Dharmadhar Mahasthavir, Rev. vs Bengal Buddhist Association

D.K. Sen, J.—In or about 1892, Rev. Kripasharan Mahasthavir, a devout Buddhist monk, founded a society and/or an association named Bauddha Dharmankur Sabha, also known as the Bengal Buddhist Association, (hereinafter referred to as the Association), with the object, inter alia, of advancing the cause and propagating the religion of Buddhism. In 1915, the said Association was for the first time registered under the Societies Registration Act, 1860.

It is not disputed that in or about 1903 or 1904 a Buddhist-temple and/or monastery and/or Vihara (hereinafter referred to as the said Vihara) was built in a plot of land known as No. 1, Buddhist Temple Street, out of public donations.

It is also undisputed that Rev. Kripasharan was the first President of the Association, as also the first High Priest of the said Vihara and that till November 5, 1961, Rev. Dharmadhar Mahasthavir, the Plaintiff in this suit, was the Resident High Priest at the said Vihara.

Rev Dharmadhar has instituted this suit against the Association claiming

(a) a declaration that he is the Resident High Priest of Buddha Dharmankur Vihara at No. 1, Buddhist Temple Street, Calcutta and the ex officio President of the Vihara Sabha of the Defendant and is entitled to function--without interference from the Defendant, its servants or agents in any manner at all;

(b) injunction restraining the Defendant, the servants and agents from in any way interfering with him or his activities as Resident High Priest of the said Vihara or ex officio President of the Vihara Sabha of the Defendant;

(c) declaration that the resolutions dated the 9th April, 1961 and 5th November, 1961, passed by the Defendant in a general meeting is ultra vires the Defendant and is not binding on the parties hereto;

(d) injunction restraining the Defendant, its servants and agents from in any way giving effect to the said resolutions dated the 9th April, 1961 and 5th November, 1961;

(e) injunction restraining the Defendant, its servants and agents from interfering with his possession in respect of two rooms set out in Schedule ''A'' hereto annexed and to restore the electric connections thereto as well as the ceiling fan in one of the said two rooms;

(f) injunction restraining the Defendant, its servants and agents from appointing or asking any one to function as Resident High Priest of the said Vihara in place or stead of himself;

(g) costs; (h) further and other reliefs.

It is alleged in the plaint that Rev. Kripasharan dedicated the said Vihara to the Buddhist Sangha and/or to the monastery and/or to the entire fraternity of the Buddhist monks of the present and future.

In or about 1908, it is alleged that Rev. Kripasharan framed certain rules following the Buddhist religious text ''Vindya-Pitaka'' for the protection, management and conduct of the business of the said Vihara. Under the said rules and in accordance with the ''Vinaya-Pitaka'' there has always been a Resident High Priest of the said Vihara and successive Resident High Priests had been appointed either by nomination of their predecessors-in-office or in the absence of such nomination by the nomination of the Sangha or the members of the Association.

The Plaintiff is alleged to have been appointed the Resident High Priest by his predecessor-in-office, Rev. Visuddhananda Mahasthavir in 1946 and such appointment was accepted and/or acknowledged by the Buddhist Sangha and/or the Association and/or its members.

It is contended that, as a Resident High Priest, the Plaintiff is entitled to living accommodation in the said Vihara and has been occupying two rooms free of charge since his appointment. The Plaintiff is also entitled to maintain himself and a servant out of the dakshinas given to him on religious festive occasions.

In or about October 19, 1962, the Plaintiff alleges to have received a letter from the Association informing him of a resolution passed by the Association in a general meeting held on November 5, 1961, as follows:

Rev. Dharmadhar Mahasthavir be removed from the post of High Priest and the Governing Body of the Association be requested to serve a notice of one month to Rev. Dharmadhar Mahasthavir to shift from the premises at No. 1, Buddhist Temple Street, Calcutta-12.

Subsequent thereto is alleged that the Association had been trying to eject the Plaintiff forcibly from the said Vihara. It has cut off the electric connection to the rooms in his occupation and has taken away the ceiling fan from one of the rooms.

The Governing Body of the Association is alleged to have passed a resolution on April 9, 1961, as follows:

Resolved that thala be substituted by a sealed box at the time of sermon on all festive occasions. It is further resolved that the box should be opened in the presence of the High Priest and the Treasurer and the Secretary of the Association and the receipt of the box be appropriated towards the Association fund under proper receipt. It is further resolved that the maintenance of the High Priest will henceforth be borne by the Association and the amount of such maintenance should be fixed on the decision of the Governing Body in the next meeting.

The Plaintiff contends that the Association has no power to pass the said resolutions.

It is alleged that the Association is trying to appoint another Resident High Priest and to eject the Plaintiff unlawfully from the said Vihara and to dismiss him from his post. The Association is denying and interested to deny that the Plaintiff is the Resident High Priest of the said Vihara. The Association, it is alleged, has no power to dismiss the Plaintiff from his office or to interfere with his activities or to take away the money given to him on religious or ceremonial occasions as dakshina. The said resolutions dated April 9, 1961 and November 5, 1961, are ultra vires the Association and is not binding on the parties.

In the written statement filed on behalf of the Association it is contended that this suit is not properly framed as the Same is not in accordance with the provisions of Section 6 of the Societies Registration Act, 1860.

It is alleged that the Buddhist temple or monastery or Vihara at No. 1, Buddhist Temple Street, Calcutta, is the property of the Association which has all along been in possession thereof openly t and in exercise of its right of ownership and adversely to that of all other persons since its inception. It is denied that Rev. Kripasharan could or did dedicate the said Vihara. It is contended that such dedication, if any, to an unnamed and unascertained Sangha or to the entire fraternity of the Buddhist monks of the present and the future is vague and void for uncertainty.

It is denied that Rev. Kripasharan framed any rules for the management of conduct of the business of the said Vihara. It is contended that, in any event, such rules are not binding on the Association. It is also denied that the Resident High Priest was appointed according to the Vinaya-Pitaka or the rules framed by Rev. Kripasharan. The Resident High Priests in the said Viharas have always been appointed by the Association. It is denied that Rev. Visuddhananda Mahasthavir did or could appoint the Plaintiff as the High Priest.

It is alleged that the Plaintiff was appointed as the Chief Monk, that is, the High Priest, temporarily on May 18, 1947, by the Governing Body of the Association. Thereafter on August 29, 1956, the said Governing Body appointed the Plaintiff as the High Priest of the Vihara from the said later date.

It is denied that the Plaintiff is entitled in law to have any living accommodation in the said Vihara or to maintain himself or his servant out of dakshina. The Association contends that the Plaintiff is only allowed to reside in one room in the said Vihara and such occupation is entirely permissive. Dakshinas offered are given to the Vihara itself and not to the Plaintiff personally.

The Plaintiff as the Resident High Priest, it is contended, is subject to the control of the Association.

It is alleged that on or about December 30, 1962, the Governing Body of the Association passed a resolution appointing Rev. Jinaratna Bhikshu as the High Priest. A formal letter of appointment has been addressed to the new appointee who has joined the post on February 6, 1963.

It is alleged that since the new appointment as aforesaid, the Plaintiff has no right to remain in the said monastery. It is denied that the Plaintiff is still the Resident High Priest or that the Association has no power to dismiss the Plaintiff from his office or to interfere with his activities or to take the money given on religious festive occasions. It is denied that the resolutions of the Association of April 9, 1961 and November 5, 1961, are ultra vires or not binding on the Plaintiff.

Finally, it is contended that the appointment and dismissal of the Resident High Priest is a matter of internal administration of the Association and the Court should not interfere in such administration. The following issues were raised and settled at the trial:

(1) Is the Plaintiff, a life member of the Defendant not entitled to file this suit against the Defendant?

(2)(a) Are the appointments and dismissals of the resident High Priest of the Vihara a matter of internal administration of the Defendant?

(b) If so, should the Court interfere with such internal administration?

(3)(a) Did or could Rev. Visuddhananda Mahasthavir appoint the Plaintiff as the Resident High Priest in 1947 as alleged in para. 9 of the plaint?

(b) Was the appointment accepted or acknowledged by the Buddhist Sangha or the Defendant?

(c) Did the Governing Body of the Defendant appoint the Plaintiff temporarily as the Chief Monk of the Vihara on May 18, 1947 as alleged in para. 11(c) of the written statement?

(d) Did the Governing Body of the Defendant appoint the Plaintiff as the High Priest of the Vihara on August 29, 1956, as alleged in para. 11(d) of the written statement?

(4) Is the Plaintiff not entitled in law to have living accommodation in the Vihara or to a servant or has the Plaintiff any right to collect dakshina as alleged in para. 14 of the written statement?

(5) Is the Vihara the property of the Defendant as alleged in para. 7 of the written statement?

(6) Has the Defendant power to dismiss the Plaintiff from his office of Resident High Priest of the Vihara?

(7) Are the resolutions mentioned in paras. 14 and 16 of the plaint ultra vires the Defendant and not binding on the Plaintiff?

(8) To what relief, if any, are the parties entitled?

The first witness on behalf of the Plaintiff was one Dr. Arabinda Barua. He was the President of the Association from 1935, till 1945, whereafter till 1955 he was the General Secretary. According to him, the decision to appoint the Plaintiff as the Vihara Adhyaksha was taken by the previous incumbent in the office, Visud-dhananda Mahasthavir. When there was a permanent vacancy in the post of Vihara Adhyaksha, the Association used to refer the matter to the Bhikshu Mahasabha, Chittagong, who used to nominate the successor. The Association sometimes made temporary arrangements for temporary vacancies. One Bansadwipa Mahasthavir was Vihara Adhyaksha after Sramana Purnananda who was the High Priest after Rev. Kripasharan. When Bansadwipa left the Vihara in 1940, he appointed one Silachar Bhikshu as his successor. The resolution dated July 14, 1940, of the Governing Body of the Association confirmed this arrangement. The other resolutions of the Association, disclosed in these proceedings, similarly confirmed the existing appointments or arrangements. The Adhyaksha of the said Vihara ordinarily reside in two rooms on the second floor of the annexe to the said Vihara and maintain himself from offerings given to him as the Vihara Adhyaksha on special occasions.

In cross-examination the witness stated that he ceased to be a member of the Association in 1958 as he did not agree with its policy. He distinguished between the Resident Monk and a Resident High Priest or Vihara Adhyaksha and stated that the Association could not appoint a Vihara Adhyaksha. The Association, in fact, never appointed even resident monks. He was present at the meeting of the Governing Body of the Association held on August 29, 1956, but could not remember whether he was present throughout. He did not know of the resolution appointing the Plaintiff as the Vihara Adhyaksha. He was one of the trustees appointed by the Association to hold certain properties which were deemed to have vested in the Association.

In answer to questions from the Court he stated that at present there were about 15 monks in the said Vihara. The total number of Buddhists householders in and around Calcutta were at present 20,000 in number.

The next witness of the Plaintiff was one Chaitanya Charan Barua, a Buddhist by religion and by occupation a medical practitioner. He was present at the dedication ceremony of the said Vihara performed at No. 1, Buddhist Temple Street, Calcutta, in 1924. The dedication was by Rev. Kripasharan in favour of the Bhikshu Sangha and the Buddhists of the present and future. In the report of the Association for the year 1924-25 (part of Ex. A) his name was recorded as having been present at the occasion. The dedication was also mentioned in the report.

In cross-examination he stated that he ceased to be a member of the Association after 1936 as there were certain disputes in its management.

The Plaintiff himself gave evidence in support of his case. He is a Bauddha Bhikshu. He was initiated to the religion at the age of 13 and became a Bhikshu at the age of 20. He studied in Ceylon for five years, came back to Chittagong and established the Mahamuni Pali College there and was appointed its Principal in 1933. He was attached to the Mahanandi Vihara in Chittagong and became its Adhyaksha in 1934. He came to Calcutta in 1945 with his preceptor Visuddhananda and put up at No. 1, Buddhist Temple Street, Calcutta. He settled in Calcutta and all along has been residing at the said Vihara.

Visuddhananda left the said Vihara in December 1946, appointing him as the Vihara Adhyaksha in an assembly of the resident Bhikshus. He was the seniormost Bhikshu at the time. There was no objection to such appointment by the resident Bhikshus nor the Association.

He had signed the minutes of the meeting of the Working Committee of the Association held on May 18, 1947. No resolution was passed in the said meeting appointing him as the Vihara Adhyaksha. The statements recorded under agenda No. 6 of the said minutes have been subsequently interpolated.

He received a letter from the Association dated September 8, 1956, quoting a resolution passed by the Governing Body of the Association at a meeting held on August 29, 1956. The resolution as quoted in the letter and as appearing in the minutes of the said meeting dated August 26, 1956, (Ex. C) were different.

According to him, a minimum number of four Bhikshus could constitute a Sangha at any place. In 1945, there was a Buddhist Sangha existing in Calcutta of about 7 or 8 monks.

From May 1954 to May 1956, he attended the meeting of the Sixth Buddhist Council in Burma. He had nominated Rev. Dhirananda to act as the Vihara Adhyaksha during his absence. He knew of and had seen dedications of property to Bhikshus or a Vihara by inviting the Bhikshus and by pouring water and chanting mantras.

In cross-examination he stated that there were two buildings at premises No. 1, Buddhist Temple Street, Calcutta, one of which is called the Arya Bhavan. Arya Bhavan was a part of the said Vihara. One of the two rooms occupied by him as the Vihara Adhyaksha was meant for the residence of his sevaka or servant. The Association forcibly took possession of the said servants room which was at present under the lock of the Association. The said two rooms had been allotted to him by his predecessor Visuddhananda.

In answer to questions from the Court he stated that all Buddhists in Calcutta and its neighbourhood were not members of the Association. The rules of the Association had been made so rigid that Applicants for membership were excluded. The present number of the members of the Association would be approximately one hundred only. He had not committed an act of transgression for which he could have been removed from the post of the High Priest.

The only witness to depose for the Association was one Debapriya Barua. He is a Buddhist and at present employed as an assistant engineer in the South Eastern Railway. He became a member of the Association in the year 1955 and in 1957 he became a life member. From 1955 onwards he has successively been a member of the Governing Body, the Assistant Secretary of the Governing Body, the General Secretary and the Treasurer of the Association. He is still the Treasurer. He has verified the written statement of the Association in this suit as the Secretary of the Association. In 1955, according to him, there was no High Priest in the Vihara. In 1957, the Association appointed the Plaintiff as the High Priest. There are resident monks appointed for the Vihara from whom the High Priest is appointed, jinaratna Mahasthavir followed by Bodhibhadra had been appointed successive High Priests after the Plaintiff. He has produced from the custody of the Association all records relating to the appointment of the High Priests. The present number of members of the Association was about three hundred of whom only three or four were monks and about 14 or 16 were non-Buddhists. During the period he was the Secretary of the Association, three or four applications of Buddhists for membership had been rejected. He attended the Annual General Meeting of the Association held on November 5, 1961, where the Plaintiff was also present. This meeting was called by the General Secretary in writing without a resolution of the Governing Body. The General Committee of the Association did not meet during the Maghi Purnima festival in the year 1961 as required under Rule 13 of the Rules of the Association. In this meeting of November 5, 1961, the President of the Governing Body was not present. One N.C. Barua, one of the Vice-Presidents, presided over the meeting. An item of the agenda of the meeting was the discussion of the unauthorised claims of the Plaintiff contained in the letter written by the Advocate of the Plaintiff. This letter was placed and discussed in the meeting, but it was not circulated prior thereto. About 60 to 70 per cent of the members of the Association were present in this meeting. Records of such attendance have not been disclosed. The proposal of the General Body to remove the High Priest was kept in abeyance so that the High Priest could rectify his conduct. The Governing Body did not serve a notice to Plaintiff to vacate the Vihara within one month in terms of the resolution. A new High Priest was appointed in 1962 till which time the Plaintiff remained the High Priest. No communication was served on the Plaintiff that he had ceased to be the High Priest. At present there were six or seven Bhikshus residing in the said Vihara. The minutes of the proceedings of the Governing Body held on September 28, 1956, were confirmed on September 26, 1957, with alterations as suggested by one Barun Chandra Barua. In answer to questions from Court he admitted that a High Priest was entitled to reside in the Vihara as long as he was in the post. He admitted, further, that in the minutes of the meeting of the Governing Body dated April 9, 1961, it appeared that a thala for a contribution used to be put up in the said Vihara on festive occasions. He also knew that this contribution was utilised by the High Priest.

The exact relationship of the Association and the said Vihara needs consideration. It is not the case of the Association that the Vihara was founded by it. At least, at the inception, the Association and the said Vihara had their separate existence. The ownership of the land on which the Vihara is situated, i.e. the land at No. 1, Buddhist Temple Street, Calcutta, is traced as follows:

Under an Indenture dated June 1, 1900, executed by one Rurmal Goenka, Rev. Kripasharan purchased for a sum of Rs. 2,900 land measuring 3 cottahs, 6 chattaks and 13 sq.ft. being part of the premises No. 5, Lalit Mohan Das Lane. By another Indenture dated December 9, 1902, executed by one Moung Rohee, Rev. Kripasharan also purchased for a sum of Rs. 800 land measuring 1 cottah, 7 chattaks and 22 sq.ft., another part of the said premises No. 5, Lalit Mohan Das Lane, Calcutta. The said two contiguous pieces of land totalling 4 cottahs, 13 chattaks and 35 sq.ft. came to be known as No. 1, Buddhist Temple Lane, Calcutta and later as No. 1, Buddhist Temple Street, Calcutta. This land was undoubtedly purchased by Rev. Kripasharan and it does not appear that the same was purchased for or on behalf of the Association. The two Indentures are ancient documents, more than 30 years old and their contents have not been challenged by the Association.

It is on this land that the said Vihara was established in June 1903. The only land in Calcutta which the Association acquired was a plot measuring 6 cottahs, 3 chattaks and 25 sq.ft. being No. 2, Buddhist Temple Street, Calcutta. This plot was conveyed to the Association by an Indenture dated March 18, 1924, executed by the Trustees for the Improvement of Calcutta. But by that time the said Vihara had been built and was in existence.

According to the Plaintiff, the said Vihara was dedicated by Rev. Kripasharan in 1923 or 1924 by a proper ceremony in favour of the Sangha. The Plaintiff has adduced evidence of this ceremony through Chaitanya Charan Barua, who was present on the occasion as a Medical volunteer. This evidence is supported by the printed report of the Association of the year 1924-25 being part of Ex. A and is unchallenged and uncontradicted. It is, however, contended on behalf of the Association that this dedication is of no legal effect as no registered deed has been produced by the Plaintiff recording this transfer in favour of the Sangha. It is further contended that any dedication in favour of ah unnamed and unascertained Sangha is vague and void for uncertainty.

A Sangha is a well-known Buddhist institution dating back from historical times. A Vihara is a place of abode of Buddhist monks and can be dedicated in favour of a Sangha, vide Kern: Manual of Buddhism (pp. 25, 28/46, 74, 81, 82).

In the well-known treatise Hindu Law of Religious and Charitable Trusts (3rd ed., p. 17) it is stated as follows:

The Buddhist Sangha was undoubtedly a juristic person and was capable of holding property in the same way as a private person could.... The ordinary formalities of gift were observed by the donor when he wanted to dedicate any property to the Buddhist congregation and the gift was accepted on behalf of the Sangha by its head or representative. The property did not become the private property of the ostensible donee, nor could it be said to belong jointly to all the monks who were members of the congregation at that particular time. It was the property of the congregation itself which could not but be deemed to be a separate entity for this purpose and which continued to exist even if all its members died out or were replaced by other people. As a corporation the Sangha enjoyed a sort of immortality and was consequently fit to hold property for ever.

The said Vihara, which was established in 1903, has continued its existence upto-date. Dr. Arabinda Barua who had been connected with the Association since 1935 to 1955 has stated that during that period there were resident monks in the said Vihara who came and went (Q. 83).

The Plaintiff has stated in his evidence that a minimum number of four monks can form a Sangha. It is also his evidence that when he came to Calcutta in 1945, there were a number of Buddhist monks residing in the said Vihara and even at present there were six or seven such monks. No evidence to the contrary has been adduced on behalf of the Defendant. Even otherwise, the very fact that the said Vihara has continued as a Vihara since 1903 is prima facie evidence that throughout the period there was an existing Buddhist Sangha located in the Vihara. It is the common case of the parties that there had been successive High Priests at the said Vihara ever since it was founded. The very concept of a High Priest implies that there were other priests. The copy of Deed of Trust appended to the Memorandum and Rules of the Association dated April 10, 1935, (part of Ex. A) describes in its sch. ''B'' the land at No. 2, Buddhist Temple Street, Calcutta, as follows:

A plot of land measuring 6 cottahs, 3 chattahs and 25 square feet comprised in holding No. 2, Buddhist Temple Street, Calcutta, bounded on the North by premises No. 13, Robert Street, on the South by premises Nos. 33 and 34, Kapalitoal Lane, on the East by 14-15, Robert Street, on the West by 5 to 10, Robert Street, 1, Buddhist Temple Street, with the Bhikshu Sima (sanctified boundary) temples, buildings and other structures thereon.

The use of the words, Bhikshu Sima is evidence of territorial location of this Sangha in 1935. In the premises, there is evidence to hold that there was a Buddhist Sangha all along located in the said Vihara and it was not an unascertained body.

The contention on behalf of the Association that in the absence of a duly registered deed of dedication there cannot be any valid transfer of the property in favour of the Sangha also cannot be sustained. Section 5 of the Indian Trusts Act contemplates a registered non-testamentary instrument in writing signed by the author so that a valid trust may be created. The Indian Trust Act is applicable to Hindus, but u/s 1 of the said Act religious and charitable endowments, either public or private, are exempted from its operation. The dedication by Rev. Kripasharan in 1924 was undoubtedly with a religious object or purpose. So this cannot be stated to be a gift hit by Section 5 of the Indian Trusts Act nor it is a gift under the Transfer of Property Act, vide, Hindu Law of Religious and Charitable Trusts (3rd ed., p. 76).

To constitute a valid dedication of property by a Hindu for religious and charitable purposes no document in writing or registered is necessary. The decision of the Supreme Court in the case of Dasaratha Rami Reddy v. Subba Rao (1957) 3 S.C.R. 1122, lays down the law as follows:

Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity.

This proposition no doubt forms part of the personal law of Hindus. But the same personal law applies to Buddhists in India, vide Mulla''s Hindu Law (13th ed., p. 73, Article 6(iv)). Mayne''s Treaties on Hindu Law and Usage (11th ed.) states as follows:

There is no personal law except Hindu Law applicable to Buddhists in India. They cannot be governed by Burmese or Chinese Buddhist Law. They must, therefore, be governed by Hindu Law except where there is a change of domicile.

I hold, therefore, that the dedication by Rev. Kripasharan was a valid dedication in favour of the Buddhist Sangha located at the said Vihara and in any event a valid trust was created in favour of the Sangha in respect of the land, building and movable of the said Vihara.

Mr. A.P. Chaudhury on behalf of the Association relied upon the decision in the case of U. Meda and Ors. v. U. Sandima and Ors. AIR 1924 Rang. 141, for the proposition of the Buddhist Law that a gift by a monk whether to a layman or to another monk of a monastery or a site for monastery, whether it has been dedicated to him personally or not, is invalid. But this case was dissented from by a Division Bench of the Rangoon High Court. In the case of U. Pandawan v. U. Sandima and Anr. AIR 1924 Rang. 309, it is laid down that a ''pyongyi'', i.e. a monk can own land as ''poggalika'' property and during his life-time he can validly transfer it by a gift.

The Executive Committee of the Association passed two resolutions at a meeting held on January 19, 1931, (Ex. 7) as follows:

First Resolution: Whereas the Dharmankur Vihara and the land etc. adjoining it, the image, fittings and furniture, all properties moveable and immoveable are the properties of the Buddhist public of Bengal, it is decided that in order that there may not be any trouble or dispute in future, all moveable and immoveable properties belonging to the Vihara and the Association may be mutated in favour of the names of two members only, the President and the Secretary of the Bauddha Dharmankur Sabha (Bengal Buddhist Association), in the records of the Collector of Revenue, Calcutta.-Corporation of Calcutta and if necessary in other records as well, instead of having the same (i.e. properties) recorded in the name of any particular individual as owner.

Second Resolution: Whereas at present, the land in the premises No. 1, Buddhist Temple Street, stands in the records of the Collector of Revenue in the name of three individuals--Shri Bipin Chandra Barua, Shri Bhuban Mohan Barua and Shri Tarini Sen Barua and whereas the land in premises No. 2, Buddhist Temple Street, stands in the name of Kripasharan Mahasthavir, deceased, the names of the two executive officers--the President and the Secretary of the Bauddha Dharmankur Sabha (The Bengal Buddhist Association), be substituted and recorded in place of the names of the said individuals.

These resolutions have been disclosed by the Defendant in this suit. It is apparant from these that even in 1931 the Association acknowledged the said Vihara, its adjoining land, the image, the fittings and the furniture to be the properties of the Buddhist Public of Bengal and not its own and the premises Nos. 1 and 2, Buddhist Temple Street, Calcutta, were not shown in the records of the Corporation as belonging to the Association.

In the Memorandum and Rules of Management of the Association published in 1935, a copy of a Deed of Trust dated May 11, 1935, executed by the Association in favour of seven trustees has been annexed. The preamble of the deed narrates that the Association was seized and possessed of and entitled to, as of its own right and absolute property, the land hereditaments and premises standing thereon as religious trust properties for the worship of Buddha, propagation of Buddhism and welfare of Buddhists as described in the schedule. Schedule ''A'' describes the premises No. 1, Buddhist Temple Street, Calcutta, consisting of 4 cottahs, 13 chattaks and 35 sq.ft. of land comprised in holding No. 398, Block XIII, South Division, Calcutta, purchased by Rev. Kripasharan and sch. ''B'' describes premises No. 2, Buddhist Temple Street, Calcutta, already noted hereinbefore.

Apart from the unilateral declaration in this preamble that the Association was seized and possessed of and/or entitled to as of its own right to hold the said lands no evidence has been adduced by the Association to show that in fact it acquired at any time the land at No. 1, Buddhist Temple Street, Calcutta. There is no document to show any sale or gift or trust by which the Association came to be the owner of this land. I find that the said Vihara and not the Association is the owner and in possession of the premises No. 1, Buddhist Temple Street, Calcutta.

The alleged right claimed by the Association to manage or control the said Vihara at No. 1, Buddhist Temple Street, Calcutta, is to be considered next. Certain rules framed by Rev. Kripasharan in the year 1908 have been exhibited in these proceedings.

These rules were framed by Rev. Kripasharan as the founder and Adhyaksha of the said Vihara as well as the permanent President of the Association.

Under such rules the management of the Vihara was not in the hands of the Association but was left to the Vihara Adhyaksha and a committee to be elected by the Executive Committee of the Association. The Vihara Adhyaksha was to be elected according to the Vinaya-Pitaka and not by the Association. But even these rules were never adopted or accepted by the Association nor incorporated in any of the memoranda of rules of the Association.

In the Memorandum and the Rules dated October 6, 1915, filed under the Societies Registration Act, 1860, (part of Ex. 6) the only object of the Association relevant in this connection is object No. VIII which is as follows: "to establish monasteries and branch associations in suitable places."

Similarly, in the subsequent Memorandum and the Rules of the Association respectively dated September 1, 1924 and September 21, 1926, both filed under the Societies Registration Act (part of Ex.6) the object of establishment of monasteries and branch associations has been reiterated.

The Memorandum and the Rules and Regulations of the Association dated April 10, 1935, in force at the relevant time (part of Ex. A) incorporates object 2(k) as follows:

To establish, construct and maintain Viharas, shrines, rest-houses, orphanages and museums in places where they are necessary.

In the Rules of 1935, for the first time, detailed provisions for Vihara Sabhas have been incorporated. The relevant Rules in this regard are Rules 37, 38, 39, 40, 41, 42 and 44 as follows:

Rule 37: Attached to each Vihara at Calcutta, Darjeeling, Lucknow, Jamshedpur, Shillong and other places to be established hereafter, there shall be a local Vihara Sabha named after it, e.g. the Bauddha Dharmankur Vihara Sabha, the Lucknow Bodhisattva Vihara Sabha and so forth.

Rule 38: Any person or persons professing faith in Buddha or in Buddhism irrespective of creed or denomination, sex or nationality and paying an annual subscription of Rs. 2 and admission fee of Re. 1 shall be eligible for membership of the Vihara Sabha. The members of the General Committee shall automatically be the members of the Vihara Sabha locally determined without having to pay any additional subscription or admission fee. But the membership of a Vihara Sabha shall not entitle a person to be regarded as a member of the General Committee of the Association.

Rule 39: The Resident High Priest of each monastery shall be the ex officio President of the Vihara Sabha attached to it.

Rule 40: Each Vihara Sabha shall normally be entrusted with all duties connected with regular religious service and worship and the maintenance of Priests.

Rule 41: Each Vihara Sabha shall have an Executive Committee of its own, consisting of 10 or more members of whom one shall be the President, one or more Vice-Presidents and one Secretary and one Joint Secretary, as office bearers, to be elected for a term of one year during the Aswini Purnima festival.

Rule 42: The Secretary of the Vihara Sabha shall be appointed by the Governing Body or branch Executive Committees.

Rule 44: All proceedings of such Executive Committees shall be subject to confirmation by the Governing Body of the Association.

The objects as recorded in 1935 permit the Association to establish, construct and maintain Viharas in the places where they are necessary. The dictionary meanings of the word ''maintain'' are "to keep up, to continue in, to preserve, to support, to sustain, to pay or provide the means for the keep up of" (Oxford Shorter English Dictionary, 3rd ed.). It does not mean management or control. No authority has been cited before me to show that the word ''maintain'' has been construed to include ''management'' or ''control''.

It is to be noted that the Vihara Sabhas are bodies separate from the Association. A person who is not a member of the Association may become a member of the Sabha. The majority in a Sabha may not be members of the Association. Further, a Vihara Sabha has been entrusted with the duties connected with (a) religious service, (b) worship and (c) the maintenance of priest. No particular right has been given to the Vihara Sabha over the Vihara. The Governing Body of the Association can only confirm the decisions of the Executive Committee of a Sabha and it follows that even according to its own rules in force at the material time neither the Governing Body nor the Association have any independent right to take any decision regarding the Vihara.

Rule 78 of the 1935 Rules of the Association reads as follows:

At present there are three Viharas and temples constructed out of the funds and under the auspices of the Association, one Vihara with the temple at Buddhist Temple Street, Calcutta, one at Lucknow and one at Darjeeling.. The Governing Body shall make proper provision for maintenance, repair, improvement or extension of these and other such Viharas and temples constructed out of the funds or under the auspices of the Association and shall appoint resident monks for the Viharas.

Under the said Rule 78 the Governing Body of the Association is empowered to make provisions for maintenance, repair, improvement or extension of the Vihara. Under this rule the Governing Body cannot assume management or control of the Vihara. In any event, it is found that the said Vihara or the Sangha located there is a separate legal entity and by an unilateral decision the Association cannot create in its own favour a legal right to manage or control such Vihara.

For the reasons above, I find and hold that neither the memorandum nor the rules permit the Association or its Governing Body to manage or control the said Vihara at No. 1, Buddhist Temple Street, Calcutta.

On this finding, the more specific question, viz. whether the Association has any right to appoint or dismiss the High Priest at the Vihara at Buddhist Temple Street, Calcutta, also stands answered. The Association contends that it always had the power to appoint High Priest as an ancillary to its general power to control and manage the said Vihara. It is contended further that Rule 78 of the 1935 Rules as noted above specifically provides for such appointment. The words ''resident monks'' in the said Rule, it is argued, means a High Priest. The particular office of ''High Priest'' has been mentioned specifically in Rule 39 of the said Rules as quoted before. If in a subsequent Rule the words ''resident monks'' appear it will be assumed under ordinary rules of construction that the said words do not mean the ''High Priest''. It is also to be noted that the words ''resident monks'' have been used in plural. In Qs. 216, 217 and 218 to the Plaintiff by Mr. Chaudhury on behalf of the Association, a distinction was made between the resident monk and a High Priest. In the premises, I find and hold that the words ''resident monks'' do not mean or connote the ''High Priest'' of the Vihara. The Rules are significantly silent as to method, manner or terms of appointment of the High Priest and do not even provide for any maintenance of the High Priest or lay down his functions in such office nor the method, manner or grounds of his dismissal.

The Association contends that irrespective of the Rules, in fact, it is the Association which through its Governing Body had all along appointed the High Priests of the said Vihara as will appear from its past resolutions.

Dr. Arabinda Barua has stated in his evidence that such resolutions were only records of appointments and arrangements already made and nothing more. There is no evidence to the contrary on behalf of the Association. In fact, no one on behalf of the Association has even proved the correctness of the contents of the resolutions disclosed by the Association. The evidence of Dr. Barua on this point remains unchallenged and uncontradicted.

Even otherwise, on examination of the resolutions and their language it appears that such resolutions are nothing more than occasional approval by the Association of the existing state of affairs in the said Vihara. It appears that the High Priest of the Vihara was always ''elected'' and not appointed. The Association never ''directed'' but ''requested'' the elected High Priest to take up office. In any event, merely by passing resolutions without any legal effect the Association cannot arrogate to itself any power which it did not otherwise have. I hold that there is no evidence before me to show that the Association ever appointed a High Priest of the said Vihara.

The High Priest of a Vihara is not only the religious head of the Vihara but by virtue of his office he is the spiritual preceptor of all Buddhists who attend the Vihara and the temple. It is only fit and proper that his appointment should not be left entirely in the hands of this Association which admittedly represents a fraction of the existing Buddhists of Calcutta and admits non-Buddhists to its membership.

Before dealing with the specific issues it is necessary to discuss some contentions raised on behalf of the Association not concerned by the issues raised. Firstly, it is contended that this suit is a representative suit filed on behalf of a Sangha and that the Plaintiff is suing in a representative capacity. There is no averment in the plaint that the Plaintiff is suing in a representative capacity and Order 1, Rule 8 of the CPC has not been complied with. Therefore, it is contended that this suit is not maintainable. In this connection, reliance is placed upon the evidence of the Plaintiff in answer to Qs. 122 to 125. The answers to the said questions do not support the contentions of the Association.

It is clear from the reliefs claimed in the plaint that this suit is for adjudication of the individual rights of the Plaintiff as High Priest of the Vihara irrespective of any right of the Sangha. I hold that this suit is not a representative suit filed on behalf of the, Sangha.

Secondly, it is contended that this suit is for possession of immoveable property, namely, the two rooms in the Vihara described in sch. ''A'' to the plaint. It is contended that there is no allegation that the said two rooms are in the Vihara or form part of the Vihara.

I do not think that it is open to the Defendant to urge this point. In para. 12 of the plaint, there is a specific allegation that the Plaintiff has been occupying two rooms in the said Vihara. In para. 14 of the written statement dealing with the said para. 12 of the plaint, it is not denied that the said two rooms do not form part J of the said Vihara, on the contrary it is positively stated that the Plaintiff has been occupying two rooms in the said Vihara. It does not appear to me that the suit as framed is a suit only for possession of immoveable property. The Plaintiff''s claim to the said rooms is ancillary to his claim to the post of the High Priest.

Thirdly, it is contended that the Plaintiff''s claim for injunction must fail as Section 38 of the Specific Relief Act has not been specifically pleaded in the plaint. The Plaintiff has in effect claimed a perpetual injunction and as such, it is contended that it was necessary to aver specifically that there existed no standard of ascertaining the actual damage caused or likely to be caused by the invasion of such right of the Plaintiff.

It is urged on behalf of the Plaintiff that this is a suit not only for injunction but also for a declaration of rights and the injunction has been claimed by way of ancillary relief to such declarations. The averment in support of such declaration that the Defendant is denying and/or interested to deny that the Plaintiff is the Resident High Priest of the Vihara has been pleaded in the plaint.

It can be safely presumed that the office of the High Priest in a Buddhist monastery is incapable of being valued in terms of money. It has not been suggested to the Plaintiff that it can be so valued. The only suggestion put to the Plaintiff is that the two rooms which he has been occupying can be let out. It appears to me that this plaint in its entirety cannot be thrown out on mere technicality of the pleadings (viz. absence of the language of Section 38) when the substance of the claim is clear and no prejudice has been caused to the Defendant, vide Kidar Lall Seal and Another Vs. Hari Lall Seal, . The parties could have led evidence to show that the invasion complained of can be measured in terms of money or otherwise. I hold that the claim for injunction is sustainable as pleaded.

It is contended next that under Sections 23 and 25 of the West Bengal Societies Registration Act, 1961, the jurisdiction of civil Courts has been excluded and as such this suit is not maintainable. On a consideration of the language of these sections it appears that these sections do not exclude jurisdiction of civil Courts either expressly or by necessary implication. In any event, it is settled law that the exclusion of jurisdiction of civil Courts is not to be readily inferred. It is also settled law where a statute is silent or provides for certain remedies which do not necessarily or inevitably imply exclusion the civil Courts will retain their jurisdiction and in fact there is a presumption against the exclusion of jurisdiction of civil Courts by a statute, vide Dhamidhar v. District Co-operative Bank (1969) 3 S.C.C. 649 , Kanhaiyalal Vs. D.R. Banaji and Others, , Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra Pradesh, , Abdul Waheed Khan Vs. Bhawani and Others, and Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, .

There is no substance in this contention and I hold that this Court has jurisdiction to entertain and try this suit.

Lastly, it is contended that this suit should have been brought in names of the President, Chairman or the Principal, Secretary or Trustees as determined by rules and regulations of the Society and in default of such determination only in the name of such persons as appointed by the Governing Body of the Society as required u/s 6 of the Societies Registration Act. It is urged that this suit is instituted against the Association as a registered Society in its own name and as such, it is bad. It may be noted that no specific issue has been raised on behalf of Defendant on this point. Mr. A.P. Chaudhury, on behalf of the Defendant, in fact wanted to raise this issue on the basis of para. 1 of the written statement, but in view of the submissions on behalf of the Plaintiff by Mr. P.R. Mallick that if such an issue was raised he would apply for a formal amendment of the cause title of the plaint, if necessary orally Mr. Chaudhury refrained from raising this specific issue. I do not think that in view of the aforesaid it is open now to the Defendant to urge this point.

In any event, it appears that this point is not of any substance. The same question was agitated before this Court in the case of Sonar Bangla Bank Ltd. Vs. Calcutta Engineering College and Others, , where the suit was filed against the Calcutta Engineering College, a registered society under the said Act in its own name. The Principal and Secretary of its Governing body was also added as a Defendant, P.B. Mukharji J., as he then was, held as follows:

On the strength of this Section 6 of the Societies Registration Act it is, therefore, urged that this suit against the Calcutta Engineering College as a registered Society is incompetent and bad. I am unable to accept this argument. I am of the opinion that Section 6 of the Act is only permissive. The opening sentence of Section 6 of the Act use the word ''may'' and therefore, it is not mandatory but permissive. The language of the proviso to Section 6 uses the expression ''it shall, be competent''. This is only an enabling expression. It does not mean that if the registered society is sued as such, then it shall not be competent. Defect, even if any, on this point is cured by the fact that the Secretary of this Registered Society, namely, the Calcutta Engineering College, himself entered appearance and filed the written statement on behalf of the registered Society. Secretary is one of the persons mentioned in Section 6 of the Act. The view that I am taking that Section 6 of the Societies Registration Act is permissive and not either exclusive or mandatary is supported by the decision of Bhagwati J. of the Bombay High Court in Satyavart Sidhantalankar Vs. The Arya Samaj, . At page 523 of that report Bhagwati J. observed as follows:

I am of opinion that provisions contained in Section 6, 7 and 8 of the Societies Registration Act are not inconsistent with the user of the registered name of the Society in connection with legal proceeding.

In the instant case the facts are almost identical. It is the Secretary of the Association, Debapriya Barua, who has entered appearance and has signed the written statement on behalf of the Association. The Calcutta decision is binding on me and I have no hesitation in holding that this suit is not incompetent for the reason that the Association has been sued in its own name.

On the basis of the pleadings and evidence as also of the discussion above the specific issues raised in this suit may be considered.

Issue No. 1: On this issue, Mr. A.P. Chaudhury has contended on behalf of the Association that admittedly the Plaintiff is a life member of the Association. This is stated in para. 4 of the plaint. It is contended that as a life member the Plaintiff is a part and parcel of the Association and as such, this suit by the Plaintiff against the Association is in effect a suit by the Plaintiff as against himself and therefore, incompetent.

Mr. Chaudhury could not cite any authority for the proposition that an existing member of an association cannot in any circumstances sue the association. Apart from that, a society or association of persons registered under the Societies Registration Act, is a distinct legal entity apart from its members as has been held in the case of Satyavart Sidhantalankar Vs. The Arya Samaj, , considered hereinbefore. The Plaintiff has filed this suit to establish his rights flowing from his office as the High Priest of the Vihara and not to enforce his right as a life member of the Association and I see no reason why the Plaintiff is not entitled to file such a suit. I answer this issue in the negative and in favour of the Plaintiff.

Issues Nos. 2(a) and 2(b) may be considered together. The contentions on behalf of the Association on these issues have been that the said Vihara is entirely under the management and control of the Association and in fact, is a part of the Association and as such, the appointment and dismissal of a Resident High Priest of the Vihara is a matter of internal administration of the Association. It is further contended that the rule obtaining in the case of joint stock companies, that the minority share-holders cannot sue the majority or the company on matters of internal management which even if irregular ex facie may be cured by the majority, i.e. the rule in the well-known decision of Foss v. Harbottle (1843) 2 He. 461, should also apply in the case of a registered society. In support of his contention Mr. Chaudhury relied on Satyavart Sidhantalankar Vs. The Arya Samaj, .

I have already held that the Association had no power under its objects to manage or control the said Vihara nor does its rules empower it to assume such management and control. There is no evidence before me that the Vihara lost its identity at any time and merged with the Association. As such the decision is not of much help to the Association. Even assuming that the rule in Foss v. Harbottle (1843) 2 He. 461, applies in the instant case, it applies with its exceptions, namely where the act complained of is ultra vires, the corporation or where there is absolute necessity to waive the rule for the ends of justice the Court can always interfere though the act may be supported by the majority. There is another exception to this rule, namely, where by the act of the corporation, though performed in the course of its internal management, any particular or personal right of any member is violated, he can always seek relief in aid of such right: Gore Brown on Companies (42 ed.). I hold that the appointment or dismissal of a High Priest of the said Vihara is not a matter of internal administration of the Association. I answer issue No. 2(a) in the negative and issue No. 2(b) in the affirmative both in favour of the Plaintiff.

Issues Nos. 3(a) and 3(b) may be considered together. Both Pr. Arabinda Barua and the Plaintiff have stated from the box that the Plaintiff was nominated as the successor by his predecessor Rev. Visuddhananda and the Plaintiff assumed office on that basis. The Plaintiff has stated further that his nomination was announced at a meeting of the resident Bhikshus of the said Vihara and was accepted by all including the Association. There is no evidence adduced on behalf of the Association to the contrary. In the resolution of the Working Committee of the Association dated May 18, 1947, (part of Ex. A) which is relied on by the Association, agenda 5(a) clearly shows that the Plaintiff was already acting as the Chief Monk at the Vihara without any objection from any quarters and supports the case of the Plaintiff indirectly. In the premises, I hold that the Plaintiff was appointed the High Priest of the Vihara in 1946 by his predecessor Rev. Visuddhananda before the latter left the Vihara and that both the Sangha at the Vihara at the relevant time and the Association accepted such appointment.

The question remains what power did Rev. Visuddhananda have to appoint the Plaintiff as his successor. It is the case of the Plaintiff that he was selected to be the Vihara Adhyaksha by his predecessor as the next seniormost monk under the rules of the Vinaya-Pitaka. The rules framed by Rev. Kripasharan in 1908 also lays down that a High Priest should be selected according to the Vinaya-Pitaka, It is not the case of the Association in its written statement or otherwise that the Vinaya-Pitaka prohibits this form of selection of a High Priest, nor has any part of Vinaya-Pitaka been relied on by the Association to show anything to the contrary and as such, I hold that Rev. Visuddhananda had power to nominate his successor and he exercised such power and nominated the Plaintiff. In any event, I hold that as the next seniormost monk the Plaintiff was entitled to the post and such nomination was ratified by the Bhikshus of the Sangha at the Vihara who accepted the Plaintiff as the High Priest. The Plaintiff has relied upon passages from the text book Early Monastic Buddhism by Nalinaksha Dutt. At p. 316 of vol. I of the book it is stated as follows:

... Ananda added that the monk who was asked to recite the rule was regarded for the time being as the Chief of the Sangha and was called Sanghatthera, Sanghasitara or Sanghaparinayaka ... the Sanghatthera was generally selected from among the older monks. In the account of the second Council, Sabbakami is described as a Sanghatthera as he was the oldest ordained monk at the time (Vinaya, II, p. 303).

I answer both these issues in the affirmative and in favour of the Plaintiff.

Issue No. 3(c): The specific case of the Association in its written statement is that the Governing Body of the Association by a resolution passed on May 18, 1947, appointed the Plaintiff temporarily as the Chief Monk. No such resolution of the Governing Body has been produced. What has been produced and relied on (Ex. A) is a purported resolution of what is alleged to be the ''Working Committee'' of the Association. No evidence has been adduced to show how this Committee was constituted or what were its powers. The Rules of the Association in force at that time (i.e. 1935 Rules) do not mention of any such committee.

The relevant items in the agenda of this meeting were:

No. 5--Dharmankur Vihara and Nalanda Vidyabhavan affairs.

No. 6--Miscellaneous.

Under item 5 the following minutes were recorded:

(a) Regarding Dharmankur Vihara repairs and collapsible gate for the front verandah of Dharmankur Vihara, Rev. D. Sthavir, Vice-President of the B.B.A. and acting Chief Monk of the Dharmankur Vihara be hereby empowered to take necessary steps and other preliminary actions towards the repairs of the Vihara at his earliest convenience.

(b).................

Under item 6 the minutes recorded are as follows:

Resolved that Rev. D. Sthavir, one of the Vice-Presidents of the B.B.A., be hereby temporarily appointed to act as the Chief Monk of the Dharmankur Vihara in the absence of Rev. V. Mahathera on leave and he is sanctioned the allowance as fixed from the above post with effect from February 1947.

The evidence of the Plaintiff in this regard has been that he was present in this meeting and his signature appears in the minutes, but that the resolution under agenda 6 was not passed in the meeting but interpolated subsequently.

It is curious that in spite of there being a specific agenda for the Vihara, a resolution appointing the Plaintiff would be passed under Miscellaneous Agenda in the manner it has been done. Without going into the question of interpolation it is apparent from these minutes that the Plaintiff without waiting for any resolution of the Association was already acting as the Chief Monk of the Vihara at least from February 1947 from when his allowance was sanctioned. Mr. A.P. Chaudhury relied upon an alleged admission of the Plaintiff which appears in his deposition m a criminal case No. G3843 of 1963 where it is recorded that the Plaintiff has stated that he was present in the meeting as a Chairman where he was appointed the Vihara Adhyaksha. Even assuming there is such an admission the same cannot confer any power to the Association to appoint a High Priest. I have already held that the Association did not have such power and even if it passed a resolution as it alleged to have done the same would not result in a valid appointment. In view of my answer to issues Nos. 3(a) and 3(b) and the reasons above I answer this issue in the negative and in favour of the Plaintiff.

Issue No. 3(d): The Association relies on a resolution of its Governing Body passed at its meeting held on August 29, 1956. The text of such resolution as recorded in the minute books (Ex. A) under item 2 is as follows:

Consideration of the letter of the Dharmankur Vihara Committee.

The letter from the Dharmankur Vihara Committee regarding the appointment of the High Priest of the Dharmankur Vihara was read out and considered.

It is unanimously resolved that Rev. Dharmadhar Mahasthavir is appointed as the High Priest of the Dharmankur Vihara from this date....

The minutes are typed but the last three words in italics are in ink.

The only witness of the Defendant Debapriya Barua was present at this meeting. He stated that these minutes were confirmed a year later on September 26, 1957, with alterations as suggested by one Barun Chandra Barua.

The Plaintiff has produced a letter dated September 8, 1956, from the General Secretary of the Association addressed to him. In this letter he was informed of the resolution passed by the Governing Body of August 29, 1956 and he was requested to take certain actions on that basis. This letter sets out the extract of the relevant resolution as follows:

Consideration of the letter of Dharmankur Vihara Committee The letter from the Dharmankur Vihara Committee regarding the appointment of the High Priest of the Dharmankur Vihara was read out and considered.

It is unanimously resolved to place on record that Rev. Dharmadhar Mahasthavir was appointed and is the High Priest of the Dharmankur Vihara.

There is no doubt the original, resolution was passed in the form as recorded and the subsequent alteration seems to be uncalled for, the alteration takes no notice of the fact that the Plaintiff was since 1946 acting as the High Priest. In any event, I have held that neither the Association nor its Governing Body had the power to appoint a High Priest and as such, mere passing of a resolution would not result in any valid appointment. In view of the above and in view of my answers to issues Nos. 3(a) and 3(b) I answer this issue in the negative and in favour of the Plaintiff.

Issue No. 4: The Plaintiff has stated in his evidence that he has all along been occupying two rooms situate at the northwestern corner of Arya Bhaban, a part of the Vihara (Qs. 152, 160, 169). There is no evidence to the contrary adduced on behalf of the Association. In fact, the witness on behalf of the Association, Debapriya Barua, admits that a High Priest of the Vihara had a right to reside in the Vihara (Qs. 517 to 519). It may be considered to have been proved that the Plaintiff has been in occupation of the said two rooms since 1946. No resolution or any other document has been produced by the Association that it at any time accorded permission to the Plaintiff to occupy the said rooms or any rooms or to show that the Plaintiff was allotted the said rooms or any other room by it.

Mr. Chaudhury on behalf of the Association has urged that the Plaintiff has to establish that, in law, he is entitled to occupy the said rooms, i.e. either as owner or lessee or as a licensee which the Plaintiff has failed to establish. These contentions do not appear to be of substance. The initial occupation of the said room by the Plaintiff has not been shown to be unlawful being a perquisite of his post and the allegation in the plaint that the Association is seeking to oust the Plaintiff from the said rooms forcibly has not been denied in the written statement and must be deemed to be admitted. It is for the Association to establish some title to the rooms or in any event a better title than the Plaintiff before the Plaintiff can be called upon to establish his title. To take the extreme case the Plaintiff may be a trespasser but undoubtedly in possession of the rooms and a person who seeks to oust him must establish some or a better title in order to justify dispossession of the Plaintiff. The Association, I have already held, is not the legal owner of the Vihara or the land on which the Vihara is situate.

It is not the Plaintiff''s case in para. 12 of the plaint as the High Priest he is entitled to a servant. All that has been stated is that he is entitled to occupy the said rooms with his servant. There is no law in India which prevents any person from engaging a servant or prevents any person from serving another, the matter being left entirely to the persons concerned. The position is the same so far as dakshina is concerned. There is no law against charity. Any person can make a gift of money to another. In this case the recipient, a Buddhist monk, is not even forbidden by his religion to take it. The rules of the Association do not provide for any maintenance of the High Priest and it can be safely presumed that throughout in the past the High Priest has maintained himself from such source. The evidence of the Plaintiff oh this point has not been contradicted by anybody. For the reasons above I answer this issue in the negative and in favour of the Plaintiff.

Issue No. 5: I have already held that the land at no, 1, Buddhist Temple Street, Calcutta, originally purchased by Rev. Kripasaran was never acquired by the Association. The other plot of land, i.e. No. 2, Buddhist Temple Street, Calcutta, was no doubt acquired originally by the Association from the Calcutta Improvement Trust but was vested in the Trustees impressed with certain trusts. Therefore, at present the Association itself cannot be considered to be the legal owner thereof.

The Vihara was constructed out of a fund collected by Rev. Kripasaran from the public by way of donations and dedicated in 1924 to the Sangha. I have already considered the effect of such dedication. In the premises, I answer this issue in the negative and in favour of the Plaintiff.

Issue No. 6: I have already held that the Association is not permitted by its objects to manage or control the Vihara and that there is no rule under which it can appoint a High Priest of the Vihara. It follows that the Association has no power to dismiss the Plaintiff from his office as the High Priest. I answer this issue in the negative and in favour of the Plaintiff.

Issue No. 7: The impugned resolutions have been noted earlier. The first resolution directs the removal of the Plaintiff from his office of the High Priest and also from the Vihara. The second resolution seeks to appropriate the donations made to the High Priest at the Vihara during the festive occasion for the Association. The resolutions pertain to matters which relate to management and control of the Vihara. As the Association do not possess such powers under its objects, both these resolutions are ultra vires. I answer this issue in the affirmative and in favour of the Plaintiff.

Issue No. 8: In view of the answers to the issues the Plaintiff succeeds in this suit. There will be a declaration in favour of the Plaintiff that he is the Resident High Priest of the Bauddha Dharmankur Vihara at No. 1, Buddhist Temple Street, Calcutta. There will be a further declaration that the resolution dated April 9, 1961, of the Governing Body of the Defendant Association and the resolution dated November 5, 1961, of the General Body of the Association are ultra vires the Association and not binding on the Plaintiff. The Defendant Association and its servants, agents and office bearers are restrained by an injunction from giving any or any further effect to the said resolution dated April 9 and November 5, 1961 and from interfering with the activities of the Plaintiff as such Resident High Priest or with the Plaintiff''s possession or occupation of the two rooms in the Vihara described in sch. ''A'' to the plaint in any manner whatsoever. The Defendant Association and its servants agents and office bearers are further restrained from appointing or authorising any person to act as the Resident High Priest of the said Vihara.

While awarding costs in favour of the Plaintiff I have to note the conduct of the Defendant Association and its members which has led upto this present dispute between the parties. It appears that such conduct has been, to say the least, unseemly, uncharitable and not in consonance with the ideals of Buddhism which the members of the Association allegedly emulate. In passing the said resolution on November 5, 1961, the members of the Association gave a complete go by even to their own Rules and Regulations. The said General Meeting was called out of its time by the Secretary without any requisition from the members or any authorisation by the Governing Body. The agenda was fixed by the Secretary himself. The meeting was adjourned and the agenda in the meantime was changed by the Secretary. There was no item in the agenda proposing the dismissal of the High Priest and the step was taken impromptu at the meeting itself. The High Priest was never charged with any offence or misdemeanour and he was not heard at all. Earlier on July 6, 1961, the Governing Body had authorised the Vihara Sabha to submit a proposal for selection of a new High Priest. This decision was ignored by the General Body. After November 5, 1961, the Association waited for one year before appointing a new High Priest and never communicated to the Plaintiff that he had been dismissed. The Governing Body never adopted the decision of the General Body for removal of the High Priest nor passed any resolution of its own.

After the alleged appointment of a new High Priest in 1966 the Association resorted to pressure tactics. The electricity in the rooms occupied by the Plaintiff was tampered with and one of the said rooms was forcibly occupied. The allegations in the plaint that the Association was using and intended to use force have not been denied in the written statement. By the other resolution dated ( April 5, 1961, the Governing Body sought to appropriate even the money offered as dakshina in the thala to the High Priest leaving the High Priest without any source of maintenance.

The Plaintiff has been throughout his life a monk and he depends for his livelihood mainly on charity.

In the facts and circumstances, I award costs of this suit to the Plaintiff which will be allowed as between Attorney and client.

Certified for two counsel.