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As the correctness of the said facts is not questioned before us, it will be convenient to extract them in the words of the learned Judge: "In all Vaishnavite temples, the Alwars and the Acharyas take a prominent place in the religious ceremonies and observances of the temple. Ratio |
An attempt was made to show that there has been an interlinking and interdependence of the ritual and ceremonies between these two temples, but, as rightly found by the learned Subordinate Judge, in the matter of routine and day to day worship and rituals such interlinking and interdependence have not been satisfactori... |
The rituals or the manner of performing divine service are uniform in every Vaishnavite temple. Ratio |
But, as found by the learned Subordinate Judge, though a ritual in the main temple is not dependent upon the ritual in the sub shrine, the Emberumanar deity being an Acharya is intimately associated with the deity in the main temple in all the important festivals, the most important of which are the Margali and Vaikasi... |
There are several Mandagapadis for the Athinatha Alwar in the Emberumanar temple. Ratio |
There is Sethu Thirumanjam for the Athinatha Alwar and Embe rumanar deities on three occasions, two of them in the Emberumanar temple and one in the main 533 temple. Ratio |
Then there is what is called Alwar Sayanam which has to take place on the 10th day of the Margali festival and which is performed in the main temple. Ratio |
There are several other similar religious observances, where the two deities meet and certain rituals and religious ceremonies are gone through. Ratio |
The daily ritual in a Vaishnavite temple is a routine matter and on occasions, for instance, in the months of Margali and Vaikasi and on other festival days, there is necessity for the Alwars and the Acharyas to meet the main deity and ceremonies suitable to the occasions are performed. Ratio |
It is not possible to imagine a temple where God Vishnu is installed without the presence of the Alwars and Acharyas. Ratio |
Alwars and Acharyas are devotees of God Vishnu who have received divine recognition in their lives and the festivals in relation to them depict incidents of such manifestation of divine grace to his devotees. Ratio |
It may also be mentioned that the installation of each Emberumanar Jeer,, who it may be stated is a Sanyasi, is in the Athinatha Alwar temple under its Dwajasthamba, the flag staff, and the declaration of the status of the succeeding Jeer is made only ill the presence of the deity of the main temple. Ratio |
" We may also add to the said facts that at one time the share of tasdik allowance to the Emberumanar temple was paid through the trustee of Athinathalwar temple and there was also an occasion when a trustee of the Emberumanar temple was dismissed by the trustee of the Athinathalwar temple. Ratio |
On the other hand, both the temples are under different managements, they have their separate officeholders, distinct rituals, different budgets, and separate endowments; and in the year 1926 on an application filed by the Emberumanar Jeer, the Religious Endowments Board declared the temple as an excepted temple indica... |
only question, therefore, is whether the said facts enable a court to 68 534 hold that one temple is subordinate or part of the other temple, so that the office holders of one temple would become the office holders of the other. Ratio |
The facts clearly establish that in fact and in law the two institutions are different legal entities. Ratio |
In the past, the trustees of Athinathalwar temple might have disbursed tasdik allowances contributed by the Government to the various temples, including the Emberumanar temple, but it is well known that for convenience of administration the services of the trustees of a larger temple were very often utilized by the Gov... |
These and such acts may show that the trustee of the Athinathalwar temple had exercised similar supervisory control in the past over the minor temples; but that in itself does not make the trustee of the temple of Emberumanar an office holder in the bigger temple. Ratio |
It is well known that in the past the temples were under the supervision of the Revenue Board and later on under various temple committees. Ratio |
It cannot be suggested that on that account. Ratio |
the trustees of the minor temples were officers in the Revenue Board or the temple committees, as the case may be. Ratio |
We cannot also appreciate how the mutual visits of the idols to the other 's temple and the honours shown to the idols on such visits could have any bearing on the question to be decided, though they reflect the intimate relationship that exists between the Lord and his ardent devotee Ramanuja in the public consciousne... |
But such cordial relationship existing between two independent temples cannot in the eye of law make the 535 one a part of the other. Ratio |
Two independent institutions legally cannot, except in the manner known to law, be amalgamated into one institution by developing merely sentimental attachment between them. Ratio |
This argument was rightly rejected by the learned District Judge, and the High Court went wrong in accepting it. Ratio |
Before we close we must make it clear that by this judgment we have not in any way intended to express our view in the matter of honours that are customarily shown to one or other of the parties in these appeals in the temple of Athinathalwar. Ratio |
In the result we hold, agreeing with the District Judge, that the suits were not maintainable in the civil court. Ratio |
The appeals are, therefore, allowed with costs throughout. RPC |
Appeals allowed. RPC |
Appeals Nos. 645 and 646 of 1957. FAC |
Appeal from the judgment and decree dated August 1956, of the Patna High Court, in Second Appeals Nos. 2155 and 2156 of 1948. FAC |
A. V. Viswanatha Sastri and R. C. Prasad, for the appellant. FAC |
B. K. Garg, M. K. Ramamurthi, section C. Agarwal, and D. P. Singh, for respondents Nos. FAC |
1 to 4. 1961. FAC |
April 28. FAC |
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. FAC |
These are appeal against the judgment of the High Court of Patna in Second Appeals Nos.2155 and 2156 of 1948 on certificates granted by the High Court under article 133(1)(c) of the Constitution. FAC |
The facts leading to this litigation lie in a narrow compass. FAC |
One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate. FAC |
For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two persons, Rajdewan Dubey and Kailash Dabey, who were also the next reversioners, for a sum of Rs. 1,100. FAC |
It is not in dispute that this deed is binding on the reversioners. FAC |
On June 17, 1943, Laung Kuer sold to the appellant a portion of the properties which were the subject matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600 Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was ... |
It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a r... |
It is to meet these expenses that Laung Kuer raised Rs. 500. FAC |
After obtaining the sale deed, the appellant sought 561 to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties. FAC |
The appellant deposited the mortgage amount in court under section 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption. FAC |
Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour the appellant was not binding on the reversioners. FAC |
And both the suits were tried together. FAC |
The parties were at issue on several questions of fact of which the only one material at this stage is whether the sale in favour of the appellant was supported by necessity and binding on the reversioners. FAC |
The District Munsif of Palamau who tried the suits held on a review of the evidence that necessity was established in respect of all the four items of consideration and that the sale was binding on the reversioners. RLC |
He accordingly dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a decree for redemption in Title Suit No. 69 of 1944 filed by the appellant. RLC |
The respondents herein, the reversioners, preferred appeals against both the decrees passed by the District Munsif of Palamau and they were heard by the Subordinate Judge of Palamau, who, agreeing with the findings given by the District Munsif, affirmed the decrees and dismissed the appeals. FAC |
Against these decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in the High Court of Patna. FAC |
While these appeals were pending, Laung Kuer died on March 14, 1952, and on the application of the respondents, the plaint in Title Suit No. 126 of 1943 was amended by adding reliefs for possession and mesne profits. FAC |
The appeals were then heard by a Bench consisting of Rai and Misra, JJ., who in separate but concurring judgments, held that the sale deed in favour of the appellant was not binding on the reversioners. RLC |
Misra, J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity. RLC |
Indeed, being a finding of fact, it would be binding on the court in Second 562 Appeal. Ratio |
He, however, held, following the decision in Dasrath Singh vs Damri Singh (1) that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them. RLC |
A different view was taken in Lala Ram Asre Singh vs Ambica Lal (1), where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay. PRE |
But the learned Judge declined to follow this decision and stated the reason thus: "Following, therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later... |
In my opinion, however, the present case is not one in which it is desirable to refer this case to a larger Bench. PRE |
Following, therefore, the authority of this Court in Dasrath Singh 's case which completely covers the present case, it must be held that the courts below were in error in relying upon the decision in Lala Ram Asre Singh 's case." PRE |
In the result the learned Judge held that the sale deed in favour of the appellant dated June 17, 1943, was not binding on the reversioners. Ratio |
Rai, J., expressed the view that as the bona fides of the sale in favour of the appellant was questioned by the reversioners and as there had been no finding on that point by the Subordinate Judge, the matter might have to be remanded for a finding on that question, but that, as the sale deed was not supported by neces... |
Thereafter, the appellant applied in the High Court under article 133 for leave to appeal to this court, and in granting certificates, Ramaswami, C. J., and Raj Kishore Prasad, J., observed in their (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.(2) 1i Pat.L.T. 6; A.I.R. 1929 Pat.563 Order dated November 27, 1956, that there bein... |
They also stated that the question as to the practice to be followed when there was a conflict of decisions, was likewise one of public importance, which ought to be settled by this Court. Ratio |
They accordingly granted certificates under article 133 (1)(c) and that is how these appeals come before us. Ratio |
Before considering the two questions referred to in the order of the High Court granting certificates, we shall deal with a contention raised on behalf of the respondents, which if well founded would necessitate a remand of these appeals. Ratio |
It was argued that the sale deed in favour of the appellant was not bona fide, that it had been so held by the District Munsif, but that the Subordinate Judge had failed to record a finding on this question, and that therefore there should be a remand for a decision on that point. ARG |
As already stated, Rai, J., appears to have been impressed by this contention. Ratio |
But when the contention is further examined it will be found to be wholly without substance. Ratio |
What the District Munsif said was that "after the death of Prithi Dubey the relatives of Lawan Kuer had fallen on her property like vultures", and that it was quite possible "that the transaction in question was also brought at their instance and they were also benefited by it." Ratio |
This only means that the relatives of Laung Kuer were guilty of spoliation of the estate. Ratio |
But that would not affect the rights of the appellant unless he was a party to it, which, however, is not the case, and that is what the District Munsif himself observes with reference to this aspect: "But in the present suit I have got to consider the interest of Jaisri Sahu who has in good faith already paid Rs. 500 ... |
This finding that the appellant himself acted bona fide was not challenged before the Subordinate Judge (1) 8 Pat.L.T. 314.A.I.R. 1927 Pat. 219.(2) 11 Pat.L.T. 6; A.I.R. 1929 Pat.564 on appeal and the point is accordingly not open to the respondents. Ratio |
Dealing next with the points mentioned in the Order of the High Court dated November 27, 1956, the first question that arises for decision is whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on th... |
This has been answered in the affirmative by the learned Judges of the High Court on the strength of the decision in Dasrath Singh vs Damri Singh (1). PRE |
There the last male holder, one Sitaram Singh, had created a usufructuary mortgage, and after his death the widow sold the property for the discharge of this debt and of certain other debts, and for meeting the marriage expenses of her daughter and grand daughter. PRE |
It was held by Das and Adami, JJ., that all these items of consideration were supported by necessity, but nevertheless the sale was not binding on the reversioners. PRE |
Das, J., who delivered the judgment observed as follows "It is contended that under the terms of the usufructuary mortgage it would be open now to the plaintiffs to redeem that mortgage and it is pointed out that their right to redeem should not have been jeopardised by the widow by the transfer of the property to the ... |
In my opinion this argument is right and should prevail." PRE |
If the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it. Ratio |
Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. Ratio |
That, however, is not the law. Ratio |
When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her. Ratio |
She fully represents the estate, the interest of (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.565 the reversioners therein being only spes successionis. Ratio |
The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. Ratio |
It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law. Ratio |
It is for this reason that it has been held that when Crown takes the property by escheat it takes, it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: Collector of Masulipatam vs Cavaly Venkata (1). Ratio |
Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Ratio |
Her powers in this regard are, as held in a series of decisions beginning with Hanooman Persaud vs Mussamat Ba booee (2), those of the manager of an infant 's estate or the manager of a joint Hindu family. Ratio |
In Venkaji vs Vishnu (3) it Was observed that "A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided. . she acts fairly to her expectant heirs '." PRE |
And more recently, discussing this question, it was observed in Viraraju vs Venkataratnam ( '): "How exactly this obligation is to be carried out, whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound. PRE |
In the absence of mala fides or extravagance, and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation." PRE |
Judged by these principles, when there is a mortgage subsisting on the property, the question whether (1) (1861) 8 M.I.A. 529.(3) , 536.(2) (4) I.L.R. 231.72 566 the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her e... |
What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties. Ratio |
If the income from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income. Ratio |
In this view, the decision in Dasrath Singh 's case,( ') in so far as it held that a Bale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrong. Ratio |
In Lala Ram Asre Singh 's case (2), which was a decision of Das and Fazl Ali, JJ., the facts were similar to those in Dasrath Singh 's case (1). PRE |
Dealing with the contention that a sale by the widow of properties which were the subject matter of a Zerpesbgi deed was not binding on the reversioners because the Zerpeshgidar was in possession of the properties and he could not sue to recover the amount due thereunder, Das, J., delivering the judgment of the court o... |
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