J.
1. The defendant files this appeal against the judgment and decree of the Subordinate Judge, Cuttack decreeing the plaintiffs' suit for partition of the suit properties except lot No. 1 mentioned in Schedule B of the plaint. The plaintiffs filed a memorandum of cross-objections against the decree disallowing the partition of lot No. 1.
2. Plaintiffs' case is briefly as follows: Plaintiffs 1 and 2 and the defendant are members of a joint family governed by the Mitakshara law. Plaintiff No. 3 is the ancestral family deity of the parties who are the Shebait marfatdars. One Chintamani had four sons -- Rama, Shyama, Padan and Madan. Plaintiff No. 1 Fakir is the natural son of Madan who had another son Bidyadhar who died unmarried. Plaintiff No. 2 Mani Dei is the wife of Madan. Padan had two sons -- Bhikari and Jogendra (the defendant), Bhikari having died unmarried.
According to the plaint, the properties mentioned in Schedule B of the plaint are the ancestral joint family properties of the parties and lot No. 1 is the property of the deity plaintiff No. 3 and lots 11 to 161 are the Amrita Manchi lands of Lord Jagannath Mahaprabhu of which the parties are marfatdars. Rama and Shyama, sons of Chintamani, died leaving no sons.
The plaintiffs alleged that Shyama adopted Fakira (plaintiff No. 1) during his childhood about 37 years ago, he having died about 35 years back. It is also stated that Padan became a lunatic and died during the life time of his father about 32 years back. The plaintiffs therefore alleged that plaintiff No. 1 is entitled to the share of Shyama to the extent of 5 annas 4 pies and the defendant is entitled to 5 annas 4 pies and plaintiff No. 2 to the share of Madan to the extent of 5 annas 4 pies. The plaintiffs 1 and 2 separated in mess from the defendant about 7 years ago dividing their movables, but the Thakur, the articles of the temple and the immovable properties described in Schedule B remained joint. Consequently the plaintiffs filed the suit for partition.
3. The defendant contended, denying the plaint allegations, that plaintiffs 1 and 2 have no locos standi to bring the suit on behalf of plaintiff No. 3; that plaintiff No. 3 has no cause of action, to bring the suit and that the suit is bad for nonjoinder of parties. He alleged that plaintiffs 1 and 2 are not shebait marfatdars of plaintiff No. 3 or marfatdars of Lord Jagannath Mahaprabhu.
He also alleged that plaintiff No. 1 is not the adopted son of Shyama, but is the son of Madan and that plaintiffs 1 and 2 are not members of the same family along with the defendant governed by the Mitakshara law. The defendant also alleged that the properties mentioned in Schedule B are not the ancestral joint family properties of the parties; that Padan had two sons -- Nrusingha and the defendant, the former having died unmarried; that Padan had no son named Bhikari; and that it is not a fact that Padan became a lunatic at any time.
It is also specifically alleged by him that the suit properties were always in exclusive possession of the defendant as Rajguru Mahant since the death of Nrusingha in 1917; that by the rule of succession prevailing in the institution and the custom of the family, the properties devolved upon the defendant in 1917; that the ancestors of the defendants had been the Kulaguru of the Raj family of Killa Madhupur; that the right of officiating as Raj-guru belongs by custom to the eldest male member of the eldest branch of the defendant's family; that plaintiff No. 3 is the Ista Debata of the defendant's family; that in order to maintain the position of Raj-guru and for due performance of the seba puja of plaintiff No. 3 from time to time the successive Rajas endowed properties in the name of plaintiff No. 3 and the shebaiti marfatdari of these properties was vested in the Rajguru who was also called the Rajguru Mahant; and that the rule of succession was that only the Rajguru Mahant will be the She-bait marfatdar in respect of that property.
Consequently his case is that the right which this defendant enjoys with respect to the disputed properties mentioned in lot No. 1 of Schedule B of the plaint devolved upon him in exclusion of the junior branch to which plaintiffs 1 and 2 belong. The defendant further alleged that plaintiff no. 1 and his father never put forward any right to these properties and that Plaintiff No. 1 is maintaining himself with his own earnings. It is also alleged that lots 2 to 10 of Schedule. B of the plaint were gifted from time to time by the Rajas of Madhupur to the successive Rajgurus as Niskar to maintain the position of Rajguru with the same rule of succession as mentioned above and have come down to the defendant in the same manner as stated before.
With regard to lots 11 to 16 of Schedule B, it is the defendant's case that as the Rajguru Mahant of Madhupur came to officiate as the Rajguru of Chhedra Raj family, the Rajas of Chhedra from time to time created an endowment in the name of Lord Jagannath and out of respect for their Guru appointed them as marfatdars thereof for offering flowers and prayers for the good of the Raj family and the right to marfatdarship devolves on the eldest male member of the eldest branch who alone officiates as Rajaguru.
Accordingly the defendant's elder brother Nrusingha had been and this defendant has been in possession of the disputed properties to the exclusion of plaintiffs 1 and 2, He also pleaded that the suit is barred by limitation as on the death of Rajguru Mahant Chintamani Das in 1912 his son Padan having predeceased him in 1909, the shebaiti marfatdari right and Rajguru Mahantship along with other rights appertenant thereto devolved upon Padan's son Nrusingha and then upon the defendant according to the prevailing rule of succession, by primogeniture; and that the above-mentioned succession, took place during the life-time of Madan, father of plaintiff No. 1 and husband of plaintiff No. 2 without any objection on the part of anybody and as successors to the property, Nrusingha and the defendant were and are in adverse possession, against plaintiff No. 1 and his father for more than the statutory period.
4. The learned Subordinate Judge held that the suit is not bad for non-joinder of parties; that the genealogy filed is not correct; and that plaintiff No. 1 is not the adopted son of Shyama. On issue No. 1 whether the plaintiffs 1 and 2 have any locus standi to bring the suit on behalf of plaintiff No. 3, the learned Subordinate Judge came to the conclusion that lot No. 1 is not partible as admitted by the learned counsel for the plaintiffs and accordingly plaintiffs 1 and 2 have no locus standi to bring the suit for partition with regard to lot No. 1 on behalf of plaintiff No. 3. The learned Subordinate Judge on the other issues came to the conclusion that plaintiffs 1 and are entitled to a decree for partition with regard to the other properties.
5. The main contentions raised in this appeal by the learned counsel for the appellant, Mr. B. K. Ray, are that the learned Subordinate Judge erred in holding that the succession to the properties is governed by the ordinary rule of Hindu law; that the learned Subordinate Judge ought to have held that the succession to the suit properties in this case is governed by the rule of primogeniture; and the suit is barred by adverse possession; and that the learned Subordinate Judge wrongly placed the burden of proof on the defendant.
6. Admittedly the suit properties are of three categories: Lot No. 1 stands in the name of plaintiff No. 3 and the marfatdari right to the same is recorded in the name of Chintamani and subsequently in the name of the defendant alone; Lots 2 to 10 endowed by the successive proprietors of Killa Madhupur for officiating as Rajguru and for imparting Mantras to the Raj family and this property has been endowed to Rajguru personally and has been recorded in the name of Chintamani and after his death in the name of the defendant; and the third category lots 11 to 16 are Amrita Manohi lands in the name of Lord Jagannath wherein the Rajguru has been recorded as marfatdar. It is also the admitted case that the first two categories of properties were endowed by the successive proprietors of Killa Madhupur whereas the properties of the third category were endowed by the successive proprietors of Chhedra.
7. With regard to these three categories of properties, the defendant's contention is that besides the family custom, the grants by which the endowments relating to the aforesaid three categories of properties were made, provide that it is only the eldest male member of the eldest branch who is entitled to officiate as the Rajguru and is also the Mahant of the said properties constituting, the institution as Kharilo Math and he alone, is entitled to perform 'the' seba puja of the deity plaintiff No. 3 and enjoy the property endowed in favour of the deity, perform the work of the Rajguru and enjoy the properties described in lots 2 to 10 alone and as marfatdar would offer prayers and flowers for the good of the Raj family of Chhedra and enjoy the third category of properties. In discussing this question, the learned Subordinate Judge held that in a case like this where it is alleged that an estate is impartible by custom, the burden of proving the custom lies on the party who alleges it and that the defendant failed to succeed in proving the said custom.
8-14. No grants of any of the categories of these properties were produced in the case. (After examining the evidence, documentary and oral, in detail, his Lordship concluded.) On the above evidence, the learned Subordinate Judge came to the conclusion and I think rightly that the defendant failed to prove the custom and usage of primogeniture to be prevailing in the family regarding the succession to the suit properties; that the succession to the properties is governed by the ordinary rule of succession according to Hindu Law; that the plaintiffs are members of a joint Hindu family and lots 2 to 10 are family properties; and that the plaintiffs have also a right of partition in lots 11 to 16 the Amrita Manhoi properties standing in the name of Lord Jagannth.
15. The most important contention advanced by Mr. Ray, the learned counsel for the appellant is that the trial Court wrongly threw the burden of proof on the defendant to show that the usage of succession is by primogeniture and that the suit being a suit for partition it is for the plaintiffs to prove in the first instance that there is unity of title to entitle them to a share on partition. His contention is that lot No. 1 and lots 11 to 16 being trust properties, according to the general law, it is the custom or usage that governs the succession to such properties, it is for them to show that the properties are properties in which all the members have a right. In support of his contention he relied upon a passage in Mayne's Hindu Law, Eleventh Edition, at page 942. It is stated therein:
'The Devolution of the Office of the Shebait of an idol or of Dharmakarta of a temple or manager of a charitable endowment upon the death or termination of office of the incumbent, depends upon the terms, upon which it was created, or the usage of each particular institution, where no express deed of trust or foundation exists. Where nothing is said in the grant as to the succession, the right of management passes by inheritance to the natural heirs of the donee, according to the rule that a grant without words of limitation conveys an estate of inheritance, unless such devolution is inconsistent with, or opposed to the purpose the founder had in view in creating the trust or where the office is descendible to a single heir.'
He also relied on the case of Shah Gulam Rahumtulla Sahib v. Mahommed Akbar Sahib, 8 Mad HCR 63 (A). In this case it was held,
'Where property has been devoted exclusively to religious and charitable purposes, the determination of the question of succession depends upon the notes which the founder of the endowment may have established, whether such rules are defined by writing, or are to be inferred from evidence of usage-'Where, so far as the will of the founder can be ascertained from the usage of former days, it seemed to authorise a mode of succession originating in an appointment by the incumbent of a successor, the Court would not be authorized to find in favour of any rule of succession by primogeniture solely from the circumstances that the persons appointed were usually the eldest sons'.
This case, in my view, does not support the appellant's contention. There was evidence, in this case, of the intention of the founder as to succession which was determined according to the evidence of the usage led in the case.
In the case before me it is admitted that there is no grant and there is no evidence which is accepted relating to the usage according to the terms of the grant. The appellant solely relies upon Chintamani, his father and his father having succeeded to the properties to establish succession by rule of primogeniture. But, as already observed, they were the only sons of their fathers and that by itself is not sufficient to establish a usage as to succession. This position is confirmed by the decision in the above case cited by the learned counsel for the appellant.
The next case relied upon by the learned counsel is the case of Janoki Debi v. Gopal Acharjia Goswami, ILR 9 Cal 766 (PC) (B). On a claim to succeed to the management, as shebait, of a religious institution endowed with property, it was conten-ed that in the absence of prescribed rule, or of established usage, succession took place according to the ordinary rules of the Hindu Law of inheritance, where the shebait led a family life, the Judicial Committee held that where owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower, it must be proved by evidence what is the usage; and that in the case before their Lordships the usage did not support the claim.
The appellant in this case before the Judicial Committee contended that in the absence of prescribed rules or usage the ordinary law of inheritance applies. Following the decisions of their Lordships in the cases of Greedharee Doss v. Nundokissore Doss Mohant, 11 Moo Ind App 405 (428) (PC) (C), Rajah Muttu Ramalinga Setupati v. Perian-ayagam Pillai, 1 Ind App 209 (PC) (D) and Rajah Vurmah VaJia v. Ravi Vurmah Kuni Kutty, 4 Ind App 76 (PC) (E), their Lordships held that when, owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage. But in the case before them the first shebait was Rungraj Goswami who left as only daughter, Auchuma, who married and had issue an only daughter, Bencooma; she married, and her only issue was a daughter, Lukhipria, and according the plaintiff's case Lukhipria had an only daughter, Kedro Bibi, who married Lakhan Acharjia, and had a son, Srinibash, the grandfather of the plaintiff's husband. The plaintiff asserted in that case that the four daughters succeeded each other as shebaits; the defendant Gopal on the contrary asserted that their husbands were the shebaits. It appeared, however, that Lukhipria held the guddi for nearly 60 years, her husband having died first, which is inconsistent with the latter contention. On these facts, the Judicial Committee held, whether the four daughters succeeded each other or their husbands were the shebaits, the succession was not according to Hindu Law, as a daughter's daughter is not an heir except in certain cases of stridhan, and a son-in-law has no right of succession. They further observed.
'There is no doubt considerable difficulty in ascertaining what is the rule of succession to this office, but it is certain that the usage has not been according to the ordinary rules of inheritance under Hind' law. Not only does the usage not support the plaintiff's claim, but is opposed to it. It is not for their Lordships to consider whether there is any infirmity in the title of the respondent Gopal, who has been in possession many years, with the consent, if not by the appointment, of the Rajah. The plaintiff being out of possessions-must recover upon the strength of her own title, and not on the weakness of that of the defendant'.
This case was dismissed on the ground that the plaintiff failed to prove the usage set up and they categorically laid down as observed above that the usage set up must be proved by the persons setting up the usage. The learned counsel next relied upon a decision in the case of Sital Das Babaji v. Protap Chandra Sarma 11 Cal LJ 2 (F). In this case a Division, Bench of the Calcutta High Court held.
'The devolution of the trust upon the death or default of each trustee depends upon the terms upon which it was created or the usage of the particular institution where no express trust deed exists'.
This case deals with the succession to the Mahant-ship and as such, in my opinion, does not in any way help the appellant. In the case of Goswami Sri Gridhariji v. Romanlalji Gossami, ILR 17 Cal 3 (PC) (G), it was held by the Judicial Committee.
'According to Hindu Law, when the worship of & Thakur has been founded, the office of a she-bait is held to be vested in the heir or heirs of the founder, in default of evidence that he has disposed of it otherwise, provided that there has not been some usage, course of dealing or circumstance, showing a different mode of devolution. It having been established that a particular worship had been founded by the plaintiff's grandfather, it followed that the plaintiff was by inheritance the shebait of that worship, there being no proof of any usage at the variance with this presumption, but the custom appearing to be in accordance with it'.
This case has no application to the facts before me. It is the admitted case of the appellant that the founder of the endowment has disposed of the office of shebaitship to the ancestors of the defendant. On the other hand this decision is against the contention advanced by the appellant in as much as it is held that the Hindu Law of inheritance applies there being no proof of any usage at variance with this presumption which indicates that the burden of proof rests with the person setting up the usage. In the case of ILR 1 Mad 235 (P. C.) (E) and 11 Moo Ind App 405 (428) (C) which were followed by the Judicial Committee in the case reported in ILR 9 Cal 766 (PC) (B) also cited by the learned Counsel, as already observed it was held that it must be proved by evidence what the usage is. The last case cited by the learned counsel in support of his contention is the case of Ayiswaryanandaji Saheb v. Sivaji Raja Saheb, AIR 1926 Mad P. 84(H). This case supports to some extent the contention of the learned counsel. It was held in this case,
'The devolution of the trust upon the death or dafault of each trustee depends upon the term upon which it was created, or the usage of each particular institution where no express trust deed exists.'
Where it appeared that the Rajah of Tanjore founded several religious institutions and acquired lands and gave them as endowments to temples, and that the pagodas were managed by the senior members as hereditary trustees, it was held.
''The founders of the institutions, intended that their successors who occupied the Raj should continue to have the sole management of the temples and pagodas and the endowments attached to them and therefore to divide these properties among the many claimants to the estate of the Raja would be a policy inconsistent with the intentions of the founder of the institution when he endowed the temples with lands.'
The decision in this case was dependent mostly on the particular facts of that case. The endowments were granted by a former Raja of Tanjore which was an impartible Raj and the pagodas were managed by the senior members as hereditary trustees who were in the particular case the Raja themselves. The Rai was confiscated by the British Government and was again restored.
Under these circumstances, it was held that the succession was regulated by the rule of primogeniture as the endowments were created by the Raja of Tanjore and it was intended that they should be in management and the said estate was only descendible by rule of primogeniture. In the course of his judgment, Kumarswami Sastri J. who was one of the Judges and delivered a separate judgment in repelling the contention of the learned counsel for the appellants appearing before him observed,
'There can be little doubt that the Hindu text-writers treated a trusteeship or a right to the management of Religious or charitable endowments as impartible property.'
The learned Judge relied in support of his observation on the two cases quoted below that observation by him. In one it was pointed out that the management of religious endowments is indivisible though modern custom has sanctioned a departure by allowing the parties entitled to officiate by turns and in the other, the inconvenience of such a custom was pointed out and it is practically on the inconvenience of such a custom where there would be many claimants the particular case was decided by the learned Judges.
This case does not support the appellant's contention. On the other hand it may support the respondents' contention in their memorandum of cross-objections that with regard to lot No. 1 though the property is not divisible, the plaintiffs ought to have been granted a decree by directing that they are entitled by turns to be the shebaits. The learned Counsel also relied upon a statement in Gopalchan-dra Sarkar Sastri's Hindu law, 8th Edition, at page 713,
'If the deed of endowment is not forthcoming, or contains no such direction, the devolution of the trust depends upon the usages of such institution, if any.'
In support of this observation, the learned Author relied upon the cases of Bhagaban Ramanuj v. Ram ILR 22 Cal 843 (PC) (I) and AIR 1926 Mad 84(H). The case in ILR 22 Cal 843 (PC) (I) is a case of succession to a Muth and I have already noted the case of AIR 1926 Mad 84 (H). This observation, therefore, in my view does not support the appellant's contention.
16. The appellant also contended that the founder has a right of nominating the successor and in this case the Court of Wards recognised the defendant and his elder brother as successors. I do not think, this contention merits any consideration inasmuch as it is the admitted case that the founder had disposed of the trust in favour of the ancestors of the defendant. When once it disposed of, the founder cannot have any right to appoint a successor as far as a temple is concerned.
17. On the other hand, the learned counsel for the respondents-plaintiffs contends that a shebaiti right is property and the founder's powers of disposal over shebaiti right are subject to the same limitations which exist in Hindu Law in respect to disposal of any other property. He relied upon the rule laid down by the Judicial Committee in the case of Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 Beng LR 377 (PC) (J) which prevents a Hindu from disposing of his property in such a way as to create any interest in favour of an unborn person and it is not also permissible for a Hindu to create a line of succession unknown to Hindu law.
On the strength of this case, the learned counsel contends that the Raja of Madhupur who is the founder and who has disposed of the shebaiti right to the ancestors of Chintamani cannot lay down a rule of succession unknown to Hindu Law. The right having been conferred upon the ancestors of Chintamani, it is a right conferred upon the family and as such it should devolve according to the rules of inheritance recognised in Hindu law and the rule of primogenture which is a creature of custom cannot be laid down so as to govern even succession of persons who were not in existence at the time at which the founder disposed of the shebaiti right. In Mukherjee's Hindu law of Religious and Charitable Trust at page 216, it is laid down,
'As shebaiship is property, it devolves like any other property according to the ordinary Hindu Law of inheritance. If it remains in the founder, it follows the line of founder's heirs; if it is disposed of absolutely in favour of a grantee, it devoives upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the doner fails altogether, shebaitship reverts to the family of the founder'.
The learned Author also observes at page 217: 'As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship'. In the case of Angurbala v. Debabrata AIR 1951 SC 293 (K), it has been held by the Supreme Court that shebaitship is property within the meaning of the Hindu Women's Right to Property Act and that consequently in a case to which the Act applies the widow and son of the last shebait would succeed jointly to the shebaiti rights held by the latter and further held that even if the expression 'property' in the Hindu Women's Right to Property Act is to be interpreted as meaning property in its common, or accepted sense and is not to be extended to any special type of property which 'Shebaitship' admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent, that it has been modified by the Hindu Women's Right to Property Act would also be attracted to devolution of shebaiti rights and after a discussion of the law on his topic, the learned Author observes in the last sentence at page 218:
'The true view is that the ordinary rules would apply unless a usage to the contrary is established'.
This clearly points out that the burden of proving the succession by primogeniture is upon the defen-dant-appellant as held by the learned Subordinate Judge.
18. Mr. Mukherji, the learned counsel for the respondents contends that in this case there is no evidence that the founder's estate Madhupur is itself descendible by rule of primogeniture. But even assuming that it is so, the learned counsel contends that if he carves out a portion of the estate and endows it in favour of a deity and disposes of the-estate in favour of a trustee, then the impartibility of the estate does not attach itself to the portion carved out and endowed, and the principle enunciated in Section 3 of the Crown Grants Act (XV of 1895) does not apply.
This section applies only to grants made by the Crown or by the sovereign authority. In the Tagore's case as well as in another decision, of the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary Dhur AIR 1936 PC 318 (L), it was held;
'All estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance are void as such, and by Hindu law no person can succeed thereunder as heir to the estates described in the terms which in English, law would designate estates tail and the rule is applicable to a hereditary office and endowment as well as to other immovable property'.
In the case of Perumal Sethurayar v. Rani Subbu-lakshmi Nachiar AIR 1939 PC 95 (M), it was held, 'No doubt joint property cannot, if governed by a custom of impartibility, be converted into separate property by any exercise of the right to call for a partition as the existence of such a right is inconsistent with the custom. But it does not follow that by no other way can the same result be arrived, at. Admittedly, it can be achieved by surrender or relinquishment. The right of any given person to succeed by survivorship to any given property must depend both upon the person continuing to be a member of the joint family and also, upon the property continuing to belong to the family. If the Zamindar has a power of alienation which is not limited by legal necessity nor liable to be controlled by any other member of the family, so that he can squander the property or give or sell it to a stranger, thereby defeating the rights of other members, then it cannot be said that when he transfers to a member of the family he is effecting a result similar to that produced by partition without hav-ing the power to compel partition. The status of an individual as a member of a Hindu joint family is in no way inconsistent with his owning separate property; and the right of unfettered alienation may well produce results, when exercised in favour of a member, which are as favourable or more favourable to him than those which partition would have produced. If the property ceases to be the property of joint family there is nothing to which the right by survivorship can attach and there is no added difficulty in its becoming the separate property of an individual member. The right of alienation is held to belong to the holder of an impartible estate because the other members of his family, having no right to call for partition, are thought to have no right to control him; if in some cases the result of this doctrine upon the rights of the other members is to defeat them altogether, the right of alienation cannot be limited in other cases merely by reason that the holder had no right to call for partition'. In the case of Rajindra Bahadur Singh v. Raghubans Kunwar, 48 Ind Cas 213: (AIR 1918 PC 25) (N), the Judicial Committee of the Privy Council laid down,
'The Crown has in British India power to grant or to transfer lands, and by its grant, or on the transfer, to limit in any way it pleases the descent of such lands. But a subject has no right to impose upon lands or other property any limitation of descent which is at variance with the ordinary law of descent of property applicable in his case'.
19. Mr. Mukherji next contends that the mere fact that one male member is in management is not enough to show that he was in possession of the same by right of succession according to the rule of primogeniture or that he was in adverse possession as far as the rights of the other members of the family are concerned. He submits that the mere fact that Chintamani, his father and grandfather were in possession of the estate and after the death of Chintamani, the names of the defendant and his brother were recorded and even if it is held that they were in possession, it cannot prove that the succession is by primogeniture Or that their possession was adverse to the plaintiffs.
In the case of Vinayak Waman v. Gopal Hari ILR 27 Bom 353 (O) where the defendant in a suit for partition alleged that his branch of a joint family to which an inam village had been granted by the Peshwa had under the grant acquired a right to the perpetual management of the village, and claimed on this and ether grounds that the village was impartible, the Judicial Committee of the Privy Council held.
'Neither by the terms of the original grant nor of the subsequent orders of the ruling power, nor by family custom, nor by adverse possession has the defendant's branch of the family acquired a right to perpetual management of the village of Ahire, or in consequence to resist its partition'.
20. Mr. Mukherji then contended that even on the assumption that the succession in the case of Chintamani and his father was according to the senior member succeeding to it, even then it cannot be held that the defendant proved a family custom so as to be recognised in law. A custom to be in force must be an ancient one and the recent instances of a particular way of succession cannot be said to establish a custom which can be recognised. In the case of Chandrika Bakhsh v. Munna Kunwar ILR 24 All 273 (PC) (P), the Judicial Committee held,
'A family custom alleged to exist among the Ahban Thakurs of Oudh, in derogation, of the ordinary Mitakshara law in force there, that on the extinction of the line of one of several brothers, the descendants of all the other brothers, take equally without reference to their nearness to the common ancestor was not to be proved by four instances of the customs of comparatively modern date.'
21. Mr. Ray next contended that the properties comprising lots 2 to 10 are granted to the Rajguru who is also the shebait of plaintiff No. 3 and as such the succession to lots 2 to 10 also is governed by the rule of primogeniture. I have already held that the plaintiffs were exercising rights of ownership in these properties and that the rule of succession by primogeniture being a creature of custom or usage must be proved by the person setting it up. On a review of the evidence made above; it is clear that the defendant failed to prove any such usage and consequently lots 2 to 10 are to be held as family properties in which the plaintiffs are entitled to a share as held by the learned Subordinate Judge.
This is in accordance with the law on the subject also. Any grant made in favour of the managing member of a joint family either for being the Rajguru or the Shebait is a grant made to the family, There is evidence in this case as shown above that plaintiff No, 1 also performed the duties of Rajguru for a considerable time as also the duties of a she-bait. This leads to the inference that the office of Rajguru is vested in the family and not in the eldest son of the senior branch.
In the case of Bhagaban prusti v. Narayana Prusti AIR 1946 Pat 27 (Q), a Division Bench of the Patna High Court held,
'There is nothing in law which would prevent the manager of the family from acquiring the shebaiti right on behalf of the joint Hindu family. Whether he actually acquired the right on behalf of the joint family or not is primarily a question of fact. Where the Karta has acquired such rights on behalf of the family, the other members are entitled to a declaration that the shebaiti or marfatdari right belongs to the joint family, and that they have joint interest in such right along with the karta. There can be more than one shebait where the management can without detriment to the trust, be held by turns, and in such a case it is open to the members of the family to agree to or for the Court to decree management by turns or in some settled order of sequence'.
In the said decision whether the right of management can be the subject of partition amongst the members of the joint family was left open. In the case of Pramathanath Mullick v. Pradhyumna Kumar Mullick AIR 1925 PC 149 (R), the Judicial Committee held that the right of worship of an idol cannot be made the subject of partition and that the joint owners of such a right are entitled to perform their worship by turns.
22. The learned counsel for the appellant next contended that lots 11 to 16 being Amrita Manohi properties of Lord Jagannath are not partible properties. These properties were granted by the Raja of Chhedra to the Rajguru. Even according to the written statement, it is admitted by the defendant-appellant, in paragraph 23 that the Rajas of Chhedra from time to time created endowments in the name of Lord Jagannath and out of respect for their Gurus appointed them as marfatdars thereof for offering, prayers and flowers for the good of the Raj family.
This shows that the entire properties were not granted for the benefit of the idol as the only expense to be incurred from out of the income on the deity is with regard to offering of flowers and prayers. A substantial portion of the income is thus granted for the benefit of the Rajgurus. Mr. Ray in support of his contention relied upon a decision of this Court in the case of Jagannath Mahaprabhu v. Bhagaban Das, AIR 1951 Orissa 255 (S). In this case it was held by a Division Bench of this Court consisting of Jagannadhadas and Panigrahi JJ.,
'The word 'Amrit Manhi' literally means food offering and there is no warrant for holding that it indicates only a partial dedication'.
It was also held.
'Nor can the subsequent dealings by the family of the marfatdar with the property belonging to the deity as if it was their own personal property derogate from the completeness of the trust itself in favour of the deity, because persistent abuse of trust cannot furnish the basis of a claim which the court will recognise.'The evidence the shebaits have been appropriating major portion of the income without utilising it for purposes of the deity, cannot be taken as relevant to the terms of the original grant, because such appropriation of income might very well be nothing than misappropriation'.
Panigrahi, J. in the said decision in holding that 'Amrit Manhi' literally means food offering and there is no warrant for holding that it indicates only a partial dedication distinguished the decision of the Calcutta High Court in the case of Basoo Dhul v. Kishen Chunder 13 Suth WR 200 (T) which held that a property wholly dedicated to religious purposes cannot be sold; but where a portion only of its profits is charged for such purposes, the property may be sold subject to the charge with which it is burdened.
In so distinguishing, the learned Judge stated that it was proved in the Calcutta case that Budh Gir who had created the endowment had obtained the lands by private purchase arid that he had charged them with an annual payment of 300 Chhanas of cowries, equivalent to Rs. 80/- for the food of Lord Jagannath and it was further directed that the remaining profits from the lands were to be appropriated by one Ballav Gir, the marfatdar and that there is nothing in that case to warrant- the contention that the use of the word 'Amrit Manhi' itself indicates partial dedication.
These cases, in my opinion, do not support the contention of Mr. Ray that Amrit Manohi properties are not divisible properties. The divisibility or otherwise of such properties consists in the fact whether the: properties were absolutely dedicated or were partially dedicated. In this case the evidence is clear as also the admission of the defendant that the only charge created upon the property is the offering of flowers and prayers.
On the face of it, it clearly shows that only a negligible portion of the income is the subject-matter of the charge. Therefore, on the authority of the case reported in 13 Suth WR 200 (T), it is clear that lots 11 to 16 are divisible properties and the judgment of the learned Judge is accordingly correct.
23. Lastly Mr. Ray contended that the suit is barred by the adverse possession of the: defendant and his ancestors. The evidence as indicated - above shows that the junior members of the family especially plaintiff No. 1 was in possession of the properties for some periods even granting the rent receipts and collecting the rent. Very heavy amounts were spent on the marriage expenses of the junior members and there is also money lending business out of the balance of the income in favour of all the members. The defendant has not succeeded in proving ouster of plaintiffs, Ext. 4, a document showing paddy lending business on the part of the junior members is in the handwriting of the defendant himself. In the case of Bhimayya Subudhi v. Kundana Bibi AIR 1956 Orissa 111 (U), ft was held by a Division Bench of this Court,
'As between two co-sharers mere possession by one co-sharer would not constitute ouster unless there is some material to justify an inference that he either expressly or by implication refused to allow the other co-owner to be in possession or to participate in the enjoyment of the joint property'.
In the case of Mohammad Baqar v. Naim-un-Nisa Bibi (S) AIR 1956 SC 548 (V), it was held By the Supreme Court,
'As under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory-period. There can be no question of ouster, if there is participation in the profits to any degree'.
Consequently, I cannot accept the contention of the appellant that the suit is barred by adverse possession. I am therefore of opinion that the appellant failed on all the points advanced by him and that the appeal should be dismissed.
24. In the memorandum of cross-objections, the respondents urged that the lower court ought to have granted a decree directing the worship by turns of the deity plaintiff No. 3 and that the learned Judge erred in not giving any relief to the plaintiffs, with regard to lot No. 1. The defendant has admitted that the deity is the Ista Debata of the family. There is evidence that the Rajgurus are the marfatdars of the deity and that it is the case of the defendant also. I have held that the Rajguru-ship is not exclusively confined to the eldest member but the family of the parties are the Rajgurus. From the authorities discussed above especially the cases reported in AIR 1946 Pat 27 (Q) and AIR 1925 PC 149 (R) that in the case of such properties though the properties are not divisible, the Court can direct performance of the worship by shebaits by turns and such a relief ought to be granted to the plaintiffs. Mr. Ray contended that there is no prayer in the plaint for such a relief. I think, that does not stand in the way of the plaintiffs. They have described the properties as Debutter properties and included in the suit for partition for the Debutter properties. The plaint prays for such other relief as the Court deems fit to grant. In the circumstances, therefore, the plaintiffs are entitled to a decree with regard to lot No. 1 also to the effect that plaintiff No. 1 is entitled to a share in the shebaiti right of plaintiff No. 3, which should be performed by turns along with the defendant in proportion to the share.
25. The learned Subordinate Judge granted a decree to plaintiffs 1 and 2 for partition. There is no definite evidence that plaintiff No. 2's husband died subsequent to 1937. On the other hand, there is evidence to show that plaintiff No. 2's husband died prior to 1937. In such a contingency plaintiff No. 2 cannot be said to be entitled to a decree for partition. Mr. Mukherji concedes this and submits that in such a case a decree may be passed for eight annas share in favour of plaintiff No. 1.
26. In the result, therefore, I would dismiss the appeal and allow the memorandum of cross-objections. The suit for partition is decreed. The properties covered by lots 2 to 16 are to be divided into two shares and plaintiff No. 1 put in possession of one share and, with regard to lot No. 1, plaintiff No. 1 is to be entitled to be shebait by turns with the defendant in equal share. The appellant would pay the costs to the respondents.