advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, August 6, 2016

mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn: “It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent case.”

PETITIONER:
MAHANT SHRI SRINIVASA RAMANUJ DAS

Vs.

RESPONDENT:
SURAJNARAYAN DASS & ANR.

DATE OF JUDGMENT:
06/05/1966

BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SARKAR, A.K. (CJ)
HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.

CITATION:
 1967 AIR  256  1966 SCR  436


ACT:
Orissa Hindu  Religious Endowments Act, 1939 (Orissa  4  of
1939), Math, Characteristics of-Distinction between  public
and private trust-Math, if governed by Act-Onus of proof  of
showing that Math is outside Act-Gazetteer-Statements  in-If
evidence



HEADNOTE:
The Commissioner of Hindu Religious Endowments, Orissa, de-
manded contribution  under  s. 49 of  the  Hindu  Religious
Endowments  Act and  took steps to  enforce  certain  other
provisions  of the Act against the appellants and  certain
properties.  These properties, the appellant.% claimed, were
not  math as defined in the Act and the public had  no free
access to its premises and had no right of entry or  worship
of the deity installed therein. The Commissioner held that
the properties were math as defined in the Act and that the
properties constituted a 'religious endowment' to which the
Act  applied.  Thereafter, the appellants instituted a suit
and  prayed  for  setting  aside  of  the  decision  of the
Commissioner  and  for a declaration that the  Act  did not
apply to the properties in suit.  The trial Court  dismissed
the  suit, which on appeal was confirmed by the High  Court.
In appeal by special leave.
HELD:-The appeal must be dismissed.
(1)An  institution comes within the definition of 'Math'  if
it  satisfies three conditions (i) that the  institution  be
for  the  promotion of. the Hindu religion; (ii)that  it  be
presided over by a person whose duty is to engage himself in
spiritual  service  or who exercises or claims to  exercise
spiritual head ship over a body of disciples; and (iii) that
the  office of such person devolves in accordance  with the
directions of the founder of the institution or is regulated
by usage. [441E]
There  was  ample evidence on the record to  show  that the
property  was presided over by the Mahant, that the  Mahant
exercised  spiritual headship over the disciples,  and that
the succession to the office of the Mahant was regulated  by
the  usage of the institution. There could be no  question
that such an institution must have been for the promotion of
the Hindu religion. [441F]
Religious  endowment includes the premises of the Math.  If
the Premises of the property had been used both for  secular
purposes  and  for religious purposes, it according  to the
explanation to sub-s. (12) of S. 6, shall be deemed to be  a
religious endowment and its administration shall be governed
by the provisions of the Act.  This makes it clear that the
premises  of the math is not only deemed to be a  religious
endowment, but is deemed to be a Hindu Public religious en-
dowment to which the Act applies, as the provisions of the
Act   govern  its  administration.   It follows   that  an
institution which comes within the definition of math  under
the  Act,  ipso facto, comes within  the  expression  'Hindu
public religious endowment' and therefore become subject  to
the provisions of the Act. [441H-442B]
437
The definition of 'temple' requires that the place would  be
a  temple  if  it be used as a place  of  public  religious
worship.  There is no requirement that an institution to  be
a math must be a public institution for the promotion of the
Hindu  religion.   The use of the  word  'public'  was not
necessary  in  connection  with an  institution  for such
promotion of the Hindu religion as any institution for such
promotion of the Hindu religion must be of a public  nature.
the  object being to promote Hindu religion, there would  be
no  point  in  shutting the benefit of the  institution  to
anyone among the Hindus. [442C-D]
The  distinction between a public trust and a private  trust
is,   broadly speaking,  that in  a public trust the
beneficiaries of the trust are the people in general or some
section of the people, while in the case of a private  trust
the  beneficiaries are an ascertained body of persons. The
beneficiaries of a math are the members of the fraternity to
which the math belongs and the persons of the faith to which
the  spiritual head of the math  belongs,  and constitute,
therefore,  at least a section of the public.  Maths,  in
general, consequently, are public maths. [442E-F]
[QUAERE:-Whether there can be a private math or not?]
(2)The onus was initially on the  appellant-plaintiff to
show  that the order of the Commissioner was wrong and this
he could only show by establishing prima facie that the Math
was  not a math as defined in the Act and that the  various
properties were not endowed properties. [443H]
(3)  The gazetteer could le consulted on matters  of  public
history. [447B]
(4)  The documentary evidence on the record did not  support
the case  of  the appellant, but showed that the  Properties
were those of the   math.



JUDGMENT:
CIVIL APPELLATE JURISDICTION:- Civil Appeal No. 205 of 1964.
Appeal by special leave from the judgment and decree  dated
November  30, 1961 of the Orissa High Court in First  Appeal
No. 63 of 1957.
A. K. Sen and P. K. Chatterjee, for the appellant.
Niren  de, Addl.  Solicitor-General, Dipak  Datta  Chaudhuri
and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Raghubar Dayal, J. This appeal, by special leave, is against
the judgment and decree of the Orissa High Court, confirming
the judgment and decree of the Additional Subordinate Judge,
Puri.  dismissing  the suit instituted by  Mahant  Gadadhar
Ramanuj Das, represented after his death by Mahant  Srinivas
Ramanuj Das, for the setting aside of the decision  of the
Commissioner  of  Endowments dated July 20, 1946,  under  s.
64(1)  of  the Orissa Hindu Religious Endowments  Act, 1939
(Act  4 of  1939), hereinafter called the Act, and  for  a
declaration  that  the Act did not apply to  the  properties
described in Schedules Ka, Kha and Ga of the plaint.
The allegations in the plaint are as, follows. The premises
on  which the residential quarters of the plaintiff  existed
was said to
438
be  popularly  known as (i) Srinivas  Kote;  (ii)  Rajagopal
Math;  and (iii) Emar Math, according to. the names  of the
different   ancestors  of  the plaintiff,   Srinivasachari,
Rajagopalachari and Embarachari.  It was alleged that  these
premises,  though  known as Emar Math, was not a  'math'  as
defined in the Act.  The public had no free access  to its
premises  and had no right of entry or worship of the  deity
installed  therein.   Embarachari  and his  ancestors were
alleged to  be grahasts.  His successors to the  Emar Math
were  celibate.  Srinivasachari  was  the  grand-father  of
Embarachari.   It is alleged that he acquired a portion  of
the present site of the plaintiff's residential quarters and
built  his residence there and installed therein his  family
deity Sri Raghunathji for his own spiritual benefit and the
spiritual benefit of his family members and that Embarachari
acquired  a large Plot of land adjacent to Srinivas Math  as
an  absolute  gift and constructed buildings  thereon. The
buildings  therefore  became popularly known as Emar  Math,
although Embarachari was a married man and was living  there
with  his  wife and children with  the private  deity Sri
Raghunathji.
The  plaintiff alleged that the  properties  described  in
Schedule  Ka  of the plaint were  his  personal properties,
those in Schedule Ka-1 as acquired through absolute gifts to
the  plaintiff or his ancestors and those in Ka-2 as  gifted
to  or purchased by the plaintiff or his  predecessors and
that they were wrongly recorded in the settlement papers  in
the  name of the plaintiff as marfatdar of  Lord  Jagannath.
The  properties in  Schedule Kha are alleged  to  be  Amrit
Manohi properties of Lord Jagannath held by the plaintiff as
marfatdar  and to have been acquired either by purchase  or
'krayadan'  or by way of gift subject to the charge of some
offering  to Lord Jagannath.  The properties in Schedule  Ga
were  alleged to be owned and possessed by the plaintiff  as
marfatdar  of various private deities. It was alleged that
none  of  the  properties in  these  schedules was  however
dedicated to the public and that the public had no  interest
in  or right  to any of  the  properties.   The  properties
therefore  did not constitute 'Public religious endowments'
within the meaning of the Act which, accordingly, could not
apply to them.
The  Commissioner  of Hindu  Religious Endowments,  Orissa,
hereinafter  called the Commissioner. demanded contribution
under  S.  49 of the Act and took steps to  enforce  certain
other  provisions of the Act against the plaintiff  and the
properties in suit.  This led the plaintiff to formally ask
for a decision under S. 64(1) of the Act.  The Commissioner
decided against him on July 20, 1946 and held that the Emar
Math  was  a  'math'  as defined in the Act  and  that the
properties constituted a 'religious endowment' to which the
Act applied.  Thereafter the plaintiff instituted this suit
and  prayed  for the setting aside of the  decision  of the
Commissioner  and  for a declaration that the  Act  did not
apply to the properties in suit.
439
The  Commissioner,  defendant  No.  2, contested  the suit
asserting  that the properties in suit were public  debonair
properties  and were  public endowments to  which  the Act
applied.  It was further contended that the premises of Emar
Math was a 'math' as defined in the Act and the public had a
right  to  go there and had been actually going there from
time immemorial.
The  trial Court accepted the contentions of  the  defendant
Commissioner  and  dismissed the suit. The High  Court,  on
appeal by  the plaintiff, agreed with the findings  of the
trial Court and accordingly dismissed the appeal.
Two  main  contentions have been raised before us.   One  is
that  the  Emar Math in suit is not a public math  and that
therefore  the Act does not apply to it.  The other is that
the properties in Schedule Ka were the personal property  of
the appellant-plaintiff and that the properties in schedules
Kha   and  Ga  were  private  debottar properties  of the
plaintiff.   Before  dealing with the  contentions,  we may
refer to the object and the relevant provisions of the Act.
The Act was enacted for the better administration and gover-
nance  of  certain Hindu Religious Endowments. Section  2,
sub-s. (a), states that  the  Act applies,   save  as
thereinafter   provided,  to  all  Hindu  public   religious
endowments which, according to the Explanation to that sub-
section,  do not include Jain religious endowments.   'Math'
is defined in sub-s. (7) of s. 6 as:-
     "'   math'  means an  institution   for the
     promotion of the Hindu religion presided over
     by a person whose duty is to engage himself in
     spiritual service or who exercises or  claims
     to exercise spiritual headships over a body of
     disciples and  succession  to  whose   office
     devolves in accordance with the directions  of
     the founder of the institution or is regulated
     by  usage;  and includes places  of  religious
     worship other than a temple and also places of
     instruction  or places for the maintenance  of
     vidyarthies or places for rendering charitable
     or religious services in general which are  or
     may be appurtenant to such institution."
Sub-s. (10) of s. 6 defines the expression  'person  having
interest' to mean, in the case of a math, a disciple of the
math  or a person of the religious persuasion to  which the
math  belongs. Sub-s. (12) of  s.  6 defines  'religious
endowment' or 'endowment' as meaning:-
     "all  property  belonging to,  or  given  or
     endowed  for 'the support of maths or  temples
     or  for  the  performance of  any service  or
     charity  connected  therewith whether  or not
     such  maths  or  temples be in  ruins  or the
     worship in   connection   with  them  is
     discontinued either temporarily or permanently
     and   includes  the  premises  of  maths  or
     temples."
     440
     The explanation thereto reads:-
     "Where an endowment has been made or  property
     given for the support of an institution  which
     is  partly  of  a religious and  partly  of  a
     secular  character or for the  performance  of
     any service or charity connected therewith, or
     where  an endowment made or property given  is
     appropriated partly to religious and partly to
     secular  uses, such endowment or property  or
     the  income therefrom shall be deemed to be  a
     religious endowment  and its  administration
     shall  be governed by the provisions  of this
     Act."
     According to sub-s. (13) of s. 6, 'temple'  is
     defined as follows:-
     "'temple'  means  a   place,   by   whatever
     designation  known, used as a place of  public
     religious worship and dedicated to, or for the
     benefit of, or used as of right by, the  Hindu
     community, or any section thereof, as a  place
     of  religious  worship and also  includes any
     cultural institution  or mandab or  library
     connected  with such  a place of   public
     religious worship."
General superintendence of all religious endowments  vested
in  the Commissioner under s. 11 of the Act.  Clause (b)  of
sub-s. (1) of s. 12 requires the Commissioner to maintain  a
register  for every math or temple and all title  deeds and
other documents relating thereto.  Sub-s. (2) provides that
the  register shall be prepared, verified and signed by the
trustee of the math or temple or by his authorised agent and
submitted  by  him to the Commissioner within such  period
after  the commencement of the Act as the  Commissioner may
fix.   Sub-s. (3) authorises the Commissioner to  make such
enquiry as he may consider necessary and to direct that the
register  be  approved with such alterations,  omissions  or
additions  as he thinks fit to order.  Section 13  requires
the annual verification of the entries in this register.
Section 46 reads:-
     "The  trustee of a math or temple may, out  of
     the  funds  of the endowments in his  charge,
     after  satisfying adequately the purposes  of
     the    endowments,   incur   expenditure  on
     arrangements  for securing the health,  safety
   or convenience  of  disciples,  pilg
rims   or
     worshippers resorting to such math or temple:-
     Provided that  the  Commissioner  may, for
     reasons  to be setforth in  writing,  restrict
     and  place under such control as he may  think
     fit  the exercise  by  the  trustee  of his
     discretion under this section."
Section 49  provides that every math or  temple  and  every
specific  endowment attached to a math or temple  shall pay
annually  contributions at specified rates for meeting the
expenses of the Commissioner when the annual income  exceeds
a specified amount.
441
Under  s.  51(1), the amount of contributions payable  by  a
math  under s. 49 was to be assessed on and notified to the
trustee of the math, temple or specified endowment concerned
in  the prescribed manner.  The trustee can object  to the
assessment  and has  to  pay  such  amount  as be  finally
determined by the Commissioner on considering the objection.
Section 64 reads:-
     "(1)  If any dispute arises as to whether  an
     institution is a math or temple as defined  in
     this  Act or whether a temple is an  excepted
     temple,  such dispute shall be decided by the
     Commissioner.
     (2)Any  person  affected by a  decision  under
     subsection (1) may, within one year, institute
     a suit  in the Court to modify or  set  aside
     such  decisions; but subject to the result  of
     such suit, the order of the Commissioner shall
     be final."
Before we deal with the contention about the Emar Math being
not  a public math, we may first consider what the  Commis-
sioner had  to  do  under  s. 64(1) of  the Act. The
Commissioner  had to decide under that sub-section  whether
the  Emar  Math was a math as defined in the Act.   He held
that  it was and we have to see whether he was right  in  so
doing.
An  institution comes within such  a definition  if  it
satisfies three conditions:- (i) that the institution be for
the  promotion of  the Hindu religion;  (ii) that  it  be
presided over by a person whose duty is to engage himself in
spiritual  service  or who exercises or claims to  exercise
spiritual headship over a body of disciples; and (iii) that
the  office of such person devolves in accordance  with the
directions of the founder of the institution or is regulated
by usage.
There is ample evidence on the record to show that the Emar
Math  was  presided  over by the  Mahant,  that the  Mahant
exercised  spiritual headship over the disciples,  and that
the succession to the office of the Mahant was regulated  by
the  usage of the institution. There could be no  question
that such an institution must have been for the promotion of
the  Hindu  religion.  It was for such an  object  that one
would have a body of disciples. It is in evidence that the
Mahant used to preach and had a large number  of  disciples
who  were  attracted  by  the  high  reputation the  Mahant
enjoyed.   It  is said that Embarachari was  regarded with
great  respect in his times and that it was on account  of
such  respect  that the gift of the land  evidenced  by the
Deed,  Exhibit 110, executed sometime is 1767, was  made  in
his favour.
It is not disputed for the appellant that the institution is
a math. What is disputed is that it is not a public math as
required  by  the  Act.  The  premises of  the  Emar Math
constituted  a religious  endowment,  which  includes the
premises of maths or temples.
442
Further, if the premises of the Emar Math-had been used both
for  secular  purposes and  for  religious  purposes, it,
according  to the explanation to sub-s. (12) of s. 6,  shall
be deemed to be a religious endowment and its administration
shall be governed by the provisions of the Act. This  makes
it clear that the premises of the Math is not only deemed to
be a religious endowment, but is deemed to be a Hindu public
religious  endowment  to  which the  Act  applies,  as the
provisions of the Act govern its administration.  It follows
that  an  institution which comes within the  definition  of
'math' under the Act, ipso facto comes within the expression
'Hindu public religious endowment' and  therefore  becomes
subject to the provisions of the Act.
In this connection, reference may be made to the  definition
of 'temple'.  While the definition of 'temple' requires that
the  place  would be a temple if it be used as a  place  of
public religious worship, there is no requirement  that  an
institution  to be a math must be a public  institution for
the  promotion of the Hindu religion.  The use of  the word
'public' was not necessary in connection with an institution
for  the promotion of the Hindu religion as any institution
for such promotion of the Hindu religion must be of a public
nature; the object being to promote Hindu  religion,  there
would be no point in shutting the benefit of the institution
to anyone among the Hindus.
The  distinction between a public trust and a private  trust
is,   broadly speaking,  that in  a public trust the
beneficiaries of the trust are the people in general or some
section of the people, while in the case of a private  trust
the  beneficiaries are an ascertained body of persons. The
beneficiaries of a math are the members of the fraternity to
which the math belongs and the persons of the faith to which
the  spiritual head  of the math  belongs,  and  constitute
therefore  at  least  a section of the public.  Maths,  in
general, consequently, are public maths.  We say nothing  as
to  whether there can be a private math or not. Mukherje  a
states at p. 390, in his 'Law of Endowment', 1st Edition:-
     "By   private  math  should  be  meant   those
     institutions where the head or superior  holds
     the property not on behalf of an indeterminate
     class  of persons or a section of the  public
     but  for a determinate body  of individuals,
     viz.,   the  family  or  descendants  of the
     grantor."
In the present case, there is no evidence as to who actually
founded the Math by granting the property to the  spiritual
preceptor.   The earliest evidence on the record is of year
1767 when a piece of land was gifted to Emar Gosain on which
a portion of the present Math stands.  However, there is  no
evidence, whoever the founder be, that any particular family
is  the only body of persons who is interested in the  Math.
The  spiritual family of the preceptor consisting  of his
disciples and the disciples in succession, cannot be  deemed
to be such a private family for whose benefit
443
the Math is founded and on that account the Math be called a
private Math. The body of disciples and  the  disciples'
disciples  etc., is a very unascertainable body.   The Emar
Math is therefore not such a private math.
Much  has been said on either side with respect to the onus
in connection with the Math being public or not.  Onus loses
its importance when the parties have led evidence sufficient
to determine the matter' in dispute.  The High Court  agreed
with  the  trial Court that the onus was on  the  plaintiff-
appellant to establish that the institution was the  private
property  of  the  Mahant.  It is said in  para 10  of its
judgment  that the  initial  burden  of  showing  that the
Commissioner's decision was wrong was on the plaintiff and
that apart from the appellant's position as plaintiff he had
a   heavy  burden  to  establish  affirmatively  that the
institution was the private property of the Mahant.
It is contended for the appellant that the initial onus lay
on the defendant-respondent to establish that the Math was a
public math.  Reliance is placed on several cases of  which
reference  may be made to Parma Nand v. Nihal Chand(1)  in
which  the  Privy Council approved of the view of  the High
Court  that  it was for the defendants to  prove  that the
plaintiff  who was admittedly in possession of the  property
held  it  on  a trust created for a  public  purpose  of  a
charitable  and religious nature.  The application was made
to  the District Judge by some representatives of the  Hindu
public alleging  that the Baghichi Thakaran  was  a  public
endowment for religious and charitable purposes, and calling
upon Mahant Narain Das to furnish details of the nature and
purposes of the trust. Narain Das then instituted the suit
which ultimately went to the Privy Council.
Section 5(3), the Charitable and Religious Trusts Act, 1920
(Act 14 of 1920) provides for the stay of proceedings before
the  Judge under s. 3 of that Act, in order that the  person
denying the public nature of the trust may institute a suit
for a declaration that the property was not trust  property.
There was no decision of any binding nature by the Court  or
by  any authority which was to be avoided by  the  plaintiff
instituting  a suit for a declaration that the property was
not  trust  property. In the present case  the  suit was
instituted  in pursuance  of  s. 64(2) of  the  Act  which
provides  that any person affected by a decision  under its
sub-s. (1)  may, within one year, institute a suit  in the
Court to modify or set aside such decision and that, subject
to the result of such a suit, the order of the Commissioner
shall  be  final.  The plaintiff-appellant  instituted this
suit for the setting aside of the order of the Commissioner
under  sub-s. (1) of s. 64 holding the institution to  be  a
'math' as defined in the Act and the property belonging  to
it  endowed properties. This order of the  Commissioner  is
final, subject to the result of the suit.  The plaintiff has
to  get over  it  to avoid  that  decision.   The  onus  is
therefore initially on the plaintiff to show that the
(1)  L.R. 65 I.A. 252.
444
order of the Commissioner is wrong and this he can only show
by  establishing prima facie that the Math is not a math  as
defined in the Act and that the various properties were not
endowed properties.
Learned counsel  for the parties have argued on  the  basis
that  The Act applies to public maths. It is urged for the
appellant  that it is not proved to be a public math,  while
the  respondent contends to the contrary.  Undoubtedly, the
Math  had  been in existence for over two  centuries. Oral
evidence  about the  founding of the Math  could  not  be
possible  after such a long period.  The mahant of the Math
has not come in the witness box.  The Courts below have held
the  Math  to  be  a public math on  the  basis of  several
considerations.  These are  that  the Mahants  had been
celibate and therefore not likely to have personal ownership
in the property including even the dakshinas or cash offered
to  them, by disciples or other devotees.  Religious  books,
viz. the Bhagavad Gita and the Ramayan, are recited daily in
the  temple  of Raghunathji.  There was also  the  image  of
Ramanuj, the founder of the cult.  This image is carried  in
procession  for five days around the compound of  the main
temple of Lord Jagannath at Puri.  This could be to  provide
darshan to  the  devotees  of the  Vaishnav  faith. Some
ascetics  called babajis reside at the math and are  fed  by
the  math authorities. The buildings of the math are  many,
much  beyond  the  requirements of the Mahant  and  the few
resident  disciples.   The  Mahants of this  Math  have the
privilege of rendering service to Lord Jagannath both in the
temple and  in the Gundicha Mandir.  They also manage the
Amrit Manchi properties the proceeds from which are utilised
for  offering  bhog to Lord Jagannath and  the Maha  Prasad
therefrom  is  distributed  to the  poor  pilgrims  and the
Vaishnav visitors.
Apart  from these considerations, certain  documents  relied
upon by the High Court tend to favour the finding that Emar
Math  is  a  public math and that  the various properties,
though ostensibly  acquired  by the  Mahants, were  really
acquired for the Math. The first document of importance  in
this  respect is Exhibit 110 of 1767.  It is a deed of gift
by  a  private person in favour of Sadhu  Emar Gosain, the
Adhikari  of Ramanuj Kote Math. P.W. 2 states that  Ramanuj
Kote  belongs to Emar Math area.  This description  supports
the conclusion that the Math, though under a different name,
had  been in existence from before the time of Emar  Gosain.
The plaint alleges that the premises in suit had been  known
by  different  names.  The gift deed states that  the  donee
will  enjoy the property gifted in perpetuity. The idea  of
perpetuity is further emphasised when it is said in the gift
deed:-
     "Your  Chelas, Sishyas and  Anusisllyas  shall
     all enjoy this property for ever in perpetuity
     until the sun and moon last."
This stipulation shows that it was not a gift personally  to
Emar,  that the gift was for the benefit of chelas,  sishyas
and  anusisllyas  and  that  it was  in favour of  persons
indeterminate in number.  The
445
fact  that  the chelas are distinguished  from sishyas and
anusisllyas shows that the chela is the nominee of the Guru
for  the  purpose of succession and that  though  the  chela
would succeed to the Gaddi, he would hold the properties not
for  personal enjoyment but for the benefit of sishyas and
their sishyas-indicating  that  the  property was   trust
property.   Further,  the  land donated  by  this  document
admittedly  is a  portion of the site on  which  the Math
stands. The gift of such land could be for no other  object
but  for  the purpose of the construction of  the  Math and
therefore a gift to the Math, though it would normally be in
the name of the Mahant, the head of the Math.
Another document  of importance in this connection  is the
Will, Exhibit 140, executed by Mahant Mohan Dass in 1857  in
favour of his disciple who was the subsequent Mahant by the
name Mahant Raghunandan Das.  This Will, besides speaking of
the careful training given to Raghunandan Das making him fit
to succeed to the gaddi, states :-
     "After me the said Raghunandan as my successor
     in the Mahantai Gaddi shall become the Mahant,
     Malik  and  Gadanashin and shall continue  to
     exercise ownership and possession in  respect
     of  all the properties as he is doing now and
     shall enjoy as the rightful owner and Malik of
     all  the movable properties of  and  connected
     with  this Math both within this part  of the
     country and outside (Desh Bideshare) and shall
   continue to manage the rendering and
supplying
     of  the  fixed Sheba Puja offerings  and Bhog
     etc.   of  Shri Jagannath   Mohaprabhu  in
     accordance  with the traditional customs and
     shall  give food and shelter, as he  is  doing
     now,  to Bhaishnab guests and  other  persons
     arriving in  the Math (Abhyagata)  etc., and
     committing no laches in this and remaining  in
     observance  of his own religion, shall  manage
     all affairs".
The  last  expression  with respect to giving  of  food and
shelter to Vaishnay guests and other persons arriving in the
Math etc. indicates that visitors. belonging to the  Ramanuj
Sampraday,  used to visit the Math when on a  pilgrimage  to
the  Lord Jagannath Temple and the Mathadhish of  Emar Math
used to give shelter and food to them and the will  enjoined
the  nominee  to continue that practice.   Such a  practice
shows  that  the beneficiaries of the Math  properties were
again indeterminate in number. The gift being to the  Math.
though ostensibly in the name of the Mahant, the Mahant held
the  properties as a trustee for the indeterminate class  of
beneficiaries, viz., sishyas, anusishyas and visitors. This
stamps the  Math  with  the  public  character.   It  is
significant  to note  that  there is not  a  word  in this
document  to the effect that Mahant Mohan Das possessed any
private property and that such private property was to go to
Raghunandan  Das who was to succeed him on the gaddi  or  to
somebody else, The only conclusion from such an omission can
be that Mahant
446
Mohan  Das  did not consider any, property, to be  his own
personal property.  Whatever he possessed and over which  he
exercised ownership was considered to be the property of the
Math  or  properties connected with the Math  and  that his
successor was to exercise ownership and possession over all
such properties.
We therefore hold that the Emar Math is a math as defined in
the Act and that it is a public math.
The  history of the Emar Math, according to the passage  in
the  Puri  Gazetteer, fits in with our finding.   The High
Court  has  relied  on what has been  stated  in  the Puri
Gazetteer of O'Malley of 1908, at pp. 112-113. The relevant
portion of the passage relied on is the following:-
     "No  account  of Jagannath  worship  would  be
     complete without some account of the maths  in
     Puri.   Maths are monastic  houses  originally
     founded with the object of feeding travellers,
     beggars, and ascetics, of giving religious in-
     struction  to   chelas  or   disciples, and
     generally of  encouraging a  religious  life.
     The  heads of these religious houses  who are
     called Mahants or Mathadharis are elected from
     among  the  chelas, and are  assisted  in the
     management  of their properties  by  Adhikaris
     who   may be  described as  their   business
     managers. They are generally celibates but in
     certain maths married men may hold the office.
     Mahants  are the gurus or spiritual guides  of
     many   people  who  present  the maths with
     presents of  money and  endowments  in  land.
     Thus,  the  Sriramdas or Dakshinaparswa Math
     received rich endowments from  the  Mahrattas
     its abbot having been the guru of the Mahratta
     Governor; While the Mahant of Emar Math in the
     eighteenth  century who had the reputation  of
     being a very holy ascetic, similarly got large
     offerings from his followers.  Both Saiva and
     Vaishnava Maths exist in Puri.  The lands  of
     the   latter  are known as   Amruta   Manchi
     (literally  nectar  food), because  they were
     given  with  the intention that  the  proceeds
     thereof  should  be spent in  offering  bhoga
     before Jagannath and that the Mahaprasad thus
     obtained should be distributed among pilgrims,
     beggars  and ascetics; they are distinct from
     the  Amruta Manchi lands of the temple  itself
     which  are  under the superintendence  of the
     Raja.  In 1848 Babu Brij Kishore Ghose roughly
     estimated the annual income of 28 maths from
     land  alone  at Rs. 1,45,400 and this  income
     must  have increased largely during  the last
     sixty years.
     There  are  over 70 maths in Puri Town. The
     Chief  Saiva  maths are located in  the  sandy
     tract near Swargadwar viz., Sankaracharya math
     with  a  fine library of old  manuscripts and
     Sabkarananda  math  which has  a branch  at
     Bhubaneshwar.  Most of the maths are naturally
     447
     Vaishnava.   The richest of  the latter are
     Emar,  Sriramdasa and Raghavadasa the  inmates
     of   which   are Ramats or   followers  of
     Ramananda."
It  is urged for the appellant that what is stated  in the
Gazetteer  cannot be treated as evidence.  These  statements
in the Gazetteer are not relied on as evidence of title but
as  providing historical material and the practice  followed
by the Math and its head.  The Gazetteer can be consulted on
matters of public history.
The next question relates to the nature of the properties in
suit.
The oral evidence about the foundation of the Math or  about
the various acquisitions of property by purchase or by gift
is nil. Whatever a witness has deposed has not been on the
basis  of his personal knowledge.  This is natural when the
Math  was founded about two hundred years ago and when most
of  the acquisitions had taken place long  ago.   The best
person to speak, though not from personal knowledge,  could
have  been the Mahant himself. He can base his knowledge  on
the  documents about  the  history  of the  Math  and the
acquisition   of  the  properties.   Such   documents must
naturally  be in the custody of the Mahant.  The Mahant has
not  come  in the witness box. All the documents  have not
been  produced.  In  fact it is  the  plaintiff  alone who
produced a number of documents but he had picked and  chosen
from among the documents in his possession.  Some  documents
which  could  have thrown some light on the  question  under
determination  have not been produced. It is true that the
defendant-respondent  also did not call upon the  plaintiff-
appellant  to  produce the documents  whose  existence was
admitted  by one or the other witness of the  plaintiff and
that  therefore, strictly speaking no inference adverse  to
the  plaintiff can be drawn from his non-producing the list
of  documents. The  Court  may not be in  a position  to
conclude from such omission that those documents would have
directly  established the case for the respondent.   But  it
can take into consideration in weighing the evidence or any
direct inferences from established facts that the  documents
might have favored the respondent's case.
The  documents relied upon for  the  appellant  relate  to
acquisition of properties by purchase or gift and are in the
name of the Mahant of the Math. Such documents being in the
name  of  the Mahant alone, do not necessarily lead  to the
conclusion that the properties were acquired or received  in
donation  by  the Mahant in ],is personal capacity  for his
personal  use and possession.  An inference that  they were
acquired by the Mahant for the Math is equally possible and
in  fact is to be preferred to what appears on the  face  of
the documents. The onus of proof being on the appellant, it
was  possible  for  him to  establish his  case  from the
documents available to him.  But he has chosen not to  place
at the disposal of the Court all the relevant documents.  It
is  significant to note that not a single document has been
produced by the plaintiff
448
which specifically mentioned the purchase or the gift to  be
by  or to the Math itself.  It is difficult to believe that
the Math acquired no property during the long period of its
existence.   The Mahant as the head of the institution acts
for  the  Math and is its  real  representative.   All the
dealings for and on behalf of the Math must be conducted  by
the  Mahant and it should be no wonder if the Mahant  acting
for  the Math acts ostensibly in his own name. Though the
documents  relating  to purchase of  properties  have been
produced,  no  evidence was  led to  show  that  they were
purchased   from   the personal  assets  of   the   Mahant.
Presumably  if there was such evidence, it would  have been
produced.  The only possible inference which can be drawn is
that they were purchased from the assets of the Math.
Reference may be made to Sitaram Days Banasi v. H.R.E. Board
Madras(1)  and to Raghbir Lala v. Mohammad Said(1).  In the
former case, Varadachariar, J. said:-
     "From the few sale deeds filed in the case, it
     no doubt appears that some of those properties
     were  purchased  in  the name  of  the  prior
     Mahant;  but it being admitted that he was  an
     ascetic  and  celibate  and the  head  of the
     institution,  the probabilities are that they
     were   purchased with  the  funds   of the
     institution." and in the latter it was said:-
     "No   doubt  if  a  question  arises   whether
     particular   property  acquired  by  a   given
     individual  was acquired on his own behalf  or
     on behalf of some other person or institution
     with  whom or with which he was connected the
     circumstance that the individual so  acquiring
     property was  a professed  ascetic  may have
     importance."
     Reference may also be made in this  connection
     to the Order, Exhibit 136, of the Maharaja  of
     Puri,  to Dewan Bhramarbar  Ray.  The  order
     states :-
     "The  Maharaja  hereby  grants  this   Sananda
     taking  Rs.  3,000  that he  has granted the
     following 145 Batis and 15 Manas of land, that
     the  income of this land will be utilised  in
     Bhog  of Lord Jagannath and distributed  among
     the coming Baishnabas.  The 19th day of  Mass,
     Anka 2.
     1.    Rahang,  Ph.   Alisa-117  Batis  and  15
     Manas.
     2.    Out of Bania Kera-10 Batis.
     3.    Chabiskud, Ph.  Tinikud-18 Batis."
Of  the three properties mentioned in this order, the  first
one belongs to Schedule Ka-1, the second to Schedule Kha and
the  third  to Schedule Ka-2, attached to the  plaint. The
property  in Schedule Ka-1 is the property which is said  to
have been acquired by the plaintiff and his ancestors. The
property  in  Schedule Ka-2  is the  property said  to  be
acquired by the plaintiff's
(1)I.L.R. 1937 Mad. 197:- A.I.R. 1937 Mad. 186-187.
(2) A.I.R. 1943 P.C. 79.
449
ancestors for personal services to Lord Jagannath while the
properties  in Schedule Kha are said to be acquired  subject
to  a charge of offering Bhog to Lord Jagannath.  The  order
makes no distinction in the nature of the objects for  which
the  three properties are given.  In fact it shows that the
income from all the three properties was to be utilised  in
offering  Bhog to Lord Jagannath, and for  distributing the
prasad among  the  Vaishnavas who would  visit the  place.
There  is nothing in this order that any of  the  properties
was for the personal enjoyment and possession of the  Mahant
alone. It  is not possible to hold  that  the  properties
covered  by  the  same grant should fall  in   different
categories  as is  the case,  according  to  the  schedules
attached to the plaint.
Apart  from (these general considerations,  the documentary
evidence  on  record  does  not support  the  case  of the
plaintiff  with respect to the properties in  schedule Ka-1
and Ka-2.  It may also be mentioned at this stage that there
is  no document on record with respect to the properties  in
schedules Kha and Ga.  We have already referred to  document
Exhibit 110, the gift deed with respect to the land  which
forms  part of the site of the Math.  Exhibit 112 refers  to
certain land  given  to  the Adhikari of  Emar  'Math for
building a temple for the God. The document states that the
drain  for the gruel from the temple of Lord Jagannath used
to  pass  over this  land and that this  drain had  to  be
shifted.  It is difficult to believe that the land which was
being  used  in connection with a public temple would have
been  given  for the purpose of personal  enjoyment  by the
Mahant or for the purpose of constructing a private temple.
The  land  mentioned in Exhibit 115 and Exhibit  1.16 were
acquired  by the Mahant on payment of certain  amounts.  He
was  further  required to pay certain amount towards the
'Kotha Bhoga' of Lord Jagannath.  Exhibit 117 relates to  a
land  purchased by  the Mahant.  He  was  required  to pay
certain amount towards Chamar Seba of Lord Jagannath.
Exhibit 118 mentions that certain land which the Mahant had
purchased  was being assigned to his Math in order  that  he
might  enjoy it for all times to come. This clearly  brings
out  that the land purchased by the Mahant from some  person
was made over to the Math.  He was exempted from payment  of
all sorts of extra taxes or other similar duties.  Exemption
from revenue and taxes appears to have been granted  because
it  was understood that the lands were of the  ownership  of
the  Math  and not the personal properties  of the  Mahant.
Even  this property which has been clearly assigned  to the
Math,  according to this document is mentioned in  Schedule
Ka-1,  indicating thereby that no particular care  had been
taken  in  preparing the schedule which just  included the
properties which had been acquired by sale deeds.
450
Exhibit  1  19 sanctions  certain  purchases by   Mahant
Samujamatra  and states that he will enjoy the same for all
time to come on dedication of all sorts of requirements for
Gundichaghar  Chali  (House of Lord  Jagannath).   No  other
demand towards Kotha should be made on  him. This  again
clearly indicates  that  the  property was  dedicated for
meeting the expenses of Gundichaghar Chali and was  exempted
from any other demand towards the Kotha presumably the Kotha
Bhog of Sri Lord referred to in Exhibits 115 and 116. This
property is included in Schedule Ka-2.
It  appears that the various maths at Puri were founded  by
saints following  different  cults,  but  devoted  to Lord
Jagannath.   They  had to offer seva to Lord  Jagannath  in
different  forms, e.g., offering Bhog and getting back Maha
Prasad, Chamar Seva ie., fanning of the Lord etc.  For Bhog
or  other services which required expenses, the saints were
in  need of funds and naturally the devotees of the  saints
would  make  gifts to them to enable them to  perform  these
services.  Gifts of property to the Mahants or exempting the
Mahants to  pay  taxes etc.  with  respect  to  the  lands
purchased by them was therefore merely to provide them with
funds necessary for rendering services to Lord Jagannath, on
behalf of  the Math  and also to  meeting  the  necessary
expenses  in  running  of  the Maths  which  would  include
expenses on the maintenance of the buildings, feeding of the
Mahant and the disciples and such other persons who came  to
reside at  the Math and also for distributing food  to the
poor.  The documents referred to above make this amply clear
and  thus show that the properties to which they  relate  do
not  belong to the Mahant personally but really belonged  to
the  Math.   It makes no difference to the  nature  of the
properties  whether  they were purchased by the Mahants  in
their own names or in the names of the Math.
Some  properties  have been shown to be  purchased  by the
chelas of the Mahants previous to their occupying the  gaddi
of  the Mahant,  that is  to say,  such  properties were
purchased when they were mere chelas and not mahants.  It is
therefore submitted for the appellants that these properties
could  not  be held to be math properties now. It  is true
that the presumption that the properties that were  obtained
during the  period  when they were not Mahants  cannot  be
presumed  to  be properties purchased or  acquired  for the
Math.  But the fact remains that when they themselves became
Mahants such self-acquired properties did not appear to have
been  treated  in any separate manner. Proceeds  from such
properties  were  mixed up with the proceeds  of  the  other
property.   Letters, Exhibits C & D, by Mahant Gadadhar Das
to  the Commissioner speak of the entire  mingling  of the
accounts of the private and Math properties.  Some witnesses
of  the plaintiff stated that Gadadhar Das told them  later
that  he  had  made wrong statement  in those letters for
ulterior  purposes.   Courts below did not  rightly  believe
such statements.  Further, it
451
may be noted that it appears from the sale deed, Exhibit 77,
executed in favour of Gadadhar Ramanuj Das, Chela of  Mahant
Raghunandan Ramanuj Das in 1909, that the founder owed a sum
of  Rs. 400/- to the Mahant Guru of Gadadhar and  that this
sum was adjusted towards the purchase price of the  property
conveyed  under this deed.  Mahant Mohan Das, by  his will
Exhibit 140,  permitted  his  Chela  Raghunandan,  who was
nominated  to  succeed him to get his own  name  gradually
mutated in respect of the lands and zamindaris standing  in
the name of the Mahant. It follows therefore that the mere
fact  that certain properties were ostensibly  purchased  by
the  chelas does not necessarily mean that those  properties
were  either acquired as their personal properties' or that
they  continued to be their personal properties after they
succeeded to the gaddi.
The plaintiff has failed to produce the expenditure accounts
with respect to the income from the properties in suit.  He
has not produced the consolidated budget which is  prepared.
That could have indicated whether the income and expenditure
over the property in suit was treated as of the Math or not.
Accounts  showing  the sources of  money  from  which the
properties  were  acquired have not  been  produced.   These
omissions, together with statements in letters Exhibits C  &
D,  are sufficient to support the findings  of the  Courts
below  that even these properties had been treated  as Math
properties.
We are therefore of opinion that the properties mentioned in
Schedules  Ka-1 and  Ka-2,  alleged  to  be  the   personal
properties  of the Mahant, are not his personal  properties
but are properties of the Math.
We  may now consider the properties in schedule Kha said  to
be the Amrut Manohi properties of Lord Jagannath and held by
the  plaintiff as marfatdar.  The  plaintiff  alleges that
these  properties  were acquired  either  by  purchase  or
'krayadan'  or by way of gift subject to a charge  of some
offering   to  Lord  Jagannath which  depended  upon the
individual  judgment  and discretion of the  plaintiff, and
that  the  public  had no concern  with  the  enjoyment  or
management  of the usufruct thereof.  The Gazetteer makes  a
reference to such properties and states:--
     "Both Saiva and Vaishnava Maths exist in Puri.
     The  lands of the latter are known  as  Amruta
     Manohi  (literally nectar food), because they
     were   given  with  the  intention  that the
     proceeds thereof should be spent in  offering
     bhoga before Jagannath and that the Mahaprasad
     thus  obtained  should  be  distributed  among
     pilgrims, beggars  and  ascetics-,  they are
     distinct from the Amruta Manohi lands of the
     Temple itself which are under the
     superintendence of the Raja".
453



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.