JUDGMENT
1. Many of the facts which transpire in this case were before the Judicial Committee in a case [ENTITY] [ENTITY] Das v. [ENTITY] 56 IA 104 : 114 Ind. Cas. 571 : AIR 1929 PC 65 : 33 CWN 346 : 29 LW 428 : 49 CLJ 321 : 31 Bom. LR 715 : (1929) ALJ 414 : 56 MLJ 636 : (1929) MWN 427 (PC), and their Lordships' appreciation of them is very useful for the decision of this case.
2. In the town of [ENTITY] in the District of Midnapore, located in the Nayagunj quarter of the town, there is a famous Math of the [ENTITY] soot of Baishnavas. The earliest that is known of this religious and charitable foundation is that in 1810 when one [ENTITY] was the [ENTITY] of this institution, having succeeded one [ENTITY] in that office, and when one of the deities installed there was the idol [ENTITY], one [ENTITY] made a gift by a document addressed to him as "To the highly respected [ENTITY]." The document was dated Magh 16, 1247, and was registered on the 24th of that month corresponding to February 4, 1840. The deed purported to deal with certain lauded properties in Parganas Brahmanbhumi and Bagri which were described as the self-acquired properties of the donor and also certain other landed properties of which it was said that the donor had obtained them from his father-in-law one [ENTITY], then deceased; all the said properties being detailed in a schedule appended to it. It purported to make a gift of an 8 annas share of the said properties:
for the worship of [ENTITY] of [ENTITY] and of [ENTITY] who was to be installed in a temple which had been erected near his house (which upon the evidence appears to have been situate at Shamchandpur, a place about 14 miles distant from Chadrakona) and for the feeding of the mendicants and the poor.
3. And it was provided thus:
You shall, by holding possession of the aforesaid properties and declaring the same to belong to [ENTITY] and on payment of rents to the landlords of the rent paying properties out of the same go on managing down to your disciple, disciple's disciple and so on in succession, the sheba and worship of [ENTITY] and the feeding of Sadhus, chance guests and visitors thereof.
4. The deed shows that at. that date he kept for the family the other 8 annas share of the properties but provided that the same would be dedicated to the sheba and worship of the said two deities after the termination of the lives of himself, a widowed mother-in-law of his, his two wives and his daughter one [ENTITY].
5. The provision last mentioned was given effect toby [ENTITY], who apparently was the last of the family to die. She on Chaitra 3, 1277, ( = March 15, 1870) executed a deed of gift addressed to [ENTITY]," and describing him as "successor of the late [ENTITY], resident of [ENTITY], [ENTITY]," dedicating the other 8 annas share of the properties in terms similar to those contained in [ENTITY]'s deed of gift.
6. On Bhadra 27, 1285, B.S. ( = September 11, 1878) [ENTITY] made a will appointing [ENTITY], his disciple, to be his successor-in-office. Of this document the Judicial Committee has said:
The document is in the form of a letter attested by various witnesses and addressed to the appointee, and the appointment is per verba de presenti; but the document is described as a will and was registered as such, and the appointment was only to operate upon the date of the appointor. In this document [ENTITY] describes himself as the [ENTITY] of the well-known [ENTITY] wherein two known idols of [ENTITY] and [ENTITY] and other idols have been installed from the time of his predecessors and to which certain other [ENTITY] described in the schedule, and also in his possession, are said to be subordinate, of all of which he is owner and manager. Five [ENTITY] or houses are mentioned in the schedule.
7. In making the appointment he declared, I appoint you as the manager and [ENTITY] like me." The five subordinate [ENTITY] and the idols installed therein, as given in the schedule, were the following: (1) At Khirpore with [ENTITY]; Naraharipur with [ENTITY]; 35 A 459 : 20 Ind. Cas. 37. 11 ALJ 673 At [ENTITY] with [ENTITY] and [ENTITY] (said to have been installed by [ENTITY]); 48 IA 302 : 65 Ind. Cas. 161 : 44 M 831 : (1921) MWN 449 : 41 MLJ 346 : 3 UPLR (PC) 62 : 15 LW 78 : 30 MLT 66 : 3 PLT 245 : 26 CWN 537 : 24 Bom. LR 629 : 20 ALJ 497 : AIR 1922 PC 123(PC) At [ENTITY]; and (50; At Khajari with [ENTITY].
8. On the death of [ENTITY] which took place on Bhadra 30, 1285, B.S. (= September 14, 1877) [ENTITY] succeeded as the [ENTITY].
9. On Falgun 12, 1314, B.S. (= February 24, 1908), [ENTITY] made a will. Of this will the Judicial Committee has said:
The document is in the same form as that by which he himself was appointed, and must be deemed to be a will. In it he describes himself as the Gadinashin, [ENTITY] of the [ENTITY], and recites his own appointment and makes [ENTITY], Chief [ENTITY] and [ENTITY] and [ENTITY] like himself. To this document a schedule is appended in the same form as the schedule to the previous document containing the names and descriptions of the five [ENTITY].
10. This [ENTITY] will, for the sake of brevity be called [ENTITY], the name by which he used to go in order to distinguish him from another Govinda called [ENTITY], who was also a [ENTITY] of [ENTITY] and to whom, it appears [ENTITY] became considerably if not more attached later on. On August 2, 1918, [ENTITY] executed two other wills. The Judicial Committee has fixed their sequence, and the parties to the present suit do not claim to go behind that finding. The first of these two wills was addressed to [ENTITY]. The purport of this will has been given by the Judicial Committee in these words:
It recites that [ENTITY] (meaning [ENTITY]) is the object of his affection and his [ENTITY], but states that the appointor has also another disciple named [ENTITY] (meaning [ENTITY]), and that in the apprehension that in future there may not be good feeling between the two [ENTITY]s, after the appointor's death he is making a will according to the terms which follow. The will then purports to name [ENTITY] (meaning [ENTITY]) as [ENTITY] with the income of all the properties dedicated for the shebas of one of the minor [ENTITY], and in addition with two bighas of land taken from one of the other [ENTITY], and gives to him the ornaments of the idols of the bequeathed [ENTITY] and its other possessions to be enjoyed after the appointor's death by [ENTITY] (i. e. [ENTITY]), his [ENTITY]s and par-[ENTITY]s in succession. The will then purports to speak of the [ENTITY] (or greater) [ENTITY] as being the original Gadi of the former [ENTITY], and to require the appointee and his successors to pay one hundred rupees per year to this principal Gadi. The will does not in. terms say who is to be the [ENTITY] of the principal Math, but it obviously contemplates the appointment of [ENTITY] (i. e. [ENTITY]), because it goes to provide that if either of the two die before appointing a successor, the surviving [ENTITY] would take his place and become [ENTITY] of the whole.
11. For the purposes of the present case a few more words are necessary to be said in respect of this will. [ENTITY] and [ENTITY] and other idols located in Shamchandpur [ENTITY] were put in charge of [ENTITY], he being appointed [ENTITY] thereof. Two [ENTITY], one at Shamat and the other at [ENTITY], which did not find any mention in [ENTITY]'s will of 1908 or in [ENTITY]'s will of 1878 or anywhere else previously and so must be taken to have been established in [ENTITY]'s time, together with the idols located therein were made appurtenant to [ENTITY]. And all the properties which were covered by the gifts of [ENTITY] and his daughter [ENTITY] and some other property of one of the other subordinate [ENTITY] were allotted to [ENTITY] and all these properties and the ornaments and other possessions of the idols of the said [ENTITY] were formed into a distinct estate. And it was thus provided:
On my death you snail bring into your possession and occupation the whole of the estate including movable and immovable properties obtained by you together with gold and silver ornaments of the [ENTITY], their utensils, cut glass Jhars (chandeliers), lanterns, shawls, doshalas and the cash in hand, paddy, money advanced as loans in my own name or in benami, income from paddy lent on interest, and cattle, etc., and baris and houses, etc., of [ENTITY] as they have been in my ownership and possession and continue to possess and enjoy down to your [ENTITY]s in succession.
12. The second will was in form similar to that of the first. It was addressed to [ENTITY]. He is addressed therein as [ENTITY] '[ENTITY]', a description of him which is also to be found in the other will of the same day. It may be mentioned here that [ENTITY] in his will dated 1878 had described [ENTITY] as his "[ENTITY]'s disciple" and [ENTITY] in his turn in his earlier will of 1908 had described [ENTITY] also as his '[ENTITY]' disciple; and from this it is fairly clear that the practice amongst the [ENTITY] of the [ENTITY] was to treat the '[ENTITY]' (that is to say the disciple, food cooked by whom is taken by the [ENTITY]) as the object of preference in the matter of appointment as his successor. Of this second will the Judicial Committee has observed thus:
It recites that the appointor has the two [ENTITY]s and that he has executed a will to the effect that out of the properties which ho owns and possesses as [ENTITY] he has made over the two bighas of land and the properties appertaining to the particular minor [ENTITY] of [ENTITY] (i. e. [ENTITY]), and proceeds to bequeath all the rest of the properties of which he is possessed to [ENTITY] (i. e. [ENTITY]) appointing him [ENTITY] like himself, nominating him [ENTITY] of the [ENTITY] and providing that he should continue in possession down to his [ENTITY]s and par-[ENTITY]s in succession. The will further provides that [ENTITY] (i. e., [ENTITY]) shall for the benefit of the [ENTITY]s of the principal idols receive the sum of one hundred Rupees a year from the other [ENTITY], who is described, as he it) described in the other will, as the [ENTITY] of the particular idols appertaining to the minor [ENTITY]. The will concludes with a similar clause to that in the other will providing that in case either [ENTITY] dies without appointing a successor, the other [ENTITY] shall succeed.
13. In the schedule appended to this will in which the subordinate [ENTITY] were listed [ENTITY] or the idols installed therein found no mention.
14. [ENTITY] died on Bhadra 10, 1325, B. 3: ( August 27, 1918), and disputes then arose between the two nominees. An arrangement was, however, effected and embodied in two ekrarnamas both executed on Magh 15, 1326, (=January 29, 1919) "whereby the provisions of [ENTITY]'s two wills were recognised and each of the parties entered into possession of their respective offices "as conferred by the wills." [ENTITY] died on February 18, 1920, having by a will of that date, appointed [ENTITY], his successor.
15. On March 25, 1920, [ENTITY] instituted a suit [CASE NUMBER] against [ENTITY] and others for declaring himself [ENTITY] at the [ENTITY]. He took his stand upon his right to be the successor of [ENTITY] as the senior [ENTITY] of the latter and also upon the will of [ENTITY]. He attacked [ENTITY]'s wills of 1918 as having been brought about by fraud and undue influence and also on the ground of want on the part of [ENTITY] of a sound disposing mind. He assailed the two appointments made by the wills of 1918 as ultra vires and illegal, and said that "the Math consisting of the various [ENTITY] could not be divided." And he impugned the title of [ENTITY] on the ground that the alleged will of [ENTITY] dated February 18, 1920, was not genuine. As regards the ekrarnamas he pleaded that they could not affect his title to the office.
16. [ENTITY] filed a written statement in the suit repudiating the will of [ENTITY], and the right of [ENTITY] as [ENTITY]'s senior [ENTITY], and taking his stand upon the two wills of [ENTITY] and also pleading that the ekrarnamas created an estoppel as against [ENTITY]. He relied for his own title upon [ENTITY]'s will of February 19, 1920. And as regards the disposition made by the wills of 1918 he averred:
The said two [ENTITY] are not merely two names of the same Math. The [ENTITY] is the superior [ENTITY] and the [ENTITY] is the [ENTITY] subordinate to the [ENTITY]: and for this reason, by the [ENTITY] of [ENTITY] 17, 132,3, B.S, the late [ENTITY] nominated the late [ENTITY], [ENTITY] as the [ENTITY] of the [ENTITY]. And the late [ENTITY] who held the office of the [ENTITY] for a long time fully realised that it was difficult for one man to carry on satisfactorily the [ENTITY] of the two [ENTITY] and as a result of his experience, though he nominated the late [ENTITY] to be the [ENTITY] of the [ENTITY], i. e., of the [ENTITY], yet he, for the convenience of [ENTITY], nominated the plaintiff to be the [ENTITY] of the [ENTITY] which is subordinate to the [ENTITY]. And as a mark of subordination of the [ENTITY] and of the [ENTITY] of that [ENTITY], under the [ENTITY] and its [ENTITY], it was directed that the plaintiff would, out of the income of the [ENTITY] properties appertaining to the [ENTITY], i.e., the properties described in the [ENTITY] made in his favour on Sratan 17, 1325 B.S. pay Rs. 100 annually to the [ENTITY] of the [ENTITY]. Under the circumstances the plaintiff being the dependent [ENTITY], has no cause or right to bring the present suit. There is no custom or practice in vogue that there cannot be two [ENTITY]s at one and the same time. The plaintiff was not and cannot be appointed the [ENTITY] on the basis of the [ENTITY] of 1314. B.S. The plaintiff is not the chief [ENTITY]. Admitting for argument's sake that the appointment of more than one [ENTITY] is invalid, the plaintiff having been appointed a dependent [ENTITY], his appointment is invalid. The plaintiff is bound to vacate the [ENTITY] and to relinquish possession of the Debut-tar properties, etc., in favour of the defendant No. 1. The [ENTITY] and the [ENTITY] do not appertain to the same Math. Only, the charge of looking after the properties and the [ENTITY] of those two [ENTITY] was formerly entrusted to one [ENTITY]. The statement that the two [ENTITY] of 1325 B.S. are not binding upon the plaintiff is untrue. It being disclosed that out of the said two [ENTITY] the plaintiff derived title on the basis of one executed in his favour, he has no right to impeach the said two deeds.
17. The Subordinate Judge dismissed the suit on November 27, 1922, but the High Court reversed his decision by a judgment dated February 27, 1925, reported in [ENTITY] v. [ENTITY] . [ENTITY] preferred an appeal to the Privy Council. While that appeal was pending [ENTITY] was arrested on a charge of rape on August 27,1928. On Aswin 23,1335 ( = October 9,1928), when [ENTITY] was out on bail in connection with the said charge, he appointed one [ENTITY] as [ENTITY] alter him for the [ENTITY] and all subordinate [ENTITY] including the [ENTITY] at [ENTITY] with full powers of control and management of all Debutter properties and the shebas and Pujas, etc., On December 17, 1928, the decision of the Judicial Committee was pronounced restoring the decision of the Subordinate Judge. [ENTITY], soon after, took possession of his office as [ENTITY] at the [ENTITY]. Thereafter [ENTITY] was convicted of rape and sentenced by the trial Court to a year's rigorous imprisonment, which on an appeal preferred to this Court was enhanced to rigorous imprisonment for seven years. On August 9, 1929, [ENTITY] instituted the present suit against [ENTITY] as the defendant No. 1 and [ENTITY] as the defendant No. 2.
18. The plaintiff, in his plaint, described himself as [ENTITY], [ENTITY] and Paricharak of deities [ENTITY] and [ENTITY]. After setting out the known history of the Math and the [ENTITY] right down to the decision of the Judicial Committee in [ENTITY]'s suit against himself, he challenged the appointments and divisions made by [ENTITY] in his wills of 1918 stating in para. 12 of the plaint:
the office of a [ENTITY] or [ENTITY] of the Math is not divisible and the [ENTITY] appertaining to the Math are also not divisible. [ENTITY] had no right to give away properties belonging to one [ENTITY] to another or properties belonging to two [ENTITY] to one [ENTITY] exclusively.
19. He relied upon the right of [ENTITY] as successor to the office of [ENTITY] of the [ENTITY] and asserted that all reservations of that right which [ENTITY] had made by his wills of 1918 were invalid and that the appointment of defendant No. 1 as [ENTITY] in respect of some of the properties belonging to the Math was such a reservation and so was invalid. He challenged the disposition of properties made by [ENTITY] in favour of the [ENTITY] subject to payment of Rs. 100 by the [ENTITY] of that [ENTITY] to the [ENTITY] of Nayagunj as an alienation in the nature of a perpetual lease at a fixed rental and so beyond the competence of the [ENTITY]. He alleged that his written statement in [CASE NUMBER] was filed at a time when he was not aware of all the circumstances and usages connected with the endowments as he had then come into office as [ENTITY] quite recently. He averred that even if the [ENTITY] appertaining to the Math be held to be separate they have always, according to the customs and usages of the Math, been held and presided over by one and the same [ENTITY], and that more than one [ENTITY] can never be appointed in respect of them. He challenged the right of the defendant No. 1 to continue in office as [ENTITY] of [ENTITY] on the ground of his character. He assailed the fact of the appointment of the defendant No. 2 by the defendant No. 1 as his successor and also his fitness for the office. On these allegations he averred in para. 19 of the plaint.
That the provision contained in the will of [ENTITY] that the [ENTITY] of defendant No. 1 is to succeed him at [ENTITY] and the similar provision made in the ekrarnama executed by [ENTITY] are void and of no effect. Hence even if defendant No. 2 be found to be a [ENTITY] of defendant No. 1 he is not entitled to succeed him at [ENTITY] as [ENTITY], thus perpetuating an illegal division.
20. Of the prayers in the plaint the one that requires mention is the prayer for a declaration of the plaintiff's right and title to the properties in the schedule and a declaration that the defendants had no right therein and for khas possession thereof. The properties in the schedule are the temples, as well as the deities of the [ENTITY] including the two [ENTITY] at [ENTITY] and [ENTITY] and all properties, movable and immovable, which belonged to those [ENTITY] and deities.
21. Two written statements were filed, one by the defendant No. 1 and the other by the defendant No. 2, both challenging the plaintiff's right to succeed in the suit. The issue which arose upon the pleadings and will be dealt with presently will give sufficient idea as regards the defences that were taken. The Subordinate Judge having decreed the suit except as regards a few items of properties, the defendants have preferred this appeal.
22. The arguments addressed to us may be conveniently dealt with, taking the issues one by one, and we propose to adopt that course.
Issue No. 1. Is the sanction of the Advocate-General or the Collector necessary to bring this suit ? If so, is the suit bad for want of the said sanction ?
23. The suit is not of the character contemplated by [SECTION] of the [ACT]. The plaintiff has come into Court alleging that he is the [ENTITY] of the [ENTITY] at Nayagunj, rightly appointed to that office and that he, as [ENTITY] of the three deities named in the cause title to the plaint, is entitled to the properties and asking to be put into possession of them as such [ENTITY] and [ENTITY]. No prayer for the removal of the defendents or any of them was made, and on the frame of the suit no such prayer was necessary. To such a suit [SECTION] of the Code has no application ; and so the issue, in our opinion, has been rightly answered in the negative; [PRECEDENT].
Issue No. 2. Not pressed.
Issue No 3. Estoppel. Estoppel is said to arise in two ways : firstly by reason of the plaintiff's written statement in [CASE NUMBER] ; and secondly, by reason of the [ACT] which [ENTITY] executed in favour of the defendant No. 1. The statements which are contained in the written statement and to which reference has already been made in detail by quoting an extract from para. 17 thereof are admissions but create no estoppel. The admissions, in our opinion, have been sufficiently explained. As regards the ekrarnama, the learned Judge was of opinion that the position of [ENTITY], or of [ENTITY] or of the plaintiff was that of a manager on behalf of the deities and as such, the plaintiff, though he came in on the strength of his own appointment as [ENTITY], by [ENTITY], does not in fact, claim through [ENTITY] as in the case of inheritance and that, therefore, he cannot be bound by the ekrarnama by which [ENTITY] would be bound. The question of estoppel on the ground of the ekrarnamas was raised as an issue in [CASE NUMBER], and the High Court has held that no estoppel was effected by the compromise expressed by the ekrarnamas. Their Lordships of the Judicial Committee, on that question, observed thus:
With regard to the defence, which is founded upon the ekrarnamas the reasoning of the learned Judges in the High Court is not easy to follow. When two parties enter into an agreement whether it be of compromise or in some other respect each procures the advantage of the agreement from the other, and no further advantage need be, looked to for support of the agreement. As far as the two parties to the agreement are concerned, each obtained for himself the benefit of an unquestioned title and prevented him from the other's title to the respective office and the present defendant as privy in estate with [ENTITY] would appear to be equally entitled to take advantage of the agreement. It might be, however, that owing to the form of this particular suit the agreement would not constitute a defence because in form it is not a suit brought by [ENTITY], but by the two idols acting through him as their alleged [ENTITY], an idol being a juridical entity in Indian Law see [PRECEDENT]. Hit was necessary to pursue this matter it would be proper to enquire whether [ENTITY] could by claiming to use the name of the idols as plaintiffs prejudge and preclude any issue which would bear upon the question of his title to be [ENTITY]. But in their Lordships' opinion the defendant can succeed upon the other grounds.
24. Upon these observations of their Lordships it seems to us clear that on the question of the respective offices of the two parties, as created by [ENTITY]'s two wills of 1918 and as evidenced by the compromise expressed in the ekrarnamas there was an estoppel created as against [ENTITY] on the one hand and [ENTITY] on the other. So far as the office was concerned, there was a privity of estate between [ENTITY] and the plaintiff. It was, therefore, that their Lordships said in the passage quoted above that 'the present defendant (meaning [ENTITY]) as privy in estate with [ENTITY] would appear to be equally entitled to take advantage of the agreement'. And their Lordships further suggested that [ENTITY] by having a suit instituted by the idols through himself as the holder of the office of [ENTITY] could not prejudice and preclude any issue which would bear upon the question of his title to be [ENTITY]. In other words, if he was estopped from claiming that office for himself, he could not get over that estoppel and have it assumed that he was [ENTITY] by having a suit instituted by the idols through himself as [ENTITY]. Estoppel is reciprocal; and so the plaintiff if he stood in need of a declaration that the defendant No. 1 is not the holder of the office which [ENTITY] purported to confer on him by the wills of 1918 would have been similarly estopped. But here the plaintiff is relying upon his own title as lawfully created [ENTITY] of the [ENTITY] at Nayagunj, a title which can no longer be disputed. His case is that in that capacity he is the [ENTITY] of three deities. He has got this suit instituted by himself but as such [ENTITY] and [ENTITY] as aforesaid. The right of suit vests not in the deities but in the [ENTITY]: [PRECEDENT]. LR 765 : 1 [CASE NUMBER] (PC). It makes no difference whether the idol sues as represented by the [ENTITY] or the [ENTITY] sues as [ENTITY] of the idol; the substance of the claim is the thing to be regarded. [Radha Binode Mandal v. Gopal Jiu [ENTITY] . To raise an estoppel as regards the reliefs claimed in the suit, having regard to the nature of the reliefs asked for, such estoppel must be one operative against the deities themselves. But we do not see that there can be any such estoppel.
Issue No. 5 Res judicata. We do not see how any such issue can arise at all. The only claim in the previous suit was a claim to the [ENTITY] of the [ENTITY] at Nayagunj and the present plaintiff had. only to defend himself against that claim. He did not, as indeed he was not bound to, put forward any claim to the properties appurtenant to that [ENTITY] or to his office as [ENTITY] or as belonging to the deities whose names are to be found in the cause-title to the plaint.
Issues Nos. 4 and 7 Plaintiff's right and title to [ENTITY]ship of [ENTITY] His right and title to the disputed properties His locus standi to institute this suit.
25. A flood of light is thrown on these issues by the evidence which the defendant No. 1 himself gave in [CASE NUMBER]. He said there:
The two [ENTITY] named before (meaning the [ENTITY] of Nayagunj in [ENTITY] and the [ENTITY]) are not independent, they are branches of one [ENTITY]. [ENTITY] is not subordinate to [ENTITY] there is no usage that at the same time there may be two [ENTITY]i of these two [ENTITY]. There is no usage that a [ENTITY] can divide Debuttar proper-lies between two or more [ENTITY]s. More than one [ENTITY] was not appointed at the same time in [ENTITY].
26. The learned Judge has rightly observed that there is no special significance in the word 'Paricharak' which is used in same of the documents which are to be found in this case, the word literally meaning a servitor, that is to say, of the deities and that every [ENTITY] in his capacity as [ENTITY] is a [ENTITY]. And the expression [ENTITY] as used in the documents that are in this case has a special significance indicating a superiority due to his petition as the head of the original foundation the [ENTITY] at Nayagunj ([ENTITY] will of 1878; [ENTITY]'s will of 1908. [ENTITY]'s will of 1918 in favour of [ENTITY] ; [ENTITY]'s will of 1918 in favour of [ENTITY] in which the expression '[ENTITY]' is used with reference to [ENTITY], evidently with the object of implying a distinction in the way of some sort of inferiority; [ENTITY]'s deed of appointment of 1920 in favour of the plaintiff wherein the latter is appointed a 'Paricharak). The principal [ENTITY] known as the [ENTITY] or the [ENTITY] Math is a Maurashi Math of the [ENTITY] sect of the Baishnavas. There is no question that the [ENTITY]-ship of this Math devolves upon the chief [ENTITY] nominated as successor by the outgoing [ENTITY]. The subordinate position occupied by the [ENTITY] and (?) [ENTITY] to the [ENTITY] at Nayagunj cannot be disputed having regard not merely to the oral evidence that is there in the case, but such evidence as is afforded by the express terms contained in [ENTITY]'s will of 1878, [ENTITY]'s will of 1908 and his last two wills of 1918 and the provision as to payment of Rs. 100 annually that is contained in the said last two wills of [ENTITY]. It is, therefore, reasonably clear that prima facie the [ENTITY] of the [ENTITY] such as the plaintiff himself is, would be competent to represent any of the deities, which are installed therein or in the [ENTITY] subordinate to it, in any suit which he may choose to bring as such [ENTITY] and as [ENTITY] in respect of any of them. His right as such [ENTITY] and [ENTITY] stands supreme, unless of course there is a counter title in his way precluding him from exercising such right. The learned Judge was, therefore, in our opinion right in holding that:
Plaintiff as [ENTITY] at Nayagunj has automatically seisin of all the properties either attached to [ENTITY] or Candrakona, and as such, he has right as [ENTITY] to claim title and possession in all such properties.
27. There is no question that there was a cause of action by reason of the defendant No. 2 having resisted the plaintiff's attempts to recover possession of the [ENTITY] and the other [ENTITY] and the properties allocated thereto by [ENTITY]'s will of 1918 in favour of [ENTITY] and of the plaintiff being kept out of possession in consequence of such resistance. In such circumstances the suit as framed was maintainable.
28. The dispositions made by [ENTITY] in his will of 1918, the validity of which has to be considered in the present case, are of a threefold character: Creation of a separate [ENTITY]ship for the [ENTITY]; 2nd, division of properties; and! 3rd, severance of the two Maths, viz., [ENTITY] and [ENTITY], from the [ENTITY] at Nayagunj and their attachment to the [ENTITY].
29. Now, in order to consider the first two of these matters, it is very necessary to examine the terms and conditions of [ENTITY]'s grant and the grant made by his daughter [ENTITY] which was on similar lines to that of her father. By these grants the properties gifted were dedicated to the sheba and worship of [ENTITY], who was one of the deities of the [ENTITY] and of [ENTITY] to be installed in the [ENTITY], and the duty of performing the sheba and worship of the said idol was entrusted to [ENTITY] and his disciple and disciple's disciple and so on in succession. The grantors had no authority to make any change in the [ENTITY]ship of [ENTITY] of [ENTITY]. Consequently the intention of the grantors must have been that the successors of [ENTITY], who would be the [ENTITY] of the [ENTITY] would also be [ENTITY]s, in succession, in respect of the idol [ENTITY]. When the idol. [ENTITY] was installed in the [ENTITY] at [ENTITY] by [ENTITY], the [ENTITY]ship of the idol, too, must have been similarly intended; for there was no direction to the contrary. In such circumstances, we think it may be reasonably held that the condition under which the grants were received and the [ENTITY] at [ENTITY] came into being was that the line of [ENTITY]ship of the [ENTITY] at Shyamchandptir would be the same as that of the [ENTITY]; in other words, that the [ENTITY] and [ENTITY] of the [ENTITY] would also be the [ENTITY] of the idols at the [ENTITY]. That indeed was the disposal made by [ENTITY] in his will of 1908 by which he had appointed [ENTITY] as the [ENTITY] "like himself. By the wills of 1918 [ENTITY] appointed [ENTITY] as the [ENTITY] 'like himself and also appointed [ENTITY] as [ENTITY] of the [ENTITY] making it perfectly clear, as has been already explained, that the [ENTITY] was subordinate to the [ENTITY].
30. A very important judgment describing the different classes of Maths or [ENTITY] and the rights and office of the [ENTITY] is that of the Judicial Committee in the case of [ENTITY] v. Anand Das 43 C. 707 : 33 Ind. Cas. 583 : 20 CWN 802 : 14 ALJ 621 : (1916) 1 MWN 406 : 31 MLJ 1 : 18 Bom.LR 490 : 3 LW 556 : 24 CLJ 116 : 20 MLT 267 : 43 IA 73 (PC). It has been said in that case that it is the rule that properties endowed to a Math or [ENTITY] is held by the [ENTITY] as its owner, and the succession to him in such property follows with the succession to the office; that the nature of the ownership is an ownership in trust for the Math or institution itself; and that it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning [ENTITY], this trust does exist and that it must be respected. The [ENTITY] is a class of Maths known as Maurashi, the office of the Chief [ENTITY] being hereditary and devolving upon the Chief disciple of the existing [ENTITY], who, however, usually nominates him as his successor. The supreme head of the institution is the [ENTITY] who, as the evidence indicates, must be celebate, and presumably a Baishnav of the [ENTITY] sect, the Math itself being one of that particular sect. All authorities point to the supreme head of a Math being a single person: [See [PRECEDENT] at p. 179 Vidyapurna Thirth aswami v. Vidy anidhi Thirthaswami 27 M 435 at pp. 439, 457 ], though there may in some cases be a Chief or presiding [ENTITY] and also other [ENTITY]s of lesser grade [See [ENTITY] [ENTITY] Das v. Debraj Das 6 SDA Rep. 262 at p. 268, cited in [ENTITY]' case 43 C. 707 : 33 Ind. Cas. 583 : 20 CWN 802 : 14 ALJ 621 : (1916) 1 MWN 406 : 31 MLJ 1 : 18 Bom.LR 490 : 3 LW 556 : 24 CLJ 116 : 20 MLT 267 : 43 IA 73 (PC), supra]. It is not at all clear that [ENTITY]'s intention was to effect, a division of the [ENTITY]ship of the [ENTITY]; on the other hand, by appointing [ENTITY] as [ENTITY], it is possible that he intended to create a subordinate Mahanship in his favour. That the [ENTITY]ship created in favour of [ENTITY] was a minor [ENTITY]ship was assumed by the Judicial Committee also in the previous litigation. Subordinate [ENTITY] may have and do often have each a [ENTITY] of its own at his (its ?) head. An original foundation with a [ENTITY] exercising jurisdiction over a subordinate [ENTITY] or Math with a [ENTITY] of its own is not unoften found with relations existing between them in respect of proprietary rights to their respective possession depending upon their respective constitutions [See [PRECEDENT], [PRECEDENT]]. Similarly as regards the [ENTITY]ship of the idols, it is not; clear that the rights of [ENTITY]ship were relinquished or that anything more than a delegation of the ministerial duties of the [ENTITY] was made in favour of [ENTITY] with a direction that he would continue to possess and enjoy the properties down to his disciples in succession, on performing those duties. And such an arrangement would be sufficiently justified on the ground of convenience, the [ENTITY] being situated 14 miles apart. [ENTITY], J. in the case of [PRECEDENT], on a consideration of the authorities bearing on the point, has laid down that the [ENTITY] of a Math, unless there is a custom to the contrary, cannot ordinarily transfer the right of management vested in him even though such transfer is coupled with an obligation to manage in conformity with the trust annexed thereto. It is, however, not impossible to read the dispositions as amounting only to a transfer of the management and not to a transfer of the right of management. Moreover, as regards these offices that were created, upon the view which their Lordships of the Judicial Committee have expressed the ekrarnamas of 1919 would afford to a bar to the plaintiff's challenge, the interest involved being one purely personal to the plaintiff.
31. The dispositions made in respect of the properties amount to a matter far more serious. By them properties dedicated to the worship of [ENTITY] of the [ENTITY] and of [ENTITY] (possibly also of [ENTITY] installed by [ENTITY]) were transferred to the [ENTITY], in deprivation of [ENTITY] and to be applied to the sheba and worship of the deities [ENTITY] and [ENTITY] and the other [ENTITY]s at [ENTITY] and also other [ENTITY]s in village [ENTITY]. Transference of properties held in trust for the Math or institution in this way, the effect of which is to deprive some beneficiary intended by the trust and to benefit some other beneficiary which the trust never contemplated is clearly outside the powers of the [ENTITY]. This diversion, which is indefensible on principle, has been sought to be justified on several grounds. It has been urged in the first place that the arrangement that was made by these dispositions was not a new arrangement but one which existed from before. This ground is baseless for all that the evidence makes out is that there was a collection centre at [ENTITY] from which the rants of these properties, which were now made into a separate estate, used to be collected. That arrangement in its nature was very different from what was now made. It has next been argued that the disposition were not injurious to the foundation. But we do not see how that can be truly said, seeing that [ENTITY] was entirely deprived of the benefit of the trust and the benefit that was meant for other idols was certainly reduced. Lastly it has been contended that the dispositions should be supported on the ground of convenience. We are not prepared to accede to this contention. Of necessity or convenience there was no suggestion in the wills, which recited the reasons for the disposition in very different terms. It was said in them that the reason was that it was apprehended that there may not be good feeling between the two Gobindas and so as a means of preventing disputes between them in future the dispositions were being made. The Judicial Committee has observed:
There is no direct authority as to the power of the [ENTITY] who has a number of separate [ENTITY], which by usage have all been held by one man, to provide for their division between his successors, or to saddle the property of one or more of the component [ENTITY] with a reservation in favour of the others. All that can be safely said is that, as the essence of the law governing these Maths lies in the following of custom or usage [See [PRECEDENT], already cited], prima facie such a separation would be improper, unless there were special circumstances justifying it. But their Lordships desire to be understood as expressing no determination upon the point as in their view it is unnecessary.
32. No custom justifying the course adopted has been set up, or attempted to be proved. The arrangement was not for a time but was to operate for all times. And all that [ENTITY] could receive in lieu of the properties thus taken away was the benefit arising out of the one hundred rupees per year which was made payable to the [ENTITY] at Nayagunj by the [ENTITY] at [ENTITY]. The essence of an arrangement of this character is a permanent alienation for a fixed amount payable yearly, and so it is very much like the granting of a permanent Mokurari lease of debuttar property which is outside the powers of the [ENTITY].
33. The detachment made of the [ENTITY] at [ENTITY] and [ENTITY] from the control of the [ENTITY] of the [ENTITY] and amalgamating them with the [ENTITY] was something more than an arrangement made for convenience of administrations. The properties and possessions of these [ENTITY] were made available to the expenses of the [ENTITY] as a whole, and if the benefits which the [ENTITY] derived from these to subordinate [ENTITY] or the control which it exercised over them was withdrawn as prima facie was the result these dispositions also were improper.
Issue No. 8. Character of the defendant No. 1 and his dealings as [ENTITY].
34. We agree with the learned Judge in holding that the specific allegations made against him as regards his moral character have not been established. The judgment in the criminal case, on which the learned Judge has relied, only established the fact that he was convicted of the charge. Whether in such circumstances the defendant No. 1 is fit to hold the office of [ENTITY] is not a question which is really pertinent to this case in which his removal has not been asked for Issue No. 9. Right of the defendant No. 2 as [ENTITY] of the defendant No. 1 His right to succeed to the defendant No. 1. His dealings with debutter property.
35. The learned Judge has held, contrary to the plaintiff's case on the point, that it is not necessary that a [ENTITY] of a Math of the present description should be a [ENTITY], and that even if a man renounces his family ties after his marriage and embraces [ENTITY], he may be fit to be appointed to that office. With this conclusion we are in agreement having regard to the materials that we have before us. But the learned Judge has also found that the defendant No. 2 is a [ENTITY] and is an unmarried man. And as we also agree in this finding we must hold that the plaintiff has failed to show that the defendant No. 2 is precluded from being appointed [ENTITY]. The conduct of the defendant No. 2 in connection with the charge made against him for misappropriating the ornaments of the idols and usufructs of debuttar properties is a matter which is not quite relevant for the purposes of this suit, no prayer for his removal having been made. We do not affirm the findings which the learned Judge has arrived at this question, as in our opinion an investigation into this matter is wholly unnecessary here. The two questions that really arise for consideration on this part of the case are: 1st, whether the defendant No. 2 had been admitted as a [ENTITY] of his by the defendant No. 1 ; and 2nd, whether by reason of his conviction in the criminal case referred to above the defendant No. 1 was incompetent to appoint the defendant No. 2 as his successor. On the first of these questions the case put forward on behalf of the defendants is that the defendant No. 1 had a [ENTITY] named [ENTITY] who died and after his death he initiated the defendant No. 2 with the necessary ceremonies into his Ghelaship. We have been taken through the oral evidence of the witnesses who have spoken about this initiation, but we are not, just as the Court below was not, satisfied that this evidence is really trustworthy. There is a statement a very clear and deliberate statement, which is to be found in the deposition of the defendant No. 1 himself in [CASE NUMBER]. This deposition was given in July 1922, which was after Ghaitra 1327, and there the defendant No. 1 said:
I have no [ENTITY], (adds) I have kept a man for making him [ENTITY] * * On the occasion of initiation of a [ENTITY], Homa is performed, [ENTITY] is worshipped, panchosunskar is done. Baojis remain there to play music.
36. He knew perfectly well what had to be done for the initiation of a [ENTITY] and if any of these things was actually done, the matter would have on that day been quite fresh in his mind. It is quite true that it would have been better if the attention of the defendant No. 1 had been drawn to this previous statement of his. when he was deposing in the present suit, in the manner laid down in [SECTION] of the [ACT]. But even though that course was not adopted, we think this previous statement entirely discredits his present story on the point. On the evidence, such as it is, we are unable to hold that it has been established that the defendant No. 2 had been duly and properly taken by the defendant No. 1 as a [ENTITY]. As regards the second question, we have not been shown any authority that a conviction in a criminal case incapacitates a person from making an appointment of his successor. The right of nomination being a right appurtenant of the office, the right would, in our opinion, subsist so long as the office continues.
Issue No. 6. Limitation.
37. This suit was instituted within twelve years of the death of [ENTITY], which is the earliest point of time at which the adverse possession of the defendant No 1 could have commenced to run as against the [ENTITY] of the [ENTITY] or against any of the idols represented by him. The suit, therefore, is not barred on the principle of the decision of the Judicial Committee in the case of [PRECEDENT]. No shorter period of limitation, in our opinion, will apply to the case. [SECTION] of the [ACT] relates to a suit for possession of a hereditary office, which is not the kind of office concerned in the present suit. Nor would [SECTION] have any application, because the plaintiff does not want any relief in any other shape than a recovery of possession of the properties in his capacity as [ENTITY] of the Nayagunj Math and as [ENTITY] of the deities named in the cause title to the plaint. The nature of the present suit and the cause of action on which it is founded are very different from those in which a person has to be ousted from his office before possession can be asked for as against him. See [PRECEDENT] . In the present case the reliefs that are asked for are on the basis of the plaintiff's own title as [ENTITY] of the Nayagunj Math and as [ENTITY] of the deities whom he purports to represent as plaintiff. The question of the validity of the office which the defendants hold no doubt arises in the suit, but only as a defence to the action and incidentally.
Issues No. 10 Reliefs.
38. The only question that arises on this issue at the present stage relates to some of the properties in respect of which it is urgent that the plaintiff has not proved that they are debuttar- properties. The Subordinate Judge has held that they are debuttar properties on following reasoning:
Ordinarily plaintiff who claimed the properties ought to have shown whether the properties are debuttar, but here the properties are in possession of the [ENTITY] in his capacity as such along with other debuttar properties and it is admitted that in respect of one of the properties there was a mortgage as [ENTITY]. So it is for the [ENTITY] to prove if there are any properties otherwise than debuttar, i. e. his personal properties. The defendant says that he has private, Rokars but these are not produced. I must, therefore, say that it has not been made out that any of them is property of the defendant No. 1 [ENTITY].
39. This reasoning is open to objection, because there is no presumption in law that if a [ENTITY] holds any property it is prima facie debuttar property. The plaintiff in such a case, just as much in any other case, has the burden on him of establishing that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sued. It appears, however, that a prima facie case as regards the debuttar character of the properties as appertaining to the [ENTITY] was made out by the plaintiff's witness No. 1 [ENTITY], and that that case has not been rebutted on behalf of the defendants by any evidence, oral or documentary. In such circumstances the decree in respect of the properties is, in our opinion, sufficiently justified.
40. The appeal in our judgment fails and must be dismissed with costs.