Gurcharan Prasad &amp; Ors Vs. P.Krishnanand Giri &amp; Anr. Etc
was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90- D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that the predecessors-in-interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195 ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lending money-occupations which he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued a money-lending business, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject-matter of an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No. 42/90-D were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject-matter of the appeals before us.
1[ds]14. A scrutiny of the above document would lead to the inference that the Mahant was treating himself as the absolute owner of all the properties admitting no claim thereto by any one excepting his disciples and their disciples of the same status as Gauri Gir, the donee. The Math and the grove alone were to be treated as inalienable.This document shows that the usage or custom relating to the disciples of a Mahant getting part of the properties left by him was enforced by a decree of court. This goes very much against the inalienability of the properties of a Mahant. If they were math properties or endowed properties belonging to the Math, a question of division could hardly have arisen. Such partition or division is more consistent with the properties being the personal properties of the Mahant, descending from him to the heir nominated by him but subject to the claims of others who were his disciples or disciples of his disciples.17. The next document of importance is a deed executed by Prem Gir on December 2, 1839. This document starts with a recital that the executant had been in proprietary possession and occupation of cash etc. and the estate received by him from Gangot Gir, and that he was nominating Uttam Gir who stood in the relation of a grand chela to him as his successor. The deed is in almost similar terms with regard to the ownership of Uttam Gir in respect of "movable and immovable, houses in Mohalla Tripura Bhairavi, groves in Tulshipur Kotwa and Kamali in Benaras district, cash, kind, outstanding debts and ornaments detailed in the account books" Uttam Gir is being made the absolute and permanent owner of everything mentioned with a direction that Ram Lal Gir, Gayan Gir and Debi Dayal Gir who had claims on the executant were to he paid the diverse sums mentioned in the document upon executing farighkhatis. The executant directedGir should like myself, remain in proprietary possession of theestate. keep the reputation of the family and the estate permanent and make the management of the affairs. Uttam Gir shall be the owner of the big Math, houses and groves etc.18. The next important document is an agreement executed by Debi Dayal Gir, a grand disciple of Bhonder Gir and himself a disciple of Prem Gir, wrongly described in the document as Bhim Gir. It recites that the executant had purchased Mouza Narina and having no disciple other than Uttam Gir, the owner of Kharkhana and Gaddinashin at Benaras, was making over "all the goods and property, household goods, decree debts and liability and Mouza Narina aforesaid which are owned by me, the executant, to the Math at Benaras". The document further goes on to state that on his death Uttam Gir or his heirs who might be Gaddinashin of the Math "shall have power in compliance with all the conditions of the above to consider himself as permanent owner of my property." This document shows that the Math occupied by Uttam Gir had become fairly well known and the village Narina was being endowed by the executant to the said Math.19. There is a document which was marked as Ex.referred to both in the judgment of this Court in 1954 and the High Court on remand which has not been included in the paper books. This document dated May 21, 1865 was a deed of endowment executed by Uttam Gir establishing a Dharamshala in Terhineem for the maintenance and imparting of spiritual knowledge to Sadhus and Sanyasis and endowing the income of the village Mowgarh.20. The last two documents show that gift of properties to a math or creation of an endowment for a specific charitable purpose were known to the Sanyasis of this math. It does not appear that Uttam Gir nominated his successor or execute any Tamliknama in favour of anybody. On the 1st day of July, 1865 Udaya Gir, disciple of Uttam Gir and Sheodat Gir, disciple of Hira Gir andof Uttam Gir entered into an agreement of arbitration with regard to disputes between them as to how the management and work relating to the Math Ilakas and other things should be done and what would be the share of the disputants in the movable and immovable property, zamindari etc. left by Uttam Gir, the common ancestor in case of disagreement between them.21. This was followed by another agreement between the same persons arrived at on August 23, 1865. Under this document parties were arranging about the management of the affairs of the estate of Uttam Gir, namely, "the business of the math, ilaqas and other things relating to business." It was provided therein that Udai Gir would be "entitled to 81/2 annas share and owner and Gaddinashin of the Kothi" and Sheo Dat Gir to "71/2 annas share out of the entire movable and immovable property" by Uttam Gir. Parties agreed to obtain a succession certificate in respect of the entire estate of the deceased according to the above shares, viz., 81/2 annas and 71/2 annas. Further, they were to get mutation of names effected similarly in respect of the ilaqas and houses. Cl. 3 providedbusiness of  the "Kothi" which was carried on in the name of Goshain Uttam Gir, our ancestor, shall, as usual, continue to be carried on in his name. But the signature etc. of the owner on the hundis shall he made by any one of us who will be present at the Kothi. If both of us are present the signature shall be made by Goshain Udai Gir."Under Cl. 7 the parties agreed to carry on the business on money dealings in consultation with each other and "if any one of them wanted to carry onbusiness or any other business separately, he might do so after taking money from the Kothi in his name". Under Clause 11 the parties were to render accounts of the expenses incurred by him to the other every three months. By Cl. 12 it was provided that ifbetween them was not possible the parties would get "the entire movable and immovable property partitioned according to the above shares. Thereafter, one shall have nothing to do with the other." This document again throws a good deal of light on the question of the ownership of the properties left by Uttam Gir. The parties agreed that if joint management was not possible they would exercise the right to partition and sever connection from each other. The two persons appear to have proceeded on the basis that they were both entitled to the properties left by Uttam Gir which were to be divided in almost equal shares failing an amicable arrangement for management thereof. It also brings into prominence the business of Kothi which might either be abusiness pure and simlpe or a banking business as the reference to the hundis suggests.We next proceed to note the contents of Ex.the will of Sheodat Gir dated 16th June, 1887. This document for the first time tries to enumerate and specify at least some of the properties which the executant thought were endowed properties. The executant described himself as "proprietor of the Karbar of Goshain Uttam Girji, resident of Mohalla Tripura Bhairavi, the exclusive owner of the entire ancestral estate of Goshain Uttam Girji and of other property acquired thereafter. The document recites that the executant had no other coparcener orand had absolute rights in respect of the entire property aforesaid to do whatever he liked. After noting that his only disciple, Narotam Gir, had died leaving Sukhdeo Gir and the latters disciple Kashi Gir, the will proceeds to note that the executant, deeming it prudent to nominate his heir who was to be governed by the conditions given below was setting forth the same. The important things to note in this document are as below :24. By Clause (3) the executant was laying down the line of succession after him to the effect that he was to be succeeded by Sukhdeo Gir and after him Kashi Gir and that Kashi Gir would have power to initiate after him only one person as his disciple so that disputes of joint rights might be avoided.25. By Clause (4) the executant was providing that expenses should neverthe income.25A. Clause (5) may be quoted verbatim ;"My subsequent heirs or their heirs shall not have the right to mortgage, sell or donate or make a gift of any property in existence at any time, or which might be acquired in future. If they do so, their heirs shall, at all events, have right to have the transaction cancelled. But as regards the property acquired as a result of their personal, efforts or purchased or acquired from the profits of the ancestral property, they shall have power to do anything they like."Clause (8) which too is of great importance may be noted in contrast. By this clause the executant was noting that "The properties given below have been made waqf of, in the time of my ancestor, for charitable purposes, while certain properties in my time. No one has any proprietary title to them. My heirs should use a particular property for the purpose for which it has been allotted and the charities should continue as before. My heirs should continue the supervision, repairs and cleanliness as it has been done all along. None of the heirs shall have any right to act to the(i) of this clause notes that Uttam Gir had given 6 out of 7 pucca andhouses situated in Mohalla Bisheshar Nath to Brahmins by way of charity and made a waqf of one house to remain as Dharamshala for residence of Vidyarthis. The terms relating thereto were given in the registered Danpatra dated 14th June. 1861.(ii) mentions a house situated in Mohalla Tehri Nib, known as Dharamshala allotted by way of charity forIt shall always continue as it is. The charges for the repairs of Dharamshala and the maintenance of the Chattra for feeding Sanyasis as laid down in the registered agreement dated 21st May 1865 continuing all the conditions shall continue to be met as heretofore from the profits and produce of mauza Mahogarh, district Mirzapur.26. By(iii) the executant directed that the income of the Dharamshala known as Baba Ridh Nath situate in Mohalla Misir Pokhra, known as Asthan Dharbeshar to which are attached three houses in the same mohalla and 5 bighas 3 biswas of land in mauza Kanauta, district Benaras under a deed of gift executed by Kashi Gir dated 4th December, 1879 was utilised towards the worship of Mahadeo known as Ridh Nath the repairs of all the four houses aforesaid and the expenses relating thereto. The will directed that the same should be continued.(v) relates to a Dharamshala constructed by Sheodat Gir situate in mauza Solak Ram, district Barara in the Province of Punjab. By Clause (9) the testator was laying down a condition that if any one of his Gaddinashin heirs, contrary to the customs of the line, forsakes the right path and the society of sages and the wise and takes to debauchery or gambling or any other sort of immorality, his disciple or subsequent heir should, in consultation with the members of the sect, have the power to stop the Gaddinashin from his improper conduct and also have the power to deprive him of the Gaddi and the property and take charge thereof.27. In the earlier judgment this Court had occasion to refer more than once to this document and in particular to Cls. 5 and 8. Counsel for Krishnanand Giri who succeeded Purushottam Giri, the original plaintiff, relied very strongly on the observations made in the earlier judgment that there was a definite finding that the properties left at the date of death of Sheodat Gir were to be held as math properties because Sheodat Gir had sought to make them "specifically inalienable in the hands of his successors. presumably for the use of the spiritual brotherhood" But this Court was careful to add :"This document no doubt, in terms, did not refer to a mutt or provide that the mutt was to be inalienable while it enumerated certain other items of property as waqf."28. We have already referred to the observations of this Court in the judgment of 1954 which counsel for Krishnanand Giri cited in aid of his proposition that all the properties covered by the will of Sheodat Gir were math properties but in our opinion this Court merely indicated that there was a strong presumption created by this document in favour of the properties being math properties; but thatthe High Court, on remand, was free to consider the evidence on the record and come to its own finding as to which of the properties other thanwere math properties.29. This Court had noted in the earlier judgment, as we do so again, that the documents which preceded the will of Sheodat Gir do not tend to show that the properties in the possession of the Mahants were ever treated by them except with regard to 2 or 3 items to be endowed properties not capble of alienation by a Mahant. The property which Prem Gir got was undoubtedly his personal property as a result of the Tamliknama of Gangot Gir: From the time of Prem Gir the successive Mahants always treated the properties as personal properties. They all carried on abusiness and there can be little doubt that this business accounted for the considerable acquisition of properties by the Mahants. We find ourselves unable to come to the conclusion that by Clause 5 of his will Sheodat Gir was creating any endowment of properties in his possession. The first sentence of Clause 5 shows that there was an interdict against any heir mortgaging, selling or making gift of any property i. e. not only those in existence at the time or which might he acquired in future. It is difficult to see how an endowment could be made of properties not yet acquired. Almost in the same breath the testator was saying that as regards properties acquired from the profits of the ancestral property, the heir was free to do what he liked therewith, as also any property acquired as a result of the personal efforts of the heir. This suggests that the profits of the ancestral property were to be considered as the personal property of the Mahant. Reading clauses 1 to 7 together, we have no doubt that Sheodat Gir wanted that the properties should be preserved and properly managed and not frittered away. He was not thinking of endowing any property or putting the same beyond alienation because of any such endowment. He was trying to limit the expenses to make provision for proper accounts being kept and strict surveillance of the cash in hand, income and expenditure. Clause 8 shows that the testator knew that certain properties had been made "a waqf of" in the time of his ancestors for charitable purposes. If he was so minded, he could have in his turn used the word waqf in respect of other properties but he did not do so. With regard to the properties which were to be used for particular charitable purposes the testator takes great care in laying down what was to be done. He is also careful to note that "no one had any proprietary title to the properties which were theof the waqf. But he does not use any such expression with regard to the other properties. In(b) of Clause 8 he mentions specifically a Dharamshala constructed by him in the district of Barara in the Province of Punjab. But with regard to the properties covered by Clause 5 he does not say anything as to what has to be done with the income thereof. In C1. 9 the testator lays down the condition that if any Gaddinashin Mahant acted contrary to the custom of the line or pursuit of the right path it would be open to his disciple and others in consultation with the members of the sect, to deprive him of the Gaddi and the property and take charge thereof. This does not, in our opinion, lead to the inference that the Gaddinashin heir was not to have any proprietary interest in any property left by him. But this is only in keeping with the custom and practice of the particular brotherhood that they should keep to the right path and not deviatethe facts of this case it is not possible to hold that the mahants blended theirself acquired and personal property with math property so as to make the whole partake of the character of the latter class of property A Mahant is undoubtedly competent to endow the property acquired by him, but merly because in the Tamliknamas he makes no distinction between property acquired by him personally and property which undoubtedly formed theof a prior endowment, the personally acquired properties cannot be said to be math property when the evidence on record establishes that all the mahants were holding themselves out as absolute owners of the property and were transferring various items of property from time to time albeit to persons of the same brotherhood.31. Exhibitestablishes that various items of property mentioned in Cl. 8 thereof had been made waqf property in the time of the ancestors of Sheodat Gir and Sheodat Gir himself declared that "no one had any proprietary title thereto." At the bottom of paragraph 125 of his judgment the Subordinate Judge appended a table of the properties of which there was cogent evidence of endowment. Besides the twelve items of property tabulated therein, he has mentioned in paragraph 187 of his judgment that item No. 5 of Schedule II to the Plaint was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premisesappears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that theof Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195  ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7   the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lendingwhich he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued abusiness, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was theof an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No.were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they areof the appeals before us.Appeal No. 213 of 1965 was filed by Mayanand Giri, defendant No. 1, Bishwanath Prasad and Mahadeo, defendants 15 and2 and 3one Uma Pado Banerjee, defendant No. 42. Uma Pado Banerjee died during the pendency of the appeal and his widow, Smt. Shantimai Devi and sons and daughters, Birendra Kumar and Binaya Kumar, Smt. Jayantika, Kumari Parantika and Kumari Mainatika, the last four being minors though their mother, Shantimai Devi, were substituted by an order of Court dated 25th February, 1960. Uma Pado Banerjee is now represented by appellants 4 to 9. Mayanand Giri also died in 1965 and his widow was substituted in his place by an order of the Allahabad High Court. We were shown a copy of the petition of Smt. Gajeshwari Devi, widow of Mayanand Giri, to the effect that Mayanand Giri had died leaving besides her, a son by name Anand Deo and two daughters named Indu Devi and Manjiri Devi and that the son and daughters were not interested in prosecuting the appeal. According to the copy of the petition of Gajeshwari Devi, a prayer was made that the son and daughters should be added as pro forma respondents. The son and daughters do not appear to have been brought on the record in terms of the petition, but we are not aware as to whether it was a mere omission or done at the suggestion of the other parties appearing before the High Court. It would therefore appear that the application made by the widow was a bona fide one and no objection appears to have been taken to the course put forward on her behalf. This appeal of the first appellant which arises out of F. A. No. 523 of 1933 is allowed in part with respect to properties other than (a) the 15 items of math properties already mentioned and (b) the properties which were alienated by Mayanand to the defendants who have not appealed and against whom the High Court decree has become final. The High Court decree will stand confirmed with respect to the aforesaid 15 items of math properties and the properties which were alienated to the defendants who have not appealed. The appeal is also allowed with respect to the appellants 4 to 9 as regards the properties covered by the alienations in their favour. These are premises No.owned by appellant 2 and 8 and premises No.owned by appellants 4 to 9. We leave open the question as to whether on the death of Mayanand Giri, his widow or his son and daughters can succeed to the properties other than math properties, left by him or whether such properties devolved on Krishnanand Giri on the death of Mayanand Giri.Krishnanand Giri filed appeal No. 215 of 1965 against several alienees or their representatives who have not appeared before us. They are the heirs and legal representatives of defendants Nos. 3, 18, 19 and 35 as also original defendants Nos. 33 and 45. The High Court had held the suit by Purushotamanand Giri to be barred by limitation inter alia against defendants 18, 19 and 35 : it had also held that the plaintiff could not challenge the decree against defendant No. 33. The suit had also been dismissed against defendant No. 45. The High Court had awarded costs to defendant No. 3. It was argued before us that the High Court had gone wrong in upholding the alienations of certain properties held by it to be math properties to the respondent in this appeal and that as the respondents in this appeal had not questioned the finding of the High Court with regard to the properties as math properties we should proceed on the basis that they were math properties. We do not think we can accede to this contention as we have already found that excepting the 15 items mentioned, the others were not math properties and consequently their alienation cannot be questioned on that ground.Lastly, Appeal No. 216 of 1965 is by Marwari Sanskrit College and one Vaidya Bhushan Sharma who have come up against the finding of the High Court that the alienations in favour of defendants 9 to 14 were not binding on the math or the plaintiff. During the pendency of the appeal, some of these defendants died and the present appellant, Marwari Sanskrit College was brought on record. As it has not been shown to us that the property in dispute in this appeal was endowed property, Mayanand Giri was competent to transfer it as he appears to have done for sufficient consideration.
### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.

### Input:
was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90- D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that the predecessors-in-interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195 ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lending money-occupations which he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued a money-lending business, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject-matter of an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No. 42/90-D were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject-matter of the appeals before us.

### Response:
1

### Explanation:
religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued abusiness, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was theof an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No.were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they areof the appeals before us.Appeal No. 213 of 1965 was filed by Mayanand Giri, defendant No. 1, Bishwanath Prasad and Mahadeo, defendants 15 and2 and 3one Uma Pado Banerjee, defendant No. 42. Uma Pado Banerjee died during the pendency of the appeal and his widow, Smt. Shantimai Devi and sons and daughters, Birendra Kumar and Binaya Kumar, Smt. Jayantika, Kumari Parantika and Kumari Mainatika, the last four being minors though their mother, Shantimai Devi, were substituted by an order of Court dated 25th February, 1960. Uma Pado Banerjee is now represented by appellants 4 to 9. Mayanand Giri also died in 1965 and his widow was substituted in his place by an order of the Allahabad High Court. We were shown a copy of the petition of Smt. Gajeshwari Devi, widow of Mayanand Giri, to the effect that Mayanand Giri had died leaving besides her, a son by name Anand Deo and two daughters named Indu Devi and Manjiri Devi and that the son and daughters were not interested in prosecuting the appeal. According to the copy of the petition of Gajeshwari Devi, a prayer was made that the son and daughters should be added as pro forma respondents. The son and daughters do not appear to have been brought on the record in terms of the petition, but we are not aware as to whether it was a mere omission or done at the suggestion of the other parties appearing before the High Court. It would therefore appear that the application made by the widow was a bona fide one and no objection appears to have been taken to the course put forward on her behalf. This appeal of the first appellant which arises out of F. A. No. 523 of 1933 is allowed in part with respect to properties other than (a) the 15 items of math properties already mentioned and (b) the properties which were alienated by Mayanand to the defendants who have not appealed and against whom the High Court decree has become final. The High Court decree will stand confirmed with respect to the aforesaid 15 items of math properties and the properties which were alienated to the defendants who have not appealed. The appeal is also allowed with respect to the appellants 4 to 9 as regards the properties covered by the alienations in their favour. These are premises No.owned by appellant 2 and 8 and premises No.owned by appellants 4 to 9. We leave open the question as to whether on the death of Mayanand Giri, his widow or his son and daughters can succeed to the properties other than math properties, left by him or whether such properties devolved on Krishnanand Giri on the death of Mayanand Giri.Krishnanand Giri filed appeal No. 215 of 1965 against several alienees or their representatives who have not appeared before us. They are the heirs and legal representatives of defendants Nos. 3, 18, 19 and 35 as also original defendants Nos. 33 and 45. The High Court had held the suit by Purushotamanand Giri to be barred by limitation inter alia against defendants 18, 19 and 35 : it had also held that the plaintiff could not challenge the decree against defendant No. 33. The suit had also been dismissed against defendant No. 45. The High Court had awarded costs to defendant No. 3. It was argued before us that the High Court had gone wrong in upholding the alienations of certain properties held by it to be math properties to the respondent in this appeal and that as the respondents in this appeal had not questioned the finding of the High Court with regard to the properties as math properties we should proceed on the basis that they were math properties. We do not think we can accede to this contention as we have already found that excepting the 15 items mentioned, the others were not math properties and consequently their alienation cannot be questioned on that ground.Lastly, Appeal No. 216 of 1965 is by Marwari Sanskrit College and one Vaidya Bhushan Sharma who have come up against the finding of the High Court that the alienations in favour of defendants 9 to 14 were not binding on the math or the plaintiff. During the pendency of the appeal, some of these defendants died and the present appellant, Marwari Sanskrit College was brought on record. As it has not been shown to us that the property in dispute in this appeal was endowed property, Mayanand Giri was competent to transfer it as he appears to have done for sufficient consideration.
