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Prasanna Deb Raikat Vs. Bengal Duars Bank, Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1936Cal744
AppellantPrasanna Deb Raikat
RespondentBengal Duars Bank, Ltd.
Cases ReferredRam Charan Das v. Naurangi Lal
Excerpt:
- d.n. mitter, j.1. these are five appeals by the plaintiffs against as many decrees of the subordinate judge of jalpaiguri dated 23rd december 1932, by which he dismissed the plaintiff's suits in ejectment. the nature of the reliefs claimed in these five suits might be divided into two heads. the suits in which appeals nos. 121, 122 and 125 arise were for the setting aside of permanent leases created by the previous shebaits of the deity sree sree iswar ram chandra bigraha, the appellant before us represented by prasanna deb rakshit who claims to be the present shebait of the said deity. the other two appeals nos. 123 and 124, arise out of suits in ejectment which have been brought on the ground that the defendants are temporary tenants of the deity on whom proper notices to quit have been.....
Judgment:

D.N. Mitter, J.

1. These are five appeals by the plaintiffs against as many decrees of the Subordinate Judge of Jalpaiguri dated 23rd December 1932, by which he dismissed the plaintiff's suits in ejectment. The nature of the reliefs claimed in these five suits might be divided into two heads. The suits in which appeals Nos. 121, 122 and 125 arise were for the setting aside of permanent leases created by the previous shebaits of the deity Sree Sree Iswar Ram Chandra Bigraha, the appellant before us represented by Prasanna Deb Rakshit who claims to be the present shebait of the said deity. The other two appeals Nos. 123 and 124, arise out of suits in ejectment which have been brought on the ground that the defendants are temporary tenants of the deity on whom proper notices to quit have been served. All these suits having been dismissed by the Subordinate Judge the present appeals have been brought by the plaintiffs.

2. In order to understand the controversy raised by these appeals it is necessary to set forth the precise case made by the plaintiffs in these plaints on which they found their title. The case made in the plaints is that there was an idol of the name of Sree Sree Iswar Ram Chandra Bigraha which was installed at a very distant time, and it is said that the origin of this foundation is lost in obscurity; but the allegation is that some predecessor of Prasanna Deb Rakshit, who also figures as plaintiff 2 in these suits, in his own personal capacity apart from his capacity as the shebait of the deity installed-the deity of the name of Sree Sree Iswar Ram Chandra Bigraha, dedicated some land of taluk Bahadur and Lantari Nawabgunj for defraying the expenses of the Sheba and Puja of the deity; that for the purpose of carrying out the Sheba the ancestor of plaintiff 2 appointed a certain pious person as Pujari or Pujak, and on the death of the said person it was the plaintiff's ancestor who was entrusted with the appointment of the succeeding Pujari. The plaint after reciting this proceeds to narrate certain events which happened in 1290 B.S. corresponding to 1883. In that year while the charge of the Sheba and Puja of the said deity were entrusted with Sita Ram Bairagi the said Sita Ram Bairagi became negligent in the performance of the Sheba on account of his bad character and Jagadindra Deb Rakshit, the predecessor of plaintiff 2, removed him from the said work of shebaitship by a parwana which is dated 10th Agrahayan, 1290 B.S., and brought the property in his own management in the first instance and subsequently by another parwana the said Jagadindra passed an order appointing Buddhu Baishnavi, step mother of the said Sita Ram, as pujarini for taking over the charge of Sheba and Puja of the said deity.

3. It is further stated in the plaint that Budhu Baishnavi carried on the worship of the deity till the time of her death. It appears that in 1909 when there was a proceeding for record of rights the lands of Schs. Ka and Kha of the plaint were recorded in the name of the said Budhu Baishnavi as shebait of the said deity. Budhu Baishnavi died on 25th Aswin, 1316 B.S. during the pendency of the settlement operations and the lands which are the subject matter of these five suits came to be recorded as khas lands of plaintiff 2. At the time of the death of Budhu Baishnavi it is alleged the estate of plaintiff 2 came into the management of the Court of Wards; and the Court of Wards wanted to bring the deity and the property set apart for the sheba of the deity into the khas possession of the plaintiff. But it is stated that Sita Ram made an application to the Deputy Commissioner of Jalpaiguri who was in charge of the Court of Wards and obtained the charge of the worship of the deity and the management and preservation of the property set apart for the sheba of the deity along with it in order to carry on the work of sheba and puja. On the death of Sita Ram which happened on 17th Ashar 1331 B.S. the charge of sheba and puja of the deity under his management was with the consent of plaintiff 2 entrusted to his son Khagendra Nath Bairagi. Then comes the important allegations in paraSection 8 and 9 of the plaint which are the foundation of the plaintiff's title suit in the present case.

4. It is alleged that Khagendra having expressed to plaintiff 2 his inability to carry on the sheba and puja of the said deity with the income of the property described in Schedule Ka to the plaint and other properties set apart for the purpose, proposed to restore the said deity and the property so set apart to the possession of the plaintiff, and the plaintiff having consented thereto, the said Khagendra executed and delivered a registered document in favour of the plaintiff on 29th Kartick 1332 B.S. and restored the said deity and the property set apart for the sheba and puja of the deity to the possession of the plaintiff. It is alleged that the said bigraha at the time of filing the plaint was in the residential house of plaintiff 2 in Jalpaiguri and plaintiff 2 as shebait of the said deity was carrying on the sheba and puja. Para. 9 of the plaint, in the suit out of which Appeal from Original Decree No. 121 of 1933 arises, contains allegations regarding the cause of action for the suit, and must be reproduced here. Para. 9 commences as follows:

The plaintiff has come to learn on enquiry that Sita Ram Bairagi, the predecessor of Khagendra. Nath Bairagi, had misused in various ways the said debuttar property.

5. One of the acts of such misuse or breaches of duty is alleged to have been committed in settling with the defendant in mukarari mourashi right, the land of Schedule (Ka) to the plaint in this suit, without any right and for the purpose of securing his own interest, and improperly and without any reason, executing a registered potta in favour of the defendant to the suit, namely Bengal Duars Bank, Ltd., on 22nd February 1918. The defendant is said to have been possessing the said lands. It is further said that there was no legal necessity for this mukarari mourashi lease and consequently the plaintiff who has succeeded to the office of the shebaitship is entitled to challenge the said transactions. Alternatively the plaintiff stated in the plaint that if the Court holds that the property in suit be not debuttar property but is property which appertains to the zemindary of plaintiff 2 the reliefs which are asked for may also be given as Sita Ram Bairagi had in those circumstances no right to grant a lease which would be binding on the plaintiff. The cause of action is said to date from 22nd February 1918, the date on which the permanent mukarari lease was granted of the lands which form the subject matter of Appeal No. 121. The plaintiffs on these allegations prayed for a declaration: (1) That the disputed land is the debuttar property of Sree Sree Iswar Ram Chandra Bigraha Thakur; (2) that plaintiff 2 as the representative of the original grantor is the present shebait of the deity; (3) that the defendant may be ejected from possession of the disputed land by removing the house, etc., therefrom and the plaintiff as shebait may be put in possession thereof. Then there is an alternative prayer Gha to which it is not necessary to refer; for this prayer is not now insisted on and nothing more need be said about the alternative prayer which proceeded on the footing that if the Court held that the land be not debutter then the zamindary right of plaintiff 2 may be declared and possession may be given to him. The plaints in the two appeals Nos. 122 and 125 follow the same line as the plaint in the suit out of which appeal No. 121 arises. The permanant Mokarari lease which was sought to be avoided in the suit in which Appeal No. 122 arises was dated 1st December 1919 and it has been marked as Ex. 22 in the suit: see p. 108, Part 2 of the paper book.

6. With regard to appeal No. 125 the Mourashi Mokarari lease which is sought to be avoided is dated 8th Falgoon 1330 B.S. corresponding to 20th February 1924 and it has been marked as Ex. Z (4) in the suit: see p. 141, Part 2 of the paper book. In the case to which Appeal No. 121 relates the date of the lease has already been given. The lease has been marked as Ex. 23 and is printed at p. 104, Part 2 of the paper book. The other two appeals, F. A. Nos. 122 and 123, relate to suits which, as have already been stated are suits for ejectment on the ground that the defendants are non-permanent tenants on whom notices to quit had been served. The title of the plaintiff, however, as set forth in the plaints to these suits, is the same as the title in the suit out of which Appeal No. 121 arises, which have been set forth with sufficient fullness before. The cause of action is only different. The defences to the suits fall under several heads: (1) that the deity was not installed by the ancestor of plaintiff 2 who may be described as the Raikats; (2) that the properties were not debuttar but were lakheraj Baishnabottar properties belonging to the ancestor of Sita Ram Bhairagi and therefore the leases were valid; and (3) that in case of ejectment the defendant was entitled to compensation for the sub-stantial structures which have been erected on the land by the defendant.

7. On these pleadings the Subordinate Judge framed a number of issues and it is necessary only to refer to issues 2, 5, 6, 8 and 9 which are issues which have been debated before us in these appeals. On this state of pleadings after taking evidence both oral and documentary the Subordinate Judge has reached the following conclusions: (1) that the deity was not installed by the ancestor of Prasanna Deb Raikat and that the work of Sheba was not entrusted to Sita Ram by any ancestor of the Raikats; (2) that the properties in suit were debuttar properties in the sense that they were made gift of by the ancestor of the Raikats, who was the owner of the estate of Baikunthapur on the footing that although the deity was installed by the Bairagi there was a grant for carrying on the Sheba by the Raikats out of the estate; (3) with regard to the Mokarari Mourashi leases the Subordinate Judge came to the conclusion that these being Mokarari leases which were executed without legal necessity and consequently these leases were not valid against the endowment. But the Subordinate Judge comes to the conclusion that as a Raikat was not a shebait he was not competent to institute the suits in which these appeals arise for avoiding the leases; (4) that Raikat's claim to shebaitship is barred by limitation; and (5) defendant is not entitled to compensation as the lease was taken with the knowledge that it was debuttar. On these findings the Subordinate Judge has dismissed these five suits out of which these five appeals arise.

8. In these appeals the plaintiffs have raised several contentions (1) that the learned Subordinate Judge is not correct in his finding that the deity was not installed by some ancestor of Raikat, (2) he should have held that the plaintiff as descendant of the founder would be entitled to cancel the alienations which were in breach of duty of shebait and would be entitled by reason of the misconduct of the shebait for the time being to assume shebaitship and to see to the restoration of the properties endowed after setting aside the invalid alienations. (3) That even on the findings of the Court below that the properties in suit were not debuttar properties and were only made a gift of by the ancestor of plaintiff 2, the plaintiff, as descendant of the donor, has the right to have the lands restored to endowment upon recovery of the same from a trespasser. (4) In any view of the matter the learned Judge having found that the property was debuttar and that there was a loss in the income of the deity the suit on behalf of the deity is maintainable, and assuming that the plaintiff has no right the Court can take possession of it by appointing Raikat as the next friend, for it is common ground that since Kartic 1332 B.S. Raikat, plaintiff, was carrying on the work of the shebait; and (5) that the finding of the Court below that the rights of the plaintiff Raikat as Shebait had become barred by limitation is wrong. We will deal with the points which have been raised in these appeals on behalf of the appellants in the order in which we have stated them.

9. With regard to the first point the contention of the appellants is that there is no evidence on the side of the defendants that the installation of the deity was by the ancestor of Sita Ram. (His Lordship then examined the evidence on the point and held that the Idol was installed by Sita Ram Bairagi and the judgment proceeded.) This disposes of the first point taken in this appeal on behalf of the appellant. We proceed now to deal with the second point that plaintiff as a descendant of the founder would be entitled to cancel the permanent and Mokarari leases which were tantamount to breaches of duty in the Shebait owing to the misconduct of the Shebait and to assume Shebaitship for the time being and to restore the properties endowed after letting the invalid alienation to be set aside. In this part of the case considerable time has been spent on the question as to whether the predecessor of Prasanna Deb Raikat could be regarded as the founder of the worship. It is argued by Mr. Chakravarty on the one hand that as it is admitted that Baikunthapur Raj Estate dedicated certain properties for carrying on the worship of the idol the predecessor of Raikat must be regarded as the founder of the worship notwith-standing the finding of the lower Court which has now been affirmed that the deity was installed by Sitaram. The argument of the appellant is that there can be no foundation of the worship until properties were dedicated for carrying on the worship. In other words it is said that the idea of the foundation of a worship must necessarily be associated with the dedication of properties for the carrying on of the worship. This contention seems to be opposed to the two decisions of their Lordships of the Judicial Committee of the Privy Council which have been referred to in the course of the argument, namely the decisions in Gossamee Sri Gridharjee v. Romonlaljee Gossami (1890) 17 Cal 3, and Pramatha Nath v. Pradumnya Kumar Mallick 1925 P C 139.

10. It appears the facts in the first mentioned case were that a picture was consecrated. The picture had a peculiar sanctity attached to it by the Ballav Acherjee sect or community of Vishnu-vites and as incident thereto offerings made to the idol, and subsequently a temple was built in Calcutta where the Idol was located. In 1825 one Dowji, the grandfather of the plaintiff, in that case, paid a visit to Calcutta and presented to his disciples there a consecrated portrait of himself which was worshipped and which was the subject of contention in that case. It appears that a lady of the name of Munee Bibi was moved to provide for a better habitation of the consecrated picture. She was a disciple of Purushottum and to him she addressed a deed of gift conveying a new house to Dowjee and to her family Thakur Beharyjee who is another presentment of Krishna. This gift was burdened with a certain condition and it was held that the founder or founders of the worship had accepted the condition imposed by the donor, he was bound by the same, he might or might not have accepted it but having accepted it that condition must prevail. It appears that a temple had been erected for the idol on condition that the defendant in that case would be the shebait. It was held by their Lordships of the Judicial Committee that the plaintiff in that suit could not recover possession of such temples though it had in part been created after the grant by the subscription of the worshippers, no evidence having been given that the subscribers did not know of the condition, or had paid their money with any reference to the question of shebaitship. This case is authority for the proposition that where a worship of a Thakur is founded the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise.

11. The question as to who is the founder of worship is considered also in the decision of the case in Pramatha Nath v. Pradumnya Kumar Mallick 1925 P C 139. There are passages in the judgment of their Lordships of the Judicial Committee of the Privy Council which throw light on the question in controversy in the present case. It appears that one Mutty Lal Mullick, a wealthy inhabitant of Calcutta, established the idol in question in that case and he subsequently dedicated properties for the worship of the idol. In this state of facts their Lordships of the Judicial Committee observe:

It seems accordingly clear that in Mutty Lal Mullick's lifetime the idol was, as already stated, established as household god; and the pious founder narrating his own upkeep and maintenance of the deity gave funds in order that these should be continued; and he prescribed the duty of continuance to the widow during the adopted son's minority.

12. In this case it is true that worship was being carried on by the mother but there was a dedication of properties after the worship was founded. And according to the passage which has already been quoted it seems that Mutty Lal Mullick was regarded as the founder. It is the worship that is founded and the rights of worship have to be considered in determining the question as to who is to be regarded as the shebait. The consecration of a deity is conceived as living image regaled with the necessaries and luxuries of life even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest. The person founding a deity and becoming responsible for these duties is de facto and in common parlance called shebait. This responsibility is, of course, maintained by a pious Hindu, either by the personal performance of the religious rites or as in the case of Sudras, to which caste the parties belonged, by employment of a Brahmin priest to do so on his behalf. That there is no distinction between the founder of a worship and the person who makes a subsequent grant of property for carrying on the worship has been sought to be supported by a passage which was cited to us by Mr. Braja Lal Chakravarty from the decision in Monohar Mukherjee v. Peary Mohan Mukherjee 1920 Cal 210 which was affirmed by the Privy Council in G.H. Hook v. Administrator General of Bengal 1921 P C 11 at p. 188 of the said report. Mookerjee, J. applied to Debuttar Estates the rule established in England with regard to charitable foundations established by a private person that he and his heirs are the visitors and it is only when the line of the heirs of a private founder has become extinct or cannot be found or are incompetent to act, Green v. Rutherford (1750) 1 Ves Sen 462 at p. 472, that the visitatorial power devolves on the Crown. In support of this well-recognized principle of English law Mookerjee, J. cited a passage from Green v. Rutherford (1750) 1 Ves Sen 462 at p. 472 which is as follows:

This right, according to Lord Hardwicke, has its origin in the property of the donor and the power which everyone has to dispose, direct and regulate his own property.

13. On the other hand Mr. Gupta who appears for the respondent contends that the passage just quoted is merely a truncated portion of Lord Hardwicke's judgment and that when the whole passage is looked at it would appear that Lord Hardwicke is drawing a distinction between the donor of properties for a charitable institution and the person who subsequently adds properties to the charitable institution. At p. 471 of the report the following passage occurs:

This leads to the second and main point, on the merits of the plea. I agree, that the presentation set forth by plea, is not a proper subject of visitatorial power. To argue this clearly, the original and visitatorial power must be considered. The original of all such power is the property of donor, and the power every one has to dispose, direct, and regulate his own property, like the case of patronage; cujus est dare, etc., therefore, if either the Crown or the subject creates an eleemosynary foundation, and vests the charity in the persons who are to receive the benefit of it, since a contest might arise about the government of it, the law allows the founder or his heirs, or the person especially appointed by him to be visitor, to determine concerning his own creature. If the charity is not vested in the persons who are to partake, but in trustees for their benefit, no visitor can arise by implication, but the trustees have that power; from which account it appears, the nature of this power is forum domesticum, the private jurisdiction of the founder, and cannot extend further, unless some other person grafts upon it and by express words or necessary implication subjects the estate or emolument given by him, to the same visitatorial power and to be governed by the same rules.

14. If the whole of this passage is taken into account it would appear that a charitable foundation so far as it is formed to give effect to a charitable purpose in reference to property provided by the founder is the creature of the founder who has the power to direct or regulate his own property or he or his heirs have the same power with reference to the other properties that may be given in support of the same charitable institution unless the second donor grafts a condition that the estate given by him is subject to some other visitatorial power. In the present case it does not appear that when the Baikunthapur estate made a gift of the properties in suit for the worship of the idol it imposed any condition regarding shebaitship. The second ground fails and so does the third which is practically the same as the second, for the second ground is that the gift of the properties was that of the predecessors of plaintiff 2, Raikat, and, therefore, the lands ought to be restored to him upon recovery from the trespassers.

15. The fourth ground is, as already stated, that as the property is debuttar and as there is a loss in the income of the deity, the suit on behalf of the deity is maintainable; and assuming that the plaintiff has got no right the Court is competent to appoint the plaintiff as shebait in the sense of his being the next friend of the perpetual infant, the idol and thus allow him to continue the suits on behalf of the deity. It is argued for the respondent that the plaintiff really rested his case of getting the Shebaitship on the basis of the sale of the shebaitship to the plaintiff by Khagendra on 29th Kartic 1332 B.S. which has been described in the deed of surrender, Ex. 2: see p. 155 of the paper book (Part 2). It seems to us that this deed although described as a deed of surrender is really a deed of sale of the shebaitship by Khagendra. The consideration of Rs. 7,500 is mentioned as being paid out of kindness of Khagendra. The material passage of this document is this:

So at present I have no other alternative than to surrender the post of the said shebait and to return the said deity to you together with the debuttar property of the said deity described in the schedule hereunder. In connexion with the sheba of the said deity of you from the time of my predecessors I am at present indebted to the extent of Rs. 7,500 and I have no other means of being released from the debt. I, in succession to my predecessors, have been performing the work of shebait of the deity under you and your predecessors and have become indebted; so, out of kindness, and with a view to relieve me from the indebtedness, you have given me Rs. 7,500 and I, without any objection, and out of my free will, return the said deity to you and give up possession of the debuttar property described in the schedule hereunder in your possession.

16. Looking carefully into the document and whatever has been described in it, one has no hesitation in coming to the conclusion that it was really a deed of sale of the shebaitship to plaintiff 2 by Khagendra. If that is so then on the authorities to which we shall refer presently this transfer of the shebaitship is absolutely void in the absence of any custom sanctioning such transfer. No custom as to the transfer of the shebaitship has been alleged or proved in these cases. In these circumstances according to the decisions in Raja Vurmah Valia v. Ravi Vurmah Kunshi Kutti (1876) 1 Mad 235 and Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad 271 the sale is void. Their Lordships of the Judicial Committee expressed themselves on this point in the following language in the last mentioned case:

In Raja Vurmah Valia v. Ravi Vurmah Kunshi Kutti (1876) 1 Mad 235 this committee held that an assignment by the Urallers (managers) of a pagoda of the right of management thereof was beyond their legal competence under the common law of India, and that no custom to do so had been established. There is no proof of any custom in this case, and consequently these deeds of sale are void and did not give any title to the purchaser. The title remained in Chockalinga and Nataraj and the possession which was taken by the purchasers was adverse to them: see p. 76 of the report Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad 271.

17. The deed of sale evidenced by Ex. 2 being void the title to shebaitship still remains in Khagendra. It is true that possession has been taken by plaintiff 2 from Khagendra both of the idol and endowed properties, at least some, and at the expiration of 12 years from the date of execution of Ex. 2 the question might arise whether plaintiff 2 has acquired the right of shebaitship by adverse possession for more than the statutory period of 12 years. Such circumstances occurring it may be open to the plaintiff to raise new contentions with regard to the matters now in controversy on different grounds. We are not concerned with them at present. The question at present is whether on the issue as framed and in the circumstances which we are now dealing with the plaintiff is entitled to maintain these suits. We are of opinion that this deed of sale is void and we agree with the Subordinate Judge on this point. We do not think that in these circumstances plaintiffs had any right to maintain the suits. Another point which was raised in the final reply by the appellants does not seem to have been taken in the Court below. It is based on the actual possession of the properties in question by the plaintiff as de facto shebait and our attention has been drawn to two recent decisions of their Lordships of the Judicial Committee of the Privy Council in Ram Charan Das v. Naurangi Lal 1933 P C 75 and Mahadeo Prosad Singh v. Karia Bharti 1935 P C 44, and Mr. Chakravarty in his final reply stressed the importance of the decisions of these cases on the question that his client being in actual possession is entitled to succeed in these suits both to set aside the leases as also for ejecting the temporary tenants. At the first blush there are passages which if read divorced from the context might support the contention that the shebait who is in de facto possession of the debuttar properties, might maintain suits of the kind we are dealing with. It is said that as de facto shebait plaintiff 2 is entitled to maintain the suit for recovering debuttar properties from trespassers. But it is to be noticed that these observations of their Lordships to which we shall refer presently have to be read with reference to the facts of the particular case in which these observations were made. While dealing with the transfer by the previous Mohant by sale in the first case Lord Russell of Killowen expressed himself thus:

Their Lordships however are not now concerned with any question of title, because both the Courts below have found that the plaintiff is the person in actual possession of the Piligunj Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the Math.

18. It would appear from the original judgment of the Patna High Court as the case is reported in Naurangi Lal v. Ram Charan Das 1930 Pat 455 that in that case the plaintiff was claiming the property as the property of the math or the idols installed in the math and that he was in actual possession of the math his possession having been recognized all round as the possession of the mohant of the math. The learned Judges of the High Court remarked:

The learned Subordinate Judge obviously refers to this fact when he styles him as the defacto mohant of Paliganj, an expression which has been severely criticized by the learned advocate for the appellants.

19. In that case an appeal was taken to the Privy Council by the mohant, Ram Charan Das v. Naurangi Lal 1933 P C 75, and in those circumstances their Lordships of the Judicial Committee held that the plaintiff, who was in actual possession of the math, was entitled to recover for the benefit of the math the property which belonged to the math. Reliance has been placed on the passage in the case cited, Mahadeo Prosad Singh v. Karia Bharti 1935 P C 44, where Sir Shadi Lal in delivering the judgment of the Judicial Committee said as follows:

As observed by this Board in Ram Charan Das v. Naurangi Lal 1933 P C 75 a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the math.

20. Also previous to this part of the judgment after stating the facts of the case, their Lordships observed as follows:

There can be little doubt that Karia has been managing the affairs of the institution since 1904, and has since the death of Rajbans been treated as its mohant by all the persons interested therein. The property entered in the revenue records in the name of Rajbans was, on his death, mutated to Karia, and it is not suggested that there is any person who disputes his title to the office of the mohant. In these circumstances their Lordships agree with the High Court that Karia was entitled to recover for the benefit of the math the property which belonged to math and is now wrongly held by the appellant.

21. The facts of the present case are distinguishable. In the first place the cases cited are cases of mohantship of a math whereas the present case is one of shebaitship of an endowment. We have already held that Khagendra's transfer is void. Even if plaintiff 2 had purchased from the shebait Khagendra, as his heirs were all living, these heirs according to our view would have been the next shebaits. In the circumstances it cannot be said that there is no person who is capable of disputing the title of the present plaintiff to the office of the shebaitship. Besides, it is also an important circumstance to note that this was not the point of view which has been presented in this case. The plaint is not based on the possession of the present plaintiff 2 as de facto shebait but on the other facts which we have already stated. We think that these two Privy Council cases do not assist the appellants. It is not necessary in view of these considerations to deal with the last question about limitation of the plaintiff's right as shebait. It is just sufficient for our purposes to say that the present suits are not maintainable on the state of facts which have been pleaded in the plaint and raised by the pleadings. The result is that these appeals are dismissed with costs. Full hearing fees are allowed in Appeal No. 121 and half hearing fees are allowed in the remaining appeals.

Patterson, J.

22. I agree.


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