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HARI SHANKER versus SRI LALA RAM ALIAS SHYAM SUNDER

High Court of Judicature at Allahabad

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Hari Shanker v. Sri Lala Ram Alias Shyam Sunder - SECOND APPEAL No. 3796 of 1978 [2006] RD-AH 17 (1 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Second Appeal No.3796 of 1978

Hari Shanker and others  vs. Lala Ram @ Shyam Sunder and others.

Hon'ble Prakash Krishna, J

This is defendants' appeal. It arises out of suit no.180 of 1975 filed against the present appellants claiming perpetual injunction against the defendants permanently restraining them not to interfere with the plaintiffs' right to worship as shebait of Dauji Maharaj situate at Mendu Darwaja Hathras.

To understand the controversy the following pedigree is relevant:-

Ganga Das

Shanti Ram                       Kewal Ram @ Kewal  

(died in 1949)             Das (died issueless)

Lala Ram @ Shyam Sunder Mahesh Chandra  (Plaintiff)                                          

                                                       

                                                                     Munna                                (Defendant No.2)    

The suit was instituted on the allegation that ancestor Ganga Das, the grand father of  the plaintiff and great grand father of the defendant no.2 established a temple of Shri Dauji Maharaj at Mendu Darwaja, Qasba  Hathras. Smt. Chunia and Smt. Champa, the two ladies dedicated their entire properties to the aforesaid Shri Thakurji and Shri Thakurji became the owner of the dedicated properties. The dedication was made by a registered deed dated 26th February 1918. These ladies Smt. Chunia and Smt. Champa were of the family of Ganga Das and they appointed Shri Ganga Das as the successors as trustee and Sarvarakar of Thakurji. Shri Ganga Das during his lifetime served Thakurji by seva and pooja and managed the properties as Sarvarakar and he was assisted in his old age by Shri Shanti Ram, father of the plaintiff and Kewal Dass, the uncle of the plaintiff. Shri Ganga Das for the management of the trust properties executed a will dated 23.11.1937. The relevant directions of the will have been enumerated in para 4 of the will. Each Shanti Dass and Kewal Das will manage the properties for one year alternatively and will receive the offerings etc. and perform the religious functions in the temple and will have right to appropriate the offerings of the devotees for their use after meeting the temple's expenditure. Shri Ganga Das died in the year 1941 and Shri Shanti Ram died in 1949 and Shri Kewal Das died on 23rd of June, 1974. The further averment is that after the death of Ganga Das the property was managed by his two sons Shanti Ram and Kewal Das as per the arrangement as laid down by Ganga Das. In para 8 of the plaint it has been pleaded that Kewal Das on 7th of November 1944 executed a will in favour of his sister's son, namely Hari Shanker bequesting that after his death he would be shebait of the temple and will doe the seva and pooja of Thakurji and manage the trust property. The defendant no.1 armed with the aforesaid will is trying to interfere with the right of the plaintiff to manage the property and as such the necessity to file the suit to file the suit arose.

The suit was contested by the defendant no.1 alone. In para 15 of the written statement it has been pleaded that after the death of Ganga Das the Mandir and its property was managed by his two sons as Shebait and after the death of Shanti Ram, Shri Kewal Das became the shebait. It is stated in the para that the plaintiff though during the life time of Kewal Das managed the temple for some time but he was not legally authorized to do so and as such the plaintiff being not a shebait is not entitled to maintain the suit. It has been further pleaded that the defendant no.1 was appointed as Mohatsim of the Mandir and the disputed property by means of will dated 7.11.1944 and there is a custom that Mohatsim during his life time may appoint a person as Mohatsim to look after the property after his death. The defendants no.3 to 8 illegally are realizing the rent from the tenants and the plaintiff  being not heir of Kewal Das and as such is not entitled to maintain the suit. It was further pleaded that if Ganga Das could execute the will, Kewal Das could also execute a will. The plea that Kewal Das adopted the defendant no.1 (appellant) according to the Hindu Shastra on Kartik Sudi 15 Wednesday, Sambat 1994.

The following two issues were framed by the trial court:-

" (1) Whether Kewal Das could change the order of succession of the Shebait by will?

(2)  To what relief, if any, is the plaintiff entitled?"

It may be noticed that none of the parties led any oral evidence in support of their respective cases. The defendant no.1 has filed the will of Ganga Das and Kewal Das Ex - 1 and 2. Both these wills are admitted to the plaintiff. The bone of the contention between the parties was whether Kewal Das could transfer his rights through will in favour of defendant no.1 or not. There is not much dispute that the ancestor of Ganga Das establish the temple and Smt. Chunia and Smt. Champa also donated their properties to the temple. Shri Ganga Das was managing the temple and worship etc. was being performed by Shri Ganga Das. The trial court by its judgment and decree dated 30th of August, 1978 dismissed the suit. He found that Ganga Das was the Sarvarakar and Mohatsim of the temple and he had not established it. The trial court was of the view that Ganga Das was not founder of the temple and if he could transfer the right of Shebaitship by a will, Kewal Das could also transfer the said rights by way of will. Ultimately the trial court came to the conclusion that Kewal Das could change the line of succession by will. The said judgment has been reversed in Civil Appeal No.273 of  1976 filed by the plaintiff  before the Court below. The appellate court has come to the conclusion that the true nature of the document executed by Ganga Das is not his will, but it is in the nature of making arrangement to manage the temple and its properties. It was also of the view that if there is no provision in the deed of endowment about the mode in which  the office is to be filled up then it shall depend on the wishes of particular institution and if there is nothing of any kind then it shall refer to the heirs of the founder. It having found that Ganga Das never intended any transfer by his will dated 23.11.1937, the will so executed by Kewal Ram in favour of defendant no.1 is ineffective and has no legal sanctity. To put it differently, the appellate court was of the view that the line of succession of the office of Shebait of the temple in question could not be challenged by Kewal Ram by executing will dated 7.11.1944.

Challenging the judgment of the appellate court the present appeal and was admitted by this Court on 21.12.1978.

The appeal was earlier heard by this Court by Hon'ble Mr.Justice R.B. Mehrotra, J and as noticed by His Lordship  in his order dated 15th March, 1995, the following three points were urged before him by the learned counsel for the appellant:-

(1) Shri Ganga Das succeeded to the post as Shebait and as such he could not, by will restrict right of succession to the heirs of his two sons and as such the judgment of the appellate court is incorrect.

(2) The lower appellate court on the basis of the abovementioned will of Gangaram arrived at wrong conclusion that Kewalram had received the Shebaitship rights in respect of disputed temple through will, inreality, Gangaram had no right to make will and Kewal  Ram go shebait rights only as successor of Gangaram.

(3) The last sentence of para 7 of the will of Gangaram has been added during the pendency of appeal by forging the will therefore by the interpretation of the will of Gangaram should be done, by ignoring that sentence.

To complete the narration of the events it may be noticed that after the judgment by the First Appellate Court a review application was filed by the present appellant before the Court below on the allegation that there has been interpolation in clause-7 of the will of Ganga Das after hearing of the arguments in appeal by the first appellate court and before the delivery of the judgment. According to the appellant the following sentence has been added in the will of Ganga Das in clause - 7. Its English Translation is as follows:-

"After the death of the two sons their descendants  will be managers one after other."

The Hon'ble R.B. Mehrotra, J preferred to adjudicate upon the plea of interpolation first. Before His Lordship it was argued by the respondents that had there been any interpolation in the will it was duty of the appellant to move the appropriate application before the court below. No grievance regarding the interpolation was raised in the memo of the appeal filed before the High Court. The appeal by the court below was decided on 9.9.1978 and application was moved by the present appellant on 25th September 1978 before the Lower Appellate Court. The Lower Appellate Court passed an order that the said will along with Hindi translation be kept in sealed cover. After hearing the learned counsel for the parties the Hon,ble Mr.Justice Mehrotra, J passed an order on 15th March, 1995 as His Lordship was of the view that the Lower Appellate Court should be entrusted with the duty of making  factual enquiry with respect to the above sentence occurring in the certified copy of the will as raised in the objection of the appellant. The following issue was framed and was remitted to the Lower Appellate Court to record its finding thereon:-

" Whether after para - 7 of the certified copy of the will, under mentioned sentence has been fraudulently added."

"After the death of the two sons their descendants in succession one after another will he manager."

The court below decided the aforesaid issue by its order dated 20th of December 2000 and found that the aforesaid sentence in question was added after the judgment of the trial court and before the judgment of the appellate court. The contesting respondent has filed objection on the aforesaid finding recorded by the court below on the allegation that the Lower Appellate Court has wrongly accepted the report of the expert examined by the defendant appellants and it has wrongly rejected expert's report produced by the plaintiff-respondents. It has failed to consider the statement of Babu lal son of Hari Shanker and has misread and misinterpreted the statement of Kali Charan son of Shyam Lal. It has been further stated that none of the parties produced the original will of Ganga Das executed on 23.11.1937 before the Lower Appellate Court and as such the finding recorded by it on the above issue is liable to be set aside.

Heard the counsel for the parties and perused the record. The learned counsel for both the parties agreed that the present appeal be heard and decided on the three points formulated by the Hon'ble Mr.Justice R.B. Mehrotra,J as quoted in the earlier part of this judgment.

Shri Vinod Sinha , the learned counsel for the appellant submitted that the court below after remittal of an issue by this Court has recorded a finding that in the last sentence of para 7 in the will of Ganga Das has been added during the pendency of the appeal. Therefore the judgment under appeal is vitiated. The court below has allowed the appeal by placing reliance upon the last sentence of para 7 in the will of Ganga Das. It was also submitted that since Ganga Das executed a will in respect of Shebaitship rights, the execution of will by Kewal Ram in favour of the defendant appellants cannot be held illegal or contrary to law. No fault can be found out if Kewal Ram also executed a will in favour of the defendant appellants.

In contra Shri V.B. Upadhyaya, the learned counsel for the plaintiff-respondents, submitted that on a fair reading of the document dated 23.11.1937 executed by Ganga Das, it cannot be said that it is a will of Ganga Das. The nature and contents of the document dated 23.11.1937 clearly show that it was an arrangement to manage the property during his life time and after his death. Giving label of  "Vasiyat" (will) of Ganga Das in the deed itself will not make it a will. He also submitted that under Hindu Law line of succession of Shebaitship cannot be changed by means of will by a Shebaith who is not founder of the trust. Elaborating the argument it was submitted that if the line of succession as mentioned in the trust deed comes to an end, the trust property shall revert back to the heirs of the founder of the trust. He also challenged the findings recorded by the court below on the issue remitted by the High Court and submitted that in absence of the original document it cannot be said that there has been an interpolation in its certified copy. Question whether there is an interpolation or addition in a certified copy, can only be decided with reference to the original document. In absence of original document and any other material the addition of last sentence in para 7 of the will of Ganga Das cannot be decided.

First I venture to decide the question as to whether Kewal Ram could have executed a will in favour of the defendant-appellants with respect to the temple and its property in question of which he was shebait. The trial court adjudicated this point on the short ground that since Ganga Das has executed a will on 23rd November, 1937 in respect of temple and its properties, the execution of will by Kewal Ram in favour of the defendants is perfectly valid. At this stage it may be noticed that neither Ganga Das nor Kewal Das were the founder of the trust. The trust was created by Smt. Chunia and Smt. Champa by a registered deed dated 26.2.1918. In the said deed the founders have provided that Ganga Das would be the Shebait and Manager and after his death Kewal Das and Shanti Das sons of Ganga Das would be Mohatsim of the trust property. The deed is silent about the succession of the office of shebaitship after the death of  Kewal Das and Shanti Das. The learned counsel for the appellants has placed reliance on AIR 1985 S.C. 905 Shambhu Charan Shukla vs. Shri Thakur Ladli Radha Chand Madan Gopalji Maharaj and submitted that shebaitship is in the nature of immovable property and as such it is inheritable and can be disposed of or transferred by a Shebait by a will, unless there is an usage or custom of a different nature in cases where founder has not disposed of the Shebaiti right in the endowment created by him. Further reliance was placed on Kali Kinkur Ganguli vs. Panna Banerjee and others AIR 1974 S.C. 1932  for the proposition that Shebaiti rights are transferable. Placing reliance upon Ram Rattan vs. Bajrang Lal and others AIR 1978 S.C 1393  it was submitted that the position of a shebait is not merely that of Pujari.  He is a human ministrant of the deity. By virtue of the office a shebait is an administrator of the property attached to the temple of which he is shebait. The enjoyment of  heredity of the office of shebait by a person by turn would be of the immovable property and the gift of such immovable property must be by a registered instrument only. AIR 1979 S.C. 1682 Profulla Chorone  Requitte and others vs. Satya C.R. was also relied upon.

On the other hand the learned counsel for the respondents placed reliance on (1) Shri Kishan vs. Jagannathji AIR 1953 Allahabad 289; (2) Bairagi Das Vs. Shri udai Chand AIR 1965 Orissa 201; (3) Chockalinga Sethurayar vs. Arumanayakam AIR 1969 S.C. 569  and (4)  Ram Das and another vs.  Kalyan Das and another 1997 (4) S.C.C. 102. For the proposition that a shebait, under Hindu Law is not authorized to change the line of succession to the office of shebait as mentioned in the endowment deed, by executing a will. The succession to the office of shebaitship shall be governed as provided in the endowment deed. If there is no provision in the endowment deed it will devolve in accordance with law of succession. If a line of succession has been provided for in the deed and that has come to an end, the debuttar property shall revert back to the heirs of the deceased founder.

Shri V.K. Mukherjee in his book on the " Hindu Law of Religious and Charitable Trust." Has stated that though a shebait is a manager and not a trustee, in the technical sense, it would not be correct to describe the shebaitship as a mere office. In the conception of shebaitship both the elements of office and property, and personal interest are mixed up and blended together. Undoubtedly, the duties of a shebait are to be regarded as primary things, whereas the emoluments or beneficial interests enjoyed by him are only appurtenant to the said duties. In the decision in Profulla Chorone Requitte  (supra) the Supreme Court in para 20 of the report has clarified the concept and the legal character and the incident of shebaitship. Para-2 reads as follows:-

"Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in tin an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorized representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debuttar, his position is analogous to that of a Trustee; yet, he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolute dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder."

It has been further held that shebaitship being property, it devolves like any other species of inheritable property. It follows that, where the founder does not disclose the shebaiti rights in the endowment created by him, the shebaitship devolves on the heirs of the founder according to the Hindu Law, if no usage of custom of a different nature shown to exist. It has been further held that although, shebaitship is inheritable property, yet it cannot be freely transferred by the shebait. But there are certain exceptions to this general rule. The following are the judicially recognized exceptions to the general rule. Transfer of shebaitship right by gift or will has been held to be permissible in the following three cases:-

(a) The transfer of Shebaiti right is permissible if such transfer is not contrary to the intentions of the founder as expressed in the deed of endowment, unless an ancient or reasonable custom or usage has been followed to be contrary.

(b) Where there is a perpetual or hereditary line of succession of shebaitship prescribed by the founder in his deed of endowment, a particular shebait cannot change the line by succession by any deed or transfer unless the shebait transfers the totality of his rights in favour of succeeding shebait or shebauits during his life time.

(c) A transfer by Shebaiti right is also permissible for the benefit of idol or the deity or for imperious necessity under special circumstances.

Shri V.K. Mukherjee in para 5.37 of Chapter 5 on page 232 of 4th edition has mentioned the circumstances under which the office of shebait can be transferred: -

"(1) Where the transfer is not for any pecuniary benefit, and the transferee is the next heir of transferer or stands in the line of succession of shebait and suffers no disqualification regarding the performance of the duties.

(2) When the transfer is made in the interests of deity itselfand to meet some pressing  necessity.

(3) When a valid institute is proved sanctioning alienation of Shebaiti right with a limited circle of purchasers who are potential shebaits of the deity or otherwise connected with the family.

The learned counsel for the respondents has placed reliance upon the following passage from the book of Shri B.K. Mukherjee:-

"5.30 Shebait's right of nominating his successor -  The founder of an  endowment can always confer upon a shebait appointed by him the right of nominating his successor.  When such authority expressely given to him, no shebait can appoint a successor to succeed to him in his office. The power of nomination can be exercised by the shebait either during his life time or by a will, but he cannot transfer the right of exercising this power to another person."

In the above legal back ground, the arguments raised by the counsel for the parties in support of their respective cases has to be examined. The appellant has heavily placed reliance upon Shambhu Charan Shukla Vs. Thakur Ladli Radha Chand Madan Gopal Ji in support of his contention that Kewal Das validly bequeathed the office of shebaitship by means of will dated 23.1.1974 in favour of defendant, who is none elese but sister's son of Kewal Das. It may be recorded that Kewal Das died issueless and the defendant appellants claimed that Kewal Das brought up him just like his son. Plea of adoption of the defendants by Kewal Das as son was raised, though has not been gone into by the courts below. A careful reading of the aforesaid judgment does not support the contention of the defendant appellants. In that case one Purshottam Lal established the temple of Gopalji and was its founder. He died leaving behind him his widow Asharfi Devi. Asharfi Devi by her will appointed shebait of the temple. There was no other male family member in the family of Purshottam Lal. A dispute arose after the death of Smt. Asharfi Devi with regard to the management of the temple. The matter reached to the Supreme Court. The appeal in the Supreme Court was heard and decided by the Hon'ble Mr. Justice A. Varada Rajan and Sabya Sachi Mukherjee, J,J. The appeal was dismissed by the Supreme Court but on different reasonings. Both the Hon'ble Judges reached to the same conclusion but on different reasonings and separate judgments were delivered. The distinguishing feature of the case was that the founder Purshottam Lal (founder) had not made any disposition regarding to the shebaiti right in his will whereby he created the endowment. On that premises it was held that after his death Smt. Asharfi Devi inherited the debuttar property as a limited owner and that right has become enlarge into an absolute right by the provisions of Section 14 (1) of Hindu Succession Act and she could transfer the right by a will in favour of a person. The important fact to be noticed is that the founder had not laid down any line of succession of the office of shebaitship and he was survived by his widow alone. There was no other heir. In this back ground it was held that Smt. Asharfi Devi could appoint a shebait by will. In the case in hand the factual position is not so. In the registered deed dated 26th February, 1918 executed by Smt. Chunia and Smt. Smt. Champa by which they dedicated their properties in favour of deity, a line of succession has been mentioned by the executants of the deed. It is mentioned that  Ganga Das would be the Mohatsim of the property in question and after his death Kewal Das and Shanti Das , sons of Ganga Das shall be Mohatsim. The deed is silent about the further succession of office of shebait. The learned counsel for the respondents strongly placed reliance on the aforesaid registered trust deed and submitted that the founders have provided the line of succession upto Shanti Das and Kewal Das. Shanti Das expired in the year 1949. After his death the debuttar property was being managed by Kewal Das. At that time the plaintiff Lala Ram was minor. It has also come on record that after attaining majority Lala Ram managed the property as shebait for some time. The learned counsel for the respondents submitted that after the death of Shanti Das, Lala Ram the plaintiff succeeded to the office of shebaitship being son of Shanti Das. Therefore, Kewal Das alone could not execute the will in question in favour of the defendant appellants. There is merit in the aforesaid argument of the learned counsel of the respondents. The preponderance of the judicial opinion is that right of shebaitship cannot be disposed of by a shebait by way of will. The Supreme Court in the case of  K.K. Gangoli (Supra) has held that a transfer of shebaitship has nowhere been countances by Hindu lines and assignment of religious office for pecuniary benefits of holder of office was held tobe against public policy and contrary to the intentions of the founder. In para 19 of K.K. Gangoli's case it has been mentioned as follows:-

" A transfer of shebaiti by will is not permitted because nothing which the shebait has can pass by his will which operates only at his death (See Rajeshwar vs. Bhupeshwar (1907) ILR 35 Calcutta)." The Calcutta High Court in the case of Rajeshwar Vs.Bhupeshwar has observed as follows:-

"A Shebait is a manager or a quasi trustee for the benefit of idol.  His office endures only for his life : his will only comes into operation on his death. What is, there, for him to alienate by his will ? Nothing."

In para 5.30 of Mr. V.K's Mukherjee book of Chapter 5 it has been stated that a founder of an endowment can always confer upon a shebait appointed by him the right of nominating his successor. When such authority specially given to him, no shebait can appoint a successor to succeed to him in his office. In this case by the endowment deed dated 26th February 1918 the founders have not conferred any express or implied authority to Ganga Das, Shanti Das or Kewal Das shebaits to appoint a successor to succeed to him in his office. Therefore Kewal Das in absence of conferment of  express power to nominate a successor could not execute a will in favour of the defendant appellants.

The next question which arises as to what will happen if a line of succession as laid down by the founders has been extinct. The answer is given that in such cases debuttar property shall revert back to the heirs of the founders of the endowment. Shri V.K. Mukherjee in paragraph 5.31 has stated as follows:-

"Extension of line of shebait  - When the lien of shebait laid down by the founder is extinct, when the shebait to whom a power of nomination has been given does not exercise power, the managership reverts to the founder who endowed the property or his heirs. " In case of the line of shebait is extinct, there is always an ultimate reversion to the founder or his heirs................... ."

In view of the above legal position the lower appellate court rightly  concluded that Kewal Das was not authorised to execute a will in respect of shebaitship office in favour of defendant appellants.

In view of the above conclusion it is not necessary for me to decide the question as to whether a line was added in para 7 of Shri Ganga Das subsequent to the judgment by the trial court and before the delivery of judgment by the appellate court. The necessary facts have been given in the earlier part of the judgment. The appellate court remitted the finding that the disputed sentence in para 7 of the will of Ganga Das has been interpolated subsequent to the judgment of the trial court and during the pendency of the appeal before the appellate court  Before the appellate court both the parties produced oral as well as documentary evidence and also hand writing experts. After taking into consideration the entire evidence, the court below has come to the conclusion that the offended sentence was added subsequently.  It has devoted 29 pages to arrive at that finding. The salient features and the attending circumstances of the case which have been taken into account to arrive at the aforesaid findings may be summarized as follows:-

" (1) The plaintiff respondent has not pleaded in the plaint that by virtue of the will of Ganga das the office of shebait is inheritable by the descendants of Shanti Ram and Kewal Das.

(2) The plaintiff lost from trial court but in the memo of  appeal no such ground based on clause - 7  ( together with the offended sentence ) was raised.

(4) The offended sentence does not fit with the   text of the para-7.

(5) The said will is in Urdu  language. Its   original copy is not available. It appears that the original will was filed in some litigation before the Civil Court, at the instance of Shanti Ram. In that litigation the original will of Ganga Das was filed. The defendants obtained a certified copy from the said file of Civil Court and filed it along with the copy in Devnagari script. The offended sentence  does not find place in its copy in Devnagari script.

(6) The contents of offending sentence supports the case of plaintiff respondents and as such there is a strong presumption against him.

(7) The appellate court preferred to place reliance upon the report of  handwriting expert produced by  the defendant appellants who had deposed as follows:-

" Aisa Prateet Hota Hai Ki Is Dastavez Ko Le Ke Bad Mein Badhaya Gaya Hai Kyonki Ismein Typing Ink  (Kali Ink) Nayi Prateed Hoti Hai.  Purani Ink 47 Ga Mein Alag Se Likhi Prateet Hoti Hai."

Thus, from the report of the Handwriting expert it is clear that the addition in the document has been made later on; because, the typing ink in it is in black colour and it matches as new to the old ink of 47 Ga which appears written separately.

  The learned counsel for the respondents submitted that the lower court proceeded with the issue with an incorrect angle. The document in question was filed by the defendant appellants and it is only certified copy thereof. Unless and until the original is produced it cannot be said with certainty that there has been interpolation. Assuming that the sentence was added subsequently but it might have been added by way of correction in the certified copy by the official of the Court while comparing with the original before issuing it. Difference in ink and handwriting in such case is bound to be there. The said argument although cannot be said tobe wholly irrelevant but does not hold good looking to the other facts and circumstances of the case. Had there been any such averment in the will of Ganga Das it was quite natural for the plaintiff to plead it. In normal circumstance he would have relied upon the said averment in the suit itself.  It  is difficult to accept that the said averment escaped the notice of the plaintiff before the trial court. The said averment has a far-reaching effect on the merits of the case of the plaintiff. In this back ground the conduct of the appellants appears to be very natural. He acted in the matter with the great promptitude. The judgment was delivered by the appellate court on 9.9.1978 and the review application was filed before it on 25th May 1978. The court below immediately put the document in question along with its Hindi translation in sealed envelop. It is unimaginable that a party shall make addition, alteration or interpolation in a document against his interest. It appears that the offended sentence was added in the certified copy of the will but the interpolator forgot to make the addition in the Hindi translation of the will in question. Surprisingly the plaintiff at no point of time raised his finger before the courts below that the Hindi translation of the will of Ganga Das is in variance from that of Urdu language contained in the certified copy. This unexplained indisputable circumstance of the case lead to a conclusion that the finding recorded by the appellate court on the remitted issue is perfectly justified and correct.

However, the respondent is justified in his submission that the judgment of the court below is not based entirely on the offended sentence of para 7 of the will of Ganga Das. A fair reading of the judgment of the appellate court leads to a definite conclusion that the appellate court has relied upon the said sentence only as an alternative. The judgment of the lower appellate court is based on the exposition of the law that Kewal Das could not have transferred the right of shebaitship by way of will.

The argument was raised by the learned counsel for the respondents that the trial court was wrong in treating the document dated 23.11.1937 as will of  Ganga Das. It was submitted that on a fair reading of the aforesaid document, it is clear that it was merely an arrangement for the efficient and effective management of the debuttar property. The appellate court has held that it was merely a deed of arrangement, executed by Ganga Das which came into effect during his life time. In the preamble of this document it has been mentioned by Ganga Das that he has made substantial addition in the debuttar property by his hard labour and has been doing the Seva Poola and realizing the rent and carrying on the repairs of the property as Mohatsim. Now he has become 68 years old and is not in a position to put sufficient labour to manage the debuttar property. He has got two sons namely Kewal Das @ Kewal Ram and Shanti Das @ Shanti Ram who are young and are doing Seva Poola as Mohatsim that is implied permission. He wants to make necessary arrangement in his lifetime so that there may not be any dispute in between the Mohatsims and Sarvarakar separately. He has made a provision that they will be Mohatsims for one year at a time alternatively beginning with Ashadh Sudi Dooiz of every year. If a person fails to hand over the charge after the expiry of one year he will be liable to pay Rs.5/- per day as damages to the next person. Emphasis was laid by the counsel on the fact that these two persons were serving the temple as Mohatsim that is permission and therefore that should be treated as deed of arrangement. I am unable to agree with the aforesaid contention.

To cull out the real purport of a document, it is fairly established that a document should be read as a whole. Besides the fact that the label of  "Vasiyat" (Will) has been given to the document by the executant, in paragraph  9 thereof it is mentioned that this "Vasiyat" is being executed. Reading the document as a whole the irresistible conclusion is that  it had all the ingredients of a will. Mere mention that his two sons are helping in the administration of the trust property will not make the document as a deed of arrangement. The reading of a document as a whole clearly shows that the document will come into operation only after the death of the executant and the executant  remained the Mohatsim and Sarvarakar during his life time. This is further fortified from paragraph no.1 of the deed that nobody else has any right during the lifetime of the executant. Nothing much turns upon the nature of the document as in the endowment deed the founders namely Smt. Chunia and Smt. Champa have mentioned that after the death of Ganga Das his two sons Shanti Das and Kewal Das would be shebaits. Therefore even if the document is treated as a will of Ganga Das it is not  much of significance, the right of  Shebaitship has been conferred on Shanti Das and Kewal Das by the founders of endowment. These two persons had become shebait independently of the will/arrangement deed dated 23.11.1937 executed by Ganga Das. Therefore, it is not necessary for this Court to dilate on this issue any further.

The appellant forcibly argued that Ganga Das was his maternal uncle and grand father of the plaintiff. There is nothing objectionable if the defendant is also permitted to manage the debuttar property. It was impressed upon the court that the defendant and the plaintiff belongs to the same family. This contention has nothing to do with the merits of the case. Besides it in Hindu families a girl after marriage becomes the member of the family of her husband and ceases to be family member of her parents. In view of the established law that in case of extension of line of  Shebait, the property would revert back to the founder of the endowment  or his heirs, the defendants possibly cannot claim any right in the property in question not being heir of the founders of the endowment.

In view of  my finding that Kewal das was not legally authorized to execute the will with respect to the shebaitship of  office, in favour of the defendant respondents, the appeal has got no merit  and is liable to be dismissed.

In the result the appeal is dismissed. No order as to costs.

Dt.

LBY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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