1. The subject-matter of the litigation which has culminated in this appeal is an image of Lukshmi Narain Jew established in the town of Naraingunj in the District of Dacca and the properties movable and immovable appertaining to the endowment of that diety. The plaintiffs-respondents claim to be the representatives of the founder and they commenced this action for recovery of possession upon the allegation that the line of mohunts came to an end and that the defendants were trespassers in unlawful occupation of the endowed properties. The first two defendants who alone substantially resisted the claim denied the title of the plaintiffs as representatives of the founder and alleged that they were themselves the lawfully appointed mohunts of the endowment. One of these defendants has died during the pendency of the present litigation and we are now concerned only with the case of the first defendant who is the appellant before this Court. The other defendants were brought on the record upon the allegation that they had improperly interfered with the management of the endowment and had set up the mohunts defendants for that purpose. No relief, however, was claimed against them and we are not concerned at this stage with the question of their liability, if any. In order to appreciate accurately the position of the respective parties it is convenient to refer to the following geneological tables one of which gives the line of the founder and the other sets out the line of mohunts.
From these tables it will appear that Bhikan Lal was the founder of the endowment and that the first mohunt to whom he entrusted the management of the endowed properties was Chaitan Das. The plaintiffs claim to be the representatives of the founder and so far as the first of them is concerned, there can be no room for controversy that he is one, if not the sole, representative of the founder. The defendants, however, deny that the other plaintiffs can in any manner claim to be the representatives of the founder inasmuch as they are the sons of the daughters of the daughter of the grandson of the founder. So far as the defendants are concerned Lachmi Das claims to be the rightfully appointed chela of Santosh Das and Sital Das asserts that he is the duly initiated chela of Lachmi Das and has been appointed as mohunt by consent of the members of the sect to which he belongs. The substantial point in controversy between the parties is, whether Sital Das is the lawfully appointed mohunt of the endowment. If this question is answered in the affirmative, the plaintiffs or any of them as representing the line of the founder would not prima facie be entitled to possession of the endowed properties. If the question is answered in the negative, the point necessarily arises for examination, whether the plaintiffs or any of them are entitled to recover possession of the properties and to hold them as shebaits. The solution of this question may, it has been suggested, depend upon the answer to another question, namely, whether the endowment is of a private or public nature. A third question may also require consideration, namely whether in the events which have happened and which will be presently narrated the title of the defendants to the office of mohunt may not have been extinguished by limitation. In the Court below the Subordinate Judge has found, upon the first question, that the first defendant Sital Das is not the lawfully appointed mohnnt inasmuch as his spiritual preceptor Lachmi Das had not at any time attained the status of the initiated chela of Santosh, much less that of the duly installed mohunts of the endowment. So far as the second question which relates to the true character of the endowment is concerned, the Subordinate Judge has not come to any distinct finding, but he has held upon the evidence that the worship of the diety is maintained to a large extent by public subscriptions and charities and that the properties of the endowment have from time to time received substantial benefits and accretions from charitable gifts by members of the public. He has held, however, that whatever the character of the endowment may be, as the line of mohunts has come to an end, the plaintiffs as representatives of the founder are entitled to recover possession of the image and of the dedicated properties and to hold them as shebaits. Upon the question of limitation, he has held that the suit is not barred by limitation, but he has not discussed the position whether in the events which have happened, the title of the defendants, to hold as mohunt, may not have been barred by adverse possession on the part of the plaintiff. In this view of the matters the Subordinate Judge has made a decree in favour of the plaintiff as shebaits, but has excluded some of the properties included in the plaint. The first defendant has now appealed to this Court, and on his behalf the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the first defendant is the lawfully appointed mohunt; secondly, that as the endowment is of a public nature, the representatives of the founder have no special statuts and, thirdly, that the plaintiffs have been awarded a decree on a case not set out in the plaint nor made out in the evidence. On behalf of the plaintiffs-respondents, all those positions have been controverted, and, it has further been argued that as from 1872 to 1899 they have managed the endowment as shebaits the title of the defendants, if any, to the office of mohunt has been extinguished by adverse possession. Before we deal with the questions in controversy, it is necessary to examine for a moment the history of the origin and management of the endowment.
2. The endowment appears to have been created by Bhikan Lal Sarma towards the latter end of the 18th Century. He established an image of the diety Lakshmi Narain Jew in the town of Dacca and dedicated his own estate for its worship and maintenance. Subsequently, he appears to have established this image in suit in the town of Naraingunj and at one stage of the proceedings a question appears to have been suggested, whether the institution at Naraingunj was a branch of the parent institution at Dacca. This question, however, has not been investigated and an enquiry into this matter is not absolutely necessary for the decision of the points raised before us; but so far as we can gather from the record, the Naraingunj endowment was in its inception a private endowment, subordinate to the Dacca Institution, though in course of time, the former may be said to have acquired a more or less public character by reason of the influx of pilgrims and devotees who have made gifts of property from time to time. We may, however, proceed on the assumption that the Narainganj Institution is. independent of the one at Dacca. There are no materials on the record which would enable us to determine with any approach to certainty the terms on which the foundation was created. We do not know what power, if any, either of management or of nomination to the office of mohunt, was reserved in himself by the founder. The defendant has in his possession documents which might perhaps have thrown some light upon this question. He admits that he has a deed of gift written in Persian but he has not filed it. We start, therefore, with this information only that more than a Century ago, Bhikan Lal established this endowment and placed it in charge of Chaitan Das a mohunt of the Ramayat sect. The next item of information we get is that after the death of the founder as also of the first mohunt, in the time of Gopal Prosad, when Laehman Das became the mohunt, he got a sanad of release from Gopal Prosad. This was apparently in the form of a debutter-grant made on the 27th April 1813. This we gather from the recitals in a judgment delivered on the 17th August 1855 in a possessory dispute which led to Criminal proceedings under Section 3 of Act IV of 1840. This would tend to indicate that a recognition of the title of the mohunt by the representatives of the founder was deemed to be necessary when by succession a new mohunt come to hold the office in 1813. This deed also, if it is still in existence, must be in the custody of the defendant and for some unexplained reason has been withheld. About 40 years later, upon the death of Lachman Das, disputes arose again as to the possession of the endowed properties. When Lachman Das died, apparently the only persons then alive in the line of mohunts were the grand chelas of his spiritual brother Janaki Das. Gopal Prosad set up Ram Prosad Das as the mohunt in whose favour ho executed a deed of gift. This led to disputes and criminal proceedings were commenced as already mentioned. The result of the proceedings was that Hari Das and Santosh Das were maintained in possession, and they appear to have continued in occupation of the endowed properties from 1855 to 1868. Shortly before the death of Santosh which took place on the 30th May 1868, Raja Babu executed a deed in favour of his wife Prosunna Kumari and his nephew Prannath by which ho authorised them to manage the endowment as shebaits. This induced Santosh Das to present an application, apparently to the Collector, on the 30th July 1867. In this he admitted that the founder Bhikan Lal and the first mohunt Chaitan Das had performed the service and worship of the idols with the income of the debutter property according to the terms of the sanad, that after their death, Gopal Das had become the shebait and performed the service and worship, and after his death Raja Babu had been appointed shebait to perform the service and worship of the idol in Dacca. He complained, however, that Raja Babu being incapable of doing the work of shebait had renounced his shebaitship and had made an application for substitution of Prosanna Kumari and Prannath as shebaits in his place. Santosh Das urged that this was not right and that if Raja Babu renounced the shebait-ship, he was entitled to be the shebait of the idol established in the house at Dacca. He, therefore, claimed that he might be recognised as the shebait of the idol in Dacca as he was also the shebait of the idol of Naraingnnj. What happened to this application, is not known, but it is admitted that in the records of Collector, Prosanna Kumari and Prannath have been registered for many years past as shebaits. Santosh Das, as we have already said, died shortly after in 1868. At that time, Lachmi Das, now alleged to be his chela was not in the temple, and possession was taken by his Baishnavi Mistress Ram Dassi who set up a will alleged to have been executed by him. Meanwhile Prosanna Kumari and Prannath applied for a certificate under Act XXVII of 1850 for authority to perform the services not only in Dacca but also in Naraingunj and to collect the debts due. The certificate appears to have been subsequently granted to them in 1871. In the interval Ram Dassi had had commenced an action on the basis of the alleged will of Santosh Das, which was dismissed on the 26th May 1872. The Munsif held that as she was an unchaste woman and belonged to a different caste, it was not likely that she could have been appointed shebait by Santosh and that the evidence adduced to prove the genuineness of the will was altogether worthless. Immediately after, there was a compromise between Ram Dassi. on the one hand and Prosanna Kumari and Prannath on the other and on the 20th November 1872 both the parties filed applications before the District Judge in the appeal preferred against the decree of dismissal of the suit of Ram Dassi. The effect of this compromise was to declare that Prosanna Kumari and Prannath were the shebaits of the debulter estate and that Ram Dassi was to be appointed to manage the endowment. The result of this settlement was that Ram Dassi continued to hold possession of the endowed properties under Prosanna Kumari and Prannath from 1872 till her death on the 12th December 1899. Shortly after her death, disputes broke out again and the plaintiffs alleged that the first two defendants who falsely claim to be mohunts, with the assistance of the other defendants, two of whom are members of the legal profession and the third is an influential landlord of the locality, managed to obtain possession of the properties The plaintiffs, therefore, commenced this action on the 26th November 1908 for declaration of their title to and recovery of possession of the endowed properties as shebaits.
3. The first point which requires consideration is whether the first defendant is the lawfully appointed mohunt of the endowment. The Subordinate Judge has come to the conclusion upon the evidence that he is not the shebait or mohunt. The evidence upon this part of the case was criticised in considerable detail before us and has been subsequently subjected by ourselves to minute examination. The result is that the view taken by the Subordinate Judge proves to be manifestly well-founded. It is obvious that Sontash Das up to the time of his death in 1868 was the lawful shebait and mohunt of the endowment. Lachmi Das, who is now alleged to have been his chela and entitled to the office of mohunt upon his death, was not present in the temple of the time of his death. His Baishnabi Mistress Ram Dassi upon his death set up a false will and was defeated in the litigation which she commenced for possession of the temple and its properties. Subsequently, as we have already stated, she abundoned her claim and was placed in possession as manager under Prosanna Kumari and Prannath as shebaits. So far as we can gather from the evidence, Lachmi Das came to the temple about 1875, that is, seven or eight years after the death of Santosh. It is also fairly clear that this was the first time that he came to the temple. He could not, therefore, have been the initiated chela of Santosh Das. On the other hand there is evidence to show that he became the chela of Ram Dassi which would not, of course, confer on him any legal status. His subsequent conduct during many years is entirely inconsistent with the theory now put forward that he was the chela of Santosh Das and as such entitled to succeed to the office of mohunt. During the time of his stay in the temple from his first arrival in 1875 to the death of Ram Dassi in 1899, his position was that of the manager of the endowment under Ram Dassi. It is most natural, therefore, that, as indicated in the evidence, he should be, somewhat loosely in common parlance, spoken of as the mohunt. If Lachmi Das had been the duly initiated chela of Santosh Das and as such entitled to succeed to the office of mohunt, it is inconceivable that he should have omitted to assert his right during a period of 25 years. On the other hand he uniformly contented himself with a subordinate position wholly inconsistent with that of the spiritual head of the endowment. Thus, for instance, from a deposition given by him on the 4th September 1904, though he called himself the spiritual son of Santosh Dass, it is clear that he was nothing better than the manager on behalf of the defendant in that case. Again, it appears from the evidence of Mohim Chandra Ganguli a pleader at Naraingunj, that litigations in respect of the endowed property were conducted in the name of Ram Dassi while Lachmi Das merely acted as her manager. Apart from this, however, the oral evidence of the initiation of Lachmi Das by Santosh is wholly unreliable. No doubt some of the witnesses for the defence speak of Lachmi Das as the chela of Santosh Das. But the evidence is not uniform and Purna Chandra Pal, a zamindar of some respectability, examined on behalf of the plaintiff, says in cross-examination that Santosh Das had no chela of his own. It is clear also that witnesses who are alleged to have been present at the time of the initiation and who might easily have been called were not examined. Whether, therefore, we consider the direct evidence of initiation or the evidence of conduct of Lachmi Das, the conclusion is irresistible that he was not the duly appointed chela of Santosh Das. The part which he played in the various litigations relating to the endowment, and the position which he occupied for many years in the temple are inconsistent with the theory that he was entitled to the spiritual headship of the endowment. We must, therefore, affirm the finding of the Subordinate Judge that Lachmi Das was not the chela of Santosh Das and that the first defendant Sital Das, as the chela of Lachmi Das, has no title to the office of mohunt.
4. The second point which requires consideration is, whether, under these circumstances when it is established that the last mohunt Santosh Das has not left any chela entitled to the office of mohunt, the representatives of the founder can legitimately claim to take possession of the properties as shebaits. Upon this branch of the case , the learned Counsel for the appellant, endeavoured to make a distinction between private and public endowments. He argued that whatever might be the case, with a private or family endowment, the representatives of the founder have no special rights when the line of mohunt becomes extinct in the case of a public temple. In our opinion, the distinction suggested is not supported by the authorities and is not defensible on principle. It is now well-settled that the devolution of the trust upon the death or default of each trustee depends upon the terms upon which it was created or the usage of each particular institution where no express trust-deed exists. In support of this proposition, it is sufficient to refer to the decisions of the Judicial Committee in the cases of Greedharee Doss v. Nundo-kisliore Doss 11 M.I.A. 405 : 8 W.R. (P.C.) 25; Muttu Ramalinga v. Perianayagum 1 I.A. 209 Janoki v. Gopal 10 I.A. 32 :13 C.L.R. 30 : 9 C. 766 and Genda Puri v. Chhatar Puri 13 I.A. 100 : 9 A. 1. We have further the recognised principle that when the worship of an idol is founded, the office of shebait is held to be vested in the heirs of the founder in default of evidence to show that he has disposed it of otherwise. Gossamee Sri Greedharreejee v. Ramanlalji Gossami 17 G. 3 : 16 T.A. 137. From these two propositions, it necessarily follows that where a shebait appointed by the founder fails to nominate a successor in accordance with the conditions or usages of the endowment, the management reverts to the representatives of the founder. This proposition is supported by the cases of Peet Koonwar v. Chuttur Dhareo Singh 5 B.L.R. 181 : 13 W.R. 396; Gossamee Greedharreejee v. Ramanlalji Gossami 17 G. 3 : 16 T.A. 137; Ranjit Singh v. Jaganath Prosad Gupta 12 C. 375 and Jaganath Prosad Gupta v. Ranjit Singh 25 C. 354. The same view has been repeatedly taken by the learned Judges of the Allahabad High Court see Sheoratan Kunwari v. Ram Pargash 18 A. 227; Chandra Nath Chakrabarti v. Jadabendra Chakrabarti 28 A. 689 : A.W.N. (1906) 173 and Shea Prasad v. Aya Bam 29 A. 663 : A.W.N. (1907) 210 : 4 A.L.J. 565. In the case last mentioned, the endowment was for the promotion of the Nanakshahi religion and was undoubtedly of a public character and yet it was ruled that when a Religious Endowment has been founded, the right to appoint a manager or superintendent remains in the founder and his descendants, unless there is evidence to show that the founder or his descendants have made any inconsistent disposition. Substantially to the same effect is the decision of the Madras High Court in Gajapali v. Bhogavan Doss 15 M.44 in which it was ruled that in the; absence of a deed of endowment the obligations of the head of a math to the representatives of the founder can only be deduced from the usage of the Institution.' See also Sathappayyar v. Periasami 14 M.I. If this test is applied to the case before us, the defendant has no answer to the suit. The representatives of the founder have, from 1813, exercised control, direct or indirect, over the management of the endowment, and it is difficult to appreciate how it can be seriously contended that they have no right to intervene when it is found that the succession to the office of Trustee-has wholly failed and the properties have passed in. the hands of a trespasser who sets up a fictitious claim to the office of mohunt. In fact, this recognition of the right of the founder or his representatives to intervene where the succession to the office of Trustee has wholly failed may be regarded as, in some respects, analogous to the well-established right of visitation of the founder and his representatives in the case of Eleemosynary Corporations in England. It is impossible, in our opinion, to support the view that the founder who furnishes the original endowment has no concern when he finds that by reason of the failure of the succession to the office of Trustee, the whole object of the endowment is jeopardised; and, in our opinion, his representatives are entitled to claim the same right of management as he himself, if alive, would be entitled to claim in such a contingency. We must, consequently, hold that the plaintiffs or that some amongst them who are the representatives of the founder are entitled to the relief claimed in this suit. There is, however, in our opinion, another ground upon which the plaintiff would be entitled to succeed. As we have already pointed out, the plaintiffs were in possession of the endowment as shebaits from 1872 to 1899. If the case for the defendant is true, Ram Dasi had no status at all in relation to the endowment, and, upon the death of Santosh Das in 1868, Lachmi Das ought to have come into the occupation as the mohunt. What then is the legal effect of the long and continuous possession of the plaintiffs as shebaits of the temple? Clearly the right of any other person who might be imagined to be lawfully entitled to the office of shebait has been extinguished by adverse possession. This view is amply supported by the cases of Alagirisami Naickar v. Sundareswara 21 M. 278; Ramanuthan Chetti v. Murugappa Chetti 27 M. 192 : 29 M. 283 (P.C.) 10 C.W.N. 825 : 8 Bom. L.R. 498 : 16 M.L.J. 265 : 4 C.L.J. 189 : 3 A.L.J. 707; Lilabati Misrain v. Bishun Chobey 6 C.L.J. 621; Nila Kantian v. Padmanabha 14 M. 153 and by the decisions of the Judicial Committee in Balwant Rao Bishwant Chandra Chor v. Pucran Mal 101. A. 90 : 6 A. 1 and Gossamee Greedharreejee v. Ramanlalji Gossami 17 G. 3 : 16 T.A. 137. It is manifest, therefore, that as for 27 years from 1872 to 1899, the plaintiffs have been in possession of the office of shebait through their manager Ram Dassi, they have acquired a statutory right to the office of shebait. In this view also the plaintiffs would be clearly entitled to succeed.
5. The third point which requires consideration is, whether the plaintiffs are entitled to any relief in the suit as framed. The learned Counsel for the appellant has strenuously contended that the plaintiffs ought not to be allowed to succeed upon a case, neither made in the plaint nor developed in the evidence. He has laid stress upon the circumstance that the plaintiffs asked for declaration of their maliki and shebaiti rights in the disputed properties and has argued that the two cases were wholly inconsistent. It may be conceded that the language of the plaint is open to criticism but the plaintiffs have never pressed for relief on the ground that they are absolute owners and not shebaits of the disputed property. In the Court below as well as in this Court, they have sought relief solely on the ground that upon failure of the line of mohunts they are entitled as representatives of the founder to recover possession of the endowed properties as shebaits and this is the decree which has been made in their favour. No doubt as has been repeatedly held a plaintiff is not entitled to succeed on a case not to be found in the pleadings nor involved in or consistent with the case thereby made. Eshan Chunder Singh v. Shama Churn Bhutto 11 M.I.A. 7 at p. 20 : 2 Ind. Jur. N.S. 87 : 6 W.R. (P.C.) 57; Muhammad Zahoor Ali Khan v. Rutta Koer 11 M.I.A. 468 at p. 473 : 9 W.R. (P.C.) 9 and Sreemutty Dassee v. Ranee Lalunmonee 12 M.I.A. 470 at p. 475 : 2 B.L.R. 64 (P.C.) On the other hand, it has been frequently laid down that even if the plaintiff should mistake the relief to which he is entitled in his special prayer, the Court yet may afford him the relief to which he has a right under the prayer for general relief, provided it is such a relief as is conformable to the case made in the plaint. Arbuthnot v. Betts 6 B.L.R. 273 : 14 W.R. 181; Nistarini Dasi v. Makhan Lal Vutt 9 B.L.R. 11 : 17 W.R. 432. The test in each case is, whether the relief sought may be granted upon the facts stated in the plaint and established by the evidence and whether the variance, if any, between the pleading and proof will take the defendant unfairly by surprise. Tested in the light of these principles, it is mainfest that the defendant has no substantial grievance. The facts are set out with sufficient precision in the plaint and have been made out by the evidence on the side of the plaintiffs. The special case set up in the defence has completely failed. Under these circumstances, there is no conceivable reason why the plaintiffs should not get relief on the ground that they have shebait right in the image of the diety Lakshmi Narian Jew and the properties endowed for his worship. It has, farther, been argued by the learned Counsel for the appellant that if the plaintiffs as representatives of the founder are entitled to any relief, it is the first plaintiff alone in whose favour a decree may legitimately be made, because, it was contended, the office of shebait is inalienable and any arrangement, made by Raja Babu authorising his wife Prosanna Kumari and his nephew Prannath to hold the office jointly, is inoperative in law. There may be some force in this contention in view of the decisions in Raja Vurmah Yalta v. Ravi Vurmah 4 I.A. 76 : 1 M. 235; Gnanasambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329; Gobinda Kumar Roy Chowdhry v. Debendra Kumar Chowdhry 12 C.W.N. 98 and Rajeswar Mullick v. Gopeswar Mullick 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 315. But the question of the rights of the plaintiffs inter se is evidently one winch cannot be determined in this litigation. In the first place, this question has not been raised or even suggested at any previous stage of the proceedings. In the second place, the plaintiffs-respondents have throughout been represented by the same Pleader and any question of conflict of interest cannot properly be discussed unless an opportunity is afforded to each of them to place his case before the Court independently. In the third place in view of the decision in the cases of Balwant Rao Bishwant Chandra Chor v. Purun Mal 10 I.A. 90 : 6 A. 1; Ramanathan v. Murugappa it is quite conceivable that the plaintiffs other than the first plaintiff may have acquired as against the latter astatutory right to hold the shebaitship jointly. In the fourth place, it is immaterial to the defendant-appellant whether all the plaintiffs or only one amongst them holds the office of shebait as the representative of the founder. Under these circumstances we must decline to enter into a discussion of the question of the rights to shebaitship amongst the plaintiffs inter se.
6. It may be added that a question was raised in the Court below as to whether the suit was maintainable in view of the provisions of Section 539, Civil Procedure Code of 1882. The objection was not seriously pressed though evidence was adduced to prove the worship is now maintained to a considerable extent by public charity and substantial additions have been made to the properties by the gifts of devotees and worshippers. The Subordinate Judge held that the objection could not be maintained in view of the decisions of this Court in Budree Das Mukin v. Chooni Lal Johwry 33 C. 789 : 10 C.W.N. 581. This is manifestly right and the objection has not been reiterated in this Court.
7. The result, therefore, is that the decree made by the Subordinate Judge is substantially just and must be affirmed with costs.