Susil Chandra Sen and Another vs Gobind Chandra Das and Another

Dhavle, J.—This is an appeal from a decree declaring that certain property is debutter property appertaining to Khairpur Math held and enjoyed by the idol Gopal Jiu and as such not liable to be sold in execution of a mortgage decree, and granting a permanent injunction restraining defendants 1 and 2, the appellants to this Court, from executing the mortgage decree against that property. In 1914 Baldeb Das, the Mahant of the math, borrowed Rupees 2,300 from the father (since deceased) of the appellants with a view to purchase some properties on a mortgage of the properties now in suit. The appellants brought a suit in 1927 to enforce this mortgage and obtained a preliminary decree. A final decree followed in due course, and when execution was taken out Gobind Chandra Das, chela of Mahant Baldeb Das, on behalf of Gopal Jiu, Thakur of the Khairpur Math, sued for the declaration and injunction already indicated, stating that he was bringing the suit because Baldeb Das had gone on pilgrimage three years previously and had neither returned nor been heard of since.

The suit was resisted on various grounds the defendants going so far as to attempt to prove that there was no such entry as Khairpur Math at all. These defences were all overruled and the suit was decreed. Defendants 1 and 2 appealed and the appeal was dismissed by the Additional Subordinate Judge of Cuttack. It has been urged on their behalf that the mortgaged property is not debutter but the personal property of Baldeb Das and therefore liable to be sold in execution of the mortgage decree.

The learned advocate points out that while the plaint describes the plaintiff in terms suggesting that he had brought the suit on behalf of the idol Gopal Jiu, the property is referred to at more than one place as appertaining to the Khairpur Math, and that debutter property is property that is dedicated to an idol and is not the same as property appertaining to a math.

There are undoubtedly some differences between debutter property and property dedicated to a math, but the math in the present case at least has an idol installed in it and the plaintiff''s allegation was that the math property was held and enjoyed by the idol, and it is clear that whether or not the property was dedicated to the idol, the property, if it appertains to the math, would not be the personal property of Baldeb Das or any other Mahant for the time being. The mortgaged property consists of two parts, one comprising an area of 11 acres odd which is described in Son. Ka, and the other with an area of 20 acres odd described in Schedule Kha. The former came to Baldeb Das under a so-called hibanama of 1892, while the latter was obtained by him by purchase in subsequent years.

The learned advocate for the appellants points out that in Maddox''s Record of Rights the Ka property was not shown as the property of the math or of the idol but at most as "khairat" and that Maddox''s classification of revenue free land as "khairat" meant that it was the absolute property of the individual concerned. In support of this reference is made to para.569 at p. 397 of Maddox''s Settlement Report. It is however noticeable that Maddox himself says of this kind of khairat that:

The name implies a benefice and was used of grants to mendicants and other poor Hindus.

And then adds:

Sometimes also of grants for charitable purposes.

On p. 308 of the same report we find it stated against the second division of revenue-free lands of the second class, that is to say, lands not the absolute property of individuals but assigned in trust for religious purpose:

(2) Sadabarti or ''pious endowments'' is the generic name for all charitable endowments. They appear to be generally recorded as khairat or debutter.

This shows that the word "khairat" used in the Record of Rights does not necessarily indicate the absolute property of the individual whose possession is recorded. The learned advocate for the respondent has referred to p. 4 of the glossary given in the beginning of Maddox''s Report, where it is stated that the name "khairat" was used of grants of lands to mendicants and other poor Hindus and sometimes also of grants for charitable purposes.

Such land out of Schedule Ka as was not recorded as "khairat" was recorded as lakhraj bazyafti or lakhiraj bahel and all the land in the schedule was shown as in the possession of Baldeb Das, chela of Bhagbat Das, caste Nihangi Baisnab. The entry as it stands does not show that the. land belonged to the Khairpur Math. It is at the same time clear that the settlement authorities were concerned much more with the liability of the land to pay revenue or rent than with the question whether Baldeb Das held the land in his personal capacity or on behalf of the math or of the idol housed in it. The debutter character of the land, using the word to cover not only land dedicated to the idol but also land appertaining to the math as was done in the plaint, was found by the trial Court from the evidence of a landlord of Khairpur, who is a close relation of the appellants and appeared as their first witness, the hibanama of 1892 and the facts that Baldeb Das was a Nihangi Baisnab and received the land as the chela of Bhagbat Das, the Nihangi Baisnab in charge of the Khairpur Math.

A Nihangi Baisnab is a celibate sanyasi without any worldly attachments, quite unlike the grihastha or house-holder class of Mahants found outside the Dasnamis of Sankaracharya or unlike the Puris and other five classes and half out of the Dasnamis. who mix freely in the business of the world and carry on trade and often accumulate property: see p. 245 of Jogendra Chandra Ghosh''s Tagore Law Lectures on the Law of Hindu Endowments, Vol. 2, Edn. 2, 1923.

The learned advocate for the appellants has contended that devolution of property in the spiritual line does not necessarily indicate its religious character and has in support of this contention cited Goshain Sheo Ghulam Puri Vs. Shiam Lal Bhagat, , but that was a case relating to the Puri class of Dasnamis who do often hold property for themselves. In the present case the Ka property seems utterly incapable of passing to natural heirs, for the holders are not only sanyasis but also celibates (Nihangis).

The learned advocate has laid stress on the provision in the hibanama of 1892 executed by Bhagbat Das in favour of his chela Baldeb Das that Baldeb will be the malik in place of the executant and will enjoy and continue to enjoy the property himself and in succession by chelas and grand chelas. The document must be read as a whole, and the executant in another place speaks of his math and the properties appertaining thereto being given by the hibanama to his chela who was to carry on the services of the math in the established way. In yet another place it speaks of the executant''s math appertaining to another math. It also provides that Baldeb shall not be able to transfer the land to anyone by sale, gift or mortgage of any sort. The mere fact of the executant speaking of the math as his own can carry little weight; prima facie the math with the idol in it could not be the personal property of the executant. Read as a whole, the document seems to deal with math property and to appoint Baldeb as the executant''s successor in the position of head of the institution.

The learned advocate has urged that it has not been shown that the income of the property was exclusively used for the service of the Thakur of the math, but the Mahant of the math is entitled to be maintained out of the math property, nor are we here dealing with a case where a worldly member of a family has made a colourable dedication of property to other than secular uses. The lower Courts have in my opinion rightly approached the matter from the point of view indicated in Rampat v. Durga Bharthi AIR 1920 Oudh 258, and on the materials in the case rightly come to the conclusion that the property in Schedule Ka is math property.

The Kha property was found by the learned Munsif to have been "presumably acquired" from the surplus left from the income of the math properties after meeting the expenses of the math. This finding was apparently endorsed by the lower appellate Court. The learned advocate for the appellants urges that the lower appellate Court was in error in starting with a presumption that the head of a math has no property other than math property, and if he has any personal property, it is only the offerings made to him and the property acquired from those offerings, and it is the duty of the man who tries to prove that a math property is a personal property of the Mahant, to prove that it is so. Now there is no question that the Mahant being not only a sanyasi but also a celibate has no family of his own at all. As he is free from worldly attachments, the presumption must be that what he holds or acquires is held and acquired on behalf of the math to which his life is entirely devoted. The presumption which I have quoted from the judgment of the learned Additional Subordinate Judge was actually referred to in connexion with the Ka property where we have the hibanama of 1892 to guide us in arriving at a conclusion as regards the non-secular character of the property.

But a presumption of the same kind would arise in respect of the property subsequently acquired by the celibate Mahant. In my opinion there is no error of law in the concurrent finding of the lower Courts regarding the non-secular character of the Kha property also.

The learned advocate for the appellants has finally urged that the mortgagor Baldeb Das not being shown to be dead, and the mortgage having been executed for acquiring property, appellants are entitled to stand on the mortgage during the lifetime of the mortgagor. This contention was not raised below by way of defence, and the suit was only intended to prevent the mortgagees |from selling the property in execution of their mortgage. The mortgage loan was not for the legal necessities of the math.

It may or may not be that the mortgagees are entitled to obtain satisfaction by proceeding against the mortgagor personally as in Niladri Sahu v. Chaturbhuj Das AIR 1926 PC 112, but that question does not properly arise in the present suit and at the present stage for the first time. The result is that this appeal fails and must be dismissed. I would make no order about costs.

James, J.

I agree.