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PETITIONER: HARENDRA NATH BHATTACHARYA & ORS.

       Vs.

RESPONDENT: KALIRAM DAS--DEAD BY L. Rs.

DATE OF JUDGMENT22/11/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S. KHANNA, HANS RAJ

CITATION:  1972 AIR  246            1972 SCR  (2) 492  1972 SCC  (1) 115  CITATOR INFO :  RF         1975 SC 371  (10)

ACT: Code of Civil Procedure 1908-S. 92-A grant made by  an  Ahom King in Assam to a number of Bhakats for the propagation  of "Nama Dharma" and for continuance of Sravana Kirtana-Dharma- Whether-  suit  by  the  descendants  of  the  Bhakats   not maintainable because provisions of s.   92 not followed.

HEADNOTE: The   suit   was   instituted  by  the   plaintiffs   in   a representative  capacity  as  Bhakats.   According  to   the allegations  in  the plaint, a grant of rent  free  land  of approximately 316 bighas was made by a Kim,, during the pre- British  period in the name of one G, for the  establishment of   a  vaishnavic  institution.   It  was  made   for   the propagation  of Name Dharma and for continuance of  Sravana- Kirtana-Dharma. Defendants  I to 20 were alleged to be the heirs of  G.  The plaintiffs claimed that they were the descendants of the  10 Bhakats who were mentioned in the copper plate creating  the endowment.  in  the copper plate, the grant  was  termed  as Brahmottar.   According to the plaintiffs, the grant  was  a Dharmottar  grant  though called Brahmottar  in  the  copper plate.   In  other words, it was an  endowment  created  for religious  and  charitable purposes and it  did  not  confer benefit  only on the grantee or his heirs.  It was  asserted by the plaintiffs that the defendants were interfering  with their  rights relating to the institution and were also  not properly repairing the Nanighar (the place of worship).  The relief claimed was for a declaration that the disputed  land was  a gift to the institution (sat sanghee satra)  and  for possession. In  tile  written statement. it was contended,  inter  alia, that  the  disputed  land  was not  Dharmottar.   It  was  a property   gifted  to  late  G,  the  predecessors  of   the defendants from generation to generation and that the  suit, according  to the defendants, was not  maintainable  because the provisions of’ s. 92.  Civil Procedure Code had not been complied with. The  trial  court held that the Suit  was  not  maintainable

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because  s. 92 of the Civil Procedure Code was not  followed and   that  the  Suit  property  was  Brahmottar   and   not Dharmottar. In  appeal the Additional District Judge held that the  suit did  not fall within s. 92 C.P.C., and so  was  maintainable and   that  the  suit  property  was  Dharmottar   and   not Brahmottar.   According  to  the learned  Judge,  the  plain meaning  of the grant was that G, was made the  medhi  (high priest)  for the satra.  The grant was contemporaneous  with the  establishment of the Satra.  The Purpose for which  the grant  was  made  was specifically for  the  propagation  of Sravanakirtana-Dharma.   The  word  ’Brahmottar’  had   been qualified  by  "Punvarthe", which meant  "for  piety".   The grant was, therefore. not a personal grant.  Accordingly, he held the plaintiffs entitled to file the suit and the appeal was allowed. The   Defendants  filed  an  appeal  to  the   High   Court. Dismissing  the appeal, the High Court held that the  relief claimed did not come within the provisions of s. 92  C.P.C., and  the High Court agreed with the translation made by  the learned Addl.  District Judge of the relevant passage of the copper plate. 493 on an appeal by certificate, HELD : (1) In the facts and circumstances of the case, s. 92 of  the Code of Civil Procedure did not apply.  It  is  well settled  that  a suit under s. 92 C.P.C., is  of  a  special nature which presupposes the existence of a Public trust  of a religious or charitable character.  Such suit can  proceed only on the allegation that there is a breach of such  trust or  that  directions from the court are  necessary  for  the administration  of the trust.  In the suit. there must be  a prayer for one or other of the reliefs that are specifically mentioned in the section.  In the present case, none of  the reliefs  claimed by the plaintiffs fell within the  section. The  declarations  which  were sought  could  not  therefore attract s. 92 of the Civil Procedure Code. [499 D] (2)  As regards the correct- translation of the copper plate on which the grant was made there was no reason to doubt the correctness of the translation appearing ,in the judgment of the  Addl.   District Judge which was affirmed by  the  High Court.   Both the Addl.  District Judge and the  High  Court were  more familiar with the language and the origin of  the establishment  of  satras  and  its  historical  background. ’They  were in a better position to interpret the  terms  of the  grant than others.  Therefore, there was no reason  why this Court should interfere with the conclusions arrived  at by  both tile Courts below especially when this  Court  also was  inclined to the view that the grant was not a  personal grant  made  in  favour  of  the  high  priest.   The   word ’Brahmottar’ was used in the grant but mere use of that word would  not  change  the essential character  of  the  grant, namely.  that  it  was  a  Dharmottar  grant  made  for  the propagation  of  SravanaKirtana Dharma and not to  the  high priest and his own brothers in their personal capacity. [500 C] Jiban Chandra Sarma Doloi v. Anand Ram Kalita & Ors. [1961] 3 S.C.R. 947, referred to and distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1273  of 1966. Appeal from the judgment and order dated May 30, 1960 of the

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Assam High Court in Second Appeal No. 151 of 1958. D. N. Mukherjee, lot- the appellants. Shikumar  Ghose, for respondents Nos.  1 (a), 2 (a,),  3,  8 and 19. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate front the judge- ment  of the Assam and Nagaland High Court arising out of  a suit which was filed as far back as May 1948. The main controversy arises out of a grant on a Copper Plate made by Ahom King Maharaj Sibasingha of some landed property in  the year 1663 Saka Era corresponding to 1741 A.  D.  The suit  was instituted by the plaintiffs in  a  representative capacity  as Bhakats.  According to the allegations  in  the plaint  this grant was made by the King in the name  of  one Gadapani  Bhattacharjya  for the establishment  of  a  Satra (Vaishnavic  institution).  It was made for the  propagation Of Nama Dharma and for continuance of Sraban Kirtan  Dharma. Defendants 1 to 20 were 494 alleged  to  be the heirs of  Gadapani  Bhattacharjya.   The plaintiffs claimed that they were the descendants of the  10 Bhakats who were mentioned in the Copper Plate creating  the endowment,  the  name of the Satra being Sat  Sangee  Satra. The original grant was in respect of 79 puras of land  which would  be equivalent to 316 bighas.  It was  rent-free.   In the Copper Plate the grant was termed as Brahmottar.   After the British rule commenced there was an enquiry in which the grandson  of the original grantee  (Gadapani  Bhattachariya) made  a  claim  of 83 puras of land with 10  bighas  of  Sat Sangee Satra.  This was confirmed by the British Government. During the demarcation survey of 1881, the area was  reduced to 304 bighas and in the survey and settlement of 1884-85 it was  shown  as  313  bighas  roughly.   In  the   subsequent settlement  of  1905-06,  the  land  was  assessed  to  half revenue,  known as Nispi Kheraj.  The area covered by  Nispi Kheraj or Nisf Kheraj was 243 bighas.  During the current 30 year settlement the Nispi Kheraj land was shown to cover  an area  of  230 bighas odd and the suit was confined  to  that area. According  to  the case of the plaintiffs, the grant,  as  a matter  of  fact,  was  a  Dharmottar  grant  though  called Brahmottar  in the Copper Plate.  In other words, it was  an endowment created for religious and charitable purposes  and it  did  not confer benefit only on  the  grantee  (Gadapani Bhattacharjya) or his heirs and descendants.  The Sat Sangee Satra to be established on the basis of this grant was known as Bhanukuchi Satra along with a Nam ghar.  It was  asserted by the plaintiffs that the defendants were interfering  with their  rights  relating  to  the Satra  and  were  also  not properly  repairing the Nam ghar etc.  It was  alleged  that some of the plaintiffs were still living in the land covered by  the Nispi-kheraj Patta.  Paragraph 12 of the plaint  may be reproduced:-               "12.   In  fact  the  land  described  in  the               Schedule  of disputed patta is the  Dharmottar               land gifted to the Bhanukuchi Satsangi  Satra.               The  land  has been  absolutely  endorsed  for               religious  purpose, hence the defendants  have               not  possessed  any title of  their  own  over               those.   They are the trustees only on  behalf               of the Satra.  They are bound to maintain  the               said  Satra with the income of these lands  by               observing the Doul festival and the usual Nam-               Kirtan  and the plaintiffs as the  Bhakats  of               the  said Satra are entitled to possess  their

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             own  basti and paddy lands etc. by  going  and               observing the NamKirtan in the Satra house  of               Dag No. 472 and the Doul festival by  erecting               the  Doul  stage  as before in  Dag  No.  428.               Hence it is necessary to obtain a decree after               a  declaration from the Civil Court  and  with               the said               495               end  and  view  it  is  necessary  to   obtain               possession  from  the Court on behalf  of  the               plaintiffs.  If it is necessary the plaintiffs               will file a scheme case afterwards". The relief which was claimed was for a declaration that  the disputed  land  was  a gift to the Bhanukuchi  Sat  Sang  as mentioned in paragraph 12 and for possession. In the written statement the position taken up was that  the disputed land was not Dharmottar.  It was a property  gifted to late Gadapani Brahmin, the predecessor of the defendants. Gadapani  Bhattacharjya was a good religious minded  Brahmin and the Ahom King, for the advantage of preaching  religion, gifted  the land to him as Niskar Brahmottar  generation  to generation.    Gadapani   Bhattachariya  became   the   full proprietor and the defendants were his descendants and  they had been in peaceful possession in that capacity all  along. It  was  denied  that  there was any  Sat  Sangee  Satra  of Bhanukuchi.  It was further pleaded that the plaintiffs  had no locus standi to file the suit. Paragraph 4 of the written statement was in these, terms: "4. It is true that these defendants are the absolute owners in respect of the disputed land.  The English had  conquered this  Assam  province.   There by all  the  claims  and  the arrangements  of the former ruler over the land etc. of  the country  were extinguished and the British  Government  also issued  an  order to that effect.  Though it  is  taken  for granted  that the disputed land was gifted to  the  Satsangi Satra  in  ancient  time  yet by an  order  of  the  British Government   the   nature  of  that  Dharmottar   land   was extinguished.   That by a lakheraj investigation during  the British rule the patta has been issued in every_  settlement in  the  name of late Debi Datta by  keeping  Brahmottar  in force  and  on  the basis of that form the  patta  has  been issued  in  every settlement in the name of Debi  Datta  and after  him  in  the name of these defendants,  who  are  his descendants.  On the basis that patta these defendants  have been entitled to become the full proprietors to possess  the disputed land.  The plaintiffs are not entitled to have  any right  in respect of the disputed land on the basis  of  the patta also and in they have not acquired any right thereon". According  to the defendants the suit was  not  maintainable because  the provisions of the law relating to a suit  based on breach of trust had not been complied with. The  Trial  Court  framed 7 issues out  of  which  only  the following may be mentioned :-               "1.  IS tile Suit maintainable in its  present               form ?               496               2.    Have  the  plaintiffs  locus  standi  to               bring the suit ?                3.   Is   the  disputed  land  a   Dharmottar               property and absolutely endowed for  religious               purposes as alleged?". The  Trial  Court found that the suit was  not  maintainable owing  to non-compliance with the provisions of section  92, Code of Civil Procedure.  On issue No. 2 its decision was in favour  of  the plaintiffs as also on issue No. 5.  On  that

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issue it was held that the suit property was Brahmotttar and not Dharmottar.  In view of the finding on issue No. 1,  the suit was dismissed . An appeal was taken to the Court of the Additional  District Judge,  Lower  Assam.  He held that the suit  did  not  fall within  section  92,  Code  of  Civil  Procedure,  and   was therefore, maintainable.  The learned Judge referred to  the relevant portion of the grant which according to him was  to be translated as follows:-                "Be  it known to all that the Satsangi  Satra               of   10  Bhakats  is  established.    Gadapani               Brahmin  is made the Medhi of the said  Satra;               and the lands are granted to him as Brahmottar               for  religious purposes.  Let him  occupy  the               land  from  generation  to  generation   after               propagating the Sraban Kirtan Dharma". In  the  opinion of the Additional Distt.  Judge  the  plain meaning of the grant was that Gadapani Brahmin was made  the Medhi of the Satra.  The grant was contemporaneous with  the establishment of the Satra.  The purpose for which the grant was  made was specifically stated to be for the  propagation of  Sraban  Kirtan Dharma.  The word "Brahmottar"  had  been qualified  by "Punyarthe" which meant for piety.  The  grant was,  therefore,  not a personal grant.  The  words  of  the grant  indicated  that it had been made for  some  religious purpose  for which the Satra was established.  But  for  his appointment as Medhi and the establishment of the Satra, the grant  to  Gadapani  would have been a  personal  one.   The learned Additional Distt.  Judge appears to have been  fully conversant with the various Satras which were to be found in Assam and with the manner in which they were created.  After considering  the entire evidence, he came to the  conclusion that there was a Satra at Bhanukuchi and that the grant  was to  the Satra and not to Gadapani in his personal  capacity. It  was  further held by him that the establishment  of  the Satra  and  the creation of the office of  the  Bhakats  was contemporaneous  so far as the present case  was  concerned. The  plaintiffs, therefore by virtue of the original  grant, were entitled to file a suit.  ’The appeal was allowed and a decree was granted for a declaration 497 that  the disputed land was the Dharmottar property  of  the Bhanukuchi Sat Sangee Satra and that the plaintiffs were the Bhakats  of that Satra having a right to  perform  religious functions  prescribed for them in the Satra.  The  suit  for possession, however, was dismissed. The defendants filed an appeal to the High Court.  Only  two points were raised before the High Court.  They Were :-               1.    As to whether the suit is hit by section               92 of the Code of Civil Procedure; and               2 .   As to whether Ext. 1, the Copper  Plate,               has  been correctly interpreted to  hold  that               the  original grant created by the  Ahom  King               was  of  the nature of Dhannottar grant  or  a               religious  trust for the benefit of the  Satra               or  that  it  was merely a  personal  gift  in               favour  of Gadapani Bhattachariya who was  the               original  Medhi  or the high priest  named  in               regards  to  the Satra created by  the  Copper               Plate?" The High Court held that the reliefs claimed in the suit did not  come within the provisions of sec. 92.  As regards  the correct interpretation of the relevant passage on the Copper Plate by which the grant was created, the High Court  agreed with the interpretation put by the Additional Distt.   Judge

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on  the relevant passage.  The original text was  quoted  as agreed  to by counsel for both the parties and  its  English translation was given as follows :-               "The King has for the purpose of earning merit               for   himself  and  his  brother,  made   this               Brahmottar  grant consisting of the  lands  as               mentioned  herein along with three  Paiks  and               ten  families of Bhakats to  Gadapani  Brahman               who is appointed to be the Medhi (high priest)               of   the  Sat  Sangi  Satra.   He   will   for               generations  enjoy  the land by being  in  the               service   of  God  and  for  the  purpose   of               perpetuation of the cult of the Sravan  Kirtan               Dharma". The  High Court examined the text in the background  of  the institution  of Satras in Assam and came to  the  conclusion that  the intention of the King in making the grant was  for the  benefit of Sat Sangee Satra.  The High Court also  took into consideration Exhibit 2, a copy of a petition of  claim made by Debi Datta Sarma in the Lakheraj enquiry in the year 1884  and  came to the conclusion that  the  predecessor-in- interest of the defendants had accepted the position that he or  other  descendants  of  Gadapani  Brahmin  were   merely trustees in respect of the land which be- 498 longed to the Satra and the Bhakats or the  predecessors-in- interest  of the plaintiffs had interest in the  same.   The appeal of the defendants was consequently dismissed. Learned counsel for the plaintiffs ha,, sought to raise  the same points which were agitated before the High Court.   The first  one  relates to the applicability of sec. 92  of  the Civil  Procedure  Code.  The second relates to  the  correct interpretation  of  the  terms of the  original  grant  with regard  to  its  true  nature,  namely,  whether  it  was  a Dharmottar grant or a religious trust for the benefit of the Satra  or  that it was merely a personal gift in  favour  of Gadapani.  Section 92, Code of Civil Procedure provides that in case of any alleged breach of any express or constructive trust  created  for  public  purpose  of  a  charitable   or religious  nature  or where the direction of  the  court  is deemed  necessary for the administration of any such  trust, the  consent of the Advocate General has to be obtained  for institution  of  the quit by two or more persons  having  an interest  in  the  trust.   Further the  suit  must  be  for obtaining a decree for the following :-               "(a) removing any trustee-,               (b)   appointing a new trustee;               (c)   vesting any property in a trustee;               (cc) directing a trustee who has been  removed               or a person who has ceased to be a trustee  to               deliver  possession of any trust  property  in               his  possession to the person entitled to  the               possession of such property;               (d)   directing accounts and inquiries;               (e)   declaring what proportion of the  trust-               property  or of the interest therein shall  be               allocated  to  any particular  object  of  the               trust;               (f)   authorizing the whole or any part of the               trust  property to be let, sold, mortgaged  or               exchanged;               (g)   settling a scheme; or               (b)   granting such further or other relief as               the nature of the case may require". The High Court analysed the plaint which is primarily to  be

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looked at for deciding the question of applicability Of See, 92.  The High Court was of the view that the reliefs claimed in  the  plaint  were stated mainly in  para  12,  which  if analysed, would involve the following :-               (1)   A  declaration  that the suit  land  was               Dharmottar  land  gifted  to  ’Bhanukuchi  Sat                             Sangi Satra for a               499               religious purpose and that the defendants  had               no   personal  interest  therein   except   as               trustees for the management of the Satra;               (2)   A  declaration that the defendants  were               bound to maintain the Satra with the income of               the suit lands by observing the Doul  festival               and the usual Nam-Kirtan;               (3)   For a declaration that the plaintiffs as               Bhakats of the Satra were entitled to  possess               their own Basti and paddy lands and that  they               had a right of access to the use of the  Satra               for various religious purposes;               (4)   A  claim  for possession  of  the  lands               confined to the above reliefs. It  was  added  in the plaint that a scheme  case  would  be instituted later on if considered necessary.  The High Court was  of  the view that none of the reliefs  claimed  in  the plaint  brought it within the terms of sec. 92.  It is  well settled  by  the decisions of this Court that a  suit  under sec.  92  is  of  a special  nature  which  presupposes  the existence  of  a public trust of a religious  or  charitable character.   Such  suit can proceed only on  the  allegation that there is a breach of such trust or that directions from the Court are necessary for the administration of the trust. In  the  suit, however, there must be a prayer  for  one  or other of the reliefs that are specifically mentioned in  the section.   Only then the suit has to be filed in  conformity with  the  provisions  of section 92 of the  Code  of  Civil Procedure. (See Mahant Pragdasji Guru Bhagwandasji v.  Patel Ishwar lalbhal Narsibhai and others) (1).  It is quite clear that  none  of the reliefs claimed by  the  plaintiffs  fell within  the  section.  The declarations  which  were  sought could  not possibly attract the applicability of sec. 92  of the  Civil Procedure Code.  The High Court  was,  therefore, right  in holding that non-compliance with that section  did not affect the maintainability of the suit.   On the second point our attention has been invited to  the translation of the Copper Plate on which the grant was  made by  the  Ahom King.  This translation. it has  been  pointed out,  was  accepted  by  both  sides.   According  to   this translation the land and the estate described "together with three  Bhakats  and 10 Paiks have been given  for  piety  as Brahmottar  to  the  godly Brahmin  Gadapani  with  his  own brothers  making  him a Medhi of Satsangi  Satra.   He  will remain  in  devotion of God and will enjoy  and  occupy  and continue to enjoy and occupy together with (1)  [1952] S.C.R. 513 500 his own brothers from father to son, son’s son etc. and will scatter  Sravana-Kirtana-dharma." It is contended on  behalf of  the plaintiffs that the grant was clearly  described  as Brahmottai and it was made to the Brahmin Gadapani with  his own  brothers and he was made Medhi of the Sat Sangi  Satra. Medhi  means a high priest.  He and his descendants were  to enjoy and occupy the property from generation to generation. Of  course, it was laid down as a part of their duties  that they should propagate Sravana-Kirtanadharma but that did not

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convert the grant into Dharmottar. As regards the correct translation, we are unable to  accept the contention that the translation set out in the  judgment of  the  High Court along with the original  text  does  not represent  the  correct  translation.   The  learned   Addl. Distt.  Judge and Deka J, who delivered the judgment of  the division  Bench in the High Court, were fully familiar  with the language and we find no reason to doubt the  correctness of  the  translation appearing in the judgment of  the  High Court.   Both  the Addl.  Distt.  Judge and the  High  Court were more familiar with the establishment of Satras and  the historical background in which such institutions came to  be established  and were in a better position to interpret  the terms   of  the  grant  than  ourselves.   Moreover,   their judgments  were based or, other evidence which was  produced and it would not be right for us even if we took a different view  to  depart  from the practice of  this  Court  not  to interfere  with the conclusions into which familiarity  with the  local  language, customs and enactments plays  a  vital part.  Even otherwise we have not been persuaded to take the view  that the grant was only a personal grant in favour  of Gadapani  Brahmin.  The word Brahmottar was  certainly  used but  mere  use of that word would not change  the  essential character  of the grant.  In this connection  our  attention has  been  invited  to a decision of  this  Court  in  Jibon Chandra Sarma Doloi v. Anandi Ram Kalita and others(1).   In this case a question arose about certain grant made by Assam Rajas to the Bardeuries (temple officials) to enable them to render services to the Deities installed in the temple.   On certain alienations having been made, a suit was  instituted on  behalf of the temple that the alienations  were  invalid and  unauthorised.  The principal point which was urged  was that the High Court had come to a wrong conclusion that  the lands in suit which were admittedly described as  Brahmottar lands  in the revenue records were transferable without  any restriction.    After  going  into  the  history  of   lands described  as  Nisf-Khirai  in the revenue  records  it  was observed by this Court that a Nisf-Khierajdar was ordinarily a person whose lands were .claimed by his ancestors  revenue free on the ground that they were grantees of the Assam Raja for sonic religious or charitable pur- (1)  [1961] (3) S.C.R. 947, 501      Pose.   Reference  was also made to the  provisions  of Regulation  1  of 1886 called "The Assam  Land  and  Revenue Regulations".After  referring to the relevant provisions  it was  stated  that  it could not be hold that  the  lands  in question were burdened with the special condition that  they could  be  transferred  only to Bardeuries and  not  to  any strangers outside the group.  It was,   finally observed :-               "As  the High Court has found, and that is  no               longer  in dispute, these lands are  described               as Brahmottar lands in revenue records and  to               the said lands and their holders the statutory               provisions of the Regulation to which we  have               just  referred  applied, therefore, it  is  im               possible  to  escape the  conclusion  that  by               virtue of the relevant statutory provisions of               the Regulation the lands must be deemed to  be               heritable   and   transferable   without   any               restrictions. It is quite obvious that the question involved in this  case was  quite, different from the one under examination by  us. It  was  not  argued  at’ any  stage  in  the  present  case including the appeal before the High Court that by virtue of

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the  provisions  and  the other facts  relied  upon  in  the aforesaid  judgment,  the  mere fact  that  the  lands  were described  as Brahmottar would be the personal  property  of those in whose names they were shown in the revenue records. Nor  has  our attention been drawn to any entries  from  the revenue  records produced in the present case  which  would’ show the exact and precise terms in which those entries  had been made. Lastly  it was contended that even in the plaint  the  lands were  admitted  to have been held under  a  Nisaf-Khiraj  or Nispi-Kheraj Patta and that according to the entire  history and  other facts stated in Jibon Chandra Sarma Doloi’s  case (supra),  such  a  patta could be held only  in  a  personal capacity.   The difficulty again is that no such  contention was raised before the High Court or before any of the Courts below.  We are unable in these circumstances to either allow this point to be agitated or to enter into its discussion. In  the  result the appeal fails and it  is  dismissed  with costs. S.C. Appeals dismissed 502