1965 Supreme(Pat) 79

PATNA HIGH COURT
R.L.Narasimham and S.P.Singh JJ.
Ram Ratan Lal
Versus
Kashinath Tewari
Letter Patent Appeal No. 51 of 1961 ;
Decided On : JULY 29, 1965

A valid dedication of property to an idol is complete even if the name of the deity is not mentioned in the deed of dedication, provided the idol is particularised and is in actual existence.

Headnote:

DEBOTTAR PROPERTY - DEDICATION - VALIDITY - CONSTRUCTION OF DEED - RES JUDICATA - REPRESENTATION OF DEITY IN LITIGATION - VALIDITY OF ALIENATION.

Fact of the Case:

Plaintiff claimed to have taken on rehan a double-storied building in Arrah town for a sum of Rs. 15,000 from the defendants 1st party sometime in 1947. Subsequently he allowed the defendants 1st party to occupy the house on payment of monthly rental to him, and when the rent was not paid according to the terms of the kerayanama the plaintiff obtained an order from the House Rent Controller for the eviction of the defendants 1st party. But when he attempted to execute that order of eviction in Execution Case No. 63 of 1955, an objection was raised by a deity said to have been located in the house of the defendants 1st party on the ground that the property was debottar and hence could not be alienated.

Finding of the Court:

The court held that the property was a complete debottar and that consequently the defendants 1st party had no right to make an alienation in favor of the plaintiff as there was no legal necessity for such alienation.

Issues: 1. Whether the disputed property was debottar property of the deity, namely, the defendant 2nd party, or else the secular property of the defendants 1st party and defendant 3rd party. 2. Whether the so-called religious endowment was illusory, never intended to be acted upon. 3. Whether as the name of the deity was not mentioned in the deeds of endowment, the endowment is void for uncertainty. 4. Whether as no evidence of sankalp or samarpan was given, the dedication was not complete. 5. Whether on a fair construction of the deeds of trust it must be held that even if there was dedication there was only partial dedication creating a charge in favor of the deity and not complete dedication. 6. Whether the learned Single Judge committed an error of law in attaching importance to the previous judgments where the property was held to be the debottar property. 7. Whether in any case, defendant No. 8 was not properly represented in this litigation inasmuch as the Shebaits, as mentioned in the deed of dedication, alone had a right to sue or be sued on behalf of the deity, and the mother guardian of a minor son of defendant No. 1 could not validly defend the deity.

Ratio Decidendi: 1. The court held that the subsequent conduct of the executants of the trust deed does not show that the deed was never intended to be acted upon. 2. The court held that the non-mention of the Thakurji in the Municipal records was done solely with a view to enable the Municipality to assess the building to tax. 3. The court held that the Survey entry in view of certain judicial decisions which had preceded the same. 4. The court held that there was an unambiguous dedication of the property by the then owners of the deity. 5. The court held that the association of Kashinath in the deed, though he had no title to the property, and the further statement in the deed that Kashinath also became a cosharer Shebait to the extent of 4 annas would invalidate the deed. 6. The court held that the deed is not void for uncertainty. 7. The court held that religious ceremony of sankalp or samarpan is not essential for a valid dedication. 8. The court held that there is absolutely no evidence to show that the Tewaris anticipated any substantial surplus out of the total income of the property and stipulated in the deed (Ext. D) that that income may be appropriated by the donors. 9. The court held that the judgment of the High Court in Second Appeal No. 1752 of 1921 (Pat) (Ext. B) and the judgment of the Munsif, 1st Court, Arrah, (Ext. B (1) ) in Title Suit No. 13 of 1925, may not operate as res judicata as all the parties were not there, but they are clearly admissible under Sec.13 of the Evidence Act to show that whenever an attempt was made by the Tewaris to claim the property as their private property the courts refused to accept that contention and referred to the fact that the Thakurji was a necessary party in view of the deed of trust (Ext. D). 10. The court held that Exhibit B(2), however, must be treated on a different footing. It is the judgment of the Munsif in Title Suit No. 2 of 1923, where Baijnath, son of Kishun, was the plaintiff, and defendant No. 1 and defendant No. 9 and the deity were all parties. The most important issue in that case was issue No. 8 which dealt with the question as to whether Kashinath, (defendant No. 1 here), had any personal interest in the property. The decision of the Munsif was that it was debottar and that he had no personal interest in the property. The plaintiff derives his title from Kashinath, defendant No. 1, and he will be bound by this judgment. It would clearly operate as res judicata in this litigation. 11. The court held that the identity of the property involved in this litigation and the property which was the subject-matter of Title Suit No. 2 of 1923 is not the same. 12. The court held that all the other Shebaits have been made parties and the litigation deals with the unlawful alienation made by one of the Shebaits, namely, Kashinath. Moreover, here it is not a case of the idol suing as a plaintiff, but the idol is merely defending the property against the claim of the plaintiff, and as the Shebaits were not supporting the idols claim it was represented by a minor son of Kashinath who is a prospective Shebait acting under the guardianship of his mother, his natural guardian.

Final Decision: The appeal is dismissed with costs.