Bhekdhari Singh and Others vs Sri Ramchanderji and Others

Ross, J.—This is an appeal by the plaintiffs in a reversioners'' suit. Plaintiff 1 is admittedly the next reversioner to Nanhuprasad Singh who is said to have dedicated his property to certain deities by two deeds. Plaintiff 2 is the son, and plaintiff 3, the nephew, of plaintiff 1. The plaintiffs in effect seek a declaration that the deeds of dedication are colourable and inoperative and do not bind the reversioners. Defendants 1 to 5 are the deities to whom the dedication was made, defendant 6 is the widow of Nanhuprasad Singh and defendant 7 is the minor daughter of Nanhuprasad Singh and was represented, after an amendment of the plaint, by her maternal grandfather; defendants 8 to 13 are the managers under the deeds of dedication of whom defendants 8 to 11 were named in the first and second deeds and defendants 12 and 13 in the second only. Three written statements were filed; the first by defendants 1 to 6 who pleaded a valid dedication; the second by defendants 8 to 13 whose defence was similar, and the third by defendant 7 who supported the plaintiffs.

The Subordinate Judge decided in favour of the dedication and dismissed the suit. The appeal is resisted by defendants 1 to 6 and by defendants 8 to 12.

The dedication was by two deeds: (a) Ex. E, dated 2nd November 1922; and (b) Ex. C, dated 27th August 1925. The execution and registration of these deeds, though disputed at the trial, has been admitted in the appeal. Nanhuprasad Singh at the time of the first deed had a wife Chandrajote Kuer who was his fourth wife and a daughter by her Mt. Bachhi Kuer (defendant 7). Chandrajote Kuer died in August or September 1924 and Nanhuprasad Singh married a fifth wife Jaitoon Kuer (defendant 6) in June or July 1925 and died shortly after the execution of the second deed on 12th September 1925. By the second deed he purported to cancel the first and to re-dedicate the property with certain changes. The first deed was in favour of four deities and by the second a fifth was added, Sri Prabatiji Maharani, whose name was said to have been omitted in the first deed by mistake Apparently there was a clerical mistake in the first deed because although only four deities are named the word "five" is used in two places in the dead; and the second deed may therefore be valid to the extent of this amendment, even if the first deed constituted a valid wakf. Chandrajote Kuer, who had been designated in the first deed as mutwalli after Nanhuprasad Singh, having died, Jaitoon Kuer was in the second deed named in her place. One of the five managers Sheodayal Singh named in the first deed had died and in his place Dasi Singh (defendant 12) was nominated in the second deed and Rames war Prasad Singh (defendant 13) was appointed as head panch with certain powers over the others. In the second deed provision was also made for the devolution of the mutwalliship in the event of Nanhuprasad Singh''s leaving male heirs; but this event did not happen. It was the case of both sides that the second deed was intended merely to confirm and supplement the first deed and that it had no effect in law if the first deed was a valid dedication, so far as it varied or added to the first deed. Whether Jaitoon Kuer and the two new managers have been validly appointed depends upon whether Nanhuprasad Singh reserved to himself in the first deed power to make such appointments.

Exhibit E, the deed of 2nd November 1922, which is the most important document in the case, recites that the executant had no heir except his wife Chandrajote Kuer and a minor daughter, Mt. Bachhi Kuer, and that he had installed the idols of Sri Ramchandra, Lachuman, Jankiji and Sheoji, that is to say, the five deities, and he had been meeting the costs of their worship etc., from his own funds and from the income of the zamindari, but so far he had not been able to make any permanent arrangement for management of the thakurbari which would meat the costs of festivities and Rajbhog of the said deities in the way in which these were made in his life. He fears that on his death his heirs and representatives would not perform these works after his wishes and there would be difficulty in holding festivities and in offering the Rajbhog and therefore he was advised to create a wakf of his moveable and immovable properties, which were and should be in his possession, in favour of the deities, to make them absolute owners of the same and to establish for administration and supervision of the said properties a committee of management.

Therefore he dedicated his whole and entire properties specified in the schedule to the deed, without any exception, together with his entire dakhli and khariji rights and incidents of zainindari which he had acquired or should acquire later on to the aforesaid deities and made them absolute owners of his moveable and immovable properties. The deed then goes on to appoint the five persons named therein as managers and mutwallis for the management and administration of the said properties, with the proviso that among the said managers and mutwallis he in his lifetime and his wife in her lifetime on his death should be the first (sadr) manager. They were to get their names registered in the Land Registration Department as manager and muttawalli of the said deities. They (i.e. the executant and his wife) were to be in possession and occupation of the wakf properties in the capacity of manager and muttawalli. Then were set forth the objects upon which the income of the wakf properties was to be expended; first, the payment of public demands; secondly, the salaries of amlas and costs of boundaries and earth work and of suits relating to the wakf properties; thirdly, the residue of income was to go towards the maintenance of worship, the offering of Rajbhog and festivities of Sri Thakur Maharaj and the other deities installed in the said thakurbari and temple; and fourthly if any surplus remained after meeting all these expenses, this should be utilized for chanting of kathas and purans, for payment of dakshina to the pandits, for opening of a Sanskrit pathsala connected with the thakurbari for Sanskrit and Hindi education of boys, for establishment of a sadabarat institution to offer help to fakirs, sanyasis and hungry people. Then comes the following clause:

Whereas in my lifetime ''the original contains words omitted in the official translation and, after my death, in the lifetime of my wife ") I shall get my personal expenses (kharach zati) as well as that of my dependents of my family from the income of the said wakf properties dedicated to Sri Thakurji aforesaid according to my position in life (hasab liyakat apne) and when my minor daughter Mt. Bachhi Kuer reaches her marriageable age, her marriage expenses shall be met by the income of the wakf property; whereas for the performance of her marriage it will be incumbent upon the manager to meet all suitable expenses from the income of the wakf properties and they shall have no objection whatsoever regarding it.

Then follow provisions for the maintenance of a priest and servant and for the managers'' keeping accounts and holding monthly meetings to check the accounts and provisions for the constitution of these meetings. Then come the words:

Whereas I reserve the right of appointment of managers in my own hand during my lifetime and on my death my wife Mt. Chandrajote Kuer shall exercise this power and on her death the appointment of muttawallis shall be with the consent of all or with the consent of the majority of the surviving managers; whereas if any of the abovenamed managers dies, is turned out or resigns after my or my wife''s death, the surviving panches shall hold a meeting and appoint in place of the deceased one, another manager.

And then follow certain provisions relevant to the appointment of managers. Then comes a clause declaring that the properties are inalienable and that there is only a limited power of leasing for five years; and finally the following clause:

If any property is acquired from the income of the wakf property, the same shall also be treated as accretion to the wakf property and cannot be convoyed by sale or any other deed by anyone.

Before dealing with the construction of this document as a whole, I shall refer briefly to the position of Mt. Jaitoon Kuer and defendants 12 and 13. The deed is very inartistically drawn and it is by no means clear that the settlor intended the committee of management to function during his life or the life of his widow; and I am inclined to think that this was not the meaning of the deed. No real distinction seems to be drawn between manager (muntazim) and muttawalli. The settlor reserves to himself and to his wife (if she survived him) the power to appoint managers; but this appears to be merely a power to fill up vacancies among the managers and there does not seem to be any power reserved to appoint a manager who would hold the same position as the settlor and his wife Chandrajote Kuer; and, after the death of the settlor and his wife Chandrajote Kuer it is quite clear that any vacancies in the management are to be filled by the surviving managers. While therefore the appointment of defendant 12 Dasi Singh in place of the deceased Manager Sheodayal Singh appears to be within the powers reserved, and possibly though doubtfully, the appointment of Rameswar Prasad Singh (defendant 13) who however has not appeared to defend the appeal, there seems to be no power to appoint Mt. Jaitoon Kuer as muttawalli if this deed as a whole is read as a dedication out and out of the settlor''s property. If however it is construed as creating a charge only, these questions do not arise.

The argument for the appellants is that on the proper construction of the deeds of dedication there was no valid gift, but at the most a charge was created in favour of the deities for their service and worship; and that on the evidence it should be held that the deeds did not take effect as an absolute gift.

Before dealing with this argument it will be convenient to examine some of the authorities on the subject of wakf in order to ascertain how deeds of this nature are to be tested. In Kasheshuree Dassee v. Krishna Kamenee Dassee 2 Hay. 557, their Lordships after construing the deed in that case as a deed of endowment said:

The lower Court has not ... tried the fact of the bona fide nature of the endowment with reference to the use of the proceeds from the time of the confirmation of the endowment, exclusively for religious and pious purposes, but has confined its decision to the inference drawn from the wording of the deeds. If however the result of this enquiry establish that Koylass himself never intended that the proceeds were so to be used, and accordingly they were not used, the case for the plaintiff must fail.

In Ganga Narain Sircar v. Brindabun Chunder [1865] 3 W.R. 142 their Lordships said:

The tests of a bona fide or a nominal endowment are, how did the founder treat this property, or how have his descendants treated it? Has the income of the endowed lands been continuously applied to the object of dedication. We can never assent to the doctrine--that because a nominal endowment has been once made it is to be regarded as an endowment for ever.

In Ram Pershad Doss Adhikaree v. Sreehuree Doss Adhikaree [1872] 18 W.R. 399 it was said:

It may be that a portion of the profits of the lands in the possession of the defendant had been for some time used for the worship of the idol, but that circumstance cannot impose on the respondent the liabilities attached to the office of a shebait.

These decisions were relied upon in Madhub Chandra v. Saratkumari Devi [1910] 6 I.C. 26 and from these and other decisions the conclusions were drawn that in order to support the case that the lands in suit formed the subject of a valid public endowment, it must be established that an absolute grant was in the first place made with the intention that the profits should be applied for the services of the idol; that the profits have since been so applied and that the members of the family of the founder have not treated the property as one the profits of which were mainly intended to be applied for their benefit. This decision was followed in this Court in Siri Thakur Parmod Banabihari v. Atkins [1919] 4 Pat. L.J. 533 where it was said that a dedication to be effectual must be real and not nominal and it must be shown that the grantor completely divested herself of every portion of the property which was the subject-matter of the grant.

It was pointed out that the property had always stood recorded in the name of the estate in the Land Registration Department and that the mode of dealing with the property by the parties interested in the endowment showed that they regarded the property as belonging to the estate; and it was held that the original endowment was altogether ineffectual and that the trust in favour of the idol was never brought into existence. In Jadunath Singh v. Thakur Sitaramji AIR 1917 P.C. 177 their Lordships of the Judicial Committee were dealing with the construction of a deed of endowment and they referred to Sonatun Bysack v. Juggut Soondree Dosee [1865] 8 M.I.A. 66 and to Ashutosh Dutt v. Doorga Churn Chatterji [1880] 5 Cal. 438. In both of these cases there was a nominal gift at the beginning to the idol, but the subsequent dispositions so cut down that gift that there was no right to the idol such as to make the property pass as an absolute and entire interest in its favour. In the case with which their Lordships were dealing, it was held that there was no such cutting down although half the income was reserved for the remuneration of the members of the grantor''s family as managers. But it was pointed out that if the income of the property has been large a question might have been raised in the circumstances, as throwing some doubt about the integrity of the settlor''s intention, but, as the entire income was only Rs. 800 the payment was of a trifling kind and it was held that there was no impropriety in the earmarking of a certain part of the money to remunerate the members of the family as managers so long as they should so continue.

In Sri Thakurji v. Sukhdeo Singh [1920] 42 All. 395 it was held that there was no dedication on the following facts: (1) the transfer was of the whole property; (2) the failure to obtain mutation of names; (3) the failure to produce any accounts; (4) the fact that the expenditure on the idol was at the most one-tenth of the whole income; and (5) the absence of any explanation by the widow on any of the above points and of any accounts by her of her managership and dealing with the income. On these facts it was held that although the deed purported to make over the property irrevocably to the idol, there was in fact no intention to dedicate. In Harnarayan v. Surja Kunwari AIR 1921 P.C. 20 the Judicial Committee laid down that the question whether the idol itself should be considered the true beneficiary, subject to a charge in favour of the heirs for their upkeep, or the heirs should be considered the true beneficiaries of the property subject to a charge for the upkeep of the worship and expenses of the idol is a question which can only be settled by a conspectus of the entire provisions of the instrument. The instrument in that case was a will. The question therefore was one purely of construction.

In Deo Saran Bharthi and Another Vs. Deoki Bharthi and Another, it was held by this Court that there must be something shown to indicate an acceptance on the part of the donee and whether there has been an acceptance and what constitutes acceptance depends on the circumstances of each case. The giving away of the property as the essential ingredient for a valid gift implies a divesting of the ownership in the property by the donor; and it was held that a registered deed of gift cannot take the place of those essentials among which is the complete divesting of the ownership by the donor; and it must be proved in each case, apart from the registration of the document, that there was a complete divesting of the ownership and that a registered deed of gift, as any other such document, may be merely a nominal transaction. The essential ingredient that constitutes a gift whether of movable or immovable property in the Hindu law is the sankalp and the samarpan whereby the property is completely given away, and the owner completely divests himself of the ownership of the property. The evidence of the actions of the party after the deed was gone into as determining the question whether there had been a real dedication, i.e., the sankalp and the samarpan of the property; and one of the points emphasized was that there had been no attempt by the donee to have his name mutated in the landlord''s sharista. In AIR 1927 2 (Privy Council) , a, case of a Mahomedan wakf, their Lordships pointed out the significance of the absence of mutation of names and the suppression of accounts, on the question whether there was a dedication or not. In Mahomed Ahsanullah Chowdhry v. Amarchand Kundu [1890] 17 Cal. 498 the Judicial Committee were dealing with a Mahomedan wakf but the principles are equally applicable to the case of a Hindu endowment. It was observed as follows:

Their Lordships do not attempt in this case to lay down any precise definition of what will constitute a valid wakf, or to determine how far provisions for the grantor''s family may be engrafted on such a settlement without destroying its character as a charitable gift.... Their Lordships think there is good ground for holding that provisions for the family out of the grantor''s property may be consistent with the gift of it as wakf," and then quote the opinion of Kemp, J., in Muzhurool Huq v. Puhaj Dietary Mohapattur [1870] 13 W.R. 235:

We are of opinion that the mere charge upon the profits of the estate of certain items which must in the course of time necessarily cease, being confined to one family and which after they lapse will leave the whole property intact for the original purposes for which the endowment was made, does not render the endowment invalid under the Mahomedan law.

In that case it was held that the effect of the deed was only to create a charge on the property for the religious and charitable purposes therein mentioned.

Turning now to the construction of the deed as a whole it appears from the recitals that the object of the deed was to provide for the maintenance of the service and worship of the deities in the way in which they had been celebrated in the settlor''s lifetime. The operative words however purport to dedicate the whole property to the deities and to provide for the expenditure of the entire income under four heads which are exhaustive of everything. Thereafter comes the clause which I have quoted in full; and it is on this clause that the appellants rest their main argument. It is contended that the effect of this clause is to cut down the grant in favour of the deities and in effect to reduce it to a charge on the estate, because the settlor reserves the right to his personal expenses and those of his wife and family according to his position in life, as well as the marriage expenses of his daughter. The clause indicates thai no change was to be made in the settlor''s scale of expenditure The words used are ho sab liyakat apne that is to say he was to get his personal expenses and the expenses of his family out of the estate according to their position in life or according to their means. It is contended that this imposes no limit and further that these expenses are not reserved to the settlor for his expenses as manager. On the contrary they are his personal expenses according to his position in life. Now it is to be observed that this clause follows the clauses which completely exhaust the income of the property. And if it is to be given a meaning it seems as if that the intention was that the donor and his family were to be provided for as they had been in the past, and that what was available for religious purposes was the balance of the income.

On the other hand due weight must be given to the clauses appointing mutawallis and managers of the property. These persons are not members of the settlor''s family and the fact that the property to be handed over to them alter the death of the settlor and his wife is a strong indication that the intention was to dedicate the property; and reading the deed as a whole, as a pure matter of construction, I should hold that although it is not altogether consistent in its terms, it was an out and out dedication of the property charged with the maintenance of the settlor''s family. But that does not conclude the case.

Besides the question of the construction of the deed, a further question is whether it was put into operation by delivery of the dedicated property to the deities and how the property was in fact dealt with after the deed. Learned Counsel for the respondents referred to the finding of the learned Subordinate Judge that the sankalp and samarpan ceremonies had been performed; a finding which was not contested, and argued that this completed the gift. It was; further argued for the respondents that the settlor showed his intention to dedicate the property by taking two conveyances in the name of the deities, a conveyance of Mauza Rampur which was purchased by the deities through Nanhu prasad Singh and by his relations Jaldhary Singh, Bhekhdhari Singh and Mohipnara Singh in equal shares on 26th June 1925: (Ex. A), and a conveyance of an interest in Mauza Chapuk on 14th March 1923 to Nanhuprasad Singh for the deities Ex. A-l. On the other hand there are two other deeds, a sale deed of 17th December 1923 and a mukarrari lease of the same date both of which Nanhuprasad Singh took in his own name: Exs. 9 and 10. These deeds therefore do not carry the matter further.

I should here refer to the finding of the Subordinate Judge that the fact that the reversioners joined in the purchase of Rampur by Ex. A amounted to an estoppel barring the suit. In my opinion this view is wrong. The fact that the reversioners or some of then may have purchased 8 annas of a village of which the other 8 annas was purchased by the same deed by Nanhuprasad Singh for the deities does not seem to me to raise any estoppel. There is nothing in this which changed the position of the deities, nor is there anything in their entering into the transaction to prevent the reversioners from raising the question as to what the true effect of the dedication were.

The other documents upon which the respondents rely are village papers. It is argued for the appellants that the learned Subordinate Judge erred in admitting these documents in evidence. They were admitted at a very late stage, more than a year after the issues were settled. The learned Subordinate Judge has not recorded any reason for admitting these documents which were produced by the defendants'' patwari. They are ordinary zamindari papers on loose sheets which might be fabricated at any time and it is precisely to meet papers of this kind that Rules 1 and 2, Order 13 were framed. It seems to me that the learned Subordinate Judge paid too little regard to these rules of the Code in admitting these papers. So far as the village collection papers are concerned, all that they show is that the names of the deities are entered at the top. This is consistent with the deed (Ex. E) but does not really advance the case. Nor are the papers uniform, because the counterfoil rent receipts (Exs. 2 and 3) show receipts by Nanhu Prasad Singh personally. Two other documents were referred to by the respondents: Exs. Z and Z-l. These are decrees for rent in suits of 1926. As rent was claimed for the year 1333 it is clear that the suits must have been instituted in or about September 1926. But the present suit was brought in February 1926 and consequently these documents have no probative value.

The decisive questions on this part of the case are whether possession was delivered under the deed and whether the income wag appropriated to the deities. The first question is not answered by the formal finding that the sankalp and samarpan ceremonies were performed. The real meaning of the samarpan ceremony has been made clear by the decision which I have quoted at length above in Deosaran Bharathi v. Deoki Bharthi AIR 1924 Pat. 657. Here the donor is himself muttawalli for the deities. Consequently the donor and the donee are the same and there must be some unmistakable act to show that the possession of the property was transferred. The learned Subordinate Judge has found that the pujari accepted the gift on behalf of the deities, but this would not amount to acceptance in law because the gift is to the deities and must be accepted on their behalf by the muttawalli and the effective way of showing this acceptance is by altering the lands register. But not only did the settlor not effect registration of the names of the deities in substitution for his own name for these properties but he actually applied for registration of his own name, subsequently to the deed of dedication in the case of a property which, came to him in 1924 Ex. 13. This was part of one of the dedicated properties Mauza Kurwa, in which a female member of the family had had a life interest for her maintenance. The fact that the settlor applies for registration of his own name in respect of this property is irreconcilable with the terms of the dedication. The land revenue chalan (Ex, 16-h) of 8th June 1925 shows that the land revenue was paid by Nanhuprasad Singh as proprietor. Judged by this test therefore the dedication fails.

Nor does the matter stand otherwise when the appropriation of the income is examined. The accounts that have been produced are no accounts at all They consist of Ex. R., a jamakharach for a period of nine months of 1922-23. This is a mere abstract showing the total sum said to have been expended on different heads and is no account. It is produced by Rajkumar Lal the patwari, who says that the tahbil used to remain with Nanhuprasad Singh and now remained with Jaitoon Kuer and that the income of the property used to be sent to Nanhu Prasad Singh and was then sent to Jaitoon Kuer and that whenever Jaitoon Kuer spent any money she called him and he entered it in the jamakharach. An account kept in this way is manifestly no account of the expenditure of trust funds. This witness also says that the expenses for the Rajbhog and pujapath in the thakurbari and sivala before 1330 Fs. were more than after 1330 Fs., that is to say, there was actually a decrease in the expenditure on the service of the gods after dedication. According to the plaintiff''s evidence the income of the properties was Rs. 8,000 and according to the defence it was between five and six, thousand rupees. Taking it to be Rs. 7,000 and deducting the Government demand which according to the evidence is Rs. 1,000 and ten per cent for collection charges the net income would be Rs. 5,300. According to the defence evidence Rs. 125 a month is spent on the thakurbari celebrations and Rs. 175 or Rs. 200 annually on the sivala. That means about Rs. 1,700 at the most.

The result then is that on the defence evidence there is an annual expenditure of Rs. 1,700 on the objects of the trust, while the net income of the property appears to be at least Rs. 5,300. This means that Rs. 3,600 was spent by the settlor''s family on themselves. It was argued by learned Counsel for the respondents that to this expenditure must be added what was paid for Rampur and Chapuk: Exs. A and A-l. But the purchase of property is not one of the objects upon which the income is to be expended and the fact that income was spent in this way is a clear indication that it was not in fact devoted to the objects set forth in the deed. In my opinion the way in which the money has been spent since the so called dedication leads to the conclusion that the deed in fact did not make an absolute dedication or lead to any change in the manner of expenditure. The same inference is to be drawn from the fact that when this deed was executed the settlor was still having children. In fact his wife subsequently died in child-birth and he married again. It is most unlikely in these circumstances that he intended an out and out dedication of his property, especially as the deed on the face of it purports to dedicate his entire estate thus leaving his descendants, of whom he might still have several entirely unprovided for after his own, and his wife''s death. A further indication of the nature of his intention is to be found in the fact that he actually executed a second deed by which he made provision for his possible descendants. This shows that he did not understand the full legal effect of the apparent language that he used and that he considered that he could still deal with the property. All this seems to me to indicate quite clearly that all that was intended was to charge his property with the service of the deities in order that service might be maintained as heretofore.

The conclusion to be drawn from the whole evidence in the case is that although as a pure matter of construction the deed is properly to be read as a deed of dedication yet from the failure to carry the dedication into effect by delivery of the property and by effecting a change in the mode of expenditure of the income it must be held that all that the settlor effected by the deed was the creation of a charge on the property for the service and worship of deities therein mentioned and not an out and out dedication. The result is that the appeal must be decreed and the decree of the Subordinate Judge set aside and in lieu thereof there will be a decree declaring that the true effect of the deeds in the plaint mentioned is to charge the property of the settlor with the service of the deities therein named and that the deeds do not effect a dedication of the property. The plaintiffs are entitled to their costs of both Courts but in view of the nature of the litigation and of the absence of any personal interest in the defendants in defending the suit the costs will come out of the estate and not from the defendants personally.

Dhavle, J.

I agree.