Kesho Das vs Amar Dasji and others

Rowland, J.—This appeal arises out of a suit brought under the provisions of S. 92, Civil P.C. The first defendant, Kesho Das, was Mahant of a Sanghat situated at Amawan and having Sanghats at other places subordinate to it. The second defendant, Swamp Das, is a person stated by defendant 1 to be his chela to whom defendant 1 has transferred the ma hantship and all the properties of the Sanghats. The plaintiffs allege that the Sanghats constitute a religious foundation of the sect or order of Udasi Nanakshahi Sadhus, that the properties have been endowed and dedicated from time to time in trust for religious purposes of charitable nature. The suit was instituted after obtaining sanction of the Legal Remembrancer, Bihar and Orissa, who performs the functions of the Advocate General for the purposes of S. 92, Civil P.C.

It was alleged that the office of the Mahant could only be held by a celibate ascetic and that Mahant Kesho Das became disqualified for holding the office by reason of marriage, that Swamp Das was also married, that Mahant Kesho Das was incompetent to transfer the mahantship and properties to Swarup Das and that both of the defendants had committed breach of trust and neglect of duty, mismanagement and waste. The substantial reliefs claimed were the removal of Kesho Das from mahantship, appointment of another Mahant a declaration that Swarup Das was not eligible for appointment and was not duly appointed and an order for rendering accounts and for settling a scheme. The principal defence taken was that there is no trust express or implied of a public nature, that the properties have always been held as the personal properties of the Mahant for the time being, that celibacy was not an essential qualification of a Mahant, that Kesho Das had not in fact married, but that he having retired in favour of defendant 2, no longer claims to be Mahant, that defendant 2 had been managing the affairs of the estate faithfully and diligently and the allegation of misfeasance and mismanagements were false.

The District Judge found that the properties in suit appertained to a public trust and that the Sanghats formed a public and religious institution, that no married person should be or remain a Mahant and Kesho Das had married, that the transfer of the office and properties to Swarup Das was not valid because the proper method of appointing a new Mahant was by election; and he passed a decree for removal of Kesho Das from mahantship and framed a scheme for the management of the Sanghats including procedure for appointment of a presiding Mahant by election. He refused the prayer for rendition of accounts holding that the plaintiffs had failed to prove misappropriation of monies, etc. In appeal the substantial contentions are that the properties are not held subject to any trust and therefore the suit under S. 92, Civil P.C., is not maintainable. The properties were the private properties of each successive Mahant. The finding of the District Judge that marriage is a disqualification is challenged as also the finding on evidence that Kesho Das has married. On the other hand the respondent is dissatisfied with the finding of the District Judge on the question of misfeasance, misappropriation and waste and raises again the claim for rendition of accounts. Thus the first point to consider will be the nature of the Sanghat properties and the conditions under which they were held and managed by successive Mahants. The District Judge thought that, the grants produced before him were documents creating trust and has passed over somewhat lightly the oral evidence showing how the properties have been dealt with.

Mr. Mahabir Prasad for the appellant has placed before us all the sanads which are on the record and has argued that they would not bear the construction placed upon them by the District Judge. I should mention that the sanads produced mostly cover small areas and in the aggregate only a small proportion of the entire property appertaining to the Sanghats. The earliest is Ex. A (12) dating as far back as 1736 A.D., and covers an area of 5 bighas 15 biswas only. There are successive grants, dated, 1742, 1746, 1754, 1760, 1761, 1765, 1774, 1776, 1777, 1786, 1788, 1790, 1793 and 1795 There are two Amalnamas of 1851 and a kabuliyat of 1856. Each of these is expressed as a grant to the grantee by name, the majority of them authorize the grantee to cultivate and enjoy the usufruct. The earlier sanads enjoin the grantee to engage himself in prayer for the prosperity of the realm. Several grants are expressed as being given "wajah khairat" which has been officially translated "for charitable purposes", but for the appellant it is contended that the words mean no more than "by way of charity" or as a free gift. Again several of the grants beginning with Ex. A (9) which is of the year 1742 are expressed to be in favour of Fakirs of the order of Nanak Shah of the Amawan Sanghat. The District Judge has laid some emphasis on the reference to the Sanghat as showing that the grants were made for the purposes of the Sanghat and therefore were grants given in trust and creating a public trust. The appellant contends that this is straining the language of the grants and in turn lays emphasis on the constantly repeated expressions in successive sanads permitting the grantees and their children to appropriate the usufruct. Too much stress, in my I opinion, should not be laid on particular, expressions of this kind; the nature of the institution is rather to be determined not solely on fragmentary expressions in documents covering fragments of the property, but on a consideration of the whole history of the institution as disclosed on a general view of the documentary and oral evidence in the case. Mr. Mahabir Prasad, in contending that the power given to the grantees to appropriate the usufruct is fatal to the plaintiff''s case of a public trust, has referred to several cases in which it has been held that the head of a math is not a trustee in the sense in which that term is understood in English law. So much may be conceded as settled. The conception of a trust in the English legal sense is as pointed out by their Lordships in Vidya Varuthi Thirtha v. Balusami Ayyar, 1922 PC 123= 65 IC 161 = 48 IA 302=44 Mad 831 (PC), unknown in the Hindu system pure and simple. The position of a Mahant has been compared in certain cases of the Madras High Court to that of a bishop, to that of the holder of a benefice and to that of a tenant for life. The decision just cited condemns the vice of this method of analogy. Mr., Mahabir Prasad''s contention that not being a trustee in the English sense the Mahant must be held to be a full owner with absolute proprietary right seems to be really an example of trying to apply the same reasoning by analogy in another direction. The essence of the argument is that if one of the precise definitions of English law, that of "trustee" is not applicable the case must therefore fall under another equally precise notion, that of full owner. This line of reasoning though ingenious, and superficially attractive, is unsound. The Privy Council have more than once reaffirmed the dictum of Lord Romilly in Greedharee Doss v. Nundkissore Doss, (1867) 11 MIA 405 = 8 WR 25 = 2 Suther 86 = 2 Sar 306 (PC):

that the only law as to these Mahants and their offices, function, and duties is to be found in custom and practice, which is to be proved by testimony.

Nevertheless their Lordships have in recent decisions mentioned some features which are regarded as the normal incidents attaching to the tenure of office as a Mahant. Thus in Ram Parkash Das v. Anand Das, 1916 PC 250 = 33 IC 583 = 43 IA 73 = 43 Cal 707 (PC), Lord Shaw says:

An asthal, commonly known in Northern India as a Math, is an institution of a monastic nature, It is established for the service of a particular cult, the instruction in its tenets and the observance of its rites. The followers of the cult and disciples in the institution are known as chelas; the chelas are of two classes-celibate and non-celibate. In the asthal now being dealt with, the religious brethren were the bairagi or celibate chelas; the lay brethren were girhast or house-holder chelas. The Mahant must, by the custom of the Math, be a bairagi or religious chela. The Mahant is the head of the institution. He sits upon the gaddi; he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself. Upon his death or abdication he is succeeded by one of the bairagi chelas. These bairagi chelas are, as stated, celibates; or if they have ever been married they must prior to their initiation as bairagi chelas, have renounced their wives and families and have conformed to the practice of the Math. This practice is ascetic; it involves a separation from all worldly wealth and ties, and a self-dedication to the services and rites of the asthal......this property is held by the Mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the Math or instruction itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning Mahant, this trust does exist, and that it must be respected.

In 1922 P.C. 123 (1) above cited, the High Court had held on a consideration of the decision in 1916 P.C 256 (3), that a suit to recover possession of certain properties alienated by a former head of the math was barred by Arts. 134 and 144, Limitation Act. It seems that they had applied the observations of their Lordships as if the words trust, and trustee had been used in their technical sense. The decision was reversed, but I can find nothing in the judgment of their Lordships adverse to the view that the head of a religious institution ordinarily holds the property subject to certain obligations. It is said:

Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system: to Brahmans, Goswamis, Sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations.... In many cases in Southern India especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of Math were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the institution, hut always subject to certain obligations and duties, equally governed by custom and usage.

It is pointed out that the head of such an institution though not a trustee in the English sense of the term is nevertheless in view of the obligations and duties resting on him answerable as a trustee in the general sense for proper administration. Later in the judgment their Lordships have referred to:

the distinction between a specified trust and a trust for general, pious or religious purposes under the Hindu and Mahomedan law.

This much is, I think sufficient to dispose of the contention that if the defendant is not a trustee in the specific sense he must be a full owner and that there can be no trust within the meaning of S. 92, Civil P.C. It is clear that there may be a trust in the general sense and its existence or otherwise is a matter for determination on the evidence as to the usage and custom of the math. Mr. Mahabir Prasad has further contended in this connection that the words:

express or constructive trust created for public purposes for charitable or religious nature

in S. 92, Civil P.C., mean that the section is only applicable when there is definite evidence as to the creation of the trust and of a dedication to purposes of charitable and religious nature. That is to say that S. 92 reinforces his contention that the matter is to be decided on the terms of the grants. To take this narrow view however would in my opinion, be contrary to the principle laid down by the Privy Council in Ram Parkash Das v. Anand Das, 1916 PC 250 = 33 IC 583 = 43 IA 73 = 43 Cal 707 (PC) and Vidya Varuthi Thirtha v. Balusami Ayyar, 1922 PC 123 = 65 IC 161 = 48 IA 302 = 44 Mad 831 (PC), where it is made clear that the Courts will have-regard particularly to usage and custom. The view which I take is in agreement with that taken by a Division. Bench of the Madras High Court in Nelliappa Achari v. Punnaivanaum Achari, 1927 Mad 614 - 101 IC 420 = 50 Mad 567. The history of the Amawan Sanghat is to a large extent undisputed. The sect of Udasi Nanakshahi Sadhus, an offshoot of the Sikh religion was founded by Baba Srichand. He was a celibate and founded a celibate sect, though the sect also made disciples who were house-holders and there have been and arc both ascetic and girhast disciples of the sect. According to the evidence for the plaintiffs the Sanghat at Amawan was established in the time of Baba Hari Das whose disciple and successor was Baba Seva Das. Successive Mahants have been Baba Chain Das, Baba Lachhman Das, Baba Ram Prasad Das, Baba Joy Kissun Das, Baba Ram Kissun Das, Baba Narain Das and Baba Jyoti Swarup Das; the last named was the immediate predecessor of Kesho Das, defendant 1. The succession in every case was to an ascetic chela of the sect. This much is not disputed. It is further undisputed that at the Sanghat it has been the practice to conduct worship to the Granth Saheb, to feed Sadhus, to feed the poor and Brahmans and to give instruction and that money is spent on behalf of the Sanghat on these objects. It is the case of defendant 1 that in his time also the regular worship was all along being done as well as the entertainment of Sadhus and education of scholars; but he says this was done

from the income of the properties but at the wish of the Mahants.

The extracts which I have given from two decisions of the Judicial Committee of the Privy Council make it quite clear that the existence of a very wide discretion in the Mahants as to the application of the income of an asthal is by no means inconsistent with a fiduciary obligation so to manage the property that the objects for which the institution exists shall be effectively served. The fact that income of the properties has all along been applied to the religious and charitable purposes, indicated above, is strong reason for holding that those purposes are the purposes for which the institution exists and this view is further supported by expressions in Ex. 17 which is a will of Mahant Narain Das appointing Jyoti Swarup as his successor and in Ex. 18 which is a will by Jyoti Swarup Das similarly appointing Kesho Das. In Ex. 17 there is the recital that the Sanghat has immovable properties, that there arc a good many movable properties appertaining to the said Sanghat and that the executants as Mahant gaddinishin has been in possession and enjoyment of the usufruct of these properties. The will in making the appointment in favour of Jyoti Swarup Das declares that he shall be in possession and occupation of the properties, shall manage and administer the duties of Mahant, shall make collection and and realization, etc., and shall spend their income in good and other necessary works appertaining to the said Sanghat. The other will similarly directs that Kesho Das shall become Mahant gaddinishin of the Amawan Sanghat as well as of all the properties movable or immovable of the testator, that he shall administer all the affairs and business of the Sanghat in the manner in which they are performed in the Sanghat, he shall maintain good character and not do any illegal or indecent act at any time contrary to the usage and custom of the Sanghat, in case of any bad act coming to light panchun or arbitrators of the caste and respectable disciples shall be competent to appoint another chela of the testator as head of the Sanghat and proprietor of the properties.

There is a further direction to maintain and provide for the other disciples of the testator and of his guru as at present. It is on the above and other materials on the record abundantly clear that, the Sanghat is a religious and charitable foundation corresponding in its general features to the description of similar foundations which I have quoted from two Privy Council decisions in Ram Parkash Das v. Anand Das, 1916 PC 250 = 33 IC 583 = 43 IA 73 = 43 Cal 707 (PC) and Vidya Varuthi Thirtha v. Balusami Ayyar, 1922 PC 123 = 65 IC 161 = 48 IA 302 = 44 Mad 831 (PC). Particular properties do not appear to have been given expressly in trust, but there was certainly an implied or constructive trust of a public nature in which the disciples of the sect both religious and lay brethren (Sadhus and Girhast) were interested. I would therefore confirm the finding of the District Judge that the properties appertaining to the Sanghat which is a public trust for religious and charitable purposes and further that the plaintiffs as disciples of the sect are persons interested in the trust and entitled to maintain the suit under S. 92.

I shall take up next the question of the custom regarding succession to the gaddi. (After examining the evidence, His Lordship held that the finding of the District Judge was correct and must he upheld. The judgment then proceeded with the question as to whether Kesho Das had married. It was held that the institution was a celibate one from its inception and then the judgment continued). I next turn to the issue relating to the allegations of breach of trust, misfeasance and waste on which the District Judge found against the plaintiffs who have filed a cross-appeal. In the course of the discussion of the custom of the math, in respect of the powers of Mahants it has been seen that the Mahants for the time being had full powers of dealing with the income and the usufruct of the properties subject to the obligation to see that the religious and charitable purposes of the trust were duly fulfilled. The allegation in para. 16 of the plaint was that Kesho Das had removed from the Sanghats more than 1� lacs of rupees; sale proceeds of grain; utensils and other valuables; gold and silver jewelleries; and deposits in the Imperial Bank of India amounting to over Rs. 26,000. These allegations were denied except the withdrawal of the deposit from the Imperial Bank which was explained by saying that the money was applied partly to repair, etc., of the buildings and partly to investment in loans which was within the powers of the defendant. In evidence it is stated by Gur Sahai Ram that there were moveables worth Rs. 30,000 or Rs. 35,000, in the Amawan Sanghat and cash about Rs. 25,000 besides Rs. 24,000 in the bank and about Rs. 14,000 kept in Dumraon, that all these properties had been removed by Kesho Das, but the witness as appears from his cross-examination did not speak from personal knowledge except as regards Rs. 14,000 kept in Dumraon.

Another witness Raman Ram who is examined on this point says that the Sanghat had moveable worth Rs. 30,000 or Rs. 40,000, that the annual produce of crops was about 6,000 maunds, that part of the property was misappropriated by Swarup Das and part wasted and part still remains, that there was cash about Rs. 99,000 at Dumraon in the bank and at Amawan, and that Kesho and Swarup have removed the cash. This witness''s knowledge also appears to be in part hearsay. Kesho Das denies removal of any properties from the Sanghats, but admits withdrawing the entire balance at the Imperial hank amounting to Rs. 22,000 or Rs. 24,000. He admits that there was surplus income in the time of his predecessors and says that in his time there was no saving and he drew on his predecessor''s savings. As regards investment the only loan referred to in the evidence is one made to Annapurana Kuer on a registered bond. Kesho Das says that the money was realized from the debtor by Swarup Das. On this evidence it appears that the available considerable moveable and cash assets were taken by Mahant Kesho Das and by Swarup Das and appropriated to themselves. On the other hand the evidence is that the Sanghat was maintained, that puja continued to be performed and alms continued to he given. The substance of the allegations of the plaintiffs'' witnesses is that the Sanghat was not kept up in such good style and the buildings not kept in such good repair.

On this state of the facts it remains to consider whether Kesho Das should be removed, whether a new trustee is required to be appointed, whether a scheme is required to be framed and whether an order ought to be passed for rendition of accounts. On the first question here is no room for hesitation. Kesho Das cannot be allowed to hold mahantship for the following reasons: (1) He being married the whole purpose of the trust, the maintenance of an ascetic institution is frustrated if a married man remains at the head of it. (2) He has alienated the entire properties of the math by a transfer which he had no power to make in favour of an outsider, his own nephew. (3) According to his own written statement he has given up his office as Mahant. (4) His management of the trust properties on the face of it appears wasteful and extravagant. The saving of his predecessors on his own admission were being rapidly dissipated.

Once a clear case is made out for the Court''s interference under S. 92 the form of the final order should be governed by what appears to be in the interest of the institution. It is necessary in this instance that a new trustee be appointed and that arrangements be made which will prevent such mismanagement as has taken place and will provide for future succession. Such arrangements have been made in the scheme framed which was prepared after consultation with the representatives of the plaintiffs and other persons interested in the endowment. In connexion Math the scheme the plaintiffs have suggested in their cross-appeal that the properties should be held not in the name of the Mahant for the time being, but of the managing committee. No sufficient reason has been shown to us for ordering such a modification and to allow it would be a departure from the customary practice followed hitherto in this math and ordinarily followed in similar institutions. It is not desirable that the head of the institution should be reduced to the position of a nonentity. I would therefore refuse amendment of the scheme in this respect. Another objection taken to the scheme by the plaintiffs is that it should provide for removal of the Mahant by the vote of two-thirds of the members of the managing committee whereas the scheme provides that a Mahant or adhikari may be removed for misconduct by a meeting of the congregation of disciples and public. It is also suggested that the Mahant or adhikari should be liable to removal if negligent, unfaithful and guilty of any misconduct or otherwise undesirable. The proposal seems to me much too wide and likely to make the Mahant a mere puppet holding his office at the will of a small body liable to be influenced by personal motives. I would therefore refuse to modify the scheme in the manner asked for.

It remains to consider the prayer in the cross-appeal for rendition of accounts. There are two difficulties in way of passing such an order. One is that the usufruct of the properties has all along been held in the hands of the Mahant for the time being to be applied at his discretion and another is that an order for rendering accounts is likely to be in substance infructuous. The properties were made over in January 1929, by Kesho Das to Swarup Das and the latter having disappeared and being perhaps dead his dealings with the assets cannot effectively be investigated. Hence it appears that an order for rendering accounts would lead merely to an expensive and laborious inquiry leading to no tangible result. I would therefore confirm the District Judge''s order in so far as it refused the prayer for rendering of accounts. In the result I would dismiss the appeal with costs and would also dismiss the cross-objection parties bearing their own costs of the cross-objection.

Fazl Ali J.

I agree.