Sri Mithila Bihari Singh v. Sri Radha Krishna Maharaj, the Deity & Ors

Judgment

1. The defendant appellant has filed this first appeal against the judgment and decree dated 12.8.1985 passed by the learned First Additional Sub-Judge, Sitamarih in Title Suit No. 38 of 1975 whereby lower appellate court decreed the plaintiffs respondents‟ suit.

2. The plaintiffs respondents filed the aforesaid Title Suit No. 38 of 1975 for declaration that the plaintiff Nos. 2 and 3 and the 2 Patna High Court FA No.700 of 1985 dt.03-04-2013 defendant Nos. 2 to 4 are the original trustees and Shibaits of the plaintiff No.1 i.e. Sri Radha Kishun Maharaj, the deity, installed in the temple in village Punaura and the endowed property as detailed in schedule 1 of the plaint belonged to the plaintiff No.1 and the aforesaid Shibaits are the trustees with respect to it. Further for declaration that the defendant No.1 is not the Shibait and thus he has got no right to interfere with possession of the trustees in respect of the suit properties and management of Poojapath, Rajbhog etc. Prayer for injunction was also made.

3. The plaintiffs claimed the aforesaid relief alleging that Sri Ramsagar Prasad Singh had no issue at all. He installed the deity Sri Radha Kishun Maharaj Ji in one of the rooms of his residential house for his own worship. He wanted to endow some of his property for the purpose of Poojapath, Ragbhog and Samaiya of the deity. However, he could not execute any deed of endowment and he suddenly fell ill and died in 1942. His widow Pan Kumari Devi inherited him with mother of the deceased i.e. Most. Ram Somari Devi. During illness Sri Ram Sagar Prasad Singh instructed his wife Pan Kumari to execute endowment deed in favour of the deity. Accordingly, Most. Pan Kumari Devi for the fulfillment of the wish of her husband executed a registered deed of endowment dated

28.7.1953 in favour of the deity, plaintiff No.1 with respect to the 3 Patna High Court FA No.700 of 1985 dt.03-04-2013 Schedule-I properties of the plaint. Most. Pan Kumari Devi made herself the Shibait during her time. To avoid further complication, it was mentioned in the deed that if her mother-in-law Most. Ram Somari Devi survived in that case she would be the Shibait of the deity till her life time. If Ram Somari Devi died then a board of trustees consisting of five persons namely Sitaprasad Singh

@ Lalbabu, father of plaintiff No.2, Sri Bindheshwari Prasad Jha, father of plaintiff No.3, Ram Chandra Prasad Singh, Hari Madhav Prasad Sahi, defendant No.2, Sri Ram Awatar Singh, father of defendant No.3, Kamla Singh and Sri Gajadhar Prasad Singh, father of defendant No.4 would work as Shibait of the deity and manage the suit properties for performance of Poojapath, Rajbhog etc. In the said deed it is also mentioned that each of the trustees will have a right to nominate a trustee to work as such after his death and if any trustee died without nominating his successor trustee, one of the heirs of the deceased trustee would be nominated as trustee in place of the deceased trustee by his heirs. It is also mentioned that one of the trustees will be selected by majority decision of the trustees who will manage the trust properties and will work as Mukhiya. He will also look after the Poojapath, Rajbhog and Samaiya of the deity. The tenure of Mukhiya will be 5 years. On completion of his tenure there will be an election of fresh Mukhiya. No Shibait will transfer the 4 Patna High Court FA No.700 of 1985 dt.03-04-2013 property or encumbering the suit property. Whatever surplus income will be there and whenever property will be purchased out of the income will be the property of the deity. If Mukhiya will not act according to the direction contained in the deed the trustee may remove the Mukhiya and may appoint another Mukhiya amongst themselves.

4. The further case of the plaintiffs is that Most. Pan Kumar died in 1951. On her death, Ram Somari Devi became the Shibait but she also died on 27.9.1968. On her death the trustees aforesaid came in possession of Schedule 1 property and they started performing Poojapath, Rajbhog and Samaiya. Sita Prasad Singh was elected as Mukhiya who was managing the suit property. The said Sita Prasad Singh died on 19.1.1970 and then the heirs of Sita Prasad Singh elected the plaintiff No.2 as the trustee. The plaintiff No.2 was put in-charge of the Schedule 1 property. Sri Gajadhar Prasad Singh, another trustee died on 5.2.1971 and his heirs elected Kameshwar Prasad Singh, the defendant No.4 to work as trustee. Bindheshwari Prasad Jha also died and his heirs selected plaintiff No.3 as trustee. Ram Autar Singh also died and his heirs selected the defendant No.3 as trustee. Now therefore, the board of trustees consisted of plaintiff Nos. 2 and 3 and defendant No.2 to 4. The grandfather of the defendant No.1 in collusion with defendant No.2 5 Patna High Court FA No.700 of 1985 dt.03-04-2013 got a deed of adoption executed by Most. Ram Somari Devi in favour of defendant No.1 on 28.2.1961 showing the adoption of defendant No.1 as her son. He also got a fictitious deed of transfer of Shibaitship right executed by the said Ram Somari Devi in favour of defendant No.1 on 28.3.1963, although Ram Somari Devi had no right to transfer Shibaitship to the defendant No.1. The same was transferred contrary to the terms of the deed of endowment and the defendant No.1 never came in possession nor acquired any Shibait rights. However, defendant No.1 filed application before the circle officer, Dumra for mutation of his name in respect of suit property as Shibait of the deity in register-II in place of Ram Somari Devi. The order was passed in favour of the defendant No.1 inspite of objection by the plaintiffs‟ ancestor. The appeal was dismissed and the second appeal before Additional Collector was also dismissed. According to the plaintiffs, the defendant No.1 is not the legally adopted son by Most. Ram Somari Devi. Ram Somari Devi had no right to change the line of succession to the office of the Shibaitship. As such the deed transferring Shibaitship i.e. dated 8.2.1963 is illegal and void document. Even if the deed is held to be valid then also it will operate during the life time of Ram Somari Devi only who died on 27.9.1968. Thereafter the defendant No.1 ceased to be the Shibait. The plaintiffs also stated that the defendant Nos. 2 to 4 6 Patna High Court FA No.700 of 1985 dt.03-04-2013 are in collusion with the defendant No.1.

5. The defendant No.1 appellant filed contesting written statement. Besides taking various legal pleas mainly the defendant contended that Ram Somari Devi, the mother-in-law of Pan Kumari Devi was appointed as Shibait in the endowment deed itself in respect of the suit property and on the death of Pan Kumari she became the Shibait. The right of Ram Somari Devi to appoint her successor of Shibait was not restricted in the endowment deed. Ram Somari Devi adopted this defendant as her son and a registered deed of adoption was executed on 28.2.1961. Ram Somari Devi was very old and was not in a position to work as Shibait hence she appointed her son defendant No.1 to work as Shibait in respect of the suit property and executed transfer deed dated 28.3.1963. Since then this defendant No.1 is continuing to work as Shibait of the suit property in respect of the deity. The original trustees Sri Hari Madhav Prasad Sahi, Gajadhar Prasad and Sri Ramautar consented appointment of this defendant as Shibait by Most. Ram Somari Devi. The defendant denied all other allegations made in the plaint. The defendant No.1 appellant is in cultivating possession of the suit property and his name has been mutated as Shibait. This defendant being the member of the family of Ram Somari Devi legally entitled to work as Shibait. 7 Patna High Court FA No.700 of 1985 dt.03-04-2013

6. It appears that in Civil Revision No. 1913 of 1980 this court directed the court below to decide only the point as to whether the plaintiff Nos. 2 and 3 and the defendant nos. 2 to 4 are the rightful trustee and Shibait of plaintiff No.1 or whether the defendant No. 1 is the Shibait of plaintiff No.1.

7. In view of the above facts and the pleadings of the parties, the trial court framed the following issues : “i. Whether the suit, as framed, is maintainable ? ii. whether the plaintiffs have got cause of action for the suit ? iii. Whether the suit is barred by the law of limitation, waiver and estoppel ? iv. Whether the plaintiff Nos. 2 and 3 and the defendant Nos. 2 to 4 are the rightful trustees and Shibaits of the plaintiff No.1 ? v. Whether the defendant No.1, is the Shibait of the plaintiff No.1 ? vi. Whether the plaintiffs are entitled to get the reliefs sought for ?”

8. The learned counsel Mr. V.R.P. Singh appearing on behalf of the appellant submitted that the appellant was the adopted son of Ram Somari Devi i.e. the mother of the Ram Sagar Prasad Singh. On the death of Pan Kumari Devi the mother-in-law Ram Somari Devi became the Shibait of the deity. When she became very old and was unable to perform the Shibaitship she transferred the right of Shibait in favour of her adopted son, the present appellant on 8 Patna High Court FA No.700 of 1985 dt.03-04-2013

28.3.1963 by registered deed i.e. Ext.-C. Since after execution of this Ext.-C the appellant came in possession of the properties and was performing the duty of Shibait. So far the trustees are concerned the defendant Nos. 2 to 4 admitted that they never participated in the trusteeship or any meetings of the trustees. In the endowment deed five persons have been mentioned as trustees. Out of the said five trustees only the two original plaintiffs are claiming to be the trustee of the property and deity and so far the other three trustees are concern, they admitted that they have got no concerned. Therefore, the trustees are not performing their duties as directed in the endowment deed Ext.-F dated 28.7.1953. In such circumstances, the properties will revert back to the heirs of the husband of Ram Somari Devi. In other words the admitted son i.e. the appellant will became the Shibait and will manage the property and perform Poojapath of the deity as he is only the heir of Ram Sagar Prasad Singh the husband of Ram Somari Devi.

9. The learned counsel for the appellant submitted that in the endowment deed Most. Pan Kumari Devi has mentioned the inheritance of Shibaitship up to only particular generation. If that direction is not followed then according to the decisions the property will revert back to the family. In support of his contention the learned counsel relied upon AIR 1952 Cal. 705 and 129 Indian 9 Patna High Court FA No.700 of 1985 dt.03-04-2013 Case 619. According to the learned counsel in the endowment deed it is mentioned that on the death of one of the trustee without nominating his successor, the heirs will appoint a person amongst them as trustee is against the settled principles of law. On the death of one of the trustee all his heirs will be Shibait. Therefore, according to the learned counsel the terms and conditions mentioned in the endowment is void. In support of his contention the learned