Dharmo Devi vs Moorti Shivji Maharaj

This is defendants appeal under section 100 of the Code of Civil Procedure. It is against the judgment and decree dated 19121989 passed by

the court of Munsiff. Jammu which has been affirmed by the first appellate court. The facts of the case in brief are these. Appellants are in

possession of residential accommodation, which according to the plaintiff, was leased to late Govind Singh by late Baba Shankaranand. After the

death of Govind Singh, appellants who are his legal heirs not only refused to pay monthly rental but also denied the title of the landlord. This

provoked the plaintiffrespondent herein to institute suit for their ejectment on the grounds of default in the payment of rent and forfeiture of tenancy.

The defendants resisted by denying the title of the plaintiff and also pleaded ownership by adverse possession.

On the pleadings of the parties, a number of issues were framed by the trial court including the issue of three defaults in the payment of monthly

rent and forefeiture of tenancy rights.

Both the trial court as well as the first appellate court found that the demised premises are owned by the plaintiff i. e. Moorti Shivji Maharaji.

They also found that Baba Shankaranand as Mohunt of the plaintiff had leased the premises to late Govind Singh. They have further found that

Baba Shankaranand had appointed Shri Raj Kumar who has instituted the suit as his chella. Both the courts of fact also found that by settling up

their title in themselves, the appellants have forfeited their right. 5. Mr. Som Dutt Sharma learned counsel appearing for the appellants argued that

the judgment and decree of both the courts of fact are against law and facts because assuming that rent note Exp. 'B' relied by the plaintiff has been

executed by Shri Govind Singh in favour of Swami Shankaranand, there is nothing to indicate that the premises are owned by Murti Shivji

Maharaji. His further contention is that if the demised premises were owned by Murti Shivji Maharaj, the rent note must have been in favour of

Murti Shivji Maharaj and not in favour of Baba Shankaranand. Since the premises do not belong to the temple, therefore, argued the learned

counsel, denial of the title has no consequence and the suit was liable to be dismissed because there was no relationship of landlord and tenant

between the parties. Mr. Sharma further argued that even if it is assumed that Shri Raj Kumar is the Chella of Swami Shankaranand, his right as

Mohunt extends to the temple and not any other property belonging to the Swami.

The contention of Mr. L. K. Sharma learned counsel appearing for the respondents is that Swami Shankaranand had no other property except

that of the plaintiff. The argument that Swami Shankaranand had leased the property in his individual capacity, according to the learned counsel, is

not tenable because of the concurrent finding of fact that he was Mohunt of the plaintiff, who is the owner of the property. He also argued the

limited scope of the appeal which cannot be enlarged.

This appeal was admitted for the determination of the following question: ""Does denial of title by one of the joint tenants result in the forfeiture of

tenancy by the others in terms of section lll(d) of T. P. Act?

It is thus presumed that relationship of landlord and tenant existed between the parties because there is concurrent finding of fact. But if on the

admitted facts of the case it is found that the demised premises are not found to be part of the temple, the question may assume different

dimension. Admittedly, there is no endowment of the property to the temple. The plaintiff based his claim on the will, executed by Baba

Shankaranand on 01081967. So the will is not a disputed document, but Baba Shankaranand nowhere styled himself either as Sheviat or Mohunt

of the temple. As per recital of the will, the temple in question was given to him in sankalp i. e. gift. He has not disclosed the person who made the

gift of the temple in his favour. He claimed to be the sole owner of the temple and by virtue of the will, transferred its ownership to the plaintiff. It is

thus not a public temple but a private one. He, by virtue of the will, transferred only the temple and nothing more to Shri Raj Kumar. Significantly

the boundary of the temple is also described in the will. It is equally significant that the rent note dated 16011967 mentions Swami Shankaranand

as the sole owner of the room including varandha, which was leased out to Govind Singh. There is not even a whisper in the rent note about the

property being of temple and rightly so because it is not a public temple, as noticed above. It is precisely for this reason that Shri Raj Kumar had

filed the suit for injunction in his personal capacity and not as Mohunt of the temple. It is equally significant that Baba Shankaranand did not use the

expression Mohunt either in the will or in the rent note. Under Hindu Law, a person, who wishes to establish a religious or charitable institution, has

to specify the purpose of endowment and the property intended for endowment. No such evidence has been produced to identify the purpose for

which this temple was established and why its ownership was transferred to Swami Shankaranand.

Be that as it may, Swami Shankaranand claimed himself to be its sole owner and transferred his right in favour of Raj Kumar by will. Since he

was not the Mohunt or Pujari, so he could appoint none.

Raj Kumar is thus the owner of the temple as per the will and not its Mohunt or Pujari. By virtue of the will, he has been conferred ownership of

the temple. If that be so as it really is, the question arises, whether demised premises are part of the temple or its property. The will relied by the

plaintiff makes no reference to the demised premises. But the boundaries of the temple have been specifically indicated. This part of the will dated

01081967 rendered in English describes boundaries of the temple as unden

North : hill and forest. South : public road/pathway. West : Open land belonging to Peerkho. East : House of Narsingdas.

So the area of the temple is enclosed by the aforesaid boundaries.

Significantly, the rent note purportedly executed by Swami Shankaranand does not refer it as the property of the temple. Instead, Swami

Shankaranand claimed to be the sole owner of the demised premises. In case the demised premises are situate within the boundaries of the temple,

this court will not interfere with the concurrent finding. But if on the admitted facts, the demised premises are found to be outside the boundaries,

the position would be different.

Mr. S. D. Sharma learned counsel appearing for the plaintiff, referred to the statement of the plaintiff, Raj Kumar to prove that the demised

premises are outside the boundaries of the temple.

After going through the statement, it is found that there is much weight in the contention and both the courts have ignored this fact. In his

statement recorded on 06091984, plaintiff Raj Kumar has categorically stated that the demised premises is located outside the boundaries of the

temple. His exact statement when rendered in English, reads as unden

The room in possession of the defendant was constructed in the year 1960. I do not know who constructed it. The premises though close to the

temple is outside its boundaries.

There can be no better statement than the statement of the plaintiff to prove that the demised premises are outside the boundaries of the temple.

Since the fact that the will purpounded by Raj Kumar pertains only to the temple and not to any other property and the demised premises are

not within the boundaries of the temple as described in the will, the question to be decided is, whether the plaintiff can maintain a suit for eviction on

the basis of the rent note, by virtue of which Swami Shankaranand leased the demised premises to one Govind Singh.

No doubt Swami Shankaranand has appointed the respondent as his Chella, but it is only for the temple and no more.

This is evident from the following recitable of the will:

So the suit property is not included in the will and rightly so because it is outside the boundaries of the temple, as admitted by Raj Kumar, the

self styled Mohunt of the plaintiff.

There is another aspect of the case. The office of Mohunt is recognised only in a public temple. It is unknown to a private temple. Office of

Mohunt has been held to be a property and is heritable. But the management of a private temple always lies with the owner, who may himself be

the Pujari also. Swami Shankaranand has in his will stated that he was the sole owner of the temple. So he was not Mohunt of the temple and so

could not appoint a Mohunt. That being so, the trial court as well as the First Appellate erred in holding that Raj Kumar is the Mohunt of the

temple because both the courts presumed that it is a public temple which it is not in view of the clear admission made by the testator. Both the

courts have based their decisions on the question whether Raj Kumar has been legally appointed as Chella by Swami Shankaranand without

appreciating the import of admission of the testator claiming exclusive ownership of the plaintiff and transferred it to the propounder. There is not

even a whisper about the right, public has in the temple.

The facts of this case fulfill all the conditions of a private endowment. The distinction between the private and public endowments has been

illustrated in para 828 of MAYNE'S HINDU LAW AND USAGE 14th Edition (Page 1277), which is extracted below:

Public and private endowments: Religious endowments are of two kinds, public and private. In a public endowments, the dedication is for

the use or benefit of the public at large or a specified class. But when property is set apart for the worship of a family god, in which the public are

not interested, the endowment is a private one. It is a question of fact whether a temple is a private or a public one. The extent of properties

belonging to the temple, the course of conduct of the devotees, the supervision exercised by the founder and his descendants whether the rents and

profits are exclusively utilised for the temple for a long period are relevant factors to be taken into consideration whether a temple is a public one or

private one, as also public visiting the temple for Darshan and worship, appearance of the temple, association of members of public with the

management and earlier statements or admission of parties. The mere fact that Hindu worshippers have been freely admitted to a temple does not

prove that the temple is public. Installation of idol permanently on a pedestal and the fact that the temple constructed on the ground separate from

the residential quarters are not conclusive proof of dedication to the public. However, from a long course of user by the public it would be

reasonable to infer that the user was as of right in the absence of a document long user is the material factor in inferring dedication to the public.

The sites of the temple is also one of the factors to be taken into consideration in deciding whether the endowment is private or public. Where a

temple is constructed on Government site with contributions from the public, and where contribution was paid to HR and CE Board and no

assertion that the temple was private was previously made the temple is a public temple and not a private temple. Where a person of Vallabh Sect

founded a temple in the capital of an erstwhile Indian State, on the land owned by the ruler, funds were provided by the ruler and sumptuous

provision was made by the ruler for the up keep of the temple, it was held by the Supreme Court that the temple was a public temple. In order to

ascertain whether a trust is a private and if the following conditions are fulfilled, (1) if the beneficiaries are ascertained individuals, (2) if the grant

has been made in favour of an individual and not in favour of the deity, (3) The temple is situated within the campus of the residence of the donor,

(4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity. On the other hand an inference can

be drawn that the temple alongwith the properties attached to it is a public trust. (1), If the public visit the temple as of right. (2) If the endowment

is in the name of the deity. (3) The beneficiaries are the public. (4) If the management is made through the agency of the public or the accounts of

the temple are being scrutinized by the public.

As per recital made in the will, Swami Shankaranand got the temple in Sankalp i. e. a gift to him. He claims himself to be the sole owner. It is

thus not a public temple because he was Pujari as well as owner of the temple in which the public had no right of worship. This right, he transferred

to the petitioner. It is thus, not a public temple. The plaintiff has nowhere pleaded that it is a public temple or public endowment. The entire case set

up by the plaintiff is that Moorti plaintiff is installed in the temple and Swami Shankaranand was its Mohunt. The defendant while admitting the

existence of the temple, denied that Swami Shankaranand was the Mohunt. Therefore, on admitted facts, the plaintiff cannot be held to be a public

temple and consequently Swami Shankaranand could not be Mohunt being its sole owner.

At one stage, I thought of remanding the case for recording a finding as to whether it is a public or private temple, but since there is no plea that

it is a public temple, therefore, the question of remand did not arise. But for the recitals made in the will and the rent note even the application of

law would have not been possible. As the fact that it is not a public endowment but a private temple and the suit property does not belong to the

temple, is proved from the will and rent note relied by the plaintiff. It is only the law which had to be applied. It was in view of these admitted facts

that this point was allowed to be raised.

It is settled that a point of law can be allowed to be raised in second appeal when the facts are admitted. This was held in J. C. Chatteriee Vs.

S. K. Tandon AIR 1972 SC 2526, which

reads as under:

The land landlord had alleged in the suit that by a notice dated 26061962 served upon the tenant, the tenancy had been dully terminated. This

was not denied in the written statement nor was an issue demanded at the time of the trial. However, the point being essentially a point of law, the

learned Judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been

duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the

appellant before us that the learned Judge should have remanded the case for a determination of that question. "" The law was reiterated by a bench

of three Judges in Tarini Kamal Pandit Vs. Prafulla Kumar Chatterjee, 1979 3 SCC 280 as under:

Before we conclude we will shortly refer to the question of law raised by Mr. L. N. Sinha on behalf of the defendant. He submitted that as the

title in the property vested in the defendant by confirmation of the court sale and later by a registered coveyance, the plaintiffs cannot seek relief on

the unregistered agreement Ex. 4 as conveying any title to them. This point was not taken in any of the courts below but learned counsel submitted

that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the

point to be taken. In support of his contention that a sure question of law in the circumstances can be taken for the first time in this court he relied

on the decisions of this court in Yaswant Deorao Deshmukh Vs. Wai Chand Ramchand Kothari, Raja Sri Sailendra Narayan Bhanja Deo Vs.

State of Orissa, Seth Badri Prasad Vs. Seth Nagarmal, State of U. P. Vs. Anand Swarup and T. G. Appanda Mudaliar Vs. State of Madras. As

the point raised is pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the questions. . . .

As noticed above, the plaintiff has not pleaded that it is a public temple. The recitals made in the will show that it is a private temple of which

Swami Shankaranand was the sole proprietor. So, the public had no right of worship in the temple. From the recitals made in the will, it is

established that the demised premises in occupation of the appellant are not within the boundaries of the temple. It is also established from the rent

note relied by the plaintiff that Swami Shankaranand never stated that the premises were part of the temple. He did not lease out the premises as

Mohunt of the temple but as owner. Assuming that the demised premises were owned by him, his chella has no right to succeed to the demised

premises because he has given him, only the temple, which is specifically described. In case the suit property was part of the temple, there would

have been no need for the testator to demarcate the temple and indicate the boundaries of the temple.

In view of the above, this appeal is allowed and the judgment and decree of the courts below, are setaside holding that the demised premises

are not part of the plaintifftemple and therefore, Raj Kumar as Chella has no right to file suit on behalf of the temple to recover possession of the

aforesaid property. No costs.