Bhagaban Prusti and Another vs Narayana Prusti

Das, J.—This is a second appeal by the plaintiffs, which arises out of a suit brought by them for a declaration that they are co-shebaits and co-mar fatdars, with the defendant, of four deities, Sri Sri Giridharl Jiu Thakur, Sri Sri Gobind Jiu Thakur, Sri Sri Gopal Jiu Thakur and Kamalai Thakurani, installed in village Kaima Bada of the district of Cuttack. The plaintiffs and the defendant are three brothers forming a joint Hindu family. Two of the aforesaid four deities, namely, Sri Sri Giridhari Jiu Thakur, and Sri Sri Gobind Jiu Thakur, appear to have been installed in a math which was founded by one Haridas, a celibate Vaishnava, for the purpose of promotion of the Vaishnava religion. The institution appears to have been founded by three sanads in the years 1151, 1154 and 1164 Fasli. Certain properties mentioned in Schedule kha of the plaint were endowed for the purpose. The succession to the headship of the math passed from guru to chela till the death of one Padma Charan Das, the Guru Adhikari of the math in 1907. Thereafter, a dispute arose between two persons Anadi Das and Brahman and, Das, and, as a result of a compromise, both of them were recorded as joint Adhikaris of the math. In the year 1909, these two Adhikaris executed what has been called a seba-samar-panpatra in favour of the defendant Narayan Prusti and four other persons. By this seba-samarpanpatra the right of management as well as the endowed properties appear to have been transferred to the defendant Narayana Prusti and four other persons. This transfer was made to pay off a creditor Balaram Das of Patpur, who had obtained a decree for a sum of Rs. 1120-10-0 against the marfatdars. On the same day on which the seba-samarpanapatra was executed the transferees executed a mortgage bond for Rs. 1000 in respect of the endowed properties in Schedule kha. This mortgage was executed in favour of one Bhaban Sahu. By this mortgage the decree-holder Balaram Das was paid off. In 1912, a second seba-samarpanpatra was executed by the other four transferees in favour of the defendant Narayan Prusti for a consideration of Rs. 3000. By this sebasamarpanpatra, the other four persons gave up their right in favour of Narayan Prusti.

In 1926, Anadi Das and Brahmananda Das instituted a suit (No. 13 of 1926) for setting aside the two seba-samaspanpatrm of of 1909 and 1912 respectively, and for possession of the endowed properties. This suit appears to have been dismissed on the ground of limitation, and on a finding that the defendant had acquired the shebaiti right by adverse possession. The case of the plaintiff is that Narayan Prusti had acquired the above shebaiti or marfatdari right as a member of the joint family, and on behalf of the joint family. It is alleged that the expenses for the worship of the deities and for other ceremonies and improvements had been defrayed from the joint family funds. It is also stated that the consideration for the two seba-smarpanpatras had come out of the joint family funds. I Should have noted that two of the other deities, Sri Sri Gopal Jiu Thakur and the goddess Kamalai Thakurani, were installed in 1919, and Schedule kha 1 and kha 2 properties were endowed for these two deities. The plaintiffs'' case is that these two deities were installed" by the joint family out of joint family funds, and the properties were purchased out of joint family funds. The plaintiffs alleged that in the current settlement the defendant had got his name recorded as marfatdar in respect of the properties; therefore, the plaintiffs brought the suit for a declaration - that they were co-shebaits and co-marfatdars along with the defendant. The defendant denied the allegations made above, and alleged that the joint family had no concern with the shebaiti right; nor had any expenses been incurred out of joint family funds. The defendant also alleged that the endowment was a public religious endowment, and the shebaitship could not in law or fact go to more than one person. In the Court of first instance, the plaintiffs obtained a decree on the finding that the plaintiffs were co-shebaits or co-marfatdars. The Court of appeal below reversed that finding, and dismissed the suit. Hence the present second appeal. When the appeal was first heard by this Court, the case was remitted to the learned District Judge for recording his findings on the following two questions;

(1) Whether the religious institution with which we are concerned in this litigation is capable of having more than one shebait or marfatdar.

(2) Whether upon the evidence it can be held that, the plaintiffs have acquired the marfatdari interest along with the defendant by adverse possession and whether the finding of the Subordinate Judge that the joint family fund was used for ?acquiring, improving and carrying on the seva-puja is justified by the evidence on the record.

The learned District Judge has now given his findings on the two questions referred to above, and they are in favour of the appellants. The learned District Judge, who had originally heard the appeal, had dismissed the suit of the plaintiffs mainly on the ground that the right of management by a shebait could not be transferred by sale or gift; nor could it be acquired as an incident to property.

In my opinion, the learned District Judge was in error in dismissing the suit for the ground stated by him. It is no doubt true that a sale by a shebait or mohant of his right to manage debotter property is void. Their Lordships of the Judicial Committee have observed in Rajah Vermah v. Ravi Vurmah Kurshi Kurry (76) 1 Mad. 235, as quoted by the learned District Judge himself, that even if a custom be proved which sanctions the sale of such a right, the Courts should refuse to recognize it as being against public policy, specially where the sale is made to a stranger for the pecuniary benefit of the vendor. The case of the plaintiffs did not, however, rest on an acquisition of their right by purchase. The finding in the suit of 1926 brought by Anadi Das was that the defendant Narayan Prusti had acquired the shebaiti right by adverse possession. The main question for decision, therefore, is if Narayan Prusti had acquired the right for himself alone or for the joint family of which he was a member along with the plaintiffs. That the right to manage charities, without any beneficial interest in the charity properties, can be vested in a joint Hindu family is, I think, well-settled. In such a case, the senior male member of the family is, until a partition is effected, entitled to exercise the right of management vested in the family on its behalf: see Chinnappa v. Offficial Assignee AIR 1932 Mad. 162.

There is, therefore, nothing in law which would prevent Narayan Prusti from acquiring the shebaiti right on behalf of the joint Hindu family. Whether he actually acquired the" right on behalf of the joint family or not is primarily a question of fact. The learned District Judge was specifically asked to find whether on the evidence it can be held that the plaintiffs have acquired the marfatdari interest along with the defendant by adverse possession, and whether the finding of the Subordinate Judge that the joint family fund was used for acquiring, improving and carrying on the sheva-puja, is justified by the evidence in the record. The learned District Judge has carefully considered the evidence, and has come to the finding that the plaintiffs-appellants had acquired the marfatdari right along with the defendant by adverse possession. He has further come to the finding that the joint family fund was used for acquiring, improving and carrying on the sheva-puja. These findings are primarily findings of fact, and are binding on us in second appeal. Nothing has been stated before us which would lead me to think that these findings are incorrect. The clear finding is that Narayan Prusti had no separate business or income of his own, and all acts were done by him as the karta of the joint family.

It has been further found that the plaintiffs-appellants had also taken part in the performance of the festivals for the idols, such as Ras, Dol, Jhulan, Chandan Jatra, etc., and that expenses for these festivals had been met from the joint family funds. As far as two of the deities, Sri Sri Gopal Jiu Thakur and Kamalai Thakurani are concerned, these were installed on behalf of the joint family in 1919, and the endowed properties in Schedule kha 1 and kha 2 were acquired from the joint family funds. In view of these findings, the plaintiffs are clearly entitled to a. declaration that the shebaiti or marfatdari right belongs to the joint family, and that they have joint interest in such right along with the defendant.

The question as to whether there can be more than one shebait or marfatdar for this religious institution was also specifically referred to the learned District Judge, and the finding of the learned District Judge is that, though till 1907 the devolution of the office of shebait had been from guru to chela, there was a break in that year when two persons Anadi Das and Brahmananda Das became joint shebaits. From 1909 to 1912, five per. sons became shebaits. Narayan Prusty himself got the second seba-samarpanpatra from four other shebaits. The finding of the learned District Judge is that the evidence in the record does not show that this particular institution is incapable of having more than one shebait or marfatdar. In my view, this finding of the learned District Judge is correct. Learned Counsel for the respondent referred us to the case in Sethurama Swamiar v. Meruswamiar AIR 1917 P.C. 190. In that case, the objects for which the religious and charitable properties were given were described in the grants as being for the purpose of perpetually conducting a food chatram near the tomb of a holy man, and in one case of making an agrahar by building houses round the holy place. It was held that there was sufficient indication in the grants and in the surrounding circumstances of the case that a devolution of the management to the heirs of the original donee was inconsistent with the purposes of the founder who must be deemed to have, intended that the religious charities should be administered by the man who was head of the math, to which office the eldest son of the previous holder would succeed, the office not being the subject of partition, but being indivisible among the members of the family. The decision in that case turned mainly upon the terms of the grant. Their Lordships did not decide the general question of devolution of the office of shebait. Their Lordship observed as follows:

It is unnecessary, however, to decide whether there is a general rule for the devolution of the management of charities of this class because, in their Lordships'' view there is sufficient indication in the documents and in the surrounding circumstances of this case that a devolution of the management to the heirs of the original donee is inconsistent with the purposes of the founder when he created the endowment.

In the particular case before us, the finding of the learned District Judge is that there can be more than one shebait. It has been held that where the management can, without detriment to the trust, be held by turns, it is open to the members of the family to agree to of for the Court to decree management by turns or in some settled order or sequence: see Ramanathan Chetti v. Murugappa Chetti (06) 29 Mad. 283. We are not directly concerned in the present appeal with the question as to whether the right of management can be the subject of partition amongst the members of the joint family or not. The plaintiffs merely want a declaration that the right belongs to the joint family. The question whether the right can be the subject of partition can only be decided in a properly framed suit for the purpose. I am unable to accept the contention raised on behalf of the respondent that there cannot be more than one shebait in an institution of this nature.

For the reasons given above, I would allow the appeal with costs throughout, and would restore the decree passed by the learned Subordinate Judge.

Manohar Lall, J.

I agree.