Case: Biram Prakash &amp; Others Vs. Narendra Dass &amp; Others

1. This appeal is brought by special leave on behalf of the plaintiffs from the judgment and decree of the High Court of Allahabad dated November 13, 1959, dismissing First Appeal No. 342 of 1948 arising out of the judgment and decree of the Civil Judge of Saharanpur, dated September 6, 1948, in Suit No. 64 of 1945.2. This suit was brought by the appellants as representing the Udasi sect under O. 1, R. 8 of the Civil Procedure Code in respect of the Dharamshala at Hardwar containing the Samadhi of Baba Bakhat Mal, founder of the Gaddi Shanter Shah which is located in Roorkee Teshil of Sahranpur District. The appellants prayed for a declaration that the Dharamshala was a wakf property and not transferable and that the sale deed dated June 14, 1945 executed by respondents 1 and 2 in favour of respondents 3 and 4 was illegal and inoperative. It was alleged by the appellants that the Dharamshala was not part of the Gaddi Shanter Shah but was a separate endowment and the Mahant of Gaddi Shanter Shah had no right to alienate practically the entire dharamshala and destroy the substratum of that endowment. It was stated that respondents 1 and 2 executed the sale deed to set aside the auction sale of a major part of the Dharamshala in satisfaction of a mortgage decree in Suit No. 66 of 1935 obtained by Panchayati Akhara Kaian Kankhal on the basis of a mortgage deed dated June 1, 1933 executed by Mahant Saheb Dass. It was also alleged that the mortgage deed to enforce which the decree was passed was not executed by Mahant Saheb Dass for legal necessity and the transaction was not binding on succeeding Mahants. The suit was contested by the respondents on the ground that the Dharamashala at Hardwar was part of the Gaddi Shanter Shah and the mortgage deed executed by Saheb Dass dated June 1, 933 was supported by pressing legal necessity and the sale deed executed in favour of respondents 3 and 4 on June 14. 1945 was binding upon the Gaddi of Shanter Shah. It was stated on behalf of the respondents that the decree in the mortgage suit being Suit No. 66 of 1935 created a binding debt against the Gaddi Shanter Shah and that the impugned sale deed was executed in order to save the whole of the Dharamshala from passing out of the hands of the Mahant of Gaddi Shanter Shah and the impugned alienation was of a protective character and was for the benefit of the estate of the Mahant of Shanter Shah. It was alleged on behalf of the respondents that the Samadhi of Baba Bakhat Mal and a substantial portion of the Dharamshala had been excluded from the sale deed dated June 14, 1945. It was further alleged that the suit was barred by res judicata in view of the compromise in Suit No. 3 of 1943.3. Upon these rival contentions the Civil Judge of Saharanpur held that the Dharamshala at Hardwar was not a separate endowment but was part and parcel of Gaddi Shanter Shah. The Civil Judge also held that the sale deed dated June 14, 1945 was legally valid as it was executed to discharge the decretal obligation created by the decree in suit No. 66 of 1935 and that the sale transaction was of a defensive character and was beneficial to the estate of the Gaddi Shanter Shah. It was accordingly held by the Civil Judge that the sale deed dated June 14, 1945 was executed for legal necessity and for adequate consideration. The Civil Judge also found that the suit was barred by S. 11 of the Civil Procedure Code on account of the Compromise decree in suit No. 3 of the 1943. The Civil Judge accordingly dismissed the suit. Against the judgment and decree of the Civil Judge the plaintiffs preferred First Appeal No. 342 of 1948 in the Allahabad High Court which dismissed the appeal by its judgment and decree dated November 13, 1959. The High Court confirmed the finding of the Civil Judge that the Dharamshala was not a separate endowment but was part and parcel of the Gaddi Shanter Shah. The High Court also took the view that the sale deed of June 14, 1945 was justified by legal necessity and was, therefore, legally valid. The High Court, however, differed from the trial Court on the question of res judicata and held that the decision in suit No. 3 of 1943 did not operate as res judicata in the present suit

Reasoning: We do not think there is any warrant for accepting this argument.Both the lower courts have concurrently found that the Dharamshala at Hardwar was not independent of the endowment of Gaddi Shanter Shah but that it was only a part of the property of the Mahant of Shanter Shah. In our opinion, the finding of the lower courts is supported by adequate evidence. It is the admitted position that Baba Bakhat Mal was the founder of Gaddi Shanter Shah which was a Math intended for the initiation of disciples into the mysteries of the Udasi cult and for imparting spiritual knowledge of the Udasi cult. Exhibit 14 is a copy of a proceeding under Act II of 1819 and Act III ofview of this evidence we are of opinion that both the lower courts have rightly found that the Dharamshala at Hardwar was not a separate endowment but was a part and parcel of the Gaddi Shanter Shah. We are of the opinion that Mr. Purshottam Tricumdas has been unable to make good his submission on this aspect of theappears that Mahant Pooran Das resigned the Gaddi of Shanter Shah and Narendra Das was installed as Mahant in his place. In the interest of the Gaddi Mahant Narendra Das appointed a committee of trustees to advise him in the management of the affairs of the trust. The committee of trustees was appointed in pursuance of an agreement dated July 27, 1944. The committee consisted of eight leading Mahants of the Udasi sect and the committee was constituted to safeguard the interest of the trust and to place the management of its affairs on a satisfactory hasis. After the High Courts order dated April 30, 1945 efforts were made by Mahant Narendra Das and the committee of trustees appointed by him to persuade the Akhara to take a smaller portion of the Dharamshala for the same amount, but their afforts were fruitless. The committee of trustees and Mahant Narendra Das had meetings on April 15, 1945 and April 30, 1945 to consider the matter. After the Akhara refused the offer of the committee of trustees, respondents 3 and 4 were approached by the committee and were persuaded to take a much smaller portion of the building of Dharamshala for the same amount. It was in these circumstances that respondents1 and 2 executed the sale deed on June 14, 1945 in favour of respondents 3 and 4 for the portion of the Dharamshala mentioned in that document for a consideration of Rs.very object of a Math is to maintain a competent line of religious teachers for propagating and disseminating the religious doctrines of a particular order or sect. In the eye of law there cannot be a Math without a lawfully appointed Mathadhipati as its spiritual head. For the proper functioning of a Math, it is also essential that the rightful Mahant should be in control and possession of the property belonging to the Math. Where, therefore, a lawful Mathadhipati is kept out of the possession of the endowed property by a trespasser asserting a hostile claim, there is a hostile title asserted in the litigation against the Math itself. In the litigation in suit No. 135 of 1915 filed by Sital Das the expenses incurred by the mahant must therefore be held to have been incurred in repelling a hostile attack on the trust property.Similarly, in suit No. 70 of 1925 filed by Anand Prakash against Saheb Das which was decided in favour of the latter, the expenses incurred by Mahant Saheb Das must be held to have been incurred in repelling a hostile attack on the trust property. This conclusion is also borne out by the circumstance that none of the succeeding Mahants challenged the validity of the mortgage transaction and by the other circumstance that the Akhara being the high command of the Udasi sect proceeded on the basis that the cost of the litigation was a legitimate charge on the Mathare accordingly of opinion that the mortgage deed dated June 1, 1933 executed by Saheb Das is supported by legal necessity. It is equally manifest that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 executed to satisfy the mortgage decree obtained by the Akhara is supported by legal necessity and is a valid transaction. We accordingly reject the argument of Mr. Purshottam Tricumdas on this part of the case.In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point isare, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata.