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Case Number

Privy Council Appeal No. 33 of 1925

Advocates

T.L. Wilson and Co.
Johnson
Downer
E.B. Raikes
L.De Gruyther
J.M. Parikh
G.B. Lowndes

Judges

Sir John Wallis
Salvesen
Blanesburgh
Justice Sinha

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from a decree of the High Court of Bombay which had set aside a Subordinate Judge of Belgaum's decree that had been passed in terms of a compromise between the plaintiff and the second defendant. The High Court remanded the case on the ground that the compromise decree had been passed in the absence of the first defendant and without notice to him.

The underlying suit (O.S. 219 of 1910, Subordinate Court of Belgaum) concerned rival claimants to the office of Jagadguru (head) of the Sankeshwar and Karvir Mutt, an institution with two branches (Sankeshwar in Belgaum district, British territory; and Karvir in the Native State of Kolhapur). The dispute over succession arose from competing appointments: Balavadakar appointed Brahmanalkar in 1903, later purported to revoke that appointment and appoint Athanikar who appointed the plaintiff in 1909; Brahmanalkar denied lawful deposition and before his death in 1909 appointed Atmaram Shastri (the original defendant).

The plaint alleged possession by the plaintiff of lands owned by the Mutt in British India, and that certain inam villages and cash allowances were held in Amanat by order of the Commissioner and would be given to the claimant who obtained a decree. The plaint sought a declaration that the plaintiff was the owner of the movable and immovable property of the Sankeshwar and Karvir Mutt and of the powers and rights of the Jagadguru.

The written statement denied jurisdiction (on the basis that the Sankeshwar Mutt was a branch of the principal Kolhapur Mutt and that the Kolhapur Durbar had authority), asserted that the Kolhapur Durbar had decided that the defendant was head, and contested Balavadakar's power to depose or appoint.

After the original defendant Atmaram Shastri died (November 1916), he had appointed Atmaram Pitri, who was placed on record as defendant on 28 March 1917 (the "first defendant"). The first defendant appointed Kurtkoti (the "second defendant") on 3 June 1917. The plaintiff obtained leave to administer interrogatories to the first defendant (answers indicating that the first defendant had installed a disciple named "Shri Vidya Shankar Bharati Swami Jagadguru" and that he had "lost [his] legal existence so far as this suit is concerned" having transferred rights to that disciple).

Kurtkoti was added as second defendant at the plaintiff's request (with the first defendant remaining on record). The second defendant filed an additional written statement alleging that the plaintiff had appointed Shirolkar as his disciple; the plaintiff admitted appointing Shirolkar but denied resigning in his favour, and Shirolkar was added as third defendant.

Following events in Kolhapur (the Maharajah ordering officers to take possession of Mutt villages), the second defendant left Kolhapur and met the plaintiff; they and their pleaders reached a compromise and a decree was passed in its terms. The first defendant was not party to that compromise and received no notice, although the decree included an express term to pay any costs he had incurred. The compromise granted the plaintiff record ownership of the properties in suit (in British India), provided sums and rights to the second defendant (including Rs. 8,001 per year and half of certain collections), restricted the second defendant (and his disciple) from rights over Sankeshwar Mutt, allowed the second defendant to found a new Mutt north of the Nerbudda, and contained sharing arrangements if the second defendant returned to the Kolhapur villages.

The first defendant petitioned for review of the compromise decree on multiple grounds (including that only limited rights had been transferred to the second defendant and that the second defendant had allegedly surrendered rights back to the first). The Subordinate Judge dismissed the review petition on the ground that, not being a party to the decree, the first defendant could not be bound by it and could not be aggrieved by a decree not binding on him. The first defendant appealed.

The appeal produced two questions which Shah and Hayward, JJ. called for findings upon: (1) whether Defendant No. 1 had any subsisting interest in the property at the date of the compromise; and (2) whether, having regard to the nature of the property, the compromise between the plaintiff and Defendants Nos. 2 and 3 was lawful. A new Subordinate Judge found negatively on both issues (i.e., that the first defendant had no subsisting interest). The High Court (Macleod, C.J., and Shah, J.) thereafter allowed the appeal, set aside the compromise decree, and remitted on the ground that the first defendant remained on the record and ought to have had notice or been struck off before the compromise.

Legal Issues Presented

Had Defendant No. 1 any subsisting interest, as alleged by him in his application for review, at the date of the compromise between the plaintiff and Defendant Nos. 2 and 3 in the property in respect of which a declaration was sought in the suit?
Having regard to the nature of the property with reference to which the declaration was sought by the plaintiff, was the compromise between the plaintiff and Defendant Nos. 2 and 3 lawful?
Whether the first defendant (remaining on the record but having stated he had transferred his rights) had a right to appeal from the compromise decree passed in his absence and without notice to him.

Arguments of the Parties

Plaintiff's Position

The plaint sought a declaration that the plaintiff was the owner of the movable and immovable property of the Sankeshwar and Karvir Mutt and entitled to the powers and rights of the Jagadguru, and asserted possession of Mutt lands in British India.
The plaintiff obtained leave to administer interrogatories to the first defendant (eliciting admissions that the first defendant had installed a disciple and had "lost [his] legal existence" for the purposes of the suit by transferring rights).
The plaintiff petitioned for the addition of Kurtkoti as a new defendant and later confirmed the addition of Shirolkar as a defendant after admitting his appointment as a disciple but denying resignation in his favour.

First Defendant's (Appellant's) Arguments

In the written statement (earlier in the suit) it was alleged that the court had no jurisdiction because Sankeshwar was only a branch of the principal Kolhapur Mutt and the Kolhapur Durbar alone could decide who was head; the Kolhapur Durbar had decided that the defendant was head.
In the petition for review of the compromise decree the first defendant contended that the second defendant had obtained the decree by alleging that the first defendant had transferred all rights, title and interest to him, whereas only a limited interest had been transferred not entitling alienation of Mutt properties.
The review petition alleged the first defendant had always remained a party to the suit and that, therefore, no compromise decree could be passed without notice to him; it further alleged that the second defendant had surrendered his right, title and interest in the Mutt to the first defendant before the compromise.

Second Defendant's Position

On being added as defendant, the second defendant stated in his additional written statement that the plaintiff had appointed Shirolkar as his disciple (a fact the plaintiff admitted but contested as a resignation).
By his conduct (taking possession of Kolhapur premises, later leaving, and entering negotiations leading to compromise), the second defendant effectively admitted or accepted terms resolving competing claims with the plaintiff — resulting in the compromise decree’s terms that allocated specified rights and payments to him while recognizing the plaintiff's rights in British India.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Privy Council's analysis proceeded from the factual findings and documentary admissions in the record:

Nature of the first defendant's connection to the suit: Their Lordships noted that the first defendant had been sued solely as a rival claimant to the office of Jagadguru.
Effect of first defendant's admissions: The first defendant, in answers to interrogatories administered by the plaintiff, expressly stated that he had installed his disciple and that he had "lost [his] legal existence so far as this suit is concerned" because he had transferred his rights and interest in the office and property to that disciple. He reiterated the transfer in his petition seeking to bring the second defendant on the record in his place.
Consequences of remaining on the record: The Court held that the mere fact the first defendant remained on the record did not render the compromise (to which he was not a party) or the resulting decree binding upon him in subsequent proceedings. That mere retention on the record did not by itself create a sufficient legal interest entitling him to appeal from a decree in which he had not participated and for which he had no continuing rights according to his own statements.
Substantive question before the suit: The sole substantive question in the suit was who was entitled to the office of Jagadguru. Because the first defendant had admittedly transferred all his rights in the office to the second defendant, and those rights were vested in the second defendant at the date of the compromise, the compromise (which established the plaintiff's right to the office and to the properties in British India) was admissible as between the plaintiff and the second defendant.
Appropriate remedies for third-party interests: The Court recognized that if the rights of the public, the institution, or its dependants (including the first defendant) were injuriously affected by the compromise, relief could be sought by appropriate proceedings — but that route is distinct from permitting the first defendant to appeal in this suit when he had, by his own admissions, divested himself of the relevant rights.
Assessment of the High Court's stance: The Privy Council disagreed with the High Court's inference that the presence of the first defendant on the record entitled him to have the compromise set aside. The Privy Council treated the Subordinate Judge's negative findings on subsisting interest as authoritative on the question whether the first defendant retained such an interest at the material time.
Conclusion of analysis: Given the documentary admissions and the Subordinate Judge's findings, the Privy Council concluded that the first defendant had no right of appeal in respect of the compromise decree in this suit, and that the High Court's order setting aside the Subordinate Judge's compromise decree was erroneous.

Holding and Implications

Holding: The Privy Council allowed the appeal, set aside the decree of the High Court of Bombay, and restored the decree of the Subordinate Court of Belgaum (the compromise decree) with costs here and below. The Court further held that the first defendant did not have a right of appeal in this suit.

Implications:

Direct effect on the parties: The compromise decree between the plaintiff and the second defendant stands as restored — the plaintiff's name was to be entered in Government records as owner of the properties in British India and the monetary and other terms in the compromise remain effective as between those parties.
On the first defendant's position: Because the first defendant had admitted transferring all rights to the second defendant and had stated he no longer "legally exist[ed] so far as this suit is concerned," he was not entitled to appeal from a decree made in the absence of his participation. His remaining on the record did not create a sufficient interest to support an appeal in this proceeding.
On remedies for third parties or dependants: The opinion notes — without deciding any such claims — that if the rights of the public, the institution, or its dependants were injuriously affected by the compromise, those parties may seek relief by appropriate proceedings distinct from an appeal by the first defendant in this suit.
Precedential effect: The decision resolves the appeal before the Privy Council on the particular facts and admissions of the record. The opinion does not purport to establish a novel legal principle beyond the application of ordinary principles of who is bound by a compromise and who has standing to appeal; no separate precedents were cited in the opinion.

Formal outcome recorded in the opinion: "Appeal allowed." The Privy Council advised His Majesty accordingly.

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Shri Sachidanand Vidya Shanhar Bharati Swami Guru Shri Sachidanand Vidya Narsinha Bharati Swami Jajadguru And Another v. Shri Vidya Narsinha Bharati Guru Vidya Shankar Bharati Swami Math Karvir And Another

Sir John Wallis. -

This is an appeal from a decree of the High Court of Bombay setting aside the decree of the Subordinate Judge of Belgaum in terms of a compromise entered into between the plaintiff and the second defendant in the suit, and remanding the case for disposal, on the ground that the decree was passed in the absence of the first defendant and without notice to him.

The suit, O. S. 219 of 1910, instituted in the Subordinate Court of Belgaum, was between rival claimants to the office of Jagadguru or head of the Sankeshwar and Karvir Mutt, an ancient foundation having two branches, one at Sankeshwar in the Belgaum district of the Bombay Presidency and the other in the Native State of Kolhapur (which of the two is the principal branch is in dispute), and owning properties both in British territory and in Kolhapur. The dispute as to the succession arose from the fact that Balavadakar, a former head of the Mutt, who had appointed and installed one Brahmanalkar as his successor in 1903, afterwards, in 1906, purported to revoke the appointment, and to appoint one Athanikar, who, in turn appointed and installed the plaintiff in 1909. Brahmanalkar, on the other hand, denied that he had been lawfully deposed, and before his death in 1909 appointed and installed one Atmaram Shastri, who was the original defendant in this suit. The plaint alleged that lands owned by the Mutt in British India, which included the Mutt at Sankeshwar, were in the possession of the plaintiff, but that by order of the Commissioner of the Southern Division the inam villages and cash allowances (in British India) were being held in Amanat (under attachment) and were to be given to the claimant who should obtain a decree declaring his right. The plaint accordingly prayed for a declaration that the plaintiff was the owner of the property moveable and immovable of the Sankeshwar and Karvir Mutt and of the powers and rights of that Mutt as the duly appointed Jagadguru.

The written statement alleged that the Court had no jurisdiction as the Sankeshwar Mutt was only a branch of the principal Mutt in Kolhapur and the Kolhapur Durbar alone had power to decide who was head of the Mutt; that that Durbar had decided that the defendant was the head of the Mutt, and that, in any case, Balavadakar had no power to depose Brahmanalkar (through whom the defendant claimed), or to appoint the plaintiff.

Atmaram Shastri died in November 1916, having appointed and installed Atmaram Pitri, the present first defendant, who was brought on the record as defendant on the 28th March 1917. Subsequently, on the 3rd June 1917, the first defendant appointed and installed the second defendant Kurtkoti. This having apparently come to the knowledge of the plaintiff on the 25th July 1917, he obtained leave to administer interrogatories to the first defendant. The questions and answers, which are material for the purposes of the present case, were as follows :

Question 1.

Have you installed your disciple on your "Gadi" (seat). And if (you) have installed (him) give particulars in details in respect of the name, andc, of that disciple Swami.

Answer 1.

"We (I) installed our (my) disciple on our "Gadi" (seat), and he has been named "Shri Vidya Shankar Bharati Swami Jagadguru" in accordance with the usage followed in continuity. Question 2.

Do you legally exist so far as this suit is concerned.

Answer 2.

Question

3. In case your legal existence so far as this suit is concerned is lost, will you please explain as to whom you have transferred rights (and) interest, andc., in the property in this suit you have.

Answer 3.

As I have lost my legal existence I have transferred my right and interest, andc, in the property in suit to the aforesaid Shri Vidya Shankar Bharati Swami Jagadguru.

The first defendant followed up these answers by applying on the 21st September 1917, that Kurtkoti's name might be entered as defendant. In his petition he stated again that all the rights of the Jagadguruship and all the rights over the income of immovable and moveable property of the Samsthan belonging to me have been transferred to him.

He would appear to have wished that Kurtkoti should be substituted for himself as defendant, but the plaintiff, to whom notice went, petitioned that Kurtkoti be newly entered among the defendants, and he was accordingly added as second defendant, leaving the first defendant on the record. The second defendant then filed an additional written statement in which he stated, among other things, that the plaintiff had appointed Shirolkar as his disciple. The plaintiff admitted that he had appointed Shiroklor as his disciple, to succeed him, but denied that he had resigned the office of Jagadguru in his favour. In these circumstances Shirolkar was added as third defendant in the suit.

It now becomes necessary to adverb briefly to the circumstances which led up. to the compromise. The second defendant, on his appointment by the first defendant, had entered into possession of the Mutt premises and villages in Kolhapur, but subsequently the Maharajah of Kolhapur ordered his officers to enter into possession of the Mutt villages for reasons which it is unnecessary to examine. Correspondence followed, and eventually, by way of protest, as it seems to their Lordships, the second defendant left the Kolhapur Mutt and premises, taking with him nothing but his sanyasi robe and beggar's staff and bowl. He then approached the plaintiff and a meeting was held between them and their pleaders, at which a compromise was arrived at ; and a decree was subsequently passed in terms thereof. The first defendant was not a party to the compromise and the decree was passed in his absence and without notice to him, but one of the terms was that he should be paid any costs he had incurred, and this term was embodied in the decree. Shortly, the compromise was that the plaintiff's name should be entered 'in the Government records as the owner of all the property in suit, that the second defendant should receive Rs. 8,001 a year out of the suit property and half the collections in the hands of Government under attachment; that the second defendant and his disciple, if he made one, should have no rights over the Sankeshwar Mutt and its estate ; that the second defendant should have the right to found a new Mutt north of the Nerbudda river ; and that, if the second defendant got back to the villages in Kolhapur he should during his lifetime pay the plaintiff and his successors one-half of the income.

The first defendant then presented a petition for a review of the compromise decree on the ground that the second defendant had obtained the decree by alleging that the first defendant had transferred all rights, title and interest in the suit properties to him, whereas only a limited interest was transferred to the second defendant not entitling him to alienate the Mutt properties, that the first defendant had always remained a party to the suit, and that his interest thus continuing to subsist, no compromise decree could be passed without notice to him. Lastly, the petition alleged that before the date of the compromise the second defendant had surrendered his right, title and interest in the Mutt to the first defendant and had ceased to have any authority with reference to the Mutt and its properties. The Subordinate Judge dismissed the petition for review observing that, not being a party to the decree, the first defendant could not be bound by it and could not be aggrieved by a decree which was not binding on him. The first defendant presented an appeal from the compromise decree. The appeal came before Shah and Hayward, JJ., who called for findings on the following issues :-

(1) Had Defendant No. 1 any subsisting interest as alleged by him in his application for review at the date of the compromise between plaintiff and Defendant Nos. 2 and 3 in the property in respect of which a declaration was sought in the suit ?

(2) Having regard to the nature of the property with reference to which the declaration was sought, by the plaintiff, was the compromise between the plaintiff and Defendant Nos. 2 and 3 lawful ?

The case went back to a new Subordinate Judge, who recorded findings in the negative on both issues. As regards, the first issue he found that the first defendant had no subsisting interest and had none when he made his application for review even as regards the Kolhapur branch.

On these findings the appeal came on again before Macleod, C. J., and Shah, J., when the learned Chief Justice gave judgment allowing the appeal and setting aside the compromise decree on the ground that the first defendant remained on the record after the second defendant was added as a party. The suit, he observed, was of a very special nature and affected the position of all parties, not only from a religious point of view, but also from their position as owners of property. The plaintiff might have applied to strike off the first defendant's name, when it would have been decided whether he had any interest in the suit or not. As it was, the first defendant appeared to have such an interest in the disputes which were in issue in the suits as to entitle him to have the compromise set aside.

Their Lordships are unable to agree with this view. The first defendant was sued solely as the rival claimant to the office of Jagadguru, and after transferring the office to the second defendant, he stated, in answer to interrogatories administered by the plaintiff, that he no longer legally existed so far as the suit was concerned, as he had transferred all his rights to the second defendant, a declaration repeated in his petition to bring on the second defendant in his place. In these circumstances, the mere fact that he so remained on the record did not, in their Lordships' opinion, make the compromise to which he was not a party, or the compromise decree which was passed in his absence and without notice to him, binding upon him in any subsequent proceedings so as to give him a sufficient interest in the suit to entitle him to appeal. The one question in the suit was, who was entitled to the office of Jagadguru. The first defendant admittedly transferred all his rights in the office to the second defendant; in whom they were still vested at the date of the compromise decree, which established the plaintiff's right to the office and its properties in British India. In their Lordships' opinion the fact that the first defendant continued on the record did not entitle him to intervene in the contest between the plaintiff and the second defendant, or to object to the admission by the second defendant of the plaintiff's claim to the office and its endowments either absolutely or on terms. If the rights of the public the institution or its dependants, including the first defendant, are injuriously affected by the compromise, relief may be sought by appropriate proceedings, but the first defendant has no right of appeal in this suit. This result is the less to be regretted if as found by the Subordinate Judge, the the appeal is really being prosecuted by the Kolhapur Durbar in the name of the first defendant. In their Lordships' opinion the appeal should be allowed, the decree of the High Court set aside, and the decree of the Subordinate Court restored with costs here and below and they will humbly advise His Majesty accordingly.

Appeal allowed.

Shri Sachidanand Vid... v. Shri Vidya Narsinha ...