1958 Supreme(Pat) 149

PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Ramchandraji Maharaj
Versus
Lalji Singh
Appeal From Appellate Decree No. 817 of 1952 ;
Decided On : SEPTEMBER 24, 1958

A condition in a deed of dedication imposing limitation on the shebaits power of disposal is void, as per Section 10 of the Transfer of Property Act, and the principle enunciated therein, though not applicable to a dedication in favor of a Hindu deity, is a principle of justice, equity, and good conscience and should govern even transactions not coming within the four corners of the Transfer of Property Act.

Headnote:

DEDICATION OF PROPERTY - RESTRAINT ON ALIENATION - VALIDITY - TRANSFER OF PROPERTY ACT, SEC. 10 - LEGAL NECESSITY - BURDEN OF PROOF.

Fact of the Case:

Mahant Parsuram Dass, the shebait of the Pita Maheshwar Thakurbari, Gaya, dedicated his properties to the deities installed and consecrated in the said Thakurbari by a registered deed (Samarpannama) dated 27-6-1937. By this dedication, he also imposed a condition on the shebaits of the Thakurbari that they were to be absolutely debarred from making any sort of alienation. Notwithstanding the restraint on the power of alienation, Mahant Parsuram Dass executed in favor of the defendants, in consideration of a salami of Rs. 5000, a registered deed of perpetual lease dated 6-9-1944 leasing out to them the dedicated properties and also 4 decimals (1 katha) of Jagir land, out of 17 kathas 10 dhurs comprised in survey plot No. 643 appertaining to khata No. 128 situate in mauza Kasthua at an annual rental of Rs. 40. The plaintiff, Mahant Jairani Dass, who was initiated by Mahant Parsuram Dass as Chela, instituted a suit for a declaration that the perpetual lease dated 6-9-1944 executed by Mahant Parsuram Dass in favor of the defendants was void and legally ineffectual and for recovery of possession of the same.

Finding of the Court:

The District Judge, reversing the decision of the Additional Subordinate Judge, held that there was no fraud on registration and that the Gaya property was intended to be conveyed and was in fact conveyed to the defendants. On the questions of legal necessity and the power of the Mahant, there was a divergence of opinion between the Additional Subordinate Judge and the District Judge, the former finding in favor of the plaintiff and the latter in favor of the defendants, with the result that the suit was decreed by the additional Subordinate Judge and was dismissed on appeal by the District Judge.

Issues: 1. Whether the perpetual lease was legally invalid and did not pass a good title to the defendants, because, first, there was fraud on the registration, inasmuch as the land of 4 decimals in the district of Gaya was fraudulently inserted in the deed to obtain registration thereof in the district of Gaya; second, by the deed of dedication Mahant Parsuram Dass, his Guru, and the previous shebait, had no power to alienate the properties, and, third, there was no justifying legal necessity. 2. Whether the condition imposed by the Samarpannama placing limitation on the power of disposal by the Mahant was void and unenforceable at law.

Ratio Decidendi: 1. The condition in the deed of dedication imposing limitation on the shebaits power of disposal is manifestly void, as per Section 10 of the Transfer of Property Act, which provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. 2. The principle enunciated in Section 10 of the Transfer of Property Act, though not applicable to a dedication in favor of a Hindu deity, is a principle of justice, equity, and good conscience and should govern even transactions not coming within the four corners of the Transfer of Property Act. 3. The restriction on the power of the shebait to alienate the dedicated property is void and inoperative and was, therefore, legally ineffectual to invalidate the perpetual lease in favor of the defendants. 4. The defendants had established by cogent evidence that there was legal necessity for the mukarrari patta, as the dedicated property was inconveniently situated, heavily encumbered, and unproductive, and by the alienation, an annual income of a definite sum which was more than what was received in the previous years was assured.

Final Decision: The appeal was dismissed with costs.