1. The main point for consideration in this appeal is whether on the facts and in the circumstances of this case, alienation of deities with all their properties and the Sebaiti and Marfatdari rights under a, deed of gift was valid in law. The plaintiffs-respondents herein claim to be Sebait-Marfatdars of deities. Sri Dhyandas Mahapurus and Sri Radhakrishna Jew Thakur installed at Bardang Math in mouza Bardang included in Touzi No. 14 in the district of Cuttack by virtue of a deed of gift described as deed of settlement dated August 11, 1960 executed by Sir Uday Chand Mahatab, Maharajadhiraj Bahadur of Burdwan, at present residing in Calcutta, in favour of the plaintiffs. Defendant No. 1 Bairagi Das who is the appellant herein challenged the validity of the said deed and an issue was framed accordingly. It was argued that the said deed by which the Maharajadhiraj Bahadur purported to transfer the deities and their properties was not for the benefit of the deities and it was not with the concurrence of the whole family of the Maharajadhiraj Bahadur. The Maharajadhiraj was made party in the suit as pro forma defendant. The trial Court decreed the plaintiffs' suit on the finding that there is no warrant for holding that the transfer is absolutely void for the reasons discussed in his judgment.
2. The defendant Bairagi Das is a Nahangi Baishnab. His Guru was one Prankrishna Das who was a Pujhari of the deities. The said Prankrishna Das was recorded as Marfatdar in the settlement records. After the death of Prankrishna Das, his chela, the defendant-appellant Bairagi Das is said to have become the Sebait Marfatdar.
3. The plaintiffs' case is that this defendant Bairagi Das was allowed to remain in the Math, was given food and shelter for some time and he was subsequently appointed as a Pujhari. He was entrusted with the Seba-Puja of the deities and the management of their properties. After some time he started creating troubles to the extent of filing criminal cases as stated in the plaint.
4. The defendant Bairagi Das is alleged to have been trying with the help of certain supporters of the locality to set up a claim over the institution wrongfully and thereby trying to create disturbance in the management of the institution. It is also alleged that he had taken away the standing crops and fruits standing on the deities' properties for the year 1960-61 on account of which the plaintiffs claimed damages of Rs. 1000/-. There was a proceeding under Section 144, Criminal P. C., which subsequently on 28th November 1960 was converted into a proceeding under Section 145 and the crops standing on the disputed land were attached. In about two months time on 6th February 1961 the plaintiffs filed the present suit. On 29th April 1981 in the said 145 proceeding the Magistrate declared the appellant-defendant No. 1 Bairagi Das and 15 others 1st party therein, as entitled to possession of the disputed land until evicted therefrom in due course of law and made an order forbidding all disturbance of such possession until such eviction.
5. It was in this background that the plaintiffs in this suit prayed for declaration of their alleged right as Sebait Marfatdars of the Math by virtue of the said deed of gift; for eviction of the appellant defendant Bairagi Das and other incidental reliefs.
6. Whatever may be the status of the defendant-appellant Bairagi Das in the Math, the plaintiffs to succeed must establish that the impugned deed of gift by Maharajadhiraj Bahadur under which the plaintiffs claim title was valid in law. The undisputed position in Hindu law is that ordinarily Sebaiti right is not alienable in law ; a transfer of Sebaitship or for the matter of that of any religious office has nowhere been countenanced by Hindu lawyers. The rule against alienation of Sebaiti right has however been relaxed to some extent by reason of certain special circumstances, conveniently grouped under three heads, namely,--
(a) Where the transfer is not for any pecuniary benefit, and the transferee is the next heir of the transferor or stands in the line of succession of Sebaits and suffers from no disqualification regarding the performance of the duties.
(b) When the transfer is made in the interests of the deity itself and to meet some pressing necessity.
(c) When a valid custom is proved sanctioning alienation of Sebaiti right within a limited circle or purchasers, who are actual or potential Sebaits of the deity or otherwise connected with the family.
7. The question is Does the alienation by the impugned deed of gift Ext. 26 come within any of the said exceptions The circumstances in which the gift is said to have been made are stated to be these : The Maharajadhiraj Bahadur of Burdwan was the owner of the zamindari appertaining to the said touzi within which the properties and the Bijesthali of the said deities are situate. After the vesting of the estate in Orissa Government he had given up all connection with the estate. It is said that Maharajadhiraj Bahadur found it extremely difficult and highly expensive to manage the affairs of the said deities and their properties from his native place in Burdwan (West Bengal) which is at a distance of more than 300 miles from the localities of the said deities and their properties. It is said that under changed conditions of things the Maharajadhiraj Bahadur with a view to making a final settlement of the affairs and properties of the deities for the upkeep of the Seba-Puja of the deities and maintenance of the time-honoured customary rites and Niti and Janijatras and festivals prescribed and prevailing in the said institution executed the said deed of gift in favour of the plaintiffs said to be of religious bent of mind and staunch Hindu devotees of the said deities and fully capable of managing their affairs and properties : it is also said that the plaintiffs had agreed to take up the said management.
8. The operative part of the said document Ext. 26 so far as material reads as follows :
'Now this indenture witnesseth that in pursuance of the said intention and anxiety and in consideration ensuring and bringing about in future efficient management of the affairs and seva-puja of the said Deities, the Donor, out of his free will and pleasure and in full possession of his senses, doth hereby give, convey, grant, transfer and confirm unto the said Donees the said Deities and all their properties, movable and immovable, as described in the schedules A and B appended below and the Sebaiti and Marfatdari rights thereof together with all rights and privileges and advantages and benefits appertaining to the said institution, to Have & to Hold the same hereby granted, conveyed and transferred unto the said Donees, and that the said Donor doth hereby covenant with the said Donees that the said Donees shall and may from time to time and at all times hereafter, in the capacity of Sebait and Marfatdars peacefully and quietly enter upon, have, hold, occupy, possess and enjoy the same and carry on the affairs and seva-puja of the Deities efficiently and satisfactorily on behalf and for the benefit of the institution as prescribed in Schedule C without any trouble, eviction, interruption, claim whatsoever from or by the said Donor, or by any person or persons claiming from, under or in trust for him; and further the said Donees shall keep intact all the movable and immovable properties except those which are of perishable nature, provided that the Donees shall not have nor can claim at any time any personal interest in the properties of the Deities save that of Sebaits and Marfatdars, and shall have no right to transfer by sale, gift, mortgage or exchange the said Deities or their properties and that in case the Donees are found to have failed in discharging the duties assigned to them by these presents and or otherwise the said Donor shall have the power and authority to revoke this deed of gift at any time hereafter, and the Donees thereafter will have no right whatsoever to retain possession of any of the Deities or their properties.'
It is significant that certain terms of English conveyancing, namely, 'give' 'convey,' 'grant' 'transfer' and ''confirm unto' with the habendum clause 'to have and to hold', with all their legal implications, have been used in the document.
9. According to the plaintiffs the impugned deed is not an out and out transfer ; it is only an agency agreement in that the plaintiffs are only agents or managers of the institution ; title has not vested in the plaintiffs; conditions of agency as laid down in the document including the donor's (Maharajadhiraj Bahadur's) right of revocation are not consistent with the vesting of title in the plaintiffs; no absolute power has been given to the plaintiffs.
10. The plaintiffs' point is that by the deed the Maharajadhiraj Bahadur directed the plaintiffs to take charge of the Sebaitship for managing the properties of the deities and for performance of the spiritual office in the manner and within the limits as prescribed in Schedule C to the document laying down the rate per month of the annual expenses of the Math and the deities, and in respect of the establishment and maintenance cost of the Math and the deities. It is said to be an arrangement made by the Maharajadhiraja Bahadur for carrying out of the Seba-Puja of the deities and management of their properties; that it amounts to an appointment of agents with a defeasance or default clause, namely, that in case the plaintiffs fail to discharge the duties assigned to them and/or otherwise, the Maharajadhiraj Bahadur shall have power to revoke the deed of gift.
11. The plaintiffs argue that this arrangement was made for the benefit of the deities in the situation the Maharajadhiraj Bahadur found himself placed after the abolition of the estate when the estate staff would no longer be there to manage the institution. It is further argued that all safeguards were provided for in the document. The plaintiffs contend that in such a case the concurrence of the whole family was not necessary.
12. We do not accept the plaintiffs' interpretation. On a plain reading of the document as a whole it is quite clear that the Maharajadhiraj Bahadur of Burdwan had abdicated his right as Shebait and Marfatdar of the deities. The transfer of the deities and all their properties and the Sebaiti and marfatdari rights to the plaintiffs was not made in the interest of the deities nor was there any pressing necessity for such transfer. That apart, the concurrence of the other members of the Maharajadhiraj Bahadur's family to the said transfer does not appear to have been taken.
13. The document shows that the Maharajadhiraj Bahadur had made an absolute surrender of his rights in favour of the plaintiffs so much so that he cannot intervene in the management even for the improvement of the estate. It is only in case of plaintiffs' failure to discharge their duties that Maharajadhiraj Bahadur can revoke the deed. The phrase 'and/or otherwise' in the revocation clause on which the plaintiffs rely must be interpreted as ejusdem generis.
14. The terms borrowed from English conveyancing as used in the operative part of the deed of gift are clearly indicative of an absolute transfer. By the said deed, the donor purported to give, convey, grant and transfer and confirm unto the plaintiffs the deities themselves and all their properties and the Sebaiti and Marfatdari rights. It is clear from the document that Maharajadhiraj Bahadur has completely divested himself of his control. Unless and until the contingency of the plaintiffs' failure to discharge their duties happen, he is left powerless. Indeed it is a case of abdication or self-effacement by the Maharajadhiraj Bahadur. His power of revocation is not absolute. He cannot revoke even if he wants.
15. The impugned document has been described as and in substance as a deed of gift. Assuming the Maharajadhiraj Bahadur has retained for himself the, absolute authority to revoke, even so it does not take away the character of the document as a deed of gift. Section 126 of the Transfer of Property Act provides to the effect that the donor and the donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; that a gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
16. The question here is : Is such a gift as made to the plaintiffs in this case valid in law The answer is; No. The gift to the plaintiffs as made or appointment of plaintiffs as mere agents (as plaintiffs put it) of such character as to divest the principal, namely, the Maharajadhiraj Bahadur, of his control and almost all vestings of title is not permissible under the law. That apart, the very gift of the deities themselves as purported to be made by the impugned deed is void. Their Lordships of the Privy Council in Ram Charan Das v. Naurangi Lal, AIR 1933 P C 75 held to the effect that assignment or disposition of the Math and its properties was void and would in law pass no title. It is well settled that the office of Sebait Marfatdar would not pass to the assignee under or by virtue of any assignment of his office by the abdicating Sebait, whether it purported to be in favour of the sole immediate heir or of any other person, for every such assignment is wholly void and inoperative.
17. In support of the plaintiffs' contention that the impugned deed of settlement of gift of an idol is valid they relied on a decision of the Calcutta High Court in Khetter Chunder Ghose v. Haridas Bundopadhay, I L R 17 Cal 557 where it was held that a gift of an idol and of the lands with which it is endowed (being a private endowment) made with the concurrence of the whole family to another family for the purpose of carrying on the regular worship of the idol, if made for the benefit of the idol, is not invalid and is one binding on the succeeding Sebaits. This case however is distinguishable from the present case on facts as discussed hereunder.
18. In the Calcutta case it was a transfer of the idol for the benefit of the deity. There, the deed, though it nominally professed to be the deed of gift o the idol and its lands, was in reality a deed of arrangement for carrying on the worship of the idol. The fact was that the Ghoses were unable to carry on worship of the idol with the income of the Debuttar land and the plaintiffs' predecessors (who are Brahmins) being found able and willing to carry on the same, the Ghoses, with the concurrence of the whole family, made over to them the idol and its lands for the purpose of performing its worship regularly from generation to generation. The concurrent finding of the Courts below in that case was that the arrangement was for the benefit of the idol. It was on these facts that it was found that such an arrangement was valid in law and binding upon the succeeding Sebaits. It is to be noticed that in that particular case on the question whether or not gift of an idol under certain circumstances is permissible, the Calcutta High Court did not think it necessary to examine that point having regard to the view that they took of the deed of gift in question. The point therefore was left undecided in that case.
19. In the present case there is no recital in the deed of gift nor any averment in the plaint nor even any proof that the gift was for the benefit of the deities. The evidence of the plaintiffs' agent P. W. 7 is that he found it difficult to manage the institution. There is no allegation that out of the income of the debuttar property the Seba could not be carried on. The very fact that in the suit the plaintiffs claim Rs. 1000 as damages for produce of one year shows that the debuttar property was yielding sufficient income. The reason for the gift, as stated by the plaintiffs themselves in paragraph 8 of the plaint, is this :
'That in the meantime defendant No. 2 (Maharajadhiraj Bahadur of Burdwan) who was the owner and Malik of the institution, which is a private institution of the Raja of Burdwan, expressed his intention to execute a deed of settlement regarding the institution, as he became no longer interested in shouldering the burden of managing the institution after the abolition of the zamindari and asked the plaintiffs whether they would choose to take upon themselves the responsibility and ownership of the institution for effecting management thereof, to which the plaintiffs expressed their assent.'
This confirms the view that it is not the benefit of the deities which weighed with the Maharajadhiraj Bahadur of Burdwan to make the gift. The real reason for the gift is that he became no longer interested in shouldering the burden of management of the institution. He simply shirked the responsibility and abdicated all rights and properties in favour of the plaintiffs who apparently are strangers. There is no evidence that they are qualified to perform the duties of Sebaits. Thus the Calcutta decision relied on behalf of the plaintiffs, far from supporting their contention, in fact supports the defendant-appellants' point.
20. It was also argued on behalf of the plaintiffs that the impugned deed of gift could not be challenged during the lifetime of Maharajadhiraj Bahadur of Burdwan so far as the properties transferred by the document are concerned. This argument also is of no avail in view of the settled position of law that the alienation by the Sebait can only be made of certain items of endowed property; that a transfer of the endowment as a whole is wholly void and the transferee would acquire no title by such alienation even as against the transferor so long as he is alive, (Mukherjee's Hindu Law of Religious & Charitable Trust, 2nd Edition, page 259 : Gnanasambanda Pandara Sannadhi v. Velu Pandaram, 27 Ind App 69 (PC)). In the present case all the movable and immovable properties of the deities were transferred by the document. Therefore such a transfer is on the face of it void.
21. In the ultimate analysis therefore, it is clear that this case does not come within any of the exceptions where alienation has been held to be permissible under the law.
22. The plaintiffs also submitted that even if they failed to establish title under the impugned document, they are entitled to get relief in the suit as they claim to be in possession. This argument is also untenable for the following reasons :
23. The plaintiffs' alleged possessory title is itself based on the deed of gift dated August 11, 1980. In the Criminal case under Section 145, Criminal Procedure Code the Magistrate found that the defendant-appellant is in possession. The defendant-appellant was thus found to have been in possession even prior to the execution of the deed of gift in favour of the plaintiffs.
24. Section 110 of the Evidence Act provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the, owner. Here the onus was on the plaintiffs to prove that the defendant-appellant though found to be in possession is not the owner. On the other hand Prankrishna Das, guru of the defendant-appellant Bairagi Das was recorded as Marfatdar in the Khatian Ext. 27 series. This shows that the defendant-appellant's predecessor-in-title, his Guru, was in possession. After the death of the Guru, his Chela the defendant-appellant claims to be and was found to be in possession.
25. There was one further argument, pressed on behalf of the plaintiffs, that the defendant-appellant did not in his written statement plead that the impugned deed of gift was invalid by reason of the fact that the gift was not in the interest of the deities and that there was no concurrence of the whole family of the Maharajadhiraj Bahadur. In support of this point the plaintiffs relied on the provisions of Order 6, Rules 6 and 8 and Order 8, Rule 2, Civil Procedure Code. The plaintiffs' point is that the defendant-appellant ought to have specifically pleaded these matters in his written statement in support of his contention that the gift was void for these reasons. It is argued that these grounds of defence having not been specifically pleaded, the plaintiffs were likely to be taken by surprise, and they had no opportunity to meet them.
26. This argument on the alleged defective pleading in the written statement is in our opinion not tenable. In view of the plaintiffs' prayer in the plaint for :
'A declaration that the plaintiffs are the Sebait Marfatdars of the institution known as Bardang Math by virtue of the deed of settlement dated 11-8-1960 executed by pro forma Defendant No. 2 ....'
It was for the plaintiffs to prove that the deed of settlement or gift which was the very foundation of the plaintiffs' alleged title, was in the interest of the deities and that there was concurrence of the whole family as required by law for its very validity. It is common Hindu Law that Sebaitship is not ordinarily alienable except in certain special circumstances; so the plaintiffs had to prove that the gift in question came within the exception. In fact an issue was also framed being issue No. 5 :
' .... Is the deed of settlement of 1960 valid ?'
It was for the plaintiffs to establish that the deed of gift which is the very basis of their alleged title was valid in law.
27. The crucial test is this : What is the legal implication when the Court says that the plaintiff must prove his case Supposing the plaintiffs' suit was heard ex parte and the defendant did not even file a written statement nor appeared to contest the suit what was it that the plaintiffs were to prove The answer is that, even so, it was essential for the plaintiffs to prove the validity of the gift. Even when a Court tries such a suit ex parte in the absence of the defendant, the Court must satisfy itself as to whether the plaintiffs have proved their case. For the satisfaction of the Court the plaintiffs must prove that the deed by which the deities and all their properties and the Sebaiti and Marfatdari rights were transferred to him in the interest of the deities and with the concurrence of the whole family of the Maharajadhiraj. In the absence of such proof the Court cannot pass a decree in favour of the plaintiffs although the defendant did not file a written statement.
28. The onus was on the plaintiffs to prove that the consent of the entire family was taken. If such consent of the entire family was not proved, dealing with the debuttar property by some member of the family who happens to be a Sebait as secular property, would not effect any conversion.
29. We must make it clear that in course of hearing of the appeal the learned counsel for the defendant-appellant did not press any argument under second part of issue No. 4, namely as to whether defendant No. 1 (appellant herein Bairagi Das) and his predecessors are the Sebait Marfatdars of the deity and the defendant No. 1 manager-owner, Sebait Marfatdar of the same. According to the defendant-appellant it is not necessary.
30. In the view that we have taken about the deed of settlement of gift Ext. 26 as invalid in law for reasons aforesaid the plaintiffs' claim in the suit must fail. The decision of the learned trial Court is set aside and the plaintiffs' suit is dismissed.
31. There was a cross-appeal by the plaintiffs from that portion of the order of the trial Court by which it was ordered that defendant No. 1 Bairagi Das if he so likes may continue as the Pujari of the deities as, according to the trial Court, it appears that he was appointed as such by the Chief Agent of the Maharaja of Burdwan. In view of our decision that the plaintiffs' suit itself must stand dismissed, the plaintiffs' cross-appeal from this portion of the trial Court's judgment, must also fail.
32. In the result, therefore, the appeal of defendant No. 1 Bairagi Das is allowed and the cross-appeal by the plaintiffs is dismissed. The plaintiffs' suit is dismissed. The defendant-appellant is entitled to costs throughout.
G.K. Misra, J.
33. I agree.