Gurdial Singh and another vs Mahant Harnam Singh

Shamsher Bahadur, J.—The Plaintiffs, Gurdial Singh and Ishar Singh, who are Lambardars of village Jhandawala in the district of Bhatinda, brought a suit after having obtained the consent of the Advocate-General, Pepsu, u/s 92 of the Code of Civil Procedure, for removal of the Defendant Harnam Singh who is described as a "Mahant and Mohatmim Manager Guru Granth Sahib, Gurdwara Jhandawala". This suit having been dismissed by the learned District Judge of Bhatinda on March 31, 1956, the Plaintiffs have come in appeal to this Court.

On 7th of Phagun, Sambat 1960, equivalent to 19th of February, 1904, shamilat land comprised in five specified plots, measuring 92 bighas and 12 biswas, was donated by "all the inferior owners of the village" of Mauza Jandanwala, then in Kot Kapura Pargana of Faridkot State, to Dera Bhai Saida Ram by way of charity. This gift was subsequently confirmed in a mutation order of the revenue authorities on 1st of July, 1905 (Exhibit P.N.). On 20th of July, 1926, Mahant Narain Singh, describing himself as the Chela of Mahant Mehtab Singh, Sadh Nirmala, executed his will (Exhibit P.W. 25/A) bequeathing his rights in the Dera, to his Chela, Harnam Singh Defendant. It appears that the Dera Bhai Saida Ram was in existence before the gift was made by the villagers. In the Jamabandi relating to the year 1950-51 (Exhibit P.B.), the land is shown to be under the inferior ownership of "Guru Granth Sahib Gurdwara Jandanwala under the management of Bhai Harnam Singh Chela of Narain Singh, Sadh Nirmala".

Within the precincts of land donated to the Dera, a Gurdwara has been built in an area of 8 kanals and 17 marlas. According to the Plaintiffs, the Defendant has been a manager of this Gurdwara, the entire institution being a public trust, and four or five years prior to the present suit institued on 21st of September, 1953, the Defendant started indulging in activities which unfitted him for the position of a Mahant. The Defendant is said to have been responsible for abduction of women, harbouring of dacoits, malversation of the trust income, closing of the langar (free kitchen), stoppage of religious activities and perpetration of immoral acts. The Gurdwara having an annual income of about Rs. 4,000/- to Rs. 5,000/- as lease and Rs. 2,000/- to Rs. 3,000/- by way of offerings was mismanaged by the Defendant and the Plaintiffs accordingly felt obliged to bring the present suit for his removal.

The Defendant in his pleas asserted himself to be the owner of the Dera and denied its character as a Gurdwara. It was pleaded that the Dera is an abode of the Sadhus of Nirmal Bhekh who could visit it after obtaining his permission. The other allegations against his personal character were traversed by the Defendant.

The learned District Judge trying the suit in the exercise of his original jurisdiction framed the following issues:

(1) Whether the suit has been filed on proper court-fee ?

(2) Is the sanction u/s 92, CPC Code, obtained by the plainttff valid ?

(3) Whether the present Plaintiffs have any interest in the property and thus have a locus standi to file the present suit ?

(4) Whether the suit is bad for want of permission of the Court under Order 1, Rule 8, CPC ?

(5) Is Guru Granth Sahib Gurdwara Sahib Jandewala a trust created for public purposes of a charitable or religious nature and whether Harnam Singh Defendant acts as a trustee of the same ?

(6) Whether the Defendant has committed breach of trust being of bad character and having committed waste of the said property and if so is he liable to be removed ?

(7) Relief.

The question with regard to court-fee, the consent of the Advocate-General and the validity of the suit have been decided in favour of the Plaintiffs and have not been agitated again on behalf of the Respondent in this appeal. The suit has been dismissed as neither the Plaintiffs have established their locus standi to maintain it nor has the Defendant been found guilty if any breach of trust. Under issue No. 5, the trial Judge has found that though the institution is a Dera and not a Gurdwara, it is still a public trust of a leligious character. On account of the decisions on issues Nos. 3 and 5, the suit has been dismissed, but the parties have been left to bear their own costs.

Before dealing with the points raised on behalf of the Appellants by Mr. Tiwari, it may be noted that Mr. Dalip Singh, counsel for the Respondent, does not question the finding of the District Judge that Guru Granth Sahib Gurdwara Sahib is a public trust.

The first question which we are called upon to resolve concerns the locus standi of the Plaintiffs to bring the present suit. Though the Defendant has claimed the entire property of the institution, which he calls a ''Dera'' in contradistinction to a ''Gurdwara'' it is indisputable that 91 bighas and 12 biswas of land had been donated by the residents of village jhandawala to "Guru Granth Sahib known as Dera Bhai Saida Ram by way of charity". This gift was made, according to Exhibit P.N. on 19th of February, 1904, and was sanctioned by the order of the revenue authorities of 1st of July, 1905. It may be pointed out here that though the area mentioned in the mutation is 92 bighas and 12 biswas, it is stated to be 92 kanals 14 marlas in the judgment of the trial Judge. In the plaint, however, it is mentioned that the land donated measured 455 kanals 7 mafias. According to the evidence, the institution has been in existence for a number of years. Bakshi Singh P.W. 1, aged 70 states that "this Gurdwara is in existence since the last 80 years." There is evidence to show that Bhai Saida Ram, whom the land was donated was succeeded by Bhai Mehtab Singh and thereafter the institution came in the hands of Bhai Narain Singh. According to the finding of the learned Judge, the succession to the gaddi is from guru to chala. The Defendant asserts that he is a Nirmala Sadhu and the entire property has devolved on him as his personal property. The Defendant places reliance on Exhibit P.W.25/A, which is a registered will executed by Mahant Narain Singh on 20th of July, 1926. It appears from this document that though Narain Singh was inclined at first to nominate Mahant Jai Singh as his successor, and had actually nominated him as such by an earlier testamentary disposition of 26th Bhadon, Sambat 1960, the Defendant was chosen as the Mahant by virtue of the later will of 5th Sawan, Sambat 1979, equivalent to 20th of July, 1926. To use the words of the testator Narain Singh, "after my death the aforesaid person shall be considered as my rightful successor" and "no other person except the said person shall have any right of Mahantship in the said Dera". This "aforesaid person" was no other than Harnam Singh Defendant who was described by Mahant Narain Singh as "my own Chela".

In his discussion of issue No. 3, the trial Judge has not given a definite finding whether the institution is a Gurdwara or a Dera but he has held it to be a public trust a finding to which no challenge is offered on behalf of the Defendant-Respondent.

Mr. Tiwari contends that the Plaintiffs being the lambardars of the village, they have certainly an "interest in the trust" to justify them in instituting a suit under the provisions of Section 92 of the Code of Civil Procedure. It is submitted that the land, or at least a substantial portion of the property attached to the institution, had been donated by the residents of the village and it would be a plain denial of justice to say that as representatives of the residents of Jhandawala village their interest in the trust has ceased because the Defendant declares himself to he a Nirmal. The evidence on the whole does indicate that the Defendant like his predecessors is a follower of the Nirmala sect and follows a religion distinct and separate from that of the Sikhs. Now, it is admitted even by the defence witnesses that the Dera is open to saints and Sadhus of good reputation and free meals are provided to the poor who visit it. Reference may be made to the statements of Mahant Harkishan Singh D.W.5 and Mahant Partap Singh D.W.6. Even the Defendant himself as D.W. 25 stated that the Dera is open for the spiritual benefit of the residents of the village and the surrounding villages and katha is recited there. Free food and medicines are dirtributed to the poor. The Defendant professed to have no knowledge whether the land was donated by the villagers of Jhandawala village in the name of Bhai Saida Ram. Under the pressure of cross-examination the Defendant was forced to admit that land-revenue had been remitted in respect of at least 23 to 24 ghumaons of land. The Plaintiffs, on the other hand, have led evidence to show that the entire land donated by the villagers is muafi, no land-revenue being payable.

It may be conceded that the Plaintiffs are not the worshippers of the ''Dera'' but it cannot be denied that as residents of the village they have an interest in the public trust consisting of the properties which are in the hands of the Defendant. The trial Judge has been influenced principally by the consideration that the Plaintiffs are Sikhs and the Defendant is a Mahant of an institution which follows the Nirmala faith. Relying on his own knowledge, he considered that "there is not much difference between a Nirmala and an Udasi". In his view, "Udasis constitute a separate sect of schismatics from the religion founded by Nanak". The view taken by the learned Judge does not appear to be quite accurate. In Cunningham''s History of the Sikhs (1955 edition) at page 347, a list of Sikh Sects or denominations is given in Appendix XXI, and Nirmalas appear at item No. 14. In ''The Sikh Religion'' by Macauliffe, which is recognised as a work of great authority, it is mentioned in the Introduction in Volume I at page (iii):

There are two great divisions of Sikhs, Sahijdharis and Singhs. The latter are they who accept the baptism inaugurated by Guru Gobind Singh, which will be described in the fifth volume of this work. All other Sikhs are called Sahijdharis. The Singhs, after the time of Guru Gobind Singh, were all warriors, the Sahijdharis those who lived at ease, as the word donates, and practised trade or agriculture. In the Singhs are included the Nirmalas and Nihangs. The Sahijdharis included the Udasis founded by Srichand, son of Guru Nanak;....

Thus, there is not only a clear distinction between Udasis and Nirmalas but Nirmalas were recognised at the time when Macauliffe published the treatise on Sikh Religion in 1909, as part and parcel of the Singhs who constituted the main body of the Sikhs. In Kirpa Singh v. Ajaipal Singh ILR 11 Lah. 142: 31 P.L.R. 424 which is a Division Bench authority of the Lahore High Court, Bhide J., who wrote the leading judgment, considered that the sect of the Nirmalas which came into existence at the time of Guru Gobind Singh had tended to drift apart from the Sikh faith and to merge amongst Hindus. It was considered that the erection and worship of Samadhs is opposed to the teachings of Guru Gobind Singh and the presence of the Samadhs is an indication of its unorthodox character from the standpoint of the true followers of Guru Gobind Singh, and in his view there was some hostility amongst the Akalis and the Nirmalas. It is, however, to be noted that Sir Edward Maclagan''s Census Report, on which great reliance was placed by Bhide J., mentions, inter alia, the following facts:

It is said that Guru Gobind Singh sent three follewors named Karm Singh, Harchand and Mihr Rai to Benares to acquire a knowledge of Sanskrit, when the Pandits of that city refused to come them-selves to Gobind Singh; and that, on their return, the Guru blessed them as being the only learned men among the Sikhs and called them Nirmala. They were allowed to take the pahul and founded the order of Nirmala Sadhus...... They are almost always celibate, and almost always in monasteries...... Their principal Akhara is at Hardwar, and it is said that their societies throughout the province are periodically visited by a controlling council. They have three considerable monasteries in the Hoshiarpur district at Munak, Adamwal and Alampur Kotla; and by our returns they appear to be strong in Gurdaspar. Where they are mainly returned as Hindus, and in Ambala, Ferozepore and Amritsar, where they are mainly returned as Sikhs. It is supposed that they are to be found in some numbers in Patiala, but our tables would intimate that they are as strong in Faridkot. They are looked on as unorthodox by most true Sikhs, and it will be observed that more of them are returned in the census as Hindus than as Sikhs.

It would appear, therefore, that the Nirmalas of the erstwhile Faridkot State were certainly regarded as Sikhs even in the Census Report.

The other authority relied upon by Bhide J. for his conclusion is "Glossary of the Tribes and Castes of the Punjab and N. W. F. Province" by H.A. Rose, in which it is stated that the Nirmalas having "adhered to the study of the orthodox Hindu scriptures, have lost touch with Sikhism" Bhide J. also referred to an article written by Macau-liffe, whom he described as a well-known authority on Sikhism, in the Calcutta Review in 1881, where he described Nirmalas as only nominally Sikhs.

In our opinion, the observations in Sir Edward Maclagan''s Census Report and Macauliffe''s view in his treatise on the Sikh Religion support the contention of the Appellants that the Nirmalas, though they may have become unorthodox, still retain the essential characteristic of the Sikh faith; thus the Defendant as the trustee of the Dera belonging to the Nirmalas cannot be regarded as being outside the pale of the Sikh religion and the Plaintiffs, who are Sikhs, are clearly entitled to bring the present suit. There is another reason to support the conclusion that the Plaintiffs have a locus standi to bring the present suit. The Plaintiffs need not have a direct interest in the trust. The villagers having made the original donation of land which is the nucleus of the institution the Plaintiffs cannot be said to be devoid of interest in the trust of whose property the Defendant now asserts to be the sole owner. In our opinion, the decision of the trial Judge is clearly erroneous on this issue.

On the remaining question, the learned trial Judge did not devote much attention as in his opinion the Plaintiffs were otherwise precluded from bringing a suit. The Court was content to treat in a somewhat perfunctory manner with the evidence of the Defendant and made no reference at all to the witnesses who have deposed in favour of the Plaintiffs. A brief analysis of the evidence adduced by the parties is, therefore, a necessity. Broadly speaking, it has been alleged against the Defendant that he is generally a man of bad character, harbours dacoits and has actually been responsible for the abduction of women. A free langar which used to be a normal feature of the institution has now been closed and likewise there are no recitations of Guru Granth Sahib as was the custom before.

Bakhshi Singh P.W.1. who is the President of the Jandawala Congress Committee, is an old resident of the village and on account of his age (being 70) and his position as a member of the Panchayat, his evidence is entitled to some weight. Moreover, he has not been shown to be inimical towards the Defendant. Bakhshi Singh has deposed that the Defendant had a hand in the abduction of a woman by his brother Surjan Singh about three years ago. In cross-examination Bakhshi Singh stated that the wife of his nephew Arjan Singh was also abducted through the instrumentality of the Defendant. This was about 9 or 10 years ago. The third instance of abduction, as deposed by this witness, is of the daughter of one Kaudu though this was many years ago. Jalaura, a nephew of Bakhshi Singh, was murdered by one Massa Singh, through the connivance of the Defendant about three years ago. This witness, like many others on behalf of the Plaintiffs, has deposed that the rate of lease of irrigated land is about Rs. 100/- per ghumaon and that of barani Rs. 50/-. According to Bakhshi Singh, the property of the institution has been allowed to go into a state of decay and disrepair.

Bishan Singh P.W.2, also a resident of the village, has given evidence about the evil habits of the Defendant, his lack of respect for Guru Granth Sahib, abandonment of the langar, harbouring of dacoits and drinking of liquor.

Tehal Singh P.W.3 of Jandawala, aged 60, stated on oath that his sister-in-law''s daughter Mst. Indo was abducted from village Sure-wala by the Defendant, though this was during the lifetime of Narain Singh.

Sher Singh P.W.4 of Jandawala (aged 57) stated that he and the Defendant abducted the wife of one Jaggar Singh about 23 years ago. A complaint, according to this witness, was lodged by Jaggar Singh. The Defendant, however, was discharged by the police owing to the influence of his uncle Mahant Narain Singh who was then alive. Sher Singh P.W.4 was actually prosecuted and convicted though Mahant Narain Singh paid the sentence of fine which was imposed on him. Sher Singh has also made an allegation that the Defendant had purchased some land in village Wazidpur. The Defendant has not denied this but has stated that this land was actually bought for him by his uncle. Nearly all the witnesses for the Plaintiffs, including Sher Singh, were asked in cross-examination whether it was a fact that the Defendant administered free medicines to the poor. It was not denied that the Defendant is a Hakim but, according to Sher Singh, he reserves the medicines for the treatment of dacoits who usually suffer from venereal diseases.

Rur Singh P.W.5 of village Jandawala (aged 60) has deposed that the daughter of one Hira was abducted by the Defendant some years ago. This witness further deposes that Sub-Inspector Hari Ram of Nahianwala Police Station had forfeited the licensed gun of the Defendant because a bad character named Ala Singh was residing at the Dera. This Ala Singh had entered the house of Sucha Singh with the intention of committing rape on his wife. He, like the other witnesses of the Plaintiffs, deposed that the Defendant had been redeeming the land which had been mortgaged and utilising the proceeds thereof in purchase of other properties.

Dalip Singh P.W.6 of village Jandawala has stated that the Defendant indulges in fornication and that he saw the wife of one Pritam Singh of the same village going to the Defendant at odd hours. Kahan Singh dacoit has been named as a frequent visitor to the Dera. Dalip Singh further corroborated the statement of Bakhshi Singh that Massa Singh had murdered Jalaur Singh about three years ago at the instigation of the Defendant who actually defended Massa Singh.

Support of some documentary evidence has been sought in respect of the allegations made against the Defendant. Exhibit P.1 is the copy of the report lodged with S.I. Hari Ram of Police Station Nahianwala on 26/27th of December, 1953. Reference in this report is made to Master Ala Singh who used to visit the house of one Mst. Seeto, wife of Sucha Singh, who was leading an immoral life, and to Punjab Kaur wife of Bachan Singh who indulged in trafficking and used to visit Mahant Harnam Singh. There is also a report, Exhibit P. 2, lodged before the same officer on 27/28th to December, 1953 by Pritam Singh who complained that Seeto, wife of Sucha Singh, and Punjab Kaur used to employ his own wife Jangiro through Mahant Harnam Singh for adultery. Pritam Singh stated that he was keeping a vigilant eye over this matter. A third report. Exhibit P.3, also of the same date, mentions Mahant Harnam Singh as a person suspected of supplying ammunition to the bad characters of the village. These reports which have been supported by S.I. Hari Ram as P.W.8 lose much of their probative value as they were lodged during the pendency of the present litigation. Hari Ram P.W.8, however, has deposed that he gave a warning to the Defendant in the beginning of 1953 that he should hand over any suspicious characters who visited the institution. Hari Ram has also deposed that there was a general complaint that people of bad character used to visit the Defendant.

The Plaintiffs, Gurdial Singh and Ishar Singh, as their own witnesses, have accepted the position that the Defendant is a Nirmala Sadhu like his predecessors. Both of them have given detailed information about the women who are said to have been abducted by the Defendant. Gurdial Singh P.W.9 has stated that there was no free langar run by the Defendant during the general election of 1952. He has deposed about this matter on the authority of his being the President of the Congress Committee. It is worthy of note that Shri Harbans Lal, now Minister of State, has deposed that the Defendant was actually running a free langar during the election days.

On behalf of the Defendant, several persons have appeared to depose that he has been co-operating with the authorities in the capture of criminals and is otherwise a man of good character. D. W. 1 is S. Ajaib Singh, Deputy Superintendent of Police, Sunam, who deposed that the Defendant helped the police in arresting dacoits. Now, there can be no doubt that the Defendant was in association with dacoits whether in harbouring them as alleged by the Plaintiffs or in co-operating with the police in bringing about their capture. Shri Harbans Lal D.W.2, now Minister of State, happened to visit the Dera of the Defendant during the general election of 1952 and found a langar running there. S. Ranjit Singh Advocate, Bhatinda, has also deposed about a similar experience of his own, also during the elections of 1952.

We have next a set of witnesses who are Nirmala Sadhus of the various Deras. These persons have been visiting the Defendant''s Dera and found if well managed. We find it somewhat difficult to accept their evidence. According to the memorandum of association and the rules and regulations of the Panchayati Akhara Nirmala Kankhal (Exhibit D.W. 25/A) Mahanrs of the sect are prohibited, inter alia, from becoming family men. Reference may he made to Clause 11, containing prohibitions. In this clause it is stated that a Mahant shall have no power in respect of certain matters, third and fourth of these being "to become a family man" and "to carry on any business or private trade separate from the akhara". In Clause 2, relating to management, it is stated that to the association of the Akhara, Nirmala Sadhus who put on dyed clothes (geru), that is to say, the celibates, will be admitted." In other words, celibacy is a rule rather than an exception for the Mahants of the Nirmala sect. Admittedly, the Defendant is a family man who has a wife and two sons. Mahant Jawala Singh D.W.4 has stated that in the Nirmala Bhaikh marriage is not prohibited. This is obviously against the tenor of the document Exhibit D.W.24/A. The same observation applies to the statement of Mahant Harkishan Singh D.W.5 of Dera Uggoke, who has stated that there is no restriction of marriage of Mahant Nirmala Sadhus. The evidence of these two witnesses is untrustworthy on another matter. They both deposed that the land attached to the Dera was not given as a gift by the villagers of Jhandawala. Even the Defendant did not have the courage of denying this fact though he professed ignorance about the gift. The evidence of the Nirmala Sadhus is also unreliable for another reason. They have stated and this is hardly acceptable as a proposition that the Mahants are not bound to render any accounts and there is no practice of maintaining them in the Deras of the Nirmalas. In making these statements they seek to support the Defendant''s cause who has kept no accounts of any character. Partap Singh D.W.9, Rattan Singh D.W.10, Jawala Singh D.W.11, Bakhtawar Singh D.W.12, Bir Singh D.W.13, and Ajit Singh D.W.14, are the residents of village Jandawala, who have deposed that the Defendant is a person of good character and several visitors come to his Dera for food and lodging. Partap Singh D.W.9 stated that a register of these visitors is being kept. No such register is, however, forthcoming. It has been stated by these persons that the Defendant had installed a water pump and had constructed a sabhat. When these questions were put to the Plaintiffs'' witnesses, they admitted that the sabhat had been constructed but only on the evacuee land which the Defendant had annexed. There is also evidence to show that the Defendant spent a sum of Rs. 500/- on the occasion of the death of his guru and also purchased agricultural land of the value of Rs. 500/-. If in a long span of many years as Mahant the Defendant has spent these amounts on improvements that can hardly provide an answer to his other misdeeds and lapses. Exhibit P. L. is a copy of the order of the Assistant Commissioner, Bhatinda, made on 27th of July, 1950. In the short order it is stated that there are many complaints against Mahant Harnam Singh and it had been ordered that a committee should be appointed for management of the Gurdwara.

The Defendant has unequivocally asserted a title for himself in the property of the Dera which has been found to be a public trust. A large portion of the land comprised in the Dera was donated by the residents of the village and all the circumstances support the finding of the trial Judge that it is trust property. Indeed, no challenge has been offered to this finding on behalf of the Respondent. In a case before their Lordships of the Privy Council, T.P. Srinivas Chariar and Anr. v. C.N. Evalappa Mudaliar AIR 1922 P.C. 235, where the trustee had produced accounts which were "largely written up for the purposes of this case" and had made an unfounded assertion of private ownership in the trust property, it was held by Lord Shaw, who delivered the judgment of the Board, that it was opposed to sound principles either of administration or of law, to permit the continuance of the Respondent in the office of Dharmakartha. In the present case where the Defendant has not even cared to maintain accounts of ''Dera'' which indisputably has an income cannot possibly be kept in the position of a trustee, he having asserted a title of his own in the properties.

A holder of trust property cannot be permitted to set up a title for himself in it. It seems to us that the assertion of the Defendant that the property is his own is by itself a sufficient ground for his removal from the position of a Mahant. No accounts are produced and none are maintained. Though some Nirmala Sadhus have deposed that the Mahant is not under an obligation to keep accounts, we regard such a position as intolerable in respect of trust property and besides there is the evidence of Mahant Gian Singh D.W.24, who is a treasurer of the Nirmala Akhara Panchayati at Kankhal, which is the central organisation of the Nirmala Sadhus, to show that account books of the institution are maintained and regular entries made therein. When such a practice is recognised in the case of the institution at Kankhal, there is no reason why it should not be followed by the branches which owe allegiance to it. It would indeed be deplorable if no accounts were kept and the individual Mahants of the Deras were permitted to act as they wished untrammelled by any authority or restrictions. We, therefore, regard the position contended for by the Defendant as untenable.

In our view the Plaintiffs have a locus standi to bring an action and a case for the removal of the Defendant has been made out on account of his failure to keep proper accounts and assertion of a hostile title of his own to the property of which he is trustee. Moreover, the evidence certainly indicates that the Defendant had been associating with dacoits and bad characters of the village and there is overwhelming evidence much of which has not been discredited to give rise to a strong suspicion that he has been instrumental in abduction of women. The Defendant on his own showing is leading a family life and the members of the family are being supported and maintained by trust income. This contravenes the rule of celibacy which is enjoined on the Nirmala Sadhus according to Exhibit D.W. 24/A. it may be pointed out that Bhide J., in the Division Bench authority of Kirpa Singh v. Ajaipal Singh1, to which reference has been made, while tracing the history of the institution pointed out the opinion of Sir Eddward Maclagan that the Nirmala Sadhus "are almost always celibate, and almost always in monasteries". Further, as found by the trial Judge, the succession to the gaddi is from guru to chela and this is consistent with the rule of celibacy.

The appeal would, therefore, be allowed and the suit decreed. A scheme of management will have to be framed u/s 92 of the CPC and for this purpose we would send the case to the learned District Judge who would after calling upon the parties formulate a scheme for the good and efficient management of the institution. The parties are left to bear their own costs.

Mehar Singh, J.

I agree.