1. These appeals arise oat of a suit instituted by the plaintiff Gossain Ganpat Gir as Shebait of the deities, Salgram and Shiva Thakur, to recover possession of the properties in dispute, alleged to be the Debutter of the said Thakurs, after setting aside the alienations thereof, said to have been improperly made by the defendant No. 1, the former Shebait.
2. One Amrita Gir, who belonged to the sect of 'Giri,' one of the ten classes of Dasnami Gossains, established the Thakurs Salgram and Shiva at Arapur in the District of Maldah. Persons belonging to the sect to which he belonged are bound to observe celibacy but can acquire properties and are succeeded by Chelas or disciples. Amrita Gir acquired certain properties and by his Will dedicated the properties acquired by him to the said deities, the exact nature of the dedication being one of the main questions in this case. By his Will he directed that on his death his Chela Bissonath Gir would be the Shebait and executor, and on the death of the latter his Chela grandson Alum Gir Gossain and on his death Udit Narain Gir, the Chela of Bissonath,would be appointed to the office, and carry on the Sheba, and perform other acts mentioned in the Will according to the custom and usages of the family. There were other provisions in the Will which will be noticed later on, After Amirta Gir's death, his Chela Bissonath Gir obtained Probate of his Will on the 30th April 1878, carried on the trusts, and with the surplus income of the properties acquired certain other properties. On his death his Chela Udit Narain Gir succeeded him as Shebait. Udit Narain made a Will on the 5th Chait 1310 (18th March 1910), by which he appointed his Gurubhai Ram Narain (the defendant No. J.) as the Shebait after his death. Ram Narain accordingly succeeded Udit Narain on his death and obtained Probate of his Will on the 14th June 1904. He appears to have been a man of immoral character. He neglected the Debsheba and other trusts of the Mutt and contracted debts. On the 9th August 1905 he applied under Section 90 of the Probate and Administration Act to the District Judge for permission to sell certain properties and having obtained the permission, sold the properties in respect of which permission was granted as well as some other properties. Some of the properties were sold to the defendants Nos. 2 and 3 and some others to the defendants Nos. 6 and 7; practically all the Debutter properties have been sold away.
3. It is alleged by the plaintiff (who belongs to the same order of Gossains) that the other Gossains belonging to the same community in the District of Maldah assembled, and having found that the defendant No. 1 was guilty of misconduct and had wasted the Debutter properties excommunicated him and by a Punchnama dated the 20th November 1906 removed him from the Shebaitship, appointed the plaintiff as Shebait as being the nearest and most preferential Gotia in the family to which Amirta Gir belonged. The plaintiff then applied for revocation of the Probate granted to the defendant No. 1 and was appointed administrator pendente lite, but subsequently (on the 26th May 1908) was permitted to withdraw his application for Letters of Administration with liberty to make a fresh one. He was also directed to vacate the office of administrator pendente lite. The plaintiff brought the present suit on the 8th November 1908 for declaration that the properties in suit are Debutter, that he is the Shebait, that the defendants had not acquired any, right under their purchase, and for recovery of possession of the properties and for other reliefs. The suit was decreed by the Court below and the defendants Nos. 2 and 3 have preferred Appeal No. 22 of 1913, and the defendants Nos. 6 and 7 (and defendant No. 19 who was subsequent to the institution of the suit added as defendant) have preferred Appeal No. 23 of 1913.
4. The questions for consideration in these appeals are:
1. Whether the Debutter created by Amrita Gir was an absolute Debutter.
2. Whether the right of the defendant No. 1 as Shebait had been legally put an end to, and whether the plaintiff is entitled to be Shebait even if the defendant No. 1 had been validly removed.
3. Whether the alienation of the properties made by the defendant No. 1 in favour of the defendants Nos. 2, 3, 6 and 7 can be set aside.
5. With regard to the first question, it is contended on behalf of the appellants that the trust is a private one and there being no direction as to the surplus after meeting the Debsheba and other expenses which, moreover, were left uncertain (nothing being stated as to the amount to be spent in the Debsheba or other acts), the Shebait could appropriate the residue, and that being so it was not an absolute Debutter, but that the Shebait had a disposing power over the properties subject to the trusts. We are of opinion, however, that the Will of Amirta Gir oreated an absolute Debutter. The Will purports to deal with 'all the properties' and dearly states that all the properties, moveable and immoveable, and the profits of the said properties will be deemed as the Debutter properties of the two deities Salgram and Shiva Thakur. It then provides for succession to the office of Shebait who is to carry on the Sheba and entertain guests according to the custom and usages of my family and will maintain as usual the other dependents and perform acts of conferring spiritual benefits to myself and my ancestors. None of the properties left by me will be liable to be sold or be subject to any charge for any debts contracted by the said three persons or by any person who will be appointed to that office after them. If any such thing happens, the same will be liable to be set aside by the next Shebait executor according to law.'
6. It is to be borne in mind that Amirta Gir belonged to a religious order, and persons belonging to the order cannot marry or have children. The expression 'family' or 'ancestral gods' is not to be understood in the same sense when applied to ordinary persons, but refers to the spiritual family and relationships of the sect to which he belonged. No beneficial interest in the properties is reserved for the successors and having regard to the fact that the successors would be Chelas (disciples), there is no reason to think that any beneficial interest was intended to be given to them. The Will in unambiguous language dedicates all the properties together with the profits thereof to the deities to be appropriated for their service and for the other objects mentioned in it. We have been referred to the case of Ashutosh Dutt v. Doorga Churn Chatterjee 5 C. 438 (P.C); 5 C.L.R. 236 ; 6 I.A. 182 ; 4 Sar, P.C.J. 58 ; 3 Suth. P.C.J. 694 ; 3 Ind. Jur. 571; 3 Shome L.R. 32 ; 2 Ind. Dec. (N.S.) 888. That case, however, is clearly distinguishable. There a Hindu lady left by Will to her sons lands belonging to her to support the daily worship of an idol and defray the expenses of certain other religious ceremonies, with a provision that in the event of there being a surplus after those uses had been satisfied out of the revenue of the said lands, such surplus should be applied to the support of the family and the Judicial Committee held that it could not be said that the property was wholly Debutter but that the Will created a charge upon the property for the expenses of the daily worship of the idol as it was performed at the time of the death of the testatrix, and of the other religious ceremonies for which provision was made by the Will. Their Lordships, referring to the provision in the Will that 'if there be a surplus then the family will be supported therefrom,' observed: 'Their Lordships not without some doubt and hesitation have come to the conclusion that these words amount to a bequest of the surplus to the members of the joint family for their own use and benefit.' In the present case there was no provision in the Will that any person was to enjoy any portion of the income of the properties and the whole of the properties together with the profits thereof were dedicated for the maintenance of the trusts and for those only. The word dependent' apparently refers to persons connected with the Mutt for the performance of the trust.
7. It is pointed out that the Will provides for carrying on the Debsheba and entertainment of guests and other acts according to the custom and usages of Amrita Gir's family, that there is no evidence as to how much was spent in the time of Amirta Gir and that the income of the properties is about Rs. 1,500, whereas the expenses of the Debsheba are only Rs. 430 a year, as would appear from the judgment of the Court below. But the said sum of Rs. 430 is stated to be the expenses oonneoted with the daily Debsheba only as it was carried on during the time of Ram Narain. It does not include the expenses connected with the entertainment of guests nor the occasional festivals.
8. It appears from the evidence that the Debsheba in the time of Amrita Gir, Bissonath Gir and Udit Gir consisted of cooked rice, dal and vegetables, etc., in the morning and loochi, rooti and sweets in the evening, and there were expenses connected with the occasional festivals which were performed with some eclat, but that since a year after the defendant No. 1 became the Shebait they had been stopped, and the figure Rs. 430 represents the expenses to which they had been reduced by the defendant No. 1 when he was wasting the properties, and the Debsheba appears to have dwindled down to the mere performance of the worship without offerings of proper bhog for the deities. It is not at all clear that there would be any surplus left if the trusts enjoyed by the Will were performed in the same manner, as they were performed during the time of Amrita Gir and his immediate successors, which according to the witness consisted in not only performing the worship, but also of daily offerings of bhog to the deities, the celebration of the occasional festivals and the entertainment of guests (which includes persons belonging to religious orders and mendicants.)
9. The fact that Bissonath Gir and Udit Narain Gir had to borrow monies from time to time for meeting the expenses of the trust (as shown by the documents filed in the case) go to support the view that generally no surplus used to be left. Some surplus might be left in some years which the Shebait would be expected to keep as a reserve fund or to apply in the acquisition of other properties for the Debutter, as appears to have been done by Bissonath Gir who purchased some properties from the income of the Debutter estate.
10. It is further contended that the successors of Amrita Gir treated the properties as if they were secular properties. The evidence, however, does not establish that they were so treated. A large number of documents such as mortgage bonds, ijara kabuliyats and dakhilas have been produced in the case to show how the properties were dealt with. With the exception of 3 all the documents expressly recognise the Debutter character of the properties dealt with by them and in most of them the executants are described as Shebaits of the deities Salgram and Shiva Thakur. The properties are described as Debutter and some legal necessity is alleged in the documents. The mere fact that the former Shebaits borrowed monies on mortgages or leases of the properties does not show that they were treated as secular properties, as a Shebait can raise loans for legal necessity. The alienations made by the defendant No. 1 cannot be relied upon to shew that the properties were not dealt with as Debutter. They were made the foundation for removal of the defendant No. 1 from the office of Shebait, and for the institution of the present suit for recovery thereof on the ground that the properties had been improperly alienated, and even some of those documents describe the properties as Debutter and recite necessity for the alienations. The three documents in which the Debutter character of the properties dealt with by them was not stated and no legal necessity was alleged were mortgage bonds executed by Bissonath or Udit Gir, but having regard to the numerous documents in which the Debutter character was recognised arid the alienations were made as Shebait alleging legal necessity, we do not attach any importance to the said documents.
11. The next question is whether the right of the defendant No. 1 Bam Narain as Shebait had been legally put an end to, and whether the plaintiff is entitled to be Shebait even if the removal of Ram Narain was valid. It is contended on behalf of the appellants that the trust being a private one, succession is governed by the rules laid down in the deed creating the endowments and in the absence of such rules by the ordinary rules of inheritance governing the family and the defendant No. 1 Ram Narain, having succeeded Udit Naraian, could not be removed by the Punch and that so long as Ram Narain was not removed from the Shebait-ship by a Court of Law, the Punch had no power to appoint the plaintiff as Shebait. It is further contended that although the Punch might excommunicate a person of their order for misconduct, such excommunication cannot deprive him of his civil rights. But in the first place it must be borne in mind that these persons are not ordinary Grihasta (householders) but belong to the order of Sanayasis who although they may engage in secular pursuits cannot marry, and are governed by the rules of the community to which they belong. They are supposed to lead a strictly religious life and succession to their property is through Chelas or disciples. The ordinary rules of inheritance in their entirety cannot apply to such persons, for although the succession is through Chelas any question as to preference between Chelas (when it is not provided by the Guru) must be decided by the custom and usages of the community to which they belong, and the representatives of the community are the proper persons to decide such matters. Secondly, althoughlthe secular property of a Guru may be inherited by the Chela, the properties in this case were absolute Debutter. The Will of Amrita Gir speaks of the succession to the office of Shebait and lays down that after his death his Chela Bissonath Gir, and on his death his Chela grandson Alum Gir and on the death of the latter Udit Gir Chela of Bissonath would be the succeeding Shebaits respectively The farther order of succession (after Udit Gir) is not laid down in the Will, but it states: 'None of the properties left by me will be liable to be sold or be subject to any charge for any debts contracted by the said three persons or by any person who will be appointed to the office after them. If any such thing happens, the same will be liable to be set aside by the next Shebait executor according to law. Be it also known that if the aforesaid persons or any one who will be appointed to that office after them acts contrary to the custom or usages of my family or acts arbitrarily according to his wishes or becomes extravagant or is found by the Punch of our community to be guilty of any grave offence, he will be removed from the office of the Shebait and the person next referred to will be appointed in his place, and take possession of all the moveable and immoveable properties from him and carry on the duties as aforesaid and he shall not be competent to raise any objection to the same.' The Punch of the community would naturally be the proper persons to decide the question what constitutes grave offence, or acts contrary to the custom or usages of the family, which means the sect to which he belonged.
12. There is no doubt that the Will gives the power to the Punch to enquire into misconduct not only of the three succeeding Shebaits expressly mentioned in the Will, but also of those who may be appointed after them and impliedly recognises the authority of the Punch of the community to enquire into the misconduct of the Shebait,
13. It appears that there were two meetings of the Punch of the community. The first was held at the annual meeting at the time of Ganga Poojah at the house of Protap Gir, who appears to be most influential and the richest of the 'landed Gossains' residing in the District of Maldab. It is said that Prayag Gir complained at that meeting that Bam Narain used to drink, visit prostitutes, and was wasting the Debutter properties and the Gossains present asked Bam Narain about his alleged misconduct, whereupon he said if I do all this what of that to them,' and thereupon he was excommunicated. There was a second meeting held at the house of the plaintiffs at Fulbari when an enquiry was held as to the misconduct of Bam Narain, and the Punch by a Punchnama removed him from the Shebaitship and the plaintiff was appointed in his place. It is contended on behalf of the appellants that Ram Narain was condemned before trial. No doubt the proceedings of these Gossains did not take place in the regular manner in which proceedings take place in a Court of law. But the fact appears to be that when Ram Narain on being asked about his misconduct did not deny it and defied the authority of the Punch, they took that as a confession of his guilt and at once excommunicated him. Subsequently they thought, of making a formal enquiry before depriving him of his right as Shebait, and for that purpose the second meeting was held at Fulbari. One Balkissen Gir (who is said to be the Kotwal) was deputed to make the enquiry and he reported that the charges were true. However that may be, the evidence about the misconduct of Ram Narain is overwhelming. There is no doubt that he used to drink wine, eat meat, visit prostitutes, neglect the Sheba and the other trusts and wasted the properties and even sold the bricks of the Thakurbari. Although according to the defendants' witness No. 11, Lachmi Narain Gir, many of the Gossains keep Baiahnavis as concubines, and do not lose their Guddi, the defendant No. 1 appears to have offended against all the rules of the order to which he belonged and as some of the witnesses put it, he was 'as bad as possible'. A. person guilty of such misconduct could not be retained as Shebait of a religious institution, and the Punch were quite justified in removing him.
14. It is contended that even if the Punch had any power of removing the Shebait, all the representative Gossains were not present at the meeting of the Punch.
15. It appears from the evidence that there are seven Mutts besides, those of the plaintiff and Ram Narain in the locality, that the Gossains of all the Mutts with the exception of three, viz., Luchmi Narayan, Bissumbhur, and Protap Narain were present. Jadunandan, another Gossain, was represented by his Chela, and Balkissen, the Kotwal, was also present. Out of 11 Gossains 8 were present. There is no evidence on behalf of the defendants that there was any other Gossain who could take part in the Punch and there is no doubt that the majority of the Gossain Punch took part in the meeting.
16. The case of Rup Narain Singh v. Junko Bye 3 C.L.R. 112. relied on by the appellants is distinguishable. There a Shebait gave authority to a Punch and the inhabitants of the neighbourhood, but he himself had no such power and even assuming he had, the authority was to be exercised by all the inhabitants.
17. Luchmi Narayan was at Benares at the time, and be was then under ban of excommunication, Bissumbhar was on pilgrimage, and Protap Narain Gir was insane. The rule seems to be that when a member of the Punch in unable to attend on account of his illness or being on pilgrimage, the other members of the Punch can act.
18. The defendant No. 1 was served with notice to appear but he did not appear, and the Punch gave their award by the Punchnama which was signed by the Gossains.
19. The evidence as to the presence of some of the Gossains, the enquiry held, the signing of the Punchnama and as to the fact of Prayag Gir having charged Ram Narain at the first meeting with misconduct, has been attacked on behalf of the appellants. The evidence has been considered by the learned Subordinate Judge and believed by him. We think the evidence has been rightly appreciated by him. Some of the Gossains are persons of substance, Protap Gir being the most influential among them with an income of Rs. 16,000 a year. Nothing has been said against his character, and he has no chance of succeeding to the Mutt. Some of the Gossains are very old men, and there does not appear to be any sufficient reason why these Gossains should join in a conspiracy and perjure themselves.
20. It is said that the proceedings of the Punch were not bona fide, that the Gossains, finding that the properties of a Mutt were alienated to strangers, put their heads together, and that it was merely an attempt to take cut the properties alienated by Ram Narain and to restore the same to the Mutt, That no doubt was the object of the Punch, but that does not show that the proceedings of the Punch were not bona fide. There being no doubt about the misconduct of Ram Narain and the waste of the Debutter properties by him, we are unable to hold that the proceedings of the Punch for removal of Ram Narain and attempt at restoration of the Debutter properties were not bond fide. The Court below finds, 'then it is proved by the evidence of all the Gossain witnesses of plaintiffs' side, and not rebutted by those on defendants' side, that the Punch had authority to excommunicate a Gossain for misconduct and to remove him from the Guddi and appoint his successor. Even in Amrita Gir's Will, there is a provision that if any Shebait would be found guilty of misconduct and extravagance in the judgment of the Punch, then he should be deposed.'
21. Reliance is placed, however, upon certain statements of Gossain Ganga Gir, Gossain Jadunandan Gir and Protap Chandra Gir to show that the Punch had no power to remove a Shebait or appoint another in his place according to the rules of their community and independently of the power given in the Will. Gossain Ganga Gir says, 'on having the Will read out to us we came to know that we had that power. If there were no such provisions in the Will, we would not have given the Punchnama to the plaintiff. He would have done what he liked.'
22. Protap Chandra Gir says that they came to know of the terms (relating to the removal of the Shebait by the Punch) on reading the Will and Jadunandan Gir's evidence is to the same effect. It is contended that this evidence negatives the case that according to the rules of the community the Punch had the power to remove a Shebait, and appoint another in his place. It is further contended that the plaintiff cannot rely upon the Punchnama, because in the Court below he rested his case, as to the power of removal of Ram Narain and his own appointment by the Punch, under the customary rule of the community, and on that ground was exempted from payment of stamp duty (under Article 7 of Schedule I of the Stamp Act) and penalty on the Punchnama, as would appear from the order of the Court below dated the 24th July 1909. But none of the Gossain witnesses says that independently of the Will of Amrita Gir, the Punch had no power to deal with such matters. All that some of them said was that they came to know from Amrita Gir's Will that they had been given the power to remove a Shebait for misconduct and appoint another in his place, and that were it not for that power, they would riot have interfered in the matter and executed the Punchnama.
23. The power of the Punch to deal with such matters is recognised in the Will of Amrita Gir executed more than 30 years before this suit and Amrita Gir, who presumably knew the rules of the community to which he belonged, would not have made the provisions in the Will had not the Punch the authority to deal with such matters. But even if it be held that independently of the power conferred in Amirta Gir's Will the Punch had not the power to remove a Shebait for misconduct or appoint another in his place, we do not see why the plaintiff should be debarred from relying on the power of the Punch to do so under the terms of the Will. The Court below by its order dated the 23rd July held that the Punchnama required a stamp of Rs. 15 under Article 7 of Schedule I of the Stamp Act and a penalty of Rs. 150, and on the next day on a re-corsideration of the matter held that under the Will there was no power given to the Punch to appoint a new Shebait, that the appointment of the plaintiff by the Punchnama was made under the customary rules of the community and that, therefore, the Punchnama did not come under Article 7 of Schedule I of the Stamp Act. We are of opinion that the Will not only gave the Punch the power to enquire into the misconduct of a Shebait and to remove him from the office of Shebait, but also to appoint a new Shebait, at any rate, impliedly and that the Punch appointed the plaintiff as Shebait according to the customary rules of the community under the powers conferred by the Will, though not clearly so stated in the Punchnama. We accordingly directed the plaintiff-respondent to pay the stamp duty of Rs. 15 and a penalty of Rs. 150, and the same has been paid. That being so, the Punchnama becomes admissible for the purpose and the plaintiff can rely upon the authority of the Punch as derived under the Will, not only to enquire into the misconduct of Ram Narain and to remove him from the office of Shebait, but also to appoint him (the plaintiff) in his place.
24. Moreover, there being no doubt as to the power of the Punch under the Will of Amrita Gir to enquire into the misconduct of Ram Narain and to remove him from the Shebaitship, and of their having acted in those matters in exercise of their power as conferred by the Will, we think that once Ram Narain is removed, the plaintiff steps into his place by virtue of his being the nearest preferential Gotia according to the rules of the order and does not require the appointment by the Punch to the office of Shebait.
25. It is urged that it is a case of a private trust, and if Ram Narain was guilty of misconduct, the matter ought to have been brought into Court and investigated by it, and if found guilty, the Court might have removed him from the office of Shebait, and the community had no power to do so. But we have found that it was an absolute Debutter, the Shebait for the time being having no beneficial interest in the estate. We do not think that even in the case of a private trust there is anything to prevent the founder from giving to a particular class of persons, such as the Punch of the community, the power to enquire into misconduct of a Shebait which disqualifies him from holding the office of Shebait and to remove him from such office. The Punch may not have the power to enforce the removal, and if resistance is offered by the Shebait, the successor may have to go to a Court of law for obtaining relief. Such considerations, however, do not render the action of the Punch invalid in so far as their award is concerned. In the present case the plaintiff, after the Punchnama was given by the Punch, applied to the District Judge for revocation of the Probate granted to Ram Narain and was appointed administrator pendente lite. He entered upon the office of Shebait. It is true that he was removed from the office of administrator pendente lite, but he continued to perform the Sheba and Puja of the deities as Shebait.
26. We were referred to certain letters written by Ram Narain in July 1908 to the plaintiff before this suit was instituted, and to the fact that Ram Narain at first put in a written statement on the 28 th November 1908 contesting the claim and subsequently (on the 23rd April 1909) admitted the plaintiff's claim, and also to the statement of the witness Jadunandan Gir that when Ram Narain was told that he was deposed, he seemed to be pleased as showing that the removal of Ram Narain, the appointment of the plaintiff and the present suit were the result of collusion between Ram Narain and the plaintiff, with the object of recovering the properties from the purchaser defendants. Bat we are not disposed to attach any importance to the above matters, because Ram Narain had by his profligacy and extravagance ruined the Debutter estate, he could never get back the estate and it might he that he was glad if some one of his order got back the estate by his removal, and even might be disposed to help the plaintiff. If Ram Narain was validly removed, it does not matter that he wrote such letters to the plaintiff or filed a written statement and subsequently admitted the claim.
27. The next question is whether the plaintiff was entitled to succeed Ram Narain even if his removal was valid.
28. Upon this point the finding of the Court below is as follows: 'Both the plaintiff and the defendant No. 1 belong admittedly to the sect of Girs or 'Giris', who form one of the ten classes of Dasnami Gossains which came to be constituted after the institution of Mutts by Sankar Acharjya. It has been proved on the evidence of plaintiff's witness No. 2, Bangali Roy Bhat, who is the professional herald keeping the pedigree of the Gossains from the District of Mirzapore on the west to the province of Bengal to the east, that Sankar Acharjya had four disciples who founded four Muits, one of which was called Joshi, and from these four Mutts branch out fifty-two Murhies and that the plaintiff and the defendant No. 1 as well as the latter's predecessors, Amrita Gir, Bissonath Gir and Udit Narain Gir, belonged to the Kumush Nath Murhi i e., descendants from the common predeeessor Kumush Nath, as recorded in the pedigree book proved by the Bhat as transmitted to him by his forefathers. From the Bhat's evidence with reference to the pedigree book, plaintiff appears to be 13th descendant from Behari Gir, while defendant No. 1, Ram Narain Gir, is the 15th in descent from the same Behari Gir. Plaintiff, his witness No. 2, the Bhat, plaintiff's witness No. 16, Balkissen Gir Kotwal, plaintiff's witness No. 17, Baldeb Narain Gir, as well as the two old Gossains Jadunandan Gir and Ganga Gir and Protap Gir, the richest of landed Gossains in the District of Maldah (the last three examined by commission), as also the defendant's witness No. 1, Luchmi Narain Gir, prove the fact that the plaintiff and the defendant No. 1 are descended from one common ancestor, and that amongst Gossains if one dies leaving no Chela his nearest Gotia succeeds him, the ascendant being preferred to the descendant as plaintiffs witness 'So. 17, Baladebnarain Gir, deposes. Of the other Grotias of defendant No. 1 there appear Bam Chandra Gir, 13th in descent, Protap Narain Gir, 15th in descent, and Prayag Gir, 16th in descent, from Behari Gir. But Bam Chandra Gir branched off from the original Guddi (as plaintiffs' witnesses Nos. 2 and 3 depose), sold, off his properties, and spent the money in dissipation and has been afterwards excommunicated and was also present at the Punch, but did not sign the Punchnama (Exhibit I) saying that he himself had sold all his properties like defendant No. 1. As for Protap Narain Gir he is mad and Prayag Gir is not in the original Mutt and earns his livelihood by selling pice in the Bazar. So the plaintiff is the nearest Guddinashin Gotia and is, therefore, most preferential, as alleged in the plaint. The case in the plaint was distinctly set forth, the plaintiff alleging himself to be the most preferential' Gotia of defendant No. 1, and the ground of the preference is made out in the evidence and is no afterthought '
29. We agree in the above finding and would add that the case of the 'Guddinashin Gotia' being entitled to preference, if there are more than one Gotia of the same class, was not started for the first time in the Bhat's evidence, when it was found that there were two persons of the same rank, as contended on behalf of the appellant, but the case of 'Guddinashin Gotia' being entitled to preference was put to and proved by the most respectable Gossains who were examined by commission in 1909, about two years before the Bhat was examined in Court, and in the plaint the plaintiff distinctly set up the case that the nearest and the most preferential Gotia succeeds, though the ground for such preference, viz., 'Guddinashin Gotia' was not stated. The case of 'Guddinashin Gotia' being entitled to preference, therefore, is not an afterthought, as has been rightly pointed out by the Court below.
30. We are referred to the statements of Gossain Protap Chandra, Gir to show that where there are two Chelas, the worthier of the two succeeds and this is settled by the Guru, but that if both are equally worthy, they act together and in case of disagreement and in the absence of any prevision by the Guru, they partition the property between themselves. In the present case the only other Gotia of the same rank with the plaintiff is Ram Chandra Gir, but as already stated, the plaintiff, being the 'Guddinashin Gotia,' is entitled to preference according to the custom of the sect, apart from the fact that Ram Chandra sold away the properties of his own Mutt, which was a sufficient disqualification. The statements of Protap Chandra Gir probably refer to the succession of secular property left by a Guru among his Chelas, and not to the Shebaitship of absolute Debutter properties which cannot be partitioned. It is unnecessary, however, to consider the question, as the plaintiff being the Guddinashin Gotia was entitled to preference.
31. 'As regards plaintiff's character,' the learned Subordinate Judge says: 'He is a substantial Gossain keeping his own Mutt at Fulbari and even the defendants' witness No. 1, Lachmi Narain Gir, admitted that the plaintiff was a man of good character, and the insinuations on defendants' side about plaintiff keeping a woman are not at all proved, but merely suggested on hearsay evidence and Subjan Mistry, who is said to have been the source of the information, was asked no questions about it. It appears, however, that the plaintiff only gave some property for the maintenance of Basanti Debya, two of whose younger sons she gave as Chelas to plaintiff, her eldest son Seuraj as plaintiff's Pujari at the Mutt at Arapur. This cannot prove that the plaintiff ever kept her as his concubine as insinuated by the defence.'
32. The plaintiff, it appears, was excommunicated once, for what reason does not appear, but he was re admitted into the community. The age of the eldest son of Basanti Debya is about 40 years, and the Court below has found, and we think rightly, that it was not proved that she was the concubine of the plaintiff as insinuated on behalf of the defendants. So far as character is concerned, the plaintiff does not appear to be below the average run of persons of the order, many of whom as the evidence shows do not possess a good moral character. It may be mentioned that the appellants in this Court have not attacked the plaintiff's character. On the whole we agree with the learned Subordinate Judge in holding that 'according to the long established usage of the Gossain community as proved by the evidence, the plaintiff appears to be the most eligible person to succeed the defendant No. 1 to the Shebaitship.'
33. The last question is whether the sale to the defendants Nos. 2, 3, 6 and 7 is protected by the sanction given by the District Judge under Section 90 of the Probate and Administration Act.
34. Before dealing with the above question we will notice an argument advanced by the learned Pleader for the respondent, viz., that no Probate could be granted of the Will of Udit Narain and that as such the sanction given by the District Judge was ultra vires. It is contended that Udit Narain had no personal interest in, or power of disposal over, any of the properties, the properties acquired after the death of Amrita Gir having been acquired by Bissonath Gir out of the profits of the properties left by the former. It is urged that Udit Narayan by his Will merely affirmed the Debutter character of the property, and appointed his Shebait and successor, and we have been referred to the case of Chaitanya Gobinda Pujari Adhikari v. Dayal Gobinda Adhikari 82 C. 1082 ; 9 C.W.N. 1021 and Maharaja Jagadindra Nath Roy v. Mohunt Madhusudan Das 27 Ind. Cas. 24 ; 20 C.L.J. 307 to show that where a Will merely appoints a Shebait, the document is not a Will and cannot be admitted to Probate. But whatever rights Udit Narain might have in the properties, he described them in the Will as his own. He professes to give a power to his successor to alienate certain properties (those acquired after Amrita Gir's death) in case of necessity, and under the circumstances it cannot be said that he did not make any disposition about his properties and merely appointed a Shebait. The case relied upon is, therefore, distinguishable and we are unable to hold that the Probate proceedings were ultra vires.
35. The Will of Amrita Gir as well as the Will of Udit Narain provided that the Shebait would not be able to alienate any property. Udit Narain's Will gave power to alienate only the four properties specifically mentioned in the Will, but that was only in case of necessity. Bam Narain obtained permission of the District Judge under Section 90 of the Probate and Administration Act to sell some of the properties, and the appellants contend that they are fully protected by the sanction. The sanction, however, appears to have been obtained by misrepresentation. In the application dated the 9th August 1905 for permission to sell the properties it was stated that the deceased (Bissonath Gir and Udit Gir) left debts of about Rs. 3,800, out of which Rs. 1,000 was due to Jadub Chandra Chowdhuri, Rs. 1.500 to Kunja Lal Marwari and Rs, 1,300 to Gopi Charan Sen, that the creditors were about to institute suits, and that if suits were brought, it will enhance costs and interest and all the properties belonging to the estate would be sold, It was further stated that 'the three properties mentioned in the schedule, if sold, may fetch about Rs. 4,000 and in that case the debts will be paid off and the remaining properties of the estate saved. Rajani Babu and Protap Satia of Maldah and the said creditors Nos. 2 and 3 are willing to purchase the said properties for the prices mentioned in the schedule.'
36. Now, the sanction for sale was given on an ex parte application by the Court apparently without any enquiry into the matter on the very same day. It was not pointed out in the application that the properties were Debutter. It has been proved that the debts mentioned in the application had no existence at all. The learned Subordinate Judge has gone into the question fully and has shown that there were no such debts, and that finding has not been challenged in this Court. Then again the three properties, which were stated in the application 'may fetch about Rs. 4,000,' were sold for Rs. 7,500. That Ram Narain obtained the sanation by misrepresentation of facts and by practising fraud upon the Court, is not seriously disputed in this Court, but it is contended that the purchasers, at any rate the defendants Nos. 2 and 3, were not privies to, and had no knowledge of, the same. It is true the defendants Nos. 2 and 3 are not shown to have been concerned with the application for permission and negotiations about their purchase appear to have commenced about a fortnight after permission was obtained. The three properties for the sale of which permission was obtained from the District Judge, were, first, a Mourasi Jote (valued in the application at Rs. 1,000), second, a mango garden (valued at Rs. 1,000) and third, a Patni Mahal (valued at Rs, 2,000). The defendants Nos. 2 and 3 purchased the Mourasi Jote and the Patni Mahal together with 6 other plots of land (not covered by the permission) for Rs. 7,500 on the 26th October 1905 by the deed of sale (Exhibit C). The defendant No. 2 did not examine himself, but the defendant No. 3 Chandra Mohan Roy has been examined. He admits in his deposition that Ram Narain showed him certified copies of his application for permission to sell and the Judge's order giving the permission.
37. The application, as already stated, mentioned three debts, Rs. 1,000 due to Jadab Chandra Chowduri, Rs. 1,500 to Kunja Lal Marwari and Rs. 1,300 to Gopi Charan Sen.
38. The defendant No. 3 says that the debts due to Kunja Lai Marwari and Gopi Charan Sen were paid by Ram Narain in his presence and the latter took back the registered mortgage-bonds. But he admits that he knew Ram Narain from his boyhood as a Chela of Bissonath Gir and that he had Thakurbari at Arapur. Those facts are sufficient to put a purchaser on his guard, but he says that he did not make any enquiry as to what right Ram Narain had in the properties, and whether he had other properties left and how the Sheba of the Thakurs was maintained. He did not take the mortgage-bonds when the creditors were paid off The defendants did not call for those documents from Ram Narain nor take certified copies from the registration office. As a matter of fact these debts had no existence at all, as found by the Court below, but if, as stated by the defendants No, 3, the creditors were paid off in his presence, he would certainly have taken the bonds. Then the permission granted by the District Judge was to sell three properties worth Rs. 4,000. The defendants Nos. 2 and 3 purchased two of the said three properties (together with a few other plots of lands not covered by the permission) for Rs. 7,500, and it is alleged that they had to redeem an ijara on the Patni Mahal at a cost of Rs. 3,400. The defendant No. 3 says that they did not make any enquiry as to why properties 'more in value than the debts to be paid off were going to be sold,' nor thought it necessary to have permission taken from the District Judge for that purpose. Then again they purchased the first six plots of land of their kobala without the sanction of the District Judge.
39. Having regard to all the circumstances, we are unable to hold that the defendants Nos. 2 and 3 were bona fide purchasers, and although there is no evidence to show that they were privy to the fraud practised by Ram Narain upon the Court before the permission of the Judge was obtained, there is no doubt that they purchased with knowledge of the misrepresentation upon which the permission was obtained. As regards the defendants Nos. 6, 7 and 19, they purchased certain properties by a kobala (Exhibit 23) for Rs. 1,450 on the 9th May 1906, ie., about 10 months after permission was obtained from the District Judge. Only 10 bighas out of 14 bighas of plot No; 4 of their kobala was covered by the permission, and no sanation was obtained with respect to any of the other properties, but properties Nos. 1, 2 and 3 of Schedule kha were among those which Ram Narain was authorized by Udit Narain's Will to sell in case of necessity.
40. Jadab Chandra Chowdhuri was mentioned in the application for permission as one of the intending purchasers. The kobala was taken by him in the names of his sons the defendants Nos. 6 and 7, and it expressly states that all the properties were Debutter of the deities Salgram and Shiva Thakur. The application for permission stated the debts for the liquidation of which the properties were to be sold as having been left by Bissonath Gir and Udit Narain Gir and mentioned Jadab Chandra Chowdhuri as one of the creditors towhom about Rs. 1,000 was due. In the kobala of defendants Nos. 6 and 7, however, two debts contracted by Ram Narain himself were recited, one being upon a mortgage bond dated the 16th Chait 1312 (March 1906) for Rs. 597 and the other upon a hath chitta dated the 25th Bysak 1313 (8th April 1906) for Rs. 175, the total amount due on the date of the sale being stated to be Rs. 803-4-0. Deducting the said amount of Rs. 806-4 0, the balance Rs. 643-12-0 was received in cash. There is no mention of the debt of Jadab Chandra Chowdhuri, for Rs. 1,000 in the kobala and the two debts recited in it were contracted by Ram Narain himself in March and April 1906, i.e., several months after the permission of the District Judge was obtained on the 9th August 1905.
41. The defendants Nos. 6 and 7 were examined in the case and they mentioned debts other than those mentioned in the kobala. The former says that Udit Narain and Ram Narain borrowed Rs. 300 on a mortgage-deed (Exhibit E) in 1900 and that the same with interest amounted to Rs. 806-4 0, while his brother the defendant No. 7 says that the debt was due by Bissonath Gir upon the mortgage bond (Exhibit G) dated 16th Magh 1300 (February 1893). The facts that a debt of Rs. 1,000 was stated in the application for permission as one of the debts left by Bissonath Gir and Udit Gir and due to Jadab Chandra and the kobala mentioned two debts contracted by Ram Narain himself several months after the application for permission, while defendant No. 6 mentioned a debt due by Ram Narain upon a mortgage-bond executed in 1900, and his brother the defendant No. 7 mentioned a debt due by Bissonath Gir and Udit Gir in 1893, show that the existence of the debts at the date of the application was an absolute myth.
42. It appears from the evidence of the defendant No. 7 that his father had money-lending transactions from the time of Bissonath Gir, and their house is only half a mile from the Arapur Thakurbari. There cannot be the least doubt that they were aware of everything, and there is no pretence for saying that they were bona fide purchasers without notice of the fraudulent misrepresentation upon which the permission of the District Judge was obtained.
43. The learned Subordinate Judge has found that there is no reliable evidence to show that Bissonath Gir or Udit Gir left any debts, and we concur in the finding. No attempt has been made in this Court to show that there was any legal necessity for the tales to the defendants. So that apart from the permission of the District Judge, the purchase by the defendants cannot stand and the permission was obtained by fraudulent misrepresentation. That being so, the alienations have been rightly set aside. It may be mentioned that the appellants complained in this Court that they were prejudiced by reason of the Court below having tried the cases of the two sets of defendants together, but no such objection was raised in the Court below nor any application made under Order II, Rule 6, for trial of the cases of the two sets of defendants separately. In this Court the cases of both sets of defendants were argued by the same Pleader.
44. On the whole we agree with the Court below, and these appeals must be dismissed with costs, the hearing fee in Appeal No. 22 being assessed at Rs. 250 and in No. 23 at Rs. 64. The respondents will bear three-fourths of the costs of the respondents' portion of the paper-book, the appellants paying one fourth of the said costs, the amount of such costs, being divided between the two appeals in the proportion of 4 to 1.