http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: RAMKISHORE LAL

       Vs.

RESPONDENT: KAMAL NARAIN

DATE OF JUDGMENT: 22/11/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. SHAH, J.C.

CITATION:  1963 AIR  890            1963 SCR  Supl. (2) 417  CITATOR INFO :  F          1967 SC 135  (13)  R          1973 SC2609  (22)  R          1974 SC 740  (10)

ACT: Construction of Documents-Partition award-"Milkiyat"  rights given  to  one co-sharer for purpose of spending  income  on temple-Later   recitals  showing  dedication  to   temple-If absolute  dedication in favour of temple-Dedication, if  can be made by partition award.

HEADNOTE: A registered partition award made by Panchas between all the co-sharers provided : "Mouza Telibandha-together with all rights and interests  of               proprietorship     has    been    given     to               Ramsaranlal....    for   the    undermentioned               purposes.    From  the  profits   and   income               Ramsaranlal  shall incur  expenses......  Shri               Ramchandra   Swami  Math   Shri   Dudhaaherji,               according  as  the  same  expenses  have  been               continuing  to  be met up to this  day....  If               this  work fails to be done .... any  cosharer               who  may  benefit .... shall take  this  Mouza               telibandha   together  with  all  rights   and               interests into his possession and carry on the               work of the temple .... None of the co-sharers               and  Ramsaranlal  have  any  rights  over  it.               Ramsaranlal  or  any  other  co-sharers   have               neither  got,  nor shall have,  any  right  to               transfer.. Mouza Telibandha.. ., because Mauza               Telibandha has been reserved for ever for  the               aforesaid purpose and it shall continue to  be               so only " Some of the co-sharers filed a suit to set aside the  award. The  parties  referred the matter to one Mr. Bagchi  and  in view  of his award a compromise petition was filed  and  the suit  was  dismissed.   The appellants  contended  that  the partition award made an absolute dedication of the Monza  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

favour  of  the temple.  The respondent contended  that  the award  gave the Monza in full proprietorship to  Ramsaranlal with only a charge on it to meet the expenses of the  temple that  the  partition  award  could  not  validly  create   a dedication and that the partition award was modified by  the Bagchi award. 418 Held,  that  the partition award created an  absolute  dedi- cation of Mouza Telibandha in favour of the temple.   Though the  use of the words "Malik" and "Milkiyat"  indicated  the conferment  of an absolute estate, it was not invariably  so and  it was necessary to examine the context in  each  case. Where  the  intention  is to grant an  absolute  estate,  an attempt  to  reduce  the powers of  the  owner  by  imposing restraints on alienation has to be repelled on the ground of repugnancy but where the restrictions arc the primary things intended  and  they are consistent with the whole  tenor  of document,  it is a material circumstance for displacing  the presumption of absolute ownership implied in the use of  the word  "Malik".   The use of the words "Kul haq  haquq  samet Milkiyat"  in  the  opening clause of  the  award  raised  a presumption  that  absolute interest was  given  thereby  to Ramsaranlal,   but   the  later   recitals   rebutted   this presumption.   Considering all the different provisions,  it was  clear  that the intention was not to  make  Ramsaranlal absolute owner but to give him possession and management  of the Mouza for the benefit of the temple. Sahebzada  Mohd.  Kamgar Shah v. Jagdish Chandra Rao  Dhabal Deo, [1960] 3 S.C.R. 604, Lalit Mohan Singh Roy v.  Chukkuna Lal  Roy,  [1897] L.R. 24 I.A. 76; Mst.  Surajmani  v.  Babi Nath  Ojha,  (1907) L.R. 35 1. A. 17; Sarjoo  Bara  Devi  v. Jyotirmoyee  Debi,  (1931)  L.  R. 58  r.  A.  270,  Mohamed Shamsool v. Shewukram, (1874) L. R. 2 I.A. 7 and Rai Bajrang Bahadur  Singh v. Thakurain Bakhtrai Kuer, [1953]  3  S.C.R. 232, referred to. The partition award validly dedicated the Mouza in favour of the temple.  The act of the Panchas in making the award  was really  the act of the owners of the property who  had  full right  to make the dedication.  Once an obsolute  dedication had  been made by the partition award the former owners  had no   legal  authority  to  go  behind  the  dedication   and accordingly   the   Bagchi  award  could  not   affect   the dedication.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 523 of 1960. Appeal from the judgment and order dated December 5, 1957 of the  former  Madhya Pradesh High Court at  Nagpur  in  First Appeal No. 1 12 of 1952. C.   K. Daphtary, Solicitor-General of India, B.  R.      L. Iyengar,  B.  R.  O.  K. Achar and  K.  L.  Hathi,  for  the Appellants.  419 M.    C.  Setalvad,  Attorney  General  for  India,  J.   B. Dadachanji,  o.  c.  mathur and  Ravinder  Narain,  for  the Respondents. 1962.   November,  22.   The  judgment  of  the  Court   was delivered by DAS  GUPTA, J.-There exists at Raipur in Madhya  Pradesh  an old  Math by the name of Dudhadhari Math within which  is  a temple  where  the idols of Shri Ramchandra,  Sita,  Laxman, Bharat,  Satrughan  and Hanumanji have been  worshipped  for very  many  years.  For the expenses of the worship  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

deities  and for the upkeep of the temple., one  village  by the  name of Hirmi was dedicated by Dinanath Sao, a  wealthy inhabitant  of  the locality.  The main controversy  in  the present litigation is whether another village of the name of Telibandha  which  also belonged to Dinanath  was  dedicated absolutely  to the temple either by Dinanath Sao himself  or later on by his descendants. The two appellants, both descendants of Dinanath Sao brought the present suit under s. 92 of the Code of Civil Procedure, 1908,  for removal of the respondent Kamal Narayan,  another descendant  of Dinanath Sao, from the office of  trustee  of the   God  Shri  Ramchandraji  Swamy  for  the  village   of Telibandha  and for accounts.  The appellant’s case  in  the plaint  was that Telibandha was dedicated to the  temple  of Shri  Ramchandraji as early as 1857 by Dinanath Sao  himself and  later on in the year 1896 when a partition  took  place between  his descendants who were up till that  time  living jointly,   all  the  coshares  not  only   re-affirmed   the dedication   made  by  Dinanath  Sao  of  this  village   of Telibandha  but themselves dedicated the village  Telibandha to the deities in this temple by accepting the award made by the Panchas. 420 Dinanath  died  in 1862, leaving his two sons  Sobharam  and Keshoram.   Sobha Ram had three sons, Sarjoo  Prasad,  Gokul Prasad  and  jamna  Prasad; Keshoram had  also  three  sons, Ramdin,  Gajanand  and  Nand Kishore.  At the  time  of  the partition in 1896 Sarjoo Prasad was dead and the parties  to the partition were Sarjoo Prasad’s four sons, Ram Saran Lal, Ramhirde,  Ram  Krishna  and  Ramanuj,  representing  Sarjoo Prasad’s  branch and the other five grand-sons of  Dinanath. The first appellant Ram Kishore is the son of Nand Kishore Sao, while thesecond appellant, Ramanuj is Sarojoo Prasad’s son.   The  respondent is the son of Ram Saran Lal. By the awardof  1896,  it is the  plaintiffs’  case,  Ram Saran  Lal  was not given any proprietary  interest  in  the village Telibandha but was merely made the Manager on behalf of the deities for this property.  On Ram Saran Lal’s  death in  1930,  Kamal  Narayan,  his  son  became  the   trustee. According  to the plaintiffs the temple was a public  temple and  the  trust a public trust’ The plaintiffs  allege  that Kamal  Narayan  committed several breaches of trust  by  the sale of certain lands of Mouza Telibandha for the sum of Rs. 1,06,774/1/-  and  in  other  ways.   The  plaintiffs  first approached  the  Court  of the  Additional  District  judge, Raipur  with  a petition under s. 3 of  the  Chartiable  and Religious  Trusts  Act for directions on  Kamal  Narayan  as provided  in  that  section.   Directions  were  accordingly issued  by the Additional District judge; but with this  the respondent  did  not comply.  It was then that  the  present suit  was  brought by the plaintiffs  without  the  previous consent  of the Advocate-General as is permitted by s. 6  of the  Charitable  and Religious Trusts Act.   The  plaintiffs have  prayed for a declaration that Telibandha  village  was held  by the defendant in the trust for Shri  Ramchandra  of the  Dudhadhari Math and that he had committed  breaches  of such trust; for his  421 removal  from the position of a trustee and for  appointment of the first plaintiff in his place; for an order on him  to render  accounts since 1936 and to deposit Rs.  1,06,774/1/- which he got as sale proceeds. The defendant denied that Telibandha was ever dedicated.  As regards  the  Award of 1896 his plea was that  it  (lid  not express accurately the decision of the Arbitrators an  that,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

in any case, it was superseded by the Award of Mr. Bagchi on May  14, 1898, which was accepted by all the  co-sharers  as the actual settlement of their own and on the basis of which a  suit  brought to challenge the validity  of  the  earlier award was dismissed as compromised.  The defendant’s case is that  there  was no trust, either express  or  constructive, created  at  any time by any one in  respect  of  Telibandha village  ;  that neither he nor his father  was  trustee  in respect of this village and there was no breach of trust  by him.  To explain his possession of the village the defendant referred  to  a partition in 1901 between  Sarjoo  Prashad’s four sons, on the one hand and jamuna Prasad, on the  other, at which, it was said, that Telibandha fell to the share  of Sarjoo Prasad’s four sons.  Thereafter in 1913, there was  a further partition between Sarjoo Prasad’s four sons and  the defendant  at which Telibandha was allotted  to  defendant’s father Ramsaranlal alone. On a consideration of the evidence the Trial Court held that there had been a valid dedication in respect of the  village Telibandha for the Temple of Shri Ramchandra Swamy.  It  was not satisfied that the dedication had been made by  Dinanath himself  but held that there was such a dedication  sometime before  1896 and that that dedication was confirmed  by  all the  co-sharers  at the time of the partition of  1896.   As regards  the Bagchi Award, the learned judge was of  opinion that it did purport to revoke 422 the  dedication and to allot the village to the  members  of one  branch  of the family with only a moral  obligation  to look  after  the temple but this later Award had  all  along remained  a dead letter and did not affect the Panch  Faisla Award of 1896.  The Trial Court held that a valid trust  had been  created  in favour of the temple and it was  a  public religious  trust, as Shri Ramchandra temple, for  which  the trust  was  created, was a public  institution.   The  Court found  that  the defendant was the trustee  of  this  public trust,  and had committed breaches of trust by  transferring trust properties and appropriating its proceeds and  finally by  his express repudiation of this trust and was  therefore liable  to  be  removed.  Accordingly, it  passed  a  decree declaring  that  defendant No. 1 had committed  breaches  of trust as a trustee of the village Telibandha for the  temple of Shri Ramchandra Swamy and removing the defendant from the office  of  the  trustee.   By the  decree  the  Court  also directed the defendant to deposit a sum of Rs.1,06,774/1/-in Court.   The first plaintiff Ram Kishore Lal  was  appointed the trustee in place of the defendant.  It was also  ordered that  a commissioner would be appointed later on to  enquire into  the  alienations  made by the defendant  and  to  take accounts of the trust from the year 1936. On appeal by the defendant, the High Court of judicature  at Nagpur  has set aside the judgment and decree of  the  Trial Court and ordered the dismissal of the suit.  The High Court was of opinion that the dedication of the village Telibandha had  not been proved.  The High Court agreed with the  Trial Court that dedication by Dinanath Sao himself, by a Patha in 1857 as alleged in the plaint had not been established ; but disagreeing with the Trial Court, it held that there was  no absolute  dedication of the village for the purpose  of  the temple  by the Panch Faisla Award of 1896 and no  trust  was created thereby.  On a construction of this document the  423 learned  judges of the High Court held that it did not  show more   than   a  partial  dedication  of  the   village   as distinguished from an absolute dedication.  Accordingly, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

High  Court  allowed the appeal and ordered the suit  to  be dismissed without going into the other questions as  regards the  character  of the temple or whether the  defendant  had committed breaches of trust. Against  this decision of the High Court the present  appeal was filed by the plaintiffs on a certificate granted by  the High Court under Art. 133 (1) (b) of the Constitution. The  main  controversy  before us is whether  by  the  Punch Faisla  Award of 1896 an absolute dedication of the  village Telibandha  was  made  in favour of  Shri  Ramchandra  Swamy temple   or   whether  the  village  was   given   in   full proprietorship  to Ramsaran Lal with only a charge on it  to meet  the expenses of the temple.  The relevant  portion  of the Award is in its second paragrah.  The Award is in  Hindi and the second paragraph has been translated thus :- "2.  Mouza Telibandha alias Karawatoti, sixteen annas,  Asli Men  Dakhli (i. e. village proper with the out-skirts  under control),  in  tahsil Raipur together with  all  rights  and interests  of proprietorship has been given  to  Ramsaranlal with the consent of and at the instance of all the co-shares for  the  under-mentioned purposes.  From  the  profits  and income  of  mouza Telibandha, Ramsaran Lal shall  incur  the expenses  of  Samaiyas (probably  occasions),  celebrations, Bho-Rag,  Bal-Bhog  of daily routine and  white-washing  and plastering,  etc., and other work of Shri  Ramchandra  Swami Math  Shri Dudhadharji, according as the same expenses  have been  continuing to be met up to this day from the  time  of Dinanath  Sao, Sobharam Sao and Sarjoo Prasad Sao.  If  this work 424 that is being done from long before, fails to be done,  then out  of all these six co-shares, any co-sharer, who  may  be fit  to do that work and carry it on, shall take this  Mouza Telibandha  together with all rights and interests into  his possession  and carry on the work of the temple just  as  it has  continued to be done from ever.  None of the  co-shares and Ramsaranlal have any right over it.  Ramsaranlal or  any other  co-sharers have neither got, nor will they have,  any right  to  transfer,  either  in whole  or  in  part,  Mouza Telibandha, proper, together with Dakhli, together with  all the  rights and privileges, by sale or mortgage or  gift  or will  or  in  any other  manner  whatsoever,  because  mouza Felibandha  has  been reserved from ever for  the  aforesaid purpose and it shall continue to be so only." The decision of the question before us depends on the proper construction of this paragraph of the Panch Faisala. It  is necessary to mention that the words  ""together  with all   rights  and  interests  of  proprietorship"   in   the translation  stand for "Kul haq haquq samet milkiyat ke"  of the original; and the words "’from the profits and income of Mouza  Telibandha" in the translation stand for  "Telibandha ke munafa wo amdani se" of the original.  The  golden rule of construction, it has been said,  is  to ascertain  the  intention of the parties to  the  instrument after considering all the words, in their ordinary,  natural sense.   To  ascertain  this  intention  the  Court  has  to consider the relevant portion of the document as a whole and also to take into account the circumstances under which  the particular  words were used.  Very often the status and  the training  of  the parties using the words have to  be  taken into 425 consideration.   It has to be borne in mind that  very  many words are used in more than one sense and that sense differs in different circumstances.  Again, even where a  particular

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

word  has,  to a trained conveyancer, a clear  and  definite significance  and one can be sure about the sense  in  which such conveyancer would use it, it may not be reasonable  and proper  to give the same strict interpretation of  the  word when used by one who is not so equally skilled in the art of conveyancing.    Sometimes’  it  happens  in  the  case   of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that  there is a clear conflict between what is said in one part of  the document  and in another.  A familiar in-stance of  this  is where  in an earlier part of the document some  property  is given   absolutely  to  one  person  but  later  on,   other directions about the same property are given which  conflict with  and  take away from the absolute title  given  in  the earlier portion.  What is to be done where this happens ? If is well settled that in case of such a conflict the  earlier disposition  of absolute title should prevail and the  later directions   of   disposition  should  be   disregarded   as unsuccessful  attempts to restrict the title already  given. (See  Sahebzada  Mohd.  Kamgar Shah v. Jagdish  Chandra  Deo Dhabal  Deo).  (1)  It is clear, however,  that  an  attempt should always be made to read the two parts of the  document harmoniously,  if  possible.  It is only when  this  is  not possible,  e.  g., where an absolute title is  given  is  in clear and unambiguous terms and the later provisions  trench on the same, that the later provisions have to be held to be void. Turning  now to para. 2 of the Panch Faisala, we  find  that the  opening clause while providing for giving  the  village Telibandha  to  Ramsaran Lal uses the words "Kul  haq  haquq samet  milkiyat  ke." It has been contended by  the  learned AttorneyGeneral on behalf of the respondent that these words (1)(1960) 3 S.C.R. 604, 611. 426 show an intention to give an absolute interest of  ownership in  the property to Ramsaran Lal.  Accordingly,  argues  the learned  Attorney-General,  the  later  provisions  in   the paragraph  which seem to indicate that such  absolute  right was  not given have to be ignored as an ineffective  attempt to take away what has already been given.  Neither the words "  none  of the co-sharers and Ramsaran Lal have  any  right over it" nor the prohibition against the alienations in  the following  clause,  nor  the  words  "Telibandha  has   been reserved  for ever for the aforesaid purposes and  it  shall continue  to  be  so  only"  can,it  is  argued,  limit  the amplitude  of what is given to Ramsaran Lal by  the  opening clause. The  question therefore is : Does the use of the words  "Kul haq haquk samet milkiyat ke" invariably show an intention to give full and absolute ownership ? We do not think so.   The question  as  to  the meaning to be  attached  to  the  word ""Malik"  (from which the word "Milkiyat" has been  derived) and "Milkiyat" have often been considered by the courts.   A consideration of the pronouncements of the Privy Council  on this  question  leave  no doubt  that  while  ordinarily  an intention  to  give  an  absolute  and  full  ownership   is expressed by the words "Malik" or "Milkiyat" by saying  that somebody is to be the Malik or is to have the Milkiyat, this is  not invariably so.  In lalit Mohan Singh Roy v.  Chukkun Lal  Roy  (1) where the words of the gift to  the  appellant were  "shall  become  owner (Malik) of all  my  estates  and properties", it was held that they were sufficient to convey a   heritable  and  alienable  estate-unless   the   context indicated  a different meaning.  In Surajmani v.  Rabi  Nath Ojha (2) also the use of the word "Malik" was held to import

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

full  proprietary rights, unless there is something  in  the context to qualify it. In  Saraju  Bala  Devi v. Jyotirmoyee  Devi  (3)  the  Privy Council had to consider the nature of the (1) (1897) L.R. 24 I.A. 76. (2) (1907) L.R. 35 I.A. 17. (3) (1931) L.R. 58 I.A.. 270,  427 interest  that  passed by two leases which  constituted  the lessee  the Malik of the property in express  terms.   Their Lordships examined the terms of those leases to see  whether there  was  something in the context to  indicate  that  the words  did not import full proprietary rights and held  that the conditions taken singly or collectively did not cut down the absolute estate. It  is  important  to note that in  all  these  cases  their Lordships of the Privy Council did not proceed on the  basis that  the  mere  use  of the word  "Malik"  so  clearly  and unambiguously passed the absolute interest that  examination of  the context was not necessary.  On the contrary in  each case  they emphasised the need of examining the  context  to find  out  what was intended.  This was quite in  line  with what had been decided in one of the earliest  cases-(Mohamed Shumsool  v. Shewukram) (1) where the word "Malik"  came  up for consideration.  In that case the question arose  whether a, testator in saying that "only Mst.  Rani Dhan Kowar,  the widow  of  my  son is my heir and except  Mst.   Rance  Dhun Kowari  aforesaid  none other is; nor shall be my  heir  and Malik".   The document gave an estate of inheritance to  the Rani  which she was able absolutely to alienate.  The  Privy Council  thought  it proper to take into  consideration  the ordinary  notions  and  wishes of a Hindu  with  respect  to devolution of property and proceeded to observe : "’Having  reference to these considerations,  together  with the whole of the will, all the expressions of which must  be taken  together without any one being insisted upon  to  the exclusion of others, their Lordships are of opinion that the two courts in India, who both substantially agree upon  this point, are right in construing the intention of the testator to  have been that the widow of his son should not take  an absolute estate which she should (1)(1874) L R. 2 I.A. 7. 428 have  power to dispose of absolutely, but that she  took  an estate  subject  to  her daughters succeeding  her  in  that estate." In Rai Bajrang Bahadur Singh v. Thakurain Bakhtrai Kuer  (1) this  Court  had  to consider a will which  used  the  words "Malik  Kamil" and "Naslan bad naslan" in reference  to  the interest given to the younger son Dhuj Singh.  Mukherjea,J., speaking for the Court said:- "These  words, it cannot be disputed, are descriptive  of  a heritable  and  alienable  estate in  the  donee,  and  they connote full proprietary rights unless there is something in the  context  or  in  the  surrounding  circumstances  which indicate  that  absolute  rights were  not  intended  to  be conferred.   In  all such cases the true  intention  of  the testator  has to be gathered not by attaching importance  to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory." On  a  consideration of the context this Court came  to  the conclusion  that Dhuj Singh had only a life interest in  the properties  and  pointed  out  that  "in  cases  where   the intention of the testator is to grant an absolute estate, an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

attempt  to  reduce  the powers of  the  owner  by  imposing restraint  on alienation would certainly be repelled on  the ground  of  repugnancy; but where the restrictions  are  the primary  things  which  the testator desires  and  they  are consistent  with  the  whole  tenor of the  will,  it  is  a material  circumstance to be relied upon for displacing  the presumption of absolute ownership implied in the use of  the word "malik". *What was said in this case in connection with the  construction of a will applies with equal force to  the construction of every other document by which some  property is disposed of. (1)  [1953] S.C.R. 232.  429 Remembering  therefore that the use of words "Kul haq  haquq somet  Milkiyat" in the opening clause of this Panch  Faisla raises  a  presumption  that  absolute  interest  was  given thereby  to Ramsaranlal, we have also to remember that  this is merely a presumption which can well be displaced by  what follows in the same document as regards this very property. When  all  these  different  provisions  are  considered  it appears  to us to be clear beyond any shadow of  doubt  that the intention was not to make Ramsaranlal the absolute owner of the village but give him possession and management of the village  for the benefit of Shri Ramchandra.  Swamy  temple. Immediately  after  saying  that the  village  is  given  to Ramsaranlal "Kul haq haquq samet milkiyat" the document says in  the same breath that this is being done for  the  under- mentioned purposes.  Then the purposes are mentioned in  the next  sentence  as  meeting  the  expenses  of  worship  and maintenance  of  the temple of Shri Ramchandra  Swamy.   The provision  is next made that if Ramsaranlal does  not  carry out this purpose then out of the co-sharers between whom the partition was being made, any co-sharer may carry it on  and for this such co-sharer shall take the Mouza Telibandha into his possession.  The document then proceeds to say that none of  the  co sharers and Ramsaranlal had any right  over  the village.  Then follows the prohibition against alienation. The learned Judges of the High Court have said that the  use of  the  words  "’from  the  profits  and  income  of  mouza Telibandha  Ramsaranlal  shall incure  the  expenses........ indicate  that only a portion of the income was intended  to be  used and that supports the presumption arising from  the use  of  the  word  "’Kul haq  haquq  samet  milkiyat"  that absolute interest was being given to Ramsaran Lal.  This 430 provision  has  to be considered, however,  along  with  all other clauses and it would not, in our opinion, be right  to take  the  indication  of the words "from  the  profits  and income"  as out-weighing or neutralising the numerous  other provisions  which  point to an intention that  Ramsaran  Lal would  not have the absolute ownership of the  village.   As has been mentioned earlier, the words "from the profits  and income  of  mouza Telibandha" in the translation  stand  for "Telibandha ke munafa wo amdani se" of the original.  It  is not correct to say that these words as used in the  original necessarily  mean  " from the profits and  income  of  mouza Telibandha."  The  words may equally well be  translated  as "with  the  profits and income of mouza Telibandha."  It  is worth  noticing that the plaintiff’s witness Mathura  Prasad stated  in  answer to a question from the Court :  "At  that time  there was no question as to what should be  done  with the savings from the income of the village Telibandha, after meeting  the requirements of the temple, because the  income those days was not much while the expenses which used to  be incurred on the temple were far in excess of the income from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

the  village."  The correctness of this  statement  was  not challenged  in  cross-examination.  It appears clear  to  us that  by  the use of the words "at that  time"  the  witness meant  "the  time of the partition in 1896."  In  using  the words  "Mouza Telibandha ke munafa wo amdani se" it is  more than  likely therefore that the Panchas wanted to  say  that the  purposes mentioned will be carried out with the  income and profits and did not expect any surplus to be left. We have therefore no hesitation in holding on a construction of  paragraph  2  of the Panch Faisala that  by  this  Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaran Lal was given  possession of it as the manager and trustee of the temple.  431 But, says the learned Attorney-General, a partition Award of this  nature  cannot  under the Hindu  Law  create  a  valid dedication in favour of a deity.  This plea was not taken by the defendant in his written statement nor does it appear to have been urged seriously before the courts below.  Assuming it is open to the defendant to raise this point now, it  has to be decided on the further assumption that the facts under which the provision of dedication was made in the award were correctly stated there.  That is, these provisions were made "with  the  consent of’ and at the instance of all  the  co- sharers." The act of the Panchas was thus really the act  of the  owners of the property and as owners had full right  to make a valid dedication to the deity the dedication as  made in Para. 2 of the Panch Faisla must be held to be valid. This  brings us to the question if the dedication thus  made has   ceased  to  be  valid  by  anything   which   happened afterwards.  It appears that immediately after the award was made, it was presented before the Sub Registrar, Raipur, for registration.  Within a few days, however, an application in connection with this matter appears to have been made before the  Civil  judge, Raipur.  In this Ramsaranlal  stated  his objection  to the award on the ground that "the Panchas  did not  read out the award before him, that they had asked  him to state in writing his objections which he did but they did not  take any evidence." The Civil judge  rejected  Ramsaran Lal’s contention and returned the award to the Sub-Registrar with  a  direction  to register it in due  course  and  also directed  the Panchas to file it in a Civil Court  after  it had  been duly registered.  It appears that after  this  the award  was  duly registered.  In November of the  same  year however  Ramsaranlal’s three brothers brought a suit in  the Court  of the Civil judge at Raipur in which they sought  to have this registered award set aside.  Ramsaranlal and 432 other co-sharers were impleaded, in the suit as  defendants. After  some  evidence  bad been  recorded  the  hearing  was adjourned on the prayer of the parties who wanted to  settle the  dispute  amicably.  Mr. Bagchi who was the  pleader  of some  of the plaintiffs was orally requested by the  parties to decide whether the award of the panchas was proper or not and  to make changes, if necessary, and on May 14, 1896  Mr. Bagchi made his award.  On the same date an application  for compromise  was  filed  in Court.   Accordingly,  the  Court dismissed the suit as compromised.  It has been  strenuously contended on behalf of the respondent that this award of Mr. Bagchi  made on May 14, 1896 wholly supersedes the  previous award  and  whether the village Telibandha forms  the  trust property  of Shri Ramchandra Swamy or not has to be  decided on  a construction of this award.  We see no force  in  this contention.   It has to be noticed that the 1896  award  was not set aside by the Court and the suit was dismissed.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

mere  fact  that  the  suit is stated  to  be  dismissed  as compromised  and  the  compromise appears to  have  been  in accordance  with Mr. Bagchi’s award, does not in law  amount to the setting aside of the prior award.  We are inclined to agree  with the contention of the  learned  Attorney-General that  Mr. Bagchi’s award gives the property to Ramsaran  Lal absolutely  with  only  a charge on  the  property  for  the expenses  of  the  temple  and  did  not  make  an  absolute dedication of the village to the temple.  We are of  opinion however that Mr. Bagchi’s award can have no legal effect  in respect  of the dedication already made., Once  an  absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners  of the  property  had  no legal authority  to  go  behind  that dedication. The  learned  Attorney-General concedes this  position.   He argues, however, that if the award  433 that made the dedication has such legal infirmity as to make it  invalid in law, the dedication also must be held  to  be invalid.   But, has the award been shown to have  any  legal infirmity  ?  The  answer to this question must  be  in  the negative.   The plaintiffs in the suit of 1897 did ,  it  is true,  allege certain infirmities.  We need not discuss  the question  whether  the temple was a necessary party  to  the suit.  For, in fact, the Court did not consider whether such infirmity  existed and as pointed out above., dismissed  the suit.   The reference to Mr. Bagchi was made by the  parties to  the suit orally requesting him as shown by the  preamble to  the  award  ""to decide whether  the  Faisla  Panchayati (i.e.,  award of panchas) was proper or not, adding that  in case  it was not proper, changes may be made in it  whenever it  may  be  necessary  and  improper".   On  a   reasonable interpretation  of  these words it does not  seem  that  Mr. Bagchi  was  asked to consider whether  the  original  award suffered  from  any infirmity in law.  Even  more  important than  that  is the fact that there is not a single  word  in Bagchi’s  award  to  indicate, even remotely,  that  in  his opinion,  the  award suffered from any  infirmity.   On  the contrary,  Mr. Bagchi accepted the previous award  and  gave his own interpretation of it, saying that by the award after "’including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and  his brothers."  It  is true that he added the words "’I  too  by means of this award cause the same to be given to them", and then gave certain directions.  Quite clearly, therefore,  he proceeded  on the basis that the award was a good and  valid award.   We  are  therefore  clearly  of  opinion  that  the validity  and  force  of the dedication made  by  the  Panch Faisla has not in any way been affected by the Bagchi Award. It  is equally clear that the way Ramsaran Lal or after  him Kamal Narayan dealt with this village 434 Telibandha  or its income can in no way affect the force  or validity  of  the absolute nature of  the  dedication.   The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained  for the  general expenses of the family or that he made  certain alienations  of  the  property cannot  change  the  absolute dedication  into a partial dedication.  It may well be  that Ramsaran  Lal  was himself led by the terms  of  the  Bagchi award into thinking that the property belonged to the family with  only  a charge on it for the temple.  Whether  or  not this was so or his conduct was due to deliberate dereliction of  duty is really irrelevant for our present  purpose.   As

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

the High Court rightly pointed out the course of conduct  of the  parties  is of no relevance for the construction  of  a document  which is itself unambiguous.  As in  our  opinion, the  document (the Panch Faisla Award of 1896)  clearly  and unambiguously  shows an .absolute dedication of the  village to Shri Ramchandra Swamy temple, we think it unnecessary  to examine  the  oral  or documentary evidence as  to  how  the property or the income of Telibandha was dealt with. Our  conclusion therefore is that the High Court’s  decision that   the  plaintiff’s  case  of  absolute  dedication   of Telibandha  in favour of Shri Ramchandra Swamy has not  been established is not correct and the High Court’s order  based on that view that the plaintiff was not entitled to succeed, must  be set aside.  In view of its decision  that  absolute dedication  had  not  been proved, the High  Court  did  not consider  it  necessary to decide the several  other  issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of. Accordingly,  we allow the appeal, holding that the  village Telibandha has been absolutely dedicated  435 to Shri Ramchandra Swamy temple, set aside the judgment  and decree of the High Court and send the case back to the  High Court  for disposal of the appeal, after deciding the  other issues in the suit that require to be decided for its proper disposal.  Costs will abide the result. Appeal allowed.