Sheo Shankar Gir v. Ram Shewak Chowdhri And Ors.

1. This suit was brought by the present mohunt of the Kaplessar Asthan in the Nepal Terai for the purpose of obtaining possession of mouzah Mahtour, which is situate in the district of Tirhoot. The plaint asks.

1. That it may be declared that Mahtour forms a, deotar estate belonging to the Kaplessar Asthan.

2. That it may be declared that the deed of sale, dated the 5th of March 1881, was altogether invalid and collusive and ineffectual, and that under it the defendants have acquired no right in that estate.

3. That the Court may be pleased to pass a decree in favour of the plaintiff in respect to the entire mouzah Mahtour. This last prayer we read as a prayer for possession.

2. The defendants plead that the suit is barred by limitation, and that they have acquired a right by adverse possession. They also plead that mouzah Mahtour is not deotar property, and deny all the allegations contained in the plaint. Lastly, they plead that the deed of sale under which they claim was executed for legal necessity by the then mohunt of the Asthan.

3. The Subordinate Judge has held that the property in suit is deotar property appertaining to the Asthan, but that the suit is barred by limitation, and that a portion of the money advanced by the defendants was actually applied for payment of the rents of the Asthan property and of debts due by the mohunt. He therefore dismissed the suit.

4. There can be no doubt that this mouzah was deotar property. The sanad by which it was given many years ago, viz., 1166 Fusli, to a mohunt named Harjih Gir who was a predecessor of the present plaintiff in the mohuntship, distinctly shows that the property was given for the purpose of the Asthan. It was given to the mohunt as such, and the succession was prescribed to be in his disciples. The purposes of the trust were to toed fakirs and mendicants. This was a trust for charitable purposes, the successive occupiers of the mohuntship being the trustees.

5. We also agree with the learned Subordinate Judge in. holding that mouzah Mahtour belongs to the Asthan Harlaki, which is a dependency of Asthan Kaplessar. It is clear that the mohunt of Kaplessar was de jure mohunt of Harlaki.

6. A predecessor of the plaintiff in this mohuntship was one Balraj Gir. He was deposed from the guddi, by order of the Maharajah of Nepal, on the 22nd of February 1873. It is the case of both sides that the Maharajah of Nepal had power to appoint and depose mohunts of the Kaplessar Asthan; and as a matter of fact it is clear that in his name such appointments and depositions were from time to time made. It is not for us to consider the propriety of the action of the Maharajah of Nepal.

7. The guddi of this Asthan was held upon a very uncertain tenure, and at the will of the Maharajah or his counsellors a mohunt might at any moment lose his office. On Balraj Gir's deposition one Balwant Gir succeeded him. Balwant Gir was succeeded by Sham Gir, but in 1886 an order was made for the reinstatement of Balraj. Balraj died before he could be reinstalled, and a sanad was granted to the plaintiff. It appears from the evidence in this case that although Balraj between 1873 and 1886 was neither de jure nor de facto mohunt of Kaplessar, he did not cease to exercise control over the property belonging to Harlaki. The deed, which is the subject of the present suit, was executed by Balraj in 1881 when lie was not demure mohunt of Harlaki, although, as far as we can see from the evidence, he was de facto mohunt and had not ceased to exercise his functions as mohunt. On the 5th of March 1881 he executed a deed of sale of mouzah Mahtour in favour of the defendants.

8. Although it is unnecessary in the view which we take of the facts of this case to determine the question of limitation, we think it desirable that, as it has been argued, we should express our opinion with regard to it. In the first place it is quite clear to us that there is no question of adverse possession. The only way in which it is attempted to set up adverse possession is by adding the tenure of Mahtour by Balraj, after his deposition in 1873, to the possession held by the defendants since 1881, that is to say, by holding that from 1873 the possession of Balraj became adverse. But Balraj continued to hold, not adversely to the endowment, but as de facto trustee thereof. He continued as mohunt, and in his dealing with the property in 1881 he acted in that capacity. That being so, it is difficult to see how his action can in any way be treated as being adverse to the endowment. A person who wrongly holds as trustee and pretends to act as trustee cannot be entitled to reprobate the right which he asserts and to contend that he holds adversely to his cestui que trust. In our opinion this is perfectly clear, and no question of adverse possession arises up to 1881. Although the defendants had for some time held this land as zur-i-peshgidars they did not assert any rights adverse to the endowment. Even if the effect of the sale of 1881 were to start an adverse title, twelve years had not elapsed when the suit was instituted.

9. We also think that we must hold that Article 91 of the Limitation Act has no application to the present case. A forcible argument was addressed to us on behalf of the respondents in order to induce us to hold that that Article applied, and a large number of authorities were cited to us. In no one of them do we find that Article 91 has been applied to an alienation by the manager of an endowment, the manager of an infant heir, a Hindu widow, or any other of the persons whose powers are placed in the same footing by Hunooman Persaud Pandey's case (6 Moo. I. A., 393), and the cases which follow the decision in that case. On the contrary, in two cases we find express authority that twelve years is the period of limitation in a case of that kind. The case of Unni v. Kunchi Amma I.L.R. 14 Mad. 26 is a case in many respects similar to the present, and in a case in this Court, Sikher Chund v. Dulputty Singh I.L.R. 5 Cal. 363 (370), a Division Bench considered that Article 91 was inapplicable. If the person who executes the document had no authority in law to execute it, the plaintiff need not sue to set it aside, but may treat it as of no effect.

10. The next question raised is as to the position Balraj occupied at the time of the execution1 of the deed in question. He was not (sic)a jure mohunt, but he was de facto mohunt of the subordinate Asthan Harlaki to which Mahtour belonged. We see no reason why the observations of the Privy Council if; Hunooman Perasud Pandey's case with reference to the manager for an infant heir should not apply equally to a de facto manager of an endowment. The persons with whom the mohunt deals are not bound to look further than the authority which is apparent to them. It is impossible to expect a person dealing with a mohunt who is in possession of land in British territory to know much, or indeed to care much, about what action is from time to time being taken by the Nepal Raj with regard to the status of the mohunt. At page 412 of 6 Moore's Indian Appeals their Lordships of the Privy Council say:

"Upon the third point it is to be observed that under the Hindu Law the right of a, bond fide encumbrancer who has taken from a de facto manager a. charge on lands created honestly for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge, had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the de jure title."

11. The same reasons which would induce the Court to support the ease of a de facto manager of an infant heir would, in our opinion, justify it in supporting the case of a de facto mohunt, especially where that mohunt had recently been de jure mohunt, and the alteration of his rights had been effected by a foreign Government in the main with reference to territory within the jurisdiction of that Government.

12. The only remaining question is whether this deed can he supported as being based on necessity.

13. [After considering the evidence on this question, which is not material to this report, their Lordships continued:] We think that this evidence shows that there was a necessity for the sale. There were in existence bonds which had been given for necessary purposes and which could be enforced, and there was a decree. The family of the defendants had for many years been financing this Asthan. They acted not only bond fide, but it appears to us they exercised a good deal of care in the different transactions. There is nowhere in the case for the plaintiff anything to suggest that his predecessor on the quddi acted improperly in raising money or otherwise than for necessity.

14. We think therefore that on the merits this appeal fails and must be dismissed with costs.