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IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu and S. N. Dwivedi, JJ.
THAKUR KRISHNA CHANDRAMAJIU - Appellant
Versus
KANHAYALAL - Respondents
First Appeal 42 Of 1949
Decided On : 03/18/1960
ENDOWMENT - Dedication of property to deity - Will - Translation of will - Admissibility - Public document - Wajibularzes - Entries - Interpretation - Transfer of Property Act (4 of 1882), S. 41 - Suit for declaration of endowment - Maintainability - Next friend - Right to continue appeal.
Fact of the Case:
The plaintiff, a deity, filed a suit for a declaration that the properties in suit were absolute debutter of the plaintiff deity and that the same were unaffected by the mortgages and the decree thereon and that the sales held thereunder be declared to be void, ultra vires, without jurisdiction, illegal and invalid and not binding on the plaintiff and for possession in favour of the plaintiff on the eviction of the defendant No. 1 from the properties in suit.
Finding of the Court:
1. The translation of the will of Lala Babu, the alleged founder of the endowment, was not admissible in evidence as it was not proved to be a true and correct translation and was not a public document. 2. The wajibularzes, which were prepared during the settlement operations carried out by Mr. Currie, did not indicate a clear dedication of the properties in suit to the deity. 3. The alleged will of Lala Babu did not create an absolute endowment of the Anupshahr pargana (within which the disputed villages were also constituted) in favour of the deity, nor vest the property in it. 4. The suit was not barred by Section 41 of the Transfer of Property Act, 1882, as the idol, being not a sentient being, could not allow or not allow the mortgagor-Shebait to act as ostensible owner. 5. Swami Shivanand Tirtha, the Chela of Swami Satyanand Tirtha, who had died during the pendency of the appeal, did not have a beneficial interest in the properties in suit and was not entitled to act as the next friend of the idol or to be entitled to conduct the appeal.
Issues: 1. Whether the translation of the will of Lala Babu was admissible in evidence? 2. Whether the wajibularzes indicated a clear dedication of the properties in suit to the deity? 3. Whether the alleged will of Lala Babu created an absolute endowment of the Anupshahr pargana in favour of the deity? 4. Whether the suit was barred by Section 41 of the Transfer of Property Act, 1882? 5. Whether Swami Shivanand Tirtha had a beneficial interest in the properties in suit and was entitled to act as the next friend of the idol or to be entitled to conduct the appeal?
Ratio Decidendi: 1. A translation of a document is not admissible in evidence unless it is proved to be a true and correct translation and is a public document. 2. Wajibularzes, which are prepared during settlement operations, are not conclusive evidence of a dedication of property to a deity. 3. A will, in order to create an absolute endowment, must use clear words of dedication and divestment of ownership from the testator and vest it in the deity. 4. A suit for a declaration of endowment is not barred by Section 41 of the Transfer of Property Act, 1882, if the idol, being not a sentient being, could not allow or not allow the mortgagor-Shebait to act as ostensible owner. 5. A person who has a mere benevolent interest in the properties in suit is not entitled to act as the next friend of the idol or to be entitled to conduct the appeal.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is a first appeal by the plaintiff in the action. The plaintiff is a deity, Shri Shri Thakur krishna Chandramajiu installed at Lala Babus temple in the holy city of Brindaban by its next mend, Swami Satyananda Tirtha (since deceased and after him, his Chela Swami Shiyanand tirtha), disciple of Swami Shankar Hari Har Tirtha Jiu, residing at Brindaban, Lala Babus temple, district Mathura.
( 2 ) THE plaintiff prays (a) that a decree be passed declaring the properties in suit as absolute debutter of the plaintiff deity and that the same are unaffected by the mortgtages, dated the 22nd june, 1925 and 24th December, 1925 and the decree thereon in suit No. 1365 of 1927 of the high Court of Judicature at Fort William, in Bengal in its ordinary original Civil Jurisdiction and that the sales held thereunder be declared to be void, ultra vires, without jurisdiction, illegal and invalid and not binding on the plaintiff and (b) that a decree for Khas possession in favour of the plaintiff on the eviction of the defendant No. 1 from the properties in suit be passed.
( 3 ) THE defendant No. 1 in the suit was Kedar Nath Kezdiwal, the auction-purchaser. He has died since and is now represented by his heirs specified in the plaint. The second defendant is Arun chandra Singh who is the heir of Krishna Chandra Singh alias Lala Babu (. e. the mortgagor of the two mortgage deeds dated 22-8-1925 and 24-12-1925) and is said to be the shebait of the plaintiff deity.
( 4 ) DURING the pendency of the appeal Swami Satyananda Tirtha died and an application for substitution of his Chela, Swami Shivanand Tirtha was made and, as indicated above, he was brought on the record in place of Swami Satyananda Tirtha subject to objections being taken at the hearing of the appeal and which objections, having been taken during arguments, will be dealt with by us subsequently.
( 5 ) THE controversy in the appeal mainly is whether the properties, affected by the aforesaid mortgage deeds, decree and auction sales, and which are specified in the plaint along with the other property compendiously known as "qasba Anupshahr" and comprising altogether 54 villages which were purchased or owned by Lala Babu constitute an endowment in favour of the plaintiff Thakur.
( 6 ) THE case of the defendants is that they were secular properties owned and possessed by Lala babu and his heirs and successors. The further defence of the defendants with which we are now concerned is that the suit was barred by Section 41 of the Transfer of Property Act and by limitation. It is also disputed that Swami Shivanand Tirtha has the right to continue the appeal. The area of the controversy in the suit itself is apparent from the issues framed in the case by the court below which may be reproduced as below :
1. Did Krishna Chandra Singh make any will as alleged in the plaint? 2. Were the properties in suit dedicated for Sewa and worship of the plaintiff by Krishna chandra Singh? Is plaintiff owner of the same? 3. Were the properties in suit treated as absolute debutter properties of the plaintiff? 4. Was the income of the properties in suit ever used for the Sewa and worship of the plaintiff? 5. Were names of Krishna Chandra Singhs descendants and successors, recorded in papers on the properties in suit in their own right or as Shebaits of the plaintiff? 6. Was defendant No. 2 Shebait of the plaintiff? Was he in possession of the properties in suit as such Shebait? 7. Was defendant No. 2 competent to execute the mortgage deeds dated 22nd June, 1925 and 24th December, 1925? 8. Were above mortgage deeds executed in breach of the trust? 9. Did defendant No. 1 obtain the mortgage decree against defendant No. 2 fraudulently and collusively? 10. Was the decree ultra vires, void, without jurisdiction, illegal and invalid? 11. Were suits 3 of 1930 and 19 of 1931 brought in this court fraudulent and collusive? 12. Were plaintiffs next friends in those suits guilty of gross negligence and mis
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