Niamat Ali vs Yad Ali Shah

Das, J.—I am unable to agree with the view taken by the learned Judge in the Court below. As I read the judgment of the learned Subordinate Judge, he does not dispute the position that the plaintiff is. utterly unfit to be the Mahant of this important endowment, but he proceeds on a very narrow ground. He has taken the view that as the defendants were not competent to remove the plaintiff from his position as Mahant of the endowment, the plaintiff was entitled to be restored to, possession. In my opinion, the question, before the learned Subordinate Judge was, not the narrow question whether the persons who took upon themselves the right to remove the plaintiff from his office were legally competent to do so, but the braid question whether the plaintiff had any title to be restored to the recession of his office. The suit was of the plaintiff''s, the plaintiff was the actor in the matter, and it was incumbent on the plaintiff to satisfy the Court that he had a subsisting title in the endowment.

Now, what are the fasts? The plaintiff, on being appointed the Mahant of this endowment, executed an ekrarnama in favour of the public. The second clause of the ekrarnama provides as follows:

I having maintained agreeable conduct shall perfrom, with good faith and, with elegance, the duties of Mahant and shall take care of the feeding and clothing and service of the fakirs residing in Takia Rajauli and also fakirs coming from other places who some and go away, according to their position and also according to the means of the Takia, I shall not neglect or minimise the aforesaid duties and I shall perform all the acts according to the custom and manner of the family.

Stopping here for a moment, the learned Subordinate Judge has found as a fast that by the act of the plaintiff, the feeding and clothing and Service to the fakirs has been much curtailed and that is a matter of fast the income of the endowment has been reduced, during the time of the plaintiff, from Rs. 3,500 to Rs. 1,000 or Rs. 1,500 a year. The third clause of the ekrarnama provides as follows:

Having remained in possession over all the moveable and Immovable properties of the Takia by virtue of succession and Mahanthi in place of the deceased Shah Saheb, I will manage and look after them without interference from anybody and I will not in any way injure (waste) or transfer any property of the Takia and shall not incumber any property belonging to the Takia; if I do so it would be illegal, null and void in the face of this deed and no property of the Takia will be liable for any incumbrance caused by my act.

Here, again, the learned Subordinate Judge has found that the plaintiff has encumbered every item of the property that became vested in him as the Mahant of the endowment and, as I have said before, the income of the endowment has dwindled down to Rs. 1,000 or Rs. 1,500 a year, making it impossible for the Mahant to carry out the objects of the endowment.

Clause (4) provides as follows:

I will never do any bad act and will not mismanage and I will keep watch over the conducts of other fakirs of the Takia, so that no one may do any vicious act which may be the cause of infamy to the Takia and disgrace to ancestors and which may be the cause of shame to the Takia, and such immoral fakirs hall be turned out of the Takia,

Now I am far from suggesting that it a vicious act to marry, but certainly the unwritten rules of the endowment require a life of asceticism amongst the Mahants. Now it is admitted that the plaintiff has married a Rajput widow and has given up the life of asceticism and has entered the life of a house-holder; he does not besmear his body with ashes as is customary amongst the Mahants but has finally and for good abjured the life of an ascetic.

In my view according to the true construction of the endowment and having regard to the unwritten rules of the endowment, it was undoubtedly an immoral act on the part of the Mahant to do that which he has done.

Clause (7) provides as follows:

if I, in any way, misbehave, mismanage and violate the aforesaid conditions, laid down in this deed, Mahant Gopal Bux Das (defendant No. 3) Panches, Darveshes and Shikhis shall have right, after enquiry and proof of my improper acts, to remove me and to manage in the manner that they may, consider fit and proper. At that time I will not have any objection except that I will get maintenance.

Now, here is a set of express conditions to which the plaintiff submitted himself. He agrees to his removal after enquiry and proof of his improper acts. But the difficulty of the learned Subordinate Judge seems to be that the Panch that assembled to try his conduct was not properly or regularly summoned. That may be so, but here the question before the learned Subordinate Judge was whether the plaintiff, who was out of his office, was entitled to be restored to office. Having re ear d to the findings of the learned Subordinate Judge I have no doubt that he should have refused to give any relief to the plaintiff.

I must set aside the judgment and decree passed by the learned Subordinate Judge, allow this appeal and dismiss the plaintiff''s suit with costs in both the Courts.

Now it appears that the defendant No. 1 has been appointed the Mahant of the endowment by the Panch. He is only a boy and there is grave doubt as to the validity of his appointment. The matter is clearly one for the Legal Remembrancer of this Province. I have no doubt that a friendly action ought to be instituted by the Legal Remembrancer u/s 92 of the CPC to have a proper scheme of this endowment framed and to have a proper person appointed as the Mahant of the endowment.

Bucknill, J,

I agree. The actual proceedings by which the plaintiff was dispossessed of his possession might have been irregular, the appointment of this boy by some of the plaintiff''s Chelas as Mahant might also have been illegal and the individuals who took active parts in these affairs might not have been altogether proper parties, but it is common ground that the plaintiff, by his conduct, has clearly incapacitated himself from holding the position and, there fore, under those circumstances I cannot see how on any action brought by him the Court could possibly restore him.