{"id":55658,"date":"1956-02-15T00:00:00","date_gmt":"1956-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vikrama-das-mahant-vs-daulat-ram-asthana-ors-on-15-february-1956"},"modified":"2017-09-19T10:22:03","modified_gmt":"2017-09-19T04:52:03","slug":"vikrama-das-mahant-vs-daulat-ram-asthana-ors-on-15-february-1956","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vikrama-das-mahant-vs-daulat-ram-asthana-ors-on-15-february-1956","title":{"rendered":"Vikrama Das Mahant vs Daulat Ram Asthana & Ors on 15 February, 1956"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vikrama Das Mahant vs Daulat Ram Asthana & Ors on 15 February, 1956<\/div>\n
Bench: V. Bose, B. Jagannadhadas, B.P. Sinha, S.J. Imam, N.C. Aiyar<\/div>\n
           CASE NO.:\nAppeal (civil)  149 of 1951\n\nPETITIONER:\nVIKRAMA DAS MAHANT\n\nRESPONDENT:\nDAULAT RAM ASTHANA & ORS. \n\nDATE OF JUDGMENT: 15\/02\/1956\n\nBENCH:\nV. BOSE & B. JAGANNADHADAS & B.P. SINHA & S.J. IMAM & N.C. AIYAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1956 AIR (SC) 382<\/p>\n
The Judgment was delivered by : JAGANNADHADAS<\/p>\n
JAGANNADHADAS J. : This is an appeal by the first defendant against the
\naffirming judgment and decree of the High Court of Allahabad dated
\n22-2-1949, on a certificate granted by the said Court under Article 133(1)\n<\/p>\n
(a) of the Constitution. The suit out of which this appeal arises relates
\nto an ancient Thakurdwara in the village of Amaulipur containing a temple
\nof Sri Hanumanji and Sri Thakurji, the entire institution being known as
\nAmaulipur Asthan (hereinafter referred to as “the Asthan”).\n<\/p>\n
The Asthan owns large property dedicated to it and specified in Lists A, B,
\nand C of the plaint. The entire income of these properties is spent for the
\nBhog of the idols and in maintaining a Sada-Bart for Sadhoos and Faqirs.
\nThere is a fairly long history of litigation relating to this Asthan since
\nabout 1926 which it is necessary to set out for a correct appreciation of
\nthe points that arise for decision in the present appeal.\n<\/p>\n
2. One Ganpat Das a previous Mahant of the Asthan died in the year 1920. He
\nwas succeeded by Mahant Bharat Das, still alive, who according to the
\nplaintiffs case, became mentally deranged Bharat Das appears to have
\nexecuted on 11-5-1925, a power of attorney in favour of one Gomati Das.\n<\/p>\n
About a year later, i.e. on 10-7-1926, he executed another document
\npurporting to transfer his Mahantship in favour of the present first
\ndefendant-appellant, Vikrama Das. This led to a suit No. 27 of 1927 by
\nGomati Das against the present first defendant for the declarations that\n<\/p>\n
(a) the deed of 10-7-1926, is null and void, and (b) he himself was the
\nMahant of the Asthan validly in possession and occupation of the Asthan and
\nits properties.\n<\/p>\n
The trial court decided that suit in favour of Gomati Das and granted him
\nboth the declarations he had asked for. On appeal, the High Court modified
\nthe decree to the extent that the declaration in favour of the plaintiff
\nthat he was in the position of the Mahant of the Asthan was set aside. But
\nthe decree of the trial court was maintained in so-far as it declared that
\ndeed of 10-7-1926, to be null and void as against the Asthan.\n<\/p>\n
There was a further appeal by the first defendant, Vikrama Das, to the
\nPrivy Council. In view of the fact that the plaintiff failed in the High
\nCourt to establish his title as Mahant, the Privy Council held that he was
\nnot entitled to get a declaration that the deed of 10-7-1926, was null and
\nvoid as against the Asthan. The suit was accordingly dismissed in the its
\nentirety. The judgment of the Privy Council was given on 25-10-1935. A copy
\nof the judgment is not on the record in these proceedings but it is to be
\nfound reported in Mahant Bikrama Das v. Gomati Das 1935 ALLWR 1408 (PC)
\n(A).\n<\/p>\n
3. During the pendency of the appeal in the Privy Council, three persons by
\nname Bansi Das, Raghubir Das and Ram Sarup Das applied to the Collector of
\nthe District under S. 92 ( read with S. 93) Civil P. C. for permission to
\nfile a civil suit in respect of the Asthan for the removal of Mahant Bharat
\nDas. The permission was granted by order of the Collector dated 18-11-1933.\n<\/p>\n
A suit under S. 92 Civil P. C. was accordingly filed on 27-11-1933. This
\nwas suit No. 90 of 1933 in the Court of the Subordinate Judge, Basti. The
\nplaint therein prayed for a decree (a) for the removal of the then Mahant
\nBharat Das and for the appointment of his alleged disciple Ram Sarup Das as
\nMahant, (b) for the appointment of a committee consisting of seven named
\npersons for fulfilling the objects of the waqf, and (c) for the entrustment
\nof the properties of the trust to the said Ram Sarup Das and Committee for
\nmanagement and for preparation of a scheme.\n<\/p>\n
It is necessary to notice that the suit was filed by only two of the three
\npersons to whom sanction had been granted by the Collector, i.e. , Bansi
\nDas and Raghubir Das and that the third, viz., Ram sarup Das whose
\nappointment as Mahant , on removal of the existing incumbent, was prayed
\nfor, was not a party to the suit. The sole defendant in the suit was Bharat
\nDas described as ‘ Mahant Bharat Das insane under the guardianship of Devi
\nPrasad Singh<\/p>\n
    “.\n<\/p>\n
    A written statement contesting the suit was filed by the said Devi
\n    Prasad Singh on behalf of Mahant Bharat Das on 30-1-1934. The suit was
\n    compromised shortly thereafter and a petition of compromise was filed
\n    on 3-4-1934. The compromise was to the effect that the various reliefs
\n    asked for by the plaintiffs should be decreed including the prayer for
\n    the appointment of Ram Sarup Das as Mmahant, with the condition that
\n    the Asthan should be responsible to maintain the defendant, Mahant
\n    Bharat Das, during his life time and that Ram Sarup Das should be
\n    liable to maintain him out of the income of the trust property.\n<\/p>\n
    A decree in terms of the compromise was also passed on the same date.
\n    It may be noticed that this was prior to the date of the judgment of
\n    the Privy Council which was given about a year and half later on
\n    25-10-1935. According to the plaint in the present suit, Bharat Das was
\n    removed from Mahantship by the aforesaid compromise decree and Ram
\n    Sarup Das began to manage the Asthan and its properties along with the
\n    truestees appointed under the said decree, having got his name entered
\n    by the Revenue Court in the registers in respect of all the villages
\n    connected with the Asthan.\n<\/p>\n
    After the present defendant, Vikrama Das, succeeded in the Privy
\n    Council in getting the suit against him by Gomati Das dismissed, he
\n    made an application in the Revenue Court for rectification of Khewats
\n    relating to the properties of the Asthan. By the date of the
\n    institution of the present plaint, the Khewat was changed in the name
\n    of the first defendant only in respect of the properties mentioned in
\n    List C but similar applications in respect of other properties were
\n    pending.\n<\/p>\n
    4. The present suit has been filed for a declaration that the
\n    plaintiffs and the second defendant are the trustees of the Asthan and
\n    the properties appertaining thereto in Lists A, B, and C, with which
\n    the first defendant, Vikrama Das had no. concern, and also for
\n    possession in respect of the said properties in case the first
\n    defendant was considered to be in possession of the same by virtue of
\n    mutation of name in his favour (in the revenue records).\n<\/p>\n
    The plaint was filed by four persons. Three out of them, viz Daulat Ram
\n    Asthana, Raja Ram Pandey and Ram Prasad Singh, were persons who had
\n    been appointed as trustees under the compromise decree in suit No, 90
\n    and 1933. The fourth plaintiff is one Baba Bansi Das. According to the
\n    plaint, he was impleaded in order that, in the alternative a decree for
\n    possession may be passed in favour of the said fourth plaintiff on the
\n    footing that he is the successor to Mahant Bharat Das.\n<\/p>\n
    Vikrama Das who figured as the defendant in the litigation which went
\n    up to the Privy Council is the first defendant in this suit and the
\n    third defendant is Mahant Bharat Das described as ‘insane under the
\n    guardianship for Devi Prasad Singh”\n<\/p>\n
. The second defendant is one Pandit Chandra Sekhar Pandey who was one of
\nthe seven persons enumerated as trustees under the compromise decree in
\nsuit No. 90 of 1933. The first defendant is the only contesting defendant.
\nHe raised various pleas which may be substantially summarised as follows.\n<\/p>\n
1. The plaintiffs have no. right to maintain the suit, the decree under
\nwhich they claim to be trustee being and invalid and collusive one to which
\nhe was not a party.\n<\/p>\n
2. The property in dispute is in no. way waqf property. It has not been
\nmade a waqf for any Asthan or for any idol. Bharat Das was the owner of the
\nproperty and not a trustee.\n<\/p>\n
3. The contesting defendant is the most closely related Nihang Sanyasi from
\nthe spiritual family of Bharat Das and was duly appointed Mahanta according
\nto the custom after the execution of the deed dated 10-7-1926.\n<\/p>\n
5. Various issues were framed and a decree was granted in favour of the
\nplaintiffs on 13-2-1943. As against this decree, the first defendant,
\nVikrama Das, filed an appeal to the High Court, which dismissed it by its
\njudgment and decree dated 22-2-1949. Hence the present appeal before us by
\nthe first defendant.\n<\/p>\n
6. It is desirable at this stage to notice some changes in the Course of
\nthese proceedings as regards the array of some of the original parties to
\nthe present litigation. The fourth plaintiff, Baba Bansi Das, filed an
\napplication dated 11-11-1942 , in the trial Court itself asking his name to
\nbe removed from the array of plaintiffs and this was ordered.\n<\/p>\n
The second plaintiff, Raja Ram Pandey, died during the pendency of the
\nappeal in the High Court and the appeal was continued as against the other
\ntwo plaintiffs as respondents. Plaintiffs 1 and 3, Daulat Ram Asthana and
\nRam Prasad Singh died after leave to appeal to this Court was granted by
\nthe High Court, the former on 2-2-1951, and the latter on 19-2-1952. The
\nappellant filed an application in the High Court (after two other futile
\napplications) on 3-9-1953, praying that the second defendant Chandrasekhara
\nPandey may be treated as the trustee against whom the present appeal may be
\ncontinued in the place of the deceased plaintiffs 1 to 3.\n<\/p>\n
It was also stated in the application that two other persons, Ram Sarup Das
\nand Shyam Narayan Pandey were intermeddling with the trust estate and that
\nthey should also be impleaded. A report was thereupon called for by the
\nHigh Court from the lower Court. The Civil Judge submitted a report to the
\neffect that Chandra Sekhara Pandey appeared and disclaimed any interest,
\nthat Shyam Narayan Pandey did not appear in spite of personal service and
\nthat Ram Sarup Das was an intermeddler and was intermeddling with the trust
\nestate.\n<\/p>\n
When the report came up for consideration by the High Court, it was prayed
\non behalf of the appellant that the names of Daulat Ram Asthna and Ram
\nPrasad Singh may be removed from the record and that the name of Ram Sarup
\nDas who had been found to intermeddling with the trust estate may be
\nsubstituted as the respondent against whom the appeal was to be continued.
\nThis prayer was opposed on behalf of Ram Sarup Das.\n<\/p>\n
But the High Court directed him to be brought on record because he claimed
\nto be intermeddling with the trust estate. This order was affirmed by this
\nCourt by its order in Chambers dated 5-5-1955. Ram Sarup Das is accordingly
\nthe only respondent before us.\n<\/p>\n
At the hearing of the appeal counsel for Ram Sarup Das raised the
\npreliminary question that he has been wrongly brought on record as a legal
\nrepresentative. He is not, however, prepared to say that Ram Sarup Das has
\nno. interest in the trust estate or that he is not in possession thereof.
\nOn the other hand, he claims to be in possession and maintains his title to
\nthe Mahantship by virtue of the compromise decree.\n<\/p>\n
We cannot therefore, uphold the preliminary objection. The continuance of
\nthe appeal as against Ram Sarup Das as directed by the High Court and as
\naccepted by this Court in its order dated 5-5-1955, must stand.\n<\/p>\n
7. At the trial of the suit various issues were framed of which it is
\nsufficient to notice the more important ones and the findings thereon. The
\nfirst issue was in substance whether the properties in suit – i.e., the
\nAsthan and the properties attached thereto – are waqf property subject to a
\npublic trust for religious and charitable purposes or whether they are the
\npersonal properties of the Mahant of the Asthan.\n<\/p>\n
After elaborate consideration, the finding on this issue was the Asthan and
\nthe properties which are appurtenant there to are assuredly not the
\npersonal property of the Mahant of the Asthan but that they are waqf and
\nsubject to a public trust of a religious and charitable nature. The next
\nimportant issue is issue No. 6 which runs as follows :\n<\/p>\n
    “Is Ram Sarup Das the lawful Mahant of the Asthan? Are the plaintiffs
\n    entitled to seek a declaration to that effect without impleading him?\n<\/p><\/blockquote>\n
    The finding thereon is as follows :\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
It has been alleged by the plaintiffs that Ram Sarup Das was initiated as a
\nChela by Bharat Das and is therefore a lawful successor. * * * But be that
\nas it may, he is the Mahant by virtue of the decree. After the decree Ram
\nSarup Das entered into possession of the Asthan property and his name was
\nrecorded in the revenue papers until it was expunged in 1940 by the Board
\nof Revenue.\n<\/p>\n
The plaintiffs have every right to seek declaration of Mahantship of Ram
\nSarup Das, for they as trustees and he as Mahant, are knit together into a
\nbody by the common bond of management of the Asthan. It was not at all
\nnecessary to implea Ram Sarup Das for there are no. differences between the
\ntrustees and the Mahant. The defendant at any rate cannot raise objection
\nto the omission to implead Ram Sarup Das, for there is no. privity between
\nthe defendant and Ram Sarup Das and neither derives title through the
\nother.\n<\/p>\n
    ”\n<\/p><\/blockquote>\n
    The next important issues are Nos. 4 and 5, which run as follows :\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
Issue No. 4 : is Amaulipur a subordinate branch of Hanuman Garhi? What is
\nthe rule of succession to Mahantship of the Amaulipur Asthan?\n<\/p>\n
    “Issue No. 5 : Is the defendant lawful successor-in-interest of Bharat
\n    Das and is he entitled to hold the property as such?”\n<\/p>\n
Before noticing the finding on these two issues, it is necessary to mention
\nthat the first defendant based his title to the Mahantship on two grounds,
\nviz (1) the suit Asthan at Amaulipur is a subordinate branch of Hanuman
\nGarhi and that the defendant who is said to be the Mahant of Jhundi Jamaat
\nin Patti Ujjainiya of Hanuman Garhi by virtue of succession to his Guru
\nMahabir Das and the said Garhi belongs to the same spiritual family as that
\nof Mahant Bharat Das.\n<\/p>\n
Hence by custom he is entitled to succeed to the Amaulipur Garhi
\n(presumably because Bharat Das became incompetent), and (2) the document
\nexecuted by Bharat Das on 10-7-1926, transferring the Mahantship to him
\nentitles him thereto.\n<\/p>\n
8. The finding of the trial court on a consideration of both the above
\ngrounds appears from the following extracts from its judgment.\n<\/p>\n
    “There is no. warrant for connecting the Amaulipur Asthan with Hanuman
\n    Garhi.\n<\/p><\/blockquote>\n
    *** No. custom entitling a Sadhoo of Hanuman Garhi to succeed to the
\n    Amaulipur Gaddi has been established ***The defendant is neither the
\n    Chela of Bharat Das nor of Bharat Das’ Guru.\n<\/p><\/blockquote>\n
    As the succession to the Mahantship of Amaulipur has always been in the
\n    line of senior Chela, Bikrama Das would by no. means be the prospective
\n    Mahant Amaulipur after Bharat Das. * * * The defendant has stated in
\n    this Court that the office of Mahant is transferable only to the
\n    prospective Mahant. As I have held that Bikrama Das could not be
\n    prospective Mahant of Amaulipur, transfer of Mahantship of this Asthan
\n    to the defendant would illegal according to his own theory”\n<\/p><\/blockquote>\n
.\n<\/p>\n
The learned trial Judge after noticing the judgment of the Privy Council
\nand the fact that the document of 10-7-1926, on which the first defendant,
\nVikrama Das, relied, appears to have been cancelled by another document by
\nBharat Das executed on 29-10-1926, summed up as follows :\n<\/p>\n
    “I therefore, hold that Mahantship did not pass on to the defendant,
\n    and he has no. right or title to the Asthan and its properties. Qua
\n    these, he is a rank trespasser and he is not entitled to retain them
\n    even if he has somehow been able to grab at them. He has no. right to
\n    meddle with the affairs of the Asthan.”\n<\/p><\/blockquote>\n
    Another important issue is No. 3 which is as follows :\n<\/p><\/blockquote>\n
    ” Does the decree in S. 92 suit No. 90 of 1933 entitle the plaintiff to
\n    sue?\n<\/p><\/blockquote>\n
    Is the defendant not entitled to challenge it?\n<\/p><\/blockquote>\n
    Is the decree a nullity for the reasons set out in the written
\n    statement?\n<\/p><\/blockquote>\n
    The reasons referred to are set out in para 12 of the written statement
\n    under six heads as follows :\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
(A) The said suit was entirely collusive.\n<\/p>\n
(B) Bharat Das, in no. way, an insane and even if it be presumed, on the
\nfalse allegations of the plaintiffs that he was an insane, no. proper and
\nimpartial person was appointed as his guardian. Devi Prasad, resident of
\nUdipur, who was nominated as his guardian, is a close member of the family
\nof Ram Prasad Singh, resident of Udipur, one of the trustees and was in
\ncollusion with the plaintiffs, the arbitrary trustees in the suit
\naforesaid.\n<\/p>\n
(C) The contesting defendant was not a party to suit No. 90 of 1933.\n<\/p>\n
(D) The proceedings in suit No. 90 of 1933 were taken during the pendency
\nof suit No. 27 of 1927 and (the proceedings) are, therefore, invalid and
\nnull and void according to law and justice and also under section 52 of the
\nTransfer of Property Act.\n<\/p>\n
(E) The suit aforesaid was beyond the scope of S. 92, Civil Procedure Code
\nand necessary proceedings were also not taken under section 4.\n<\/p>\n
(F) The compromise in the aforesaid suit was caused to be accepted by the
\nCourt by deceiving the Court and on concealing the real facts<\/p>\n
    “.\n<\/p>\n
    At the trial a further objection was taken to validity of the decree on
\n    the ground that the suit which resulted in that decree was instituted
\n    by only two out of the three persons who had obtained the Collector’s
\n    sanction to institute the suit and that accordingly the institution of
\n    the suit as well as the decree thereupon were invalid. The finding of
\n    the learned Judge on this issue is as follows :\n<\/p>\n
    ”\n<\/p>\n
There is no. doubt that there were more than one, irregularities in the
\nsuit. * * * The decree in question was passed by a competent court which
\nhas jurisdiction to try the suit. The suit itself has been instituted with
\nthe sanction of the Collector. * * * The decree is perfectly good so long
\nas it is not set aside by a competent court at the instance of Bharat Das.
\nAs it stands it is operative even as against Bharat Das himself.”It was
\nfurther found as follows :\n<\/p>\n
” The decree arms the present plaintiffs with the right of possession of
\nthe Asthan and its properties and of their management. This right had been
\nviolated in respect of certain properties by an adverse order of the
\nRevenue Courts and was in jeopardy with regard to the other properties at
\nthe date of the suit by the pendency of mutation applications of the
\ndefendant and the plaintiffs undoubtedly had, by virtue of the decree, the
\nright to institute the present suit.\n<\/p>\n
The defendant can escape from the clutches of the decree in suit No. 90 of
\n1933 only if succeeds in making out a legal title to the Asthan and the
\nproperty, eligible to the Court’s recognition and it is therefore,
\nnecessary to determine the defendant’s rights qua the Asthan and its
\nproperty<\/p>\n
    “.\n<\/p>\n
    There were a number of other minor issued which have mostly been
\n    answered in favour of the plaintiffs and out of which it is sufficient
\n    to notice only issues Nos. 8, 11 and 12 which are as follows :\n<\/p>\n
    ”\n<\/p>\n
Issue No. 8 : Are the plaintiffs alone not competent to sue?\n<\/p>\n
Issue No. 11 : Is the suit time-barred?\n<\/p>\n
Issue No. 12 : Is the suit barred by section 42 of the Specific Relief Act
\n?”\n<\/p>\n
As regards issue No. 8 the finding is as follows :\n<\/p>\n
” There is no. force in this plea. The only surviving trustees are the
\nplaintiffs and the Chandra Sekhara (2nd defendant), the rest of those who
\nwere appointed by the decree in S. 92 suit having died since.”\n<\/p>\n
As regards issue No. 11 the finding is as follows :\n<\/p>\n
” This plea is based upon the fact that a suit for cancellation of the deed
\ndated 10-7-1926, has become time barred and as the subject of the present
\nsuit is supposed by the defendant to be in reality cancellation of that
\ndeed he set up bar of limitation. In the first place, I do not think it was
\nnecessary for the plaintiffs to seek cancellation of the aforesaid deed as
\na necessary preliminary to the enforcement of their rights as trustees and
\nthey would very well ignore the deed.\n<\/p>\n
The defendant relied upon the deed and it was for him to establish its
\nvalidity. The cause of action for the present suit has been furnished by
\nthe order of the Board of Revenue directing mutation in favour of Bikrama
\nDas and the object of the present suit is no. other than abrogation of the
\nRevenue Court’s order by a Civil Court’s decree which is only effective
\nremedy of mistakes in mutation committed by the Revenue Courts. The suit
\nwas instituted well within time.”\n<\/p>\n
As regards issue No. 12 the finding is as follows :\n<\/p>\n
” The defendant has pleaded section 42 inasmuch as the plaintiffs have
\nsought a mere declaration in respect of the properties and not possession
\nas well. * * * The defendant was not in actual possession of the properties
\nin suit. He has made an abortive attempt to prove his possession by
\nexamining a few unscrupulous tenants but the evidence on record is
\noverwhelmingly in favour of plaintiffs’ possession. * * *<\/p>\n
The only properties against which the defendant’s name was mutated prior to
\nthe suit are those included in list C and the plaintiffs have sought
\npossession of these properties. It was not necessary for the plaintiffs to
\nsue for anything more than a declaration in respect of the properties
\nagainst which the name of Ramsarup Das stood recorded at the date
\ninstitution of the suit. Subsequent acquisition of possession by the
\ndefendant will not entitle him to raise the plea of S. 42.\n<\/p>\n
    ”\n<\/p><\/blockquote>\n
    It is on these various finding that the trial Court passed the
\n    following decree in favour of the plaintiffs.\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
It is ordered and decreed that the plaintiffs’ claim about the declaration
\non the point that the plaintiffs and defendant No. 2 are the trustees of
\nthe Asthan of Amaulipur and the properties connected with it mentioned in
\nlists A, B and C and are the managers of the properties aforesaid as of
\nright, with which the defendants have no. concern and also about the
\nrecovery of possession in favour of plaintiffs Nos. 1 to 3 as trustees and
\nMahant Ram Sarup Das as the Mahant of the Asthan of Amaulipur over the
\nproperties mentioned in Schedule C, be decreed.\n<\/p>\n
    ”\n<\/p><\/blockquote>\n
    9. The substantial contentions raised before the High Court as appears
\n    from its judgement and as summarised in the order of the High Court
\n    granting the certificate are three-fold.\n<\/p><\/blockquote>\n
    1. The decree in suit No. 90 of 1933 was bad.\n<\/p><\/blockquote>\n
    2. The plaintiffs was not de facto trustees.\n<\/p><\/blockquote>\n
    3. There had been valid assignment from Bharat Das in appellant’s
\n    favour.\n<\/p><\/blockquote>\n
    We have now to see what the findings of the High Court are. As regards
\n    issues Nos. 1 and 12, the learned Judges said as follows :\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
Learned counsel for the appellant has not, in his able argument, challenged
\nthe finding of the court below that the Asthan and the property in dispute
\nconstituted a trust, that they were not the personal and private property
\nof Bharat Das and that the plaintiffs are, and the appellant is not, in
\nactual possession thereof<\/p>\n
    “.\n<\/p>\n
    As regards the title of the defendant covered by issues Nos. 4 and 5,
\n    the learned Judges recorded their findings as follows :\n<\/p>\n
    ”\n<\/p>\n
In view of the findings arrived by the learned Civil Judge and which as we
\nhave seen, have not been challenged before us, the Asthan and the property
\nin dispute were not the personal and private property of Bharat Das and he
\ncould not make a valid assignment thereof in favour of the appellant, who
\naccording to his finding, cannot be regarded as his rightful successor. In
\nother words, the appellant, who is also, according to the finding of the
\nlearned Civil Judge, not in possession of the property in dispute, must be
\nregarded as mere trespasser.\n<\/p>\n
    ”\n<\/p><\/blockquote>\n
    The High Court appears to have given no. positive finding on issue No.
\n    6 relating to the title of Ram Sarup Das but has apparently maintained
\n    the trial court decree which may be claimed to involve such a finding.
\n    The main contest before the High Court appears to have been
\n    concentrated on the finding of the trial court relating to issue No. 3.\n<\/p><\/blockquote>\n
    In agreement with the view taken by the trial court, the High Court
\n    held on this issue that notwithstanding certain irregularities, the
\n    decree was not void and that such a decree was only voidable at the
\n    instance of the persons whom it purported to bind and who were in fact
\n    parties to the decree and that the appellant in the present case, who
\n    was merely a trespasser, had no. such right to avoid the decree. As
\n    regards the plea that the said previous suit and decree under S. 92
\n    were collusive, the learned Judges recorded their opinion as follows :\n<\/p><\/blockquote>\n
    ”\n<\/p><\/blockquote>\n
We are not satisfied that there was any collusion or dishonesty on the part
\nof the plaintiffs in their suit under S. 92 of the Code of Civil Procedure.
\nThe circumstances had in fact made the institution of such a suit
\nimperative and there is nothing to show that the plaintiffs were actuated
\nby anything but the best of motives in instituting that suit and obtaining
\nthe orders of the court for the proper management of the trust property. We
\nare, therefore, of opinion that the plaintiffs are by virtue of the decree
\nin suit No. 90 of 1933 entitled to maintain the present suit<\/p>\n
    “.\n<\/p>\n
    On the question as to de facto trusteeship and as to the right to
\n    institute the suit on that basis, the High Court held as follows :\n<\/p>\n
    ”\n<\/p>\n
But even if it be held that the decree in suit No. 90 of 1933 does not
\nentitle the plaintiffs to institute the present suit, there can be no.
\ndoubt that as de facto trustees they are entitled to maintain it. * * * It
\nis, however, argued on behalf of the appellant that this doctrine of de
\nfacto trusteeship cannot apply to the present case because the possession
\nof the plaintiffs cannot be regarded as clear and undisputed.\n<\/p>\n
It is said that the plaintiffs obtained a decree in their favour and came
\ninto possession of the trust by stealing a march upon the appellant who was
\nat the time prosecuting his appeal in the Privy Council and that the
\npossession of the plaintiffs cannot be regarded as honest. Having regard to
\nthe circumstances in which the plaintiffs instituted a suit under S. 92,
\nCivil P.C., the contention of the learned counsel for the appellant does
\nnot appear to be justified.\n<\/p>\n
There is nothing to show that the plaintiffs’ possession of the trust
\nproperty ever since they obtained a decree in the year 1934 has not been
\nclear and undisputed. No. doubt, after the decision of the appeal by the
\nPrivy Council in the year 1935 the appellant did start making an attempt to
\nobtain mutation of names with respect to some of the property belonging to
\nthe trust in his favour. But that would not affect the nature of the
\nplaintiffs possession.\n<\/p>\n
As we have seen, the appellant has no. title to the property and is not in
\nactual possession of any portion of it. Even if he were, his possession
\nwould only be that of a trespasser and the plaintiffs as de facto trustees
\nare clearly entitled to maintain the suit against him<\/p>\n
    “.\n<\/p>\n
    Thus, the learned Judges of the High Court held that the plaintiffs had
\n    the right to maintain the suit on two grounds. (1) The decree in suit
\n    No. 90 of 1933 was valid until set aside. (2) In any case the
\n    plaintiffs were de facto trustees who had clear and undisputed
\n    possession of the trust and its properties and as such they could
\n    maintain the suit.\n<\/p>\n
    10. It may also be mentioned at this stage that in the High Court a
\n    point appears to have been pressed that the judgment of the trial court
\n    holding that the defendant had no. title under the document dated
\n    10-7-1926, in effect amounted to cancellation of that document and that
\n    the Court was not competent, having regard to the frame of the suit, to
\n    give any such relief.\n<\/p>\n
    It was pointed out that the plaint had originally asked for a
\n    declaration to the effect that the appellant acquired no. rights in the
\n    property in suit by virtue of the documents but that that relief was
\n    dropped by a subsequent amendment. The learned Judges of the High court
\n    point out that the plaintiffs case is that Bharat Das being a mere
\n    trustee had no. right to execute the document in favour of the
\n    appellant and that the document is therefore without effect and that
\n    therefore it was unnecessary for the plaintiffs to ask for cancellation
\n    of the document. They found, therefore, this point also in favour of
\n    the plaintiffs. As a result of all the findings above mentioned, in
\n    concurrence with those of the trial court, the High Court merely
\n    dismissed the appeal.\n<\/p>\n
    11. The only point urged before us by the learned counsel for the
\n    appellant, Shri N. C. Chatterji, is that the view taken by both the
\n    lower courts to the effect that in spite of a number of irregularities
\n    relating to suit No. 90 of 1933 under S. 92, Civil P. C. the decree was
\n    one that cannot be said to be without jurisdiction and that therefore
\n    it was only voidable and not void and that it could be avoided only by
\n    a person having interest and title, is not correct. He urged strongly
\n    that when permission by the Collector was given to three named persons
\n    a suit filed by only two out of them was wholly incompetent having
\n    regard to the mandatory nature of the provision in S. 92 (2), Civil
\n    P.C. which enjoins that<\/p>\n
    ”\n<\/p>\n
save as provided by * * * no. suit claiming any of the reliefs specified in
\nsub-s(1) of (S. 92) shall be instituted in respect of any such trust as is
\ntherein referred to except in conformity with the provisions of that sub-
\nsection<\/p>\n
    “.\n<\/p>\n
    He strongly relied on the decision of the Privy Council in – Mt. ‘Ali
\n    Begam v. Badra-ul-Islam Ali Khan’, 1938 PC 184 (AIR V 25) at p. 186 (B)
\n    and the dictum therein as follows :\n<\/p>\n
    ”\n<\/p>\n
Where the consent in writing of the Advocate General or Collector has been
\ngiven to a suit by three persons as plaintiffs the suit cannot validly be
\ninstituted by two only. The suit as instituted must conform to the consent<\/p>\n
    “.\n<\/p>\n
    He also strenuously urged that there is no. proof that Mahant Bharat
\n    Das was insane or that there was any determination by the Court before
\n    which that suit was filed as to the alleged insanity of Bharat Das in
\n    order to justify the appointment of Devi Prasad Singh as the guardian
\n    for him. He also urged that the compromise was not sanctioned by the
\n    Court in the interest of the trust as apart from the interests of
\n    Mahant Bharat Das. He also contended strongly that the fact of the suit
\n    having been filed during the pendency of the Privy Council appeal and
\n    the decree having been obtained within six months from the date of the
\n    suit is extremely suspicious and that on the face of it the said decree
\n    was fraudulent ‘and collusive. He strenuously urged further that it was
\n    for the plaintiffs to make out their title and their right to
\n    possession. He pointed out that the title of the plaintiffs was based
\n    entirely and specifically on the compromise decree as appears not only
\n    from the plaint but from their pleader’s statement at the trial dated
\n    2-12-1942, which is as follows :\n<\/p>\n
    ”\n<\/p>\n
The plaintiffs’ claim is not based on any custom, nor will the plaintiffs
\nprove any custom.\n<\/p>\n
The plaintiffs establish the title of Mahant Ram Sarup Das by means of the
\ndecision passed in case under S. 92 and not by means of any custom. Mahant
\nRam Sarup Das was not appointed as Mahant by means of any custom, nor with
\nthe help of any custom taken in proof of his appointment, nor will any
\ncustom be proved”.\n<\/p>\n
It was accordingly urged that before any decree could be given in favour of
\nthe plaintiffs it was necessary to establish the validity of the decree in
\nsuit No. 90 of 1933.\n<\/p>\n
12. On the other side, the learned counsel, Shri K. B. Asthana, contested
\nthe proposition that a suit filed by only two out of three persons who got
\nthe sanction from the Collector is incompetent and the decree therein is
\nvoid except possibly in a case where the terms of the sanction are clear
\nthat the suit is to be filed only by all the three persons acting jointly.\n<\/p>\n
It may also be noticed that the omitted third person, Ram Sarup Das, was
\nthe very person in whose favour appointment as Mahant was preayed in the
\nplaint therein. Counsel further urged that even if a suit filed by two out
\nof the three persons is defective in its institution as being contrary to
\nwhat is provided in S. 92, Civil P. C., this does not affect the
\njurisdiction of the Court to pass the decree when no. objection in that
\nbehalf was raised, since admittedly the Court had jurisdiction in respect
\nof the subject matter of the suit.\n<\/p>\n
It was argued that an application for sanction of the compromise was made
\nto the Court, that the Court did in fact sanction the compromise and that
\nthe sanction was sufficient to operate as against the Mahant and the
\ninstitution which he, through his guardian, must be taken to represent. As
\nregards the suggestion of fraud or collusion it was urged that the High
\nCourt has given a conclusive finding negativing the same and that that
\nfinding cannot be reopened before us.\n<\/p>\n
13. So far as the attack based on the ground of fraud or collusion is
\nconcerned we are of the opinion that it is no. longer open to be challenged
\nbefore us, in view of the finding of the High Court. As regards the order
\ncontentions raised before us relating to the validity of the compromise
\ndecree, we do not consider it necessary, notwithstanding strenuous
\narguments on both sides, to decide between the rival contentions in the
\nview that we are prepared to take as to the appropriate order to be passed
\nby this Court in this appeal.\n<\/p>\n
14. Learned counsel for the respondent, Ram Sarup Das, relied on the
\nfinding of the High Court that the plaintiffs were, at any rate, ‘de facto’
\ntrustees in possession of the Asthan and its properties and that as such
\nthey were entitled to maintain the suit. It appears to us that this
\ncontention is not without force.\n<\/p>\n
Both the courts below have concurrently found that consequent on the
\ncompromise decree in suit No. 90 of 1933, the plaintiffs along with the
\nother trustees and Ram Sarup Das have obtained possession of the Asthan and
\nits properties and that (except those in list C) the properties were
\nmutated in the name of Ram Sarup Das and that they have been in possession
\nand management of the Asthan and its properties since then.\n<\/p>\n
Both the courts have also found that the first defendant, Vikrama Das, had
\nno. possession at any time notwithstanding that he was able, after the
\nPrivy Council decree, to get some of the properties mutated in his name.
\nThey have also held that the plaintiffs with Ram Sarup Das have been
\ncontinuing in possession all along or at any rate up to the date of the
\nsuit.\n<\/p>\n
In these circumstances the question before us is whether a person who has
\nbeen in ‘de facto’ possession and management of the Asthan and its
\nproperties from 1934 to 1941 (and thereafter up-to-date) claiming to be its
\ntrustee under the decree of a Court, valid or invalid has not sufficient
\ninterest to maintain proceedings for the warding off of a cloud cast by the
\ndefendant’s action against the interests of the Asthan. See – ‘Mahadeo
\nPrasad Singh v. Karia Bharti’, 1935 PC 44 (AIR V22) (C) and – ‘Ram Charan
\nDas v. Naurangi Lal’, 1933 PC 75 (AIR V20) (D).\n<\/p>\n
It is to be remembered as pointed out by the trial Court in its finding
\nunder issue No. 11, already quoted above, that the present suit is
\nvirtually a suit for abrogation of the Revenue Court’s order directing
\nmutation of the name of the 1st defendant, Vikrama Das.\n<\/p>\n
Undoubtedly such a mutation would seriously jeopardise the interests of the
\nAsthan. This particularly so in view of the fact that the first defendant
\nhas all along been claiming the properties of the Asthan to the private and
\npersonal properties of the Mahant and that he himself is claiming to be the
\nvalidly appointed Mahant for the time being, a claim which has been not
\nonly continued throughout in both the courts below but has been persisted
\nin even in this Court as appears from ground No. 10 in the application
\nfiled to the High Court for leave to appeal to this Court and also ground
\nNo. 7 in the appellant’s statement of case filed in this Court.\n<\/p>\n
It is with reference to the contention which has been thus raised and
\nmaintained throughout, that both the courts below have come to concurrent
\nfindings (1) that the Asthan was a public trust and that the properties
\nattached thereto are not the private properties of the Mahant, (2) that the
\ndefendant was not entitled to the Mahantship of the Asthan either by virtue
\nof his claim to succeed thereto or by virtue of the document dated
\n10-7-1926, executed by Bharat Das, and (3) that he had at no. time any
\npossession of these properties.\n<\/p>\n
It is true that the plaintiffs expressly based their suit on the title
\nwhich they claim under the compromise decree. But even if that title fails,
\nthe further question remains, namely whether the original plaintiffs or Ram
\nSarup Das could not maintain the proceedings for the protection of the
\nAsthan in their capacity as the ‘de facto’ managers who have been in
\npossession and management for a substantial number of years.\n<\/p>\n
15. Now the ordinary rule that persons without title and who are mere
\nintermeddlers cannot sue as of right is clear. But where public trusts are
\nconcerned, courts have a duty to see that their interests and the interests
\nof those for whose benefit they exist are safeguarded. Therefore, courts
\nmust possess the power to sustain proper proceedings by them in appropriate
\ncases and grant relief in the interests of and for the express benefit of
\nthe trust imposing such conditions as may be called for.\n<\/p>\n
16. In the present case, if Ram Sarup Das has no. title and if he is an
\nintermeddler – which is the basis on which he has been brought on record –
\nso is the other side and obviously the Court cannot allow a public trust to
\nbe left to the mercy of unauthorised persons who are scrambling for a
\nposition of vantage in its management. But as it is right and proper that
\nsomebody should be permitted to continue the present litigation on behalf
\nof the trust, the question is, who.\n<\/p>\n
We consider that, in view of Ram Sarup Das’s long management and possession
\nas Mahant and in view of the fact that he is purporting to act on its
\nbehalf and for its interests, it is proper that he should be allowed to
\ncontinue to act on behalf of the trust until his title is investigated in
\nappropriate proceedings and that this Court should grant a decree in his
\nfavour in these proceedings for the benefit of the trust.\n<\/p>\n
17. In this view, we maintain the concurrent findings of the courts below
\nagainst the defendant on the three matters hereinabove specified, that is
\n(1) that that Asthan is a public trust and that the properties attached
\nthereto are not the private properties of the Mahant, (2) that the
\ndefendant is not entitled to the Mahantship of the Asthan either by virtue
\nof his claim to succeed thereto or by virtue of the document dated
\n10-7-1926, executed by Bharat Das, and (3) that he had at no. time any
\npossession of these properties.\n<\/p>\n
But we discharge the findings in favour of the original plaintiffs or Ram
\nSarup Das, based on the question of validity of compromise decree and leave
\nthe question open.\n<\/p>\n
18. In the result, therefore, the decree of the trial Court in so far as it
\ngives effect to the decree in suit No. 90 of 1933 will be vacated. We
\ndirect that in place thereof a declaration should be substituted that, the
\nmutation in favour of the 1st defendant in respect of the Asthan or the
\nproperties pertaining thereto does not in any way affect the rights of the
\nAsthan or of any duly constituted Mahant thereof, that the 1st defendant
\nhas no. concern therewith and is not entitled to possession of the Asthan
\nor its properties and that Ram Sarup Das may recover, in execution
\nproceedings, for the benefit of the Asthan, possession of such of the
\nproperties in lists, A, B and C of which the defendant may have obtained
\npossession by reason of such mutation. Subject to the modification of the
\ndecree as, above indicated the appeal must be dismissed with costs
\nthroughout.\n<\/p>\n
19. But this is only a stop gap expedient. We cannot shut out eyes to the
\nfact that we have before us a public trust of which, on the facts now
\nbefore us, an alleged intermeddler claiming under a decree said to be void
\nis in possession and management. It may be, when proper proceedings are
\ninstituted to determine the matter, that it will be found that he is not
\nwithout legal authority or it may be proper to invest him with that
\nauthority if he has not already got it, or again it may be better to have
\nanother person or body.\n<\/p>\n
But those are not matters we need decide in these proceedings. All we need
\ndo is to bring the present state of facts to the notice of the Advocate
\nGeneral of Uttar Pradesh and leave him to consider whether he should not,
\nof his own motion, institute proceedings under S. 92, Civil P. C., or take
\nother appropriate steps. Let a copy of this judgment be sent to him.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vikrama Das Mahant vs Daulat Ram Asthana & Ors on 15 February, 1956 Bench: V. Bose, B. Jagannadhadas, B.P. Sinha, S.J. Imam, N.C. Aiyar CASE NO.: Appeal (civil) 149 of 1951 PETITIONER: VIKRAMA DAS MAHANT RESPONDENT: DAULAT RAM ASTHANA & ORS. DATE OF JUDGMENT: 15\/02\/1956 BENCH: V. BOSE & B. JAGANNADHADAS […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-55658","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVikrama Das Mahant vs Daulat Ram Asthana & Ors on 15 February, 1956 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vikrama-das-mahant-vs-daulat-ram-asthana-ors-on-15-february-1956\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vikrama Das Mahant vs Daulat Ram Asthana & Ors on 15 February, 1956 - 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