1. This first appeal has been filed by the plaintiff against the judgment of the Subordinate Judge Ist Class, Amritsar, dated 10-10-1974.
2. Briefly, the case of the plaintiff is that the property in dispute was owned and possessed by Dharamsala Partap Singh situated in Amritsar. The property was debutter property dedicated to the Dharamsala for religious and charitable purposes, namely, for residence, maintenance and feeding of the Sadhus and other poor persons. Mahant Mehal Singh Chela Mahant Vir Singh was the Mahant of the Dharmsala. He became very weak on account of old age and generally remained ill. He therefore, became disabled to perform the duties as a Mahant. Consequently, on 29-4-1968, he resigned from Mahantship and appointed the plaintiff as the Mahant of the Dharmsala in accordance with the custom of the Nirmala Bhekh Sadhus after performing the customary rights in the presence of gathering of Nirmala Sadhus. He therefore entered into the possession of Dharamsala and started performing the duties of the Mahant. Since then he has been managing the property. The case of the plaintiff further is that the defendants alleged that they took the property on lease. If any lease was proved in their favour, if was without consideration and legal necessity and, therefor, not binding on the plaintiff. There was no need for Mahant Mehal Singh to give it on lease for a period of 99 years for any purposes of the institution. The lease is consequently void and the plaintiff is entitled to possession of the property. He, therefore, filed a suit for its possession.
3. The suit was contested by the defendants who inter alia pleaded that the suit did not lie in the present form, that the plainitff had no locus standi to institute the suit, that the property was not owned and possessed by Dharamsala and that the property was given on lease for a period of 99 years by Mahant Mahal Singh for legal necessity. Some other pleas were also taken and they are reflected in the issues which are as follows:--
1. Whether the suit does not lie in the present form?
2. Whether the suit is properly valued for the purposes of court fee and jurisdiction?
3. Whether the plaintiff has a locus standi to file the present suit?
4. Whether the lease in question was made for legal necessity and for consideration and as an act of good management?
5. Whether the Mahant was competent to make the lease in question in favour of defendants 1 and 2?
6. Whether defendants 1 and 2 have made any improvement in the suit property? If so, to what amount they are entitled?
7. Whether the property in suit belongs to Dharamsala Partap Singh?
Subsequently, the following additional issues were framed:--
Addl. Issue 1:
Whether the alienation sought to be set aside is theka and is not a lease? If so, what is its effect?
Addl. Issue 2:
Whether the dedication of the property in dispute to Dharamsala is void as alleged in para 2 of the additional pleas taken in the written statement? If so, its effect?
Addl. Issue 3:
Whether the plaintiff cannot challenge the alienation in question?
Addl. Issue 4:
Whether the plaintiff is estopped by his act and conduct from filing the suit? If so its effect?
4. Issue 2 was treated as a preliminary issue by the Court and the plaintiff was directed to make up the deficiency in the Court-fee, vide order dated 8-1-1973. The needful was done by him. The issue does not survive now. Issue 6 was not decided by the Court. With regard to additional issue 1, it was held that the alienation was theka and not a lease. All the other issues were decided against the plaintiff. Consequently the suit was dismissed. The plaintiff has come up in appeal to this Court.
5. The first question that arises for determination is whether the suit is not maintainable in the present form. The trial Court has held that the plaintiff should have filed a declaratory suit get the lease-deed declared invalid with a consequential relief of possession and he could not file a suit for possession only. The view does not appear to be correct. The lease-deed was executed by Mehal Singh and the plaintiff was not a party to it. He challenged the alienation on the ground that there was no legal necessity for Mahant Mehal Singh to alienate the property. In such circumstances, it is not necessary to get the deed cancelled in order to claim possession. The plaintiff can straightway fi1e a suit for possession. Consequently, I reverse the finding of the trial Court on issue 1 and hold that the suit is maintainable in the present form.
6. Issue 3 and additional issue 3 are inter-related. Consequently, I shall deal with them together. The question that arises for determination is as to whether the appellant was appointed as Mahant by Mahant Mehal Singh. In order to prove the issue, he produced various witnesses and documentary evidence. Tarlok Singh P.W. 1, is the Secretary to All India Nirmal Maha Mandal. He deposited that Dharamsala Partap Singh was founded during the rule of Maharaja Ranjit Singh. It owns property which is a Waqf property. It was managed by the Mahants and their successors. Succession to the office is regulated by custom. The ruling Mahant ties the Pagree to his Chela during his lifetime and hands over his responsibilities to his Chela. If the Mahant is not appointed during the life time of the existing Mahant, then on the l7th day after the death of the Mahant, the Bhekh meets and appoints a person as the successor. Mahant Mehal Singh war the previous Mahant of Dharamsala Partap Singh and the appellant was hie only Chela. He appointed the appellant as the Mahant of Dharamsala on 29th April, 1968, in the premises of the Dharamsala. About 300 persons attended the meeting. Langar was also served to the guests and the public. The holy Granth Sahib was recited and the appellant was given the Pagree. A writing was made in the Bahi about the Pagrees and cash given by those present in the congregation. The writing in the Bahi bore the signature of Mahant Meha1 Singh The necessity to appoint the appellant as Mahant arose because Mahant Mehal Singh was aged and he could not perform the duties of the Mahant. Mahant Harbans Singh P.W. 2 and Mahant Hari Singh P.W. 5 supported Mahant Tarlok Singh. Gurdit Singh P.W. 3 is the photographer who took the photos at the time of Pagree ceremony on 29th April, 1968. Mahant Tarlok Singh, Mahant Hari Singh and Mahant Harbans Singh supported the photographer and pointed out their respective places in the photograph. The appellant also appeared in the witness-box and deposed about the said facts. The above statements are supported by Kirpal Singh D.W. 8 who stated that Mahant Mehal Singh appointed Iqbal Singh as a Mahant during his lifetime. This fat was also admitted by Kanhaya Lal D.W. 4. The photographs of the Pagree ceremony, Exhibits P.W. 6/1 and P.W. 6/2 affirm the story of the appellant, wherein Mahant Mehal Singh and the appellant along with others are shown to be present.
7. The Bahi entries regarding the receipt of the Pagrees and the Shagoas are on the record as mark 'A'. These were not exhibited on account of the objection of the counsel for the respondents to the effect that these were not stamped. The counsel for the respondents has not been able to show that these entries requited any stamp. These were proved by Mahant Tarlok Singh who was present at the time of the ceremony and signed the Bahi. He also identified the signature of Mahant Mehal Singh thereon. The objection now taken is that the scribe of the Bahi has not been produced. No such objection was taken at the time when the entries were proved by the said witness. Consequently, Mr. Majithia cannot argue at this stage that the entries cannot be exhibited for non-production of the scribe. It is also well settled that a document can be proved by a person who executed the same or by any other person who is acquainted with the handwriting of the scribe. That formality has been fulfilled in the present case.
8. In addition, the appellant produced the news items regarding the ceremony which appeared in
'Nirmal Udesh'. These are Exhibits P.W. 5/1 to P.W. 5/4. The counsel for the respondents raised an objection regarding the aforesaid documents that the correspondent who gave the news had not been produced and, therefore, these could not be exhibited. He made a reference to Harbhajan Singh v. State of Punjab, AIR 1961 Punj 215.
9. I have given due consideration to the argument of the counsel but regret my inability to accept it. It is well settled that a party cannot be allowed to challenge the mode of proof of a document in appeal if the objection was not raised when the document was being exhibited. The reason is that if an objection had been taken at that time, the party concerned could meet the same. It may also be mentioned that Mahant Hari Singh is the editor of newspaper and he appeared as P.W. 5. He published the news-item, Exhibit P.W. 5/3, at his own instance and no correspondent sent the news to him. Harbhajan Singh's case (supra), referred to by Mr. Majithia, is distinguishable. In that case, certain presumption was sought to be raised under S. 81, Evidence Act, which lays down that the Court shall presume genuineness as to gazettes, newspapers etc., if such documents are produced from proper custody. In this case, as already observed above, the editor of the newspaper appeared and proved the document. It is specifically mentioned in the news item D/- Ist May, 1968 (Exhibit P.W. 5/1) and D/- 24-l1-1971 (Exhibit P.W. 5/3), that Mahant Mehal Singh appointed the appellant as his Chela. The former news appeared three days after the Pagree ceremony. The latter news related to the death of Mahant Mehal Singh. The other two news items relate to other news of Dharamsala Partap Singh. However, that shows that the newspaper had been publishing various news items regarding the said Dharamsala.
10. After taking into consideration all the aforesaid facts and circumstances, I am of the opinion that the appellant has been able to establish that he was appointed as Mahant of Dharamsala Pratap Singh by Mahant Mehal Singh in the presence of the Bhekh.
11. Now, the question arises whether the appellant could be appointed as a Mahant by Mahant Mehal Singh during his lifetime. There is no general law which is applicable to the religious institutions. Each institution is governed by its own custom and practice. Para 85, Digest of Customary law by W. H. Rattigan, Thirteenth Edition, says that the office of Mahant is usually elective and not hereditary. But a Mahant may nominate a successor subject to confirmation by his fraternity. Similar view was taken by the Supreme Court in Krishna Singh v. Mathura Ahir, AIR 1980 SC 707. It has been observed therein that succession to mahantship of a math or religious institution is regulated by custom or usage of the particular institution except where a rule of succession is laid down by the founder himself who created the endowment. It has been further observed that where the Mahant has the power to appoint his successor, it is the custom in the various Maths that such appointments should be confirmed or recognised by the members of the religious fraternity. Therefore, in order to determine the question, we have to take into consideration the evidence of the parties. The evidence led by the plaintiff has already been discussed above according to which a Mahant can appoint a Chela during his lifetime with the approval of the Bhekh. The respondents did not lead any evidence to the contrary. The appointment of the appellant by Mahant Mehal Singh was not challenged during his lifetime though he remained alive for more than three years after appellant was appointed as Mahant by him. That further supports the version of the appellant. It is also not imaginable that if a Mahant does not want to act as such or has become incapable of carrying out the duties as a Mahant, he cannot give up Mahantship. Therefore, I am of the opinion that the appellant could be appointed as a Mahant by Mahant Mehal Singh during his life time. Thus, he is a validly appointed Mahant.
12. Now, it is to be seen that if the appellant was a validly appointed Mahant, had he the locus standi to file the present suit. It is well settled that the property belonging to a religious institution cannot be permanently alienated by a Mahant except for legal necessity. In the above view, I am fortified by Para 90 of the aforesaid Digest which provides that except for necessary purposes, no property belonging to a religious institution can be permanently alienated. What are the legal necessities for the purpose of alienation are dealt within Para 91 of the Digest, which shall be referred to in the later part of this judgment. The above view also finds support from the observations of a Division Bench of Lahore Chief Court in Kashi Ram v. Bawa Tola, 1902 Punjab Record No. 3 page 5. It was held there that the powers of a Mahant of a religious institution in matter of alienation of the endowment property are analogous to those of a Hindu widow. He can only alienate for the necessary purposes of the institution, and it should be shown that such purposes could not be fulfilled except by contracting debts and that the ordinary income of the endowment was not available and was insufficient for them and that the debts could not be discharged
from the income. Similar view was taken by the Privy Council in K. P. L. S. Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi, AIR 1917 PC 33. It was held in that case that the shebait had power and authority to alienate the endowed lands in cases of necessity or for the benefit of the estate of the mutt. Therefore, I am of the view that the plaintiff has the locus standi to file the present suit. Issue 3 and additional issue 3 are decided accordingly.
13. The question to be determined is whether the alienation was for consideration and legal necessity. The property was given on lease for a period of 99 years at the rate of Rs. 43/- per annum vide lease deed dated, 5th July, 1960, Exhibit D.W. 10/1. It was provided in the lease deed that the lease amount would be paid against a receipt. Tek Singh defendant stated that 1te paid the entire consideration of the lease for 99 years but no receipt for payment of the amount has been produced. In the absence of the receipt his statement cannot be accepted. Accordingly, the lease is without consideration. Regarding the necessity, there is no recital of the purpose for which the money was required by Mahant Mehal Singh in the lease deed. The defendant also did sot lead any oral evidence to show that there was any necessity to the Mahant at the time of execution of the lease deed. Rather his witness Ram Chand (D.W. 1) admitted that Mahant Mehal Singh had sufficient income from other properties. There is also the statement of Desa Singh (D.W. 7) that the Mahant was deriving income from the property in dispute at the time of lease. Further, Tek Singh defendant admitted that he did not make any inquiry at the time of lease about the expenditure and income of the Dharamsala. Para 91 of the Digest deals with as to what legal necessity is in the case of a religious institution. According to the para it means defraying proper expenses of keeping up religious worship, repairing temples or other buildings connected with the institution, defending hostile litigious attacks and paying revenue and other charges on lands attached to the institution. There is not an iota of evidence on the record to show that the Mahant required the amount for any purpose much less for any of the said purposes. Mr. Majithia referred to three lease deeds Exhibit D-4, dt. 8th July, 1957, Exhibit D-2 dt. 30th Jan, 1959 and Exhibit D-6 dt. 25th Feb., 1959, executed in favour of others by Mahant Mehal Singh for a period of 99 years each and urged that the execution of all these deeds shows that there was pressing legal necessity for him. He also urged that as these deeds have not been challenged the inference is that all alienations were made for necessity. I am not impressed with the contention. The powers of a Mahant regarding alienation of the properties of a Dera are similar to those of a Hindu widow. It is for the alienee to prove that the alienations by the alienor are for necessity. No inference of necessity can arise, if the alienor has made many alienations and only some of them have been challenged. Legal necessity regarding each alienation required to be proved by the alienee. The respondents in the present case have ailed to show that there was any legal necessity for Mahant Mehal Singh to lease out the property for a period of 99 years. Therefore, it cannot be held that the alienation was made for consideration and legal necessity.
14. The next question to be determined is whether the alienation was an act of good management. It has already been held that the alienation was without consideration. If it was so, it cannot be held to be an act of good management. Issue 4 is decided accordingly.
Issues 5 and 7 and Additional Issue 2:
15. The main question to be determined is whether the property belongs to Dharamsala Partap Singh. The plaintiff, in order to prove the issue, led oral as well as documentary evidence. First, I shall deal with the oral evidence of the parties and thereafter the documentary evidence. Mahant Tarlok Singh P.W. 1 stated that the property belonged to Dharamsala Partap Singh which was founded for religious and charitable purposes such as recitation of Guru Granth Sahib and residence of Sadhus. Similar statements.were made by Mahant Harbans Singh P.W. 2, Mahant Hari Singh P.W. 5 and the plaintiff. Even Tek Singh defendant 2 and Gurcharan Singh D.W. 2 have admitted the aforesaid facts. Gursharan Singh stated that the property in dispute belonged to Dharamsala. Sadhus used to stay there. Tek Singh defendant deposed that Dharamsala Bhai Partap Singh had a large number of properties in Amritsar which included shops and houses. The property in dispute belonged to Dharamsala Partap Singh. From the aforesaid statements, it is clear that the property in dispute belonged to Dharamsala Partap Singh which was established for religious and charitable purposes. Besides the oral evidence, there is also documentary evidence on the record. It includes copies of register regarding demarcation of Tharajat relating to the year 1913, Exhibits P.W. 6/3 and 4, house numbering registers relating to the years 1927, Exhibits P.W. 6/5 and 7, 1952-53, Exhibits P.W. 6/9 and 10, and 1971-72, Exhibit P.W. 6/8. The municipal number of the property in dispute relating to the year of lease, that is, 1960, as given in the lease deed, is 1706-1707/2, whereas the earlier number as given therein is 2732-2733/II-40. In Exhibit P.W. 6/8, the property in dispute is shown to be in the name of Joginder Singh son of Sunder Singh. Joginder Singh is the father of the defendants and he entered into the transaction of lease on behalf of his sons. In Exhibits P.W. 6/9 P.W. 6/10, which relate to the year 1952-53, the property is shown in the name of Sh. Mehal Singh. In Exhibits P.W. 6/5 and P.W. 6/7, it stands in the name of Mahant Sahib and Dharamsala. The name of the Mahant is not mentioned. In Exhibits P.W. 6/3 and P.W. 6/4, which relate to the year 1913, it stands in the name of Vir Singh Chela Kala Singh. Mahant Mehal Singh is the Chela of Mahant Vir Singh. There is also an indication in the above said documents that the property is a Wakf property. Mr. G. R. Majithia sought to contend that the property in Exhibits P.W. 6/3 and 4 is stated to be situated in Bazar Hansi Gali whereas in other documents it is shown to be situated in Bazar Makarwanan. However, in my view, that does not make any difference as the numbers of properties in both the documents are the same Mr. Majithia has further argued that in the lease deed it is stated by Mahant Mehal Singh that the properties belonged to him. In view of the oral as well as documentary evidence, the said recital is of no assistance to hold that the property belonged to Mahant Mehal Singh. There is enough evidence that the property belonged to Dharamsala Partap Singh which was established for religious and charitable purposes and the property in dispute was being used for such purposes. It is also in evidence that it descended from Guru to chela. It has been held in Puj Maya Rishi v. L. Ram Chand, AIR 1946 Lahore 31, that in considering whether the property acquired by a Jain Puj is religious or secular, in the absence of any direct evidence of dedication, the nature of the user of the property by the Jain community or Jain monks and whether such user, if any, was as of right or by permission and the length of time during which the user is suggested, have to be considered. Therefore, I am of the view that the property belongs to Dharamsala Partap Singh.
16. Now, the question arises as to whether the Mahant was competent to make the lease in favour of defendants 1 and 2. The matter has been already discussed above. Mahant Mehal Singh was the Mahant of Dharamsala Partap Singh and he could alienate its property for legal necessity only. As the defendants have failed to prove the legal necessity, therefore, the lease by Mahant Mehal Singh cannot be sustained.
17. It is next to be seen whether the dedication of the property in favour of Dharamsala Partap Singh is void. Mr. Majithia, learned counsel for the respondents, made a reference to Parma Nand v. Nihal Chand, AIR 1938 PC 195, wherein it was observed that to constitute a trust 'created or existing for a public purpose of a charitable or religious nature' the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of the trust, the trust property, and the beneficiaries must be indicated so as to enable the Court to administer the trust if required. However, the facts in that case are distinguishable. In that case, some land was given by Municipal Committee to a religious institution for the purposes of town planning and not for religious and charitable purposes. Therefore, the learned counsel cannot derive any benefit from the above observations. It has already been held above that from a long user of the property for a charitable purpose, it can be inferred that it was dedicated for religious and charitable purposes. In the circumstances it cannot be held that the dedication of the property in favour of Dharamsala Partap Singh is void.
18. Issues 5 and 7 and Additional Issue 2 are thus decided in favour of the plaintiff.
19. The defendants made certain improvements in the property. According to Exhibit P-2, the value of the improvements is Rs. 20,970/-. No evidence has been led by the plaintiff to show that the value of the improvements is excessive. Consequently, I hold that the value of the improvements is Rs. 20,970/-. The plaintiff, however, has not been able to show that the defendants are not entiteld to the value of the improvement. Consequently, if the plaintiff wants to have the building as it is, he may deposit the said amount and take its possession. But in case he does not want to take the building, the defendants can remove the Malba. The plaintiff shall be entitled to exercise the option and deposit money within a period of four months. However, if he fails to do so, the defendants shall be entitled to remove the Malba within a period of four months thereafter. I decide issue 6 accordingly.
Additional Issue 1:
20. The learned counsel for the parties agree that the alienation is a lease and not a theka. I hold accordingly.
Additional Issue 4:
21. The learned trial Court has held that the alienation took place in 1960 whereas the suit has been filed in 1971. Mahant Iqbal Singh did not challenge the alienation for several years and, therefore, he is estopped by his conduct to challenge the alienation. To my mind the reasoning is fallacious. It has already been held above that the plaintiff was appointed as Mahant in April 1968, and till that date he had no right to challenge the alienation. He got that right after he was appointed as the Mahant. There is also nothing on the record to show that defendants took the property on lease on account of some representation made by the plaintiff. In the circumstances, it cannot be held that the plaintiff is estopped by his act and conduct to file the present suit.
22. For the aforesaid reasons, I accept the appeal and decree the suit of the plaintiff with costs throughout. He shall be entitled to the possession of the building at his option on depositing the amount of Rs. 20,970/- within a period of four months, but if he fails to deposit the amount within the said period, the defendants shall be entitled to remove the Malba within a period of four months thereafter.
23. Appeal allowed.