Murari Lal Kuti v. Narayan Lal Ahir — 1955 DIGILAW 118 (PAT)

Judgment Das, J. 1. This is a second appeal by the defendant and arises out of a suit for a declaration that the plaintiff-respondent has title to the kuti gaddi by virtue of a deed of gift executed in his favour on 6-11-1944, and for confirmation or, in the alternative, recovery of possession of the business of the gaddi and for delivery of the bahis of the said gaddi. The Court of first instance gave a decree in favour of the plaintiff-respondent and held that Shyam Lal Kuti, who was admittedly, the last, owner of the gaddi, voluntarily executed a deed of gift in favour of the respondent on 6-11-1944, and the respondent came in possession of the business, of the Kuti Gaddi though his possession was disturbed and not peaceful since after the execution of another deed of gift in favour of the present appellant on 28-2-1946. That Court also held that the respondent was entitled to recover the Jatri bahis belonging to the said gaddi and directed that 15 bahis which had been produced by the present appellant should be handed over to the respondent. Against the aforesaid judgment and decree of the Court of first instance the present appellant preferred an appeal to the learned District Judge of Gaya. That appeal was dismissed by the learned Additional District Judge on 4-9-1052. Thereafter, the appellant filed this second appeal to this Court. 2. In order to appreciate the points urged on behalf of the appellant before us it is necessary to state some facts. I have already said that the case of the plaintiff-respondent rested on a deed of gift dated 6-11-1944. It was alleged by the respondent that Shyam Lal Kuti, a Gayawat of the town of Gaya, was his maternal uncle and was the owner (malik) of the Kuti Gaddi known as Gaddi Shyam Lal Ram Lal. He used to carry on the business of a Gayawal for the purpose of Gaya Sradh by pilgrims who came to Gaya. Shyam Lal Kuti made a gift of the business in favour of the plaintiff-respondent by a deed of gift dated 6-11-1944, and delivered possession of the gaddi and its assets, etc., to the plaintiff-respondent. The plaintiff-respondent then became the owner of the Kuti Gaddi and began to perform the functions which appertained to the owner of that gaddi. Shyam Lal Kuti made a gift of the business in favour of the plaintiff-respondent by a deed of gift dated 6-11-1944, and delivered possession of the gaddi and its assets, etc., to the plaintiff-respondent. The plaintiff-respondent then became the owner of the Kuti Gaddi and began to perform the functions which appertained to the owner of that gaddi. Taking advantage of the illness and feeble health of Shyam Lal Kuti, one Beni Lal Gaib, father of the present appellant, prevailed, upon Shyam Lal to execute another document dated 28-2-1946, in respect of the Kuti Gaddi in favour of the present appellant. This latter document, according to the case of the plaintiff-respondent, conferred no title on the appellant, and the appellant never got possession of the business of the Kuti Gaddi. The plaintiff-respondent alleged that some of the bahis of the Kuti Gaddi were stolen in 1947 and there was some dispute between the parties as to the issue of an identity card in favour of one or other of the parties as Gayawal of the Kuti Gaddi, the usual practice being for the District Magistrate to grant an identity card to each Gayawal who is the owner of a gaddi. The identity card which was originally given to the plaintiff-respondent was cancelled and another card was given to the appellant. There was also a proceeding under Sec.144, Criminal P. C. in which an order adverse to the plaintiff-respondent was made. This led the plaintiff-respondent to bring his suit for a declaration that he was the rightful owner of the Kuti Gaddi and was entitled to recover possession of the business and to get back the bahis of the gaddi. 3. On behalf of the present appellant it was alleged, however, that the document which Shyam Lal Kuti executed in favour of the plaintiff-respondent on 6-11-1944, was a will and not a deed of gift, and the document was to come into effect after the death of Shyam Lal Kuti. It was alleged that the plaintiff-respondent never got possession of the business of the gaddi as a result of the aforesaid document, nor were the bahis of the gaddi made over to him. Shyam Lal Kuti was later dissatisfied with the plaintiff-respondent and cancelled and revoked the will in favour of the plaintiff-respondent by another document dated 28-2-1946. It was alleged that the plaintiff-respondent never got possession of the business of the gaddi as a result of the aforesaid document, nor were the bahis of the gaddi made over to him. Shyam Lal Kuti was later dissatisfied with the plaintiff-respondent and cancelled and revoked the will in favour of the plaintiff-respondent by another document dated 28-2-1946. Shyam Lal Kuti also executed another registered deed of gift dated 28-2-1946, in respect of the Kuti Gaddi in favour of the present appellant and made over all the bahis and papers relating to the gaddi to the appellant. The appellant accepted the gift and came in possession. 4. On the aforesaid pleadings several issues were framed. The principal issue was if the document dated 6-11-1944 was a will or a deed of gift & if it was given effect to. The learned Subordinate Judge who dealt with the suit in the first instance held that the document dated 6-11-1944, was really a deed of gift and not a will as alleged by the present appellant. He further held that the plaintiff-respondent had accepted the gift and came in possession of the business of the Kuti Gaddi, though his possession was disturbed and not peaceful after the execution of the second document dated 28-2-1946, in favour of the present appellant. The learned Subordinate Judge held that as Shyam Lal Kuti had divested himself of the property by the deed of gift executed on 6-11-1944, the second document executed on 28-2-1946, conferred no title on the present appellant; because Shyam Lal Kuti had no power to revoke or cancel the deed of gift which he had already executed in favour of the plaintiff-respondent. On these main findings the learned Subordinate Judge gave a decree in favour of the plaintiff-respondent, which decree, as I have already said, was affirmed or. appeal by the learned Additional District Judge. The learned Additional District Judge affirmed the findings of the learned Subordinate Judge and dealt with two more points of law which were argued before him, 5. Mr. Lal Narain Sinha has argued the appeal before us on behalf of the appellant. Though, he has not given up the point argued on behalf of his client in the Courts below that the document dated 6-11-1944, was a will and not a deed of gift, the points which Mr. Mr. Lal Narain Sinha has argued the appeal before us on behalf of the appellant. Though, he has not given up the point argued on behalf of his client in the Courts below that the document dated 6-11-1944, was a will and not a deed of gift, the points which Mr. Lal Narain Sinha has placed in the forefront of his argument before us are (1) that the right in respect of which, the plaintiff-respondent claimed a declaration in his suit was not a right to property at all, and a suit in respect of such a right was not maintainable; (2) at best, the function which a Gayawal has to perform is in the nature of a religious or priestly office restricted in its enjoyment to the owner personally & cannot be the subject-matter of a transfer, unless a custom to the contrary is pleaded or proved; and (3) no custom to the contrary having been pleaded or proved by the plaintiff-respondent, he was not entitled to get a decree on the basis of the document dated 6-11-1944. It has also been contended before us that the learned Additional District Judge was wrong in his view that it was not open to the present appellant to raise the objection that a Gayawals Gaddi was not transferable, on the ground that such an objection was not raised in the Court of first instance. 6. Before I deal with the three points mentioned above, it is necessary to say a few words about the document dated 6-11-1944. The Courts below have concurrently held, on a construction of the whole of the document, that it was a deed of gift in favour of the plaintiff-respondent who accepted the gift and came in possession of the business of the gaddi. The Courts below have referred to the recitals in the document. The execution of the document by Shyam Lal Kuti was not disputed. The document itself stated that it was not revokable; the document was described as a deed of gift in the recitals contained therein. The document stated in the clearest of terms that the executant namely, Shyam Lal Kuti, was in his lifetime installing the plaintiff-respondent as the owner of his gaddi. There was a direction in the document that after its execution, the plaintiff-respondent was to perform the function of the gaddi as its malik. The document stated in the clearest of terms that the executant namely, Shyam Lal Kuti, was in his lifetime installing the plaintiff-respondent as the owner of his gaddi. There was a direction in the document that after its execution, the plaintiff-respondent was to perform the function of the gaddi as its malik. These and other recitals in the document have been adverted to in detail by the courts below, and I do not think that any useful purpose will be served by repeating them. The two main circumstances on which the appellant relied for his contention that the document was a will were (1) the recital in the document that the plaintiff-respondent would incur necessary expenses in connection with the management of the gaddi and the savings were to be given to the executant till his lifetime, and (2) the recital in the document that if the daughter-in-law of the executant, which daughter-in-law was insane at the time, survived the executant, she should be considered malik and necessary arrangement should be made for her maintenance. These two circumstances were considered by the Courts below and it was rightly pointed out that the mere reservation of a life estate or the provision of maintenance for the executant or his daughter-in-law did not necessarily indicate that the document was a will. I am in entire agreement with the view thus expressed by the courts below, and I have no hesitation in holding that the document dated 6-11-1944, was in its true nature and effect a deed of gift in favour of the plaintiff-respondent, a gift which the plaintiff-respondent accepted. The finding of the courts below that the plaintiff-respondent came in possession of the business of the gaddi as a result of the deed of gift in his favour and that he continued in such possession, though his possession was disturbed since the execution of the document in favour of the appellant on 23-2-1946, is a finding of fact which cannot be disturbed in second appeal. 7. I now proceed to a consideration of the three points urged on behalf of the appellant before us. It is true that the point that the right which the plaintiff-respondent claimed was not property at all and the further point that it was not transferable were not taken in the court of first instance. 7. I now proceed to a consideration of the three points urged on behalf of the appellant before us. It is true that the point that the right which the plaintiff-respondent claimed was not property at all and the further point that it was not transferable were not taken in the court of first instance. The learned Additional District Judge expressed the view that if these points had been taken in the written statement of the present appellant, the plaintiff-respondent would have got an opportunity of proving that the gaddi of a Gayawal was transferable by custom; aa however, no such objection was raised in the written statement, it was not open to the present appellant to raise the objection at the appellate stage. The learned Additional District Judge also said that the present appellant could hardly be allowed to raise such an objection since he himself claimed to have taken a gift of the same gaddi by the document dated 28-2-1948. These views of the learned Additional District Judge have been subjected to a good deal of criticism before us, and our attention has been drawn to the provisions of Order 6, Rule 13, Code of Civil Procedure. Rule 13, so far as it is relevant, is in these terms: "Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied." It has been argued that if the law presumes that a religious or priestly office cannot be transferred unless the custom of alienability of such office is proved, it was for the plaintiff-respondent to plead such custom in the first instance. If the plaintiff-respondent did not plead or prove such custom, the presumption of law holds the field. I agree that there is much force in this contention. If the business of a Gayawal is no property at all, or if it is a mere religious office which cannot be transferred except when a custom is proved, I do not think that the argument of the appellant can be repelled merely on the ground that such a point was not taken in the court of first instance. If the business of a Gayawal is no property at all, or if it is a mere religious office which cannot be transferred except when a custom is proved, I do not think that the argument of the appellant can be repelled merely on the ground that such a point was not taken in the court of first instance. I do not, therefore, propose to deal with the argument of learned Counsel for the appellant in the way in which it was dealt with by the learned Additional District Judge. I propose to consider the argument on merits. 8. The first question is whether the right in respect of which the plaintiff-respondent has claimed a declaration is a right to any property at all. The argument of Mr. Lal Narain Sinha is that the right claimed is not a right to any property and suit itself was not maintainable. Mr. Lal Narain Sinha has relied on the decisions in Bansi V/s. Kanhaiya, 1921 All 374 (AIR V 8) (A), and Hanso Patak V/s. Harmandil Patak 1934 All 851 (AIR V 21) (B). In 1921 All 374 (AIR V 8) (A), the contending parties were Mahabrahamans, who were plaintiffs, and Gangaputras, who were defendants. It was stated that both these sets of persons go down to the Ganges and when a pious Hindu is about to bathe they offer a small bunch of grass called kusha: then they pronounce a mantra and the grass is returned with a small pecuniary present. It was observed by their Lordships that the character which the plaintiffs assumed for the purpose of the litigation was the character of a beggar, that is a person who begs from a person who is charitably inclined to give. It was held that so far as that character was concerned, the plaintiffs were not entitled to any declaration. It was next observed that it was impossible tp hold that a beggars right to receive alms was a right to property in any way. A similar view was expressed in 1934 All 851 (AIE V 21), (B). That was the case of a Brahmin who officiated as a Pandit in the houses of his clients and received some income. It was next observed that it was impossible tp hold that a beggars right to receive alms was a right to property in any way. A similar view was expressed in 1934 All 851 (AIE V 21), (B). That was the case of a Brahmin who officiated as a Pandit in the houses of his clients and received some income. It was observed: "If the right to receive offerings were connected with any land in the occupation or user of the family or with any temple at which they were officiating, the right might possibly be a fa(sic)nily property; or again if there were a service which could be rendered even against the will of others, on whom it is to be imposed, it might be claimed as of right. But the income received as amounts paid by people at their discretion either by way of charity or by way of remuneration for personal services rendered, cannot be claimed as of right, and cannot in my opinion, amount to a family property." Mr. Lal Narain Sinha has argued that the same principle should apply with regard to the functions which a Gayawal has to perform with regard to his clients, namely, pilgrims who come to Gaya for the performance of Gaya Sradh. This very question was considered by a Division Bench of this court and a History of the Gayawala has been discussed therein. It seems to me that the point which Mr. Lal Narain Sinha has canvassed before us is concluded by the authority of that decision. In -- Lachman Lal V/s. Baldeo Lal 1917 Pat 37 (AIR V 4) (C), Chamier, C. J. gave a history of the Gayawals of Gaya and observed as follows: "The principal families of Gayawals are said to have gaddis. "Gaddi" means literally and generally cushion, seat or throne, but when used with reference to Gayawals who have no fixed seat or throne it means something like the authority or jurisdiction of family..... There seems to be no objection to a Gayawal having two or more gaddis, and from the pleadings and evidence in this case it is clear that for centuries past the position or the right, such as it is, of the holder of a gaddi has devolved, according to the Hindu law of inheritance, just as if it were property or an hereditary office". His Lordship pointed out that a Gayawals gaddi was not strictly speaking an office; a Gayawal is born a Gayawal but apparently may never have a gaddi. He has no duties which anyone can compel him to perform; he is attached to no temple or other building or to any particular place. He has no right to compel anyone to accept his ministrations and he cannot be removed from his position. His Lordship then referred to the decisions of the various High Courts with regard to the nature of the office of a Purohit or the work of Mahabrahman and pointed out that it was held for many years by the Calcutta, Madras and Allahabad High Courts that in the absence of a definite contract, a Purohit or Mahabrahman was not entitled to a decree against a rival Purohit or Mahabrahman for a share in the offerings received by him from persons alleged to be jajamans of the plaintiff, the ground of the decision being that voluntary offerings might be given to anyone to whom the jajmans chose to give them. His Lordship then gave his conclusion in the following words: "There appear to me to be many difficulties in the way of holding that the occupant of a Gayawal gaddi has an office, hereditary or otherwise, but it is an indisputable fact that for centuries past the gaddi of a Gayawal has been treated either as an office or as property devolving according to the Hindu Law of inheritance, and it is said that a curious custom of adoption has sprung up according to which a gaddi may pass to an adopted son. It appears to me that if the occupant of a Gayawais gaddi has not an hereditary office he has a business and that his business is property capable of being inherited on his death. It is well known that Gayawals send out agents to collect pilgrims and bring them to Gaya. A Gayawal may do a good deal in the way of increasing the number of his clients and improving his connection. Attached to his business is what would be called a goodwill with reference to an ordinary trade or business. His books are an important part of his stock-in-trade and are a valuable asset..... A Gayawal may do a good deal in the way of increasing the number of his clients and improving his connection. Attached to his business is what would be called a goodwill with reference to an ordinary trade or business. His books are an important part of his stock-in-trade and are a valuable asset..... The English law recognizes the right of a man who has been carrying on business under a certain style- or name to prevent another from using that style or name so as to deceive the public into thinking that the business carried on by that person is his". Mullick, J., who agreed with Chamier, C. J., put the matter thus: "In my opinion the gaddi which the plaintiff claims is not an office the essential of which is a duty to some person enforceable by law, custom or usage. Much less is it an office of a religious nature attached to a particular locality or a place. The suit is, therefore, not in my opinion maintainable as a suit for an office. But I agree that the gaddi is business carried on under the name and style of Gaddi Kondhouri, and the plaintiff has property in both the business and the name". This decision, in my opinion, concludes the point argued by Mr. Lal Narain Sinha, Shyam Lal Kuti, to use the words of Mullick, J., had a right of property in both the business and the name of Kuti Gaddi. This right he was entitled to transfer and he did transfer in favour of the plaintiff-respondent. The argument of Mr. Lal Narain Sinha that the right claimed is not a right to any property must, I think, be overruled on the decision in 1917 Pat 37 (AIR V 4) (C). 9. Mr. Lal Narain Sinha has referred us to a later decision in -- Lachman Lal v. Baldeo Lal, 1922 Pat 556 (AIR V 9) (D), where the parties were the same. The earlier decision in 1917 Pat 37 (AIR V 4) (C), was referred to in the later decision with approval and it was observed that the Jatri Bahis were stock-in-trade and appertained to the gaddi of the Gayawal. The earlier decision in 1917 Pat 37 (AIR V 4) (C), was referred to in the later decision with approval and it was observed that the Jatri Bahis were stock-in-trade and appertained to the gaddi of the Gayawal. What happened was that an attempt was made to seize the bahis in execution of his decree by the plaintiff in order to deprive the judgment-debtor defendant of his right of enjoying the benefit of his office which had been declared in the earlier decision. It was held by Jwala Prasad, J., with whom Bucknill, J. agreed, that the bahis could not be sized in execution by the plaintiff. The reason iven was that under proviso (f) to Sec. 60 of the Code of Civil Procedure, the babis were not capable of attachment or sale in execution of a decree. The reason given may or may not be correct, Obviously, a distinction was made between the Gayawali business and the bahis, and the bahis were held to contain merely entries of personal service and, therefore, exempt under proviso (f) to Sec. 60, Code of Civil Procedure, though I must say I find it somewhat difficult to agree with the view that the bahis, which were valuable assets or stock-in-trade, were heritable but not attachable. In a later decision in -- Ramsaran Pandey V/s. Iswar Pandey, 1936 Pat 10 (AIR V 23) (E), Dhavle, J. expressed the view that mere rights of personal service which came within the meaning of proviso (f) to Sec. 60, Code of Civil Procedure, cannot be either heritable or transferable. In any view, I do not think that the decision in 1922 Pat 556 (AIR V 9) (D), invalidates or shakes the decision in 1917 Pat 37 (AIR V 4) (C). That decision clearly laid down that a Gayawali business is property capable of being inherited; it is also laid down that it was not merely an office or an office of a religious nature attached to a particular locality or place. If a Gayawali business is a business to which is attached a goodwill, there is no reason why it should not be capable of being transferred under the ordinary law of the land. 10. The next point which Mr. If a Gayawali business is a business to which is attached a goodwill, there is no reason why it should not be capable of being transferred under the ordinary law of the land. 10. The next point which Mr. Lal Narain Sinha has argued is that the function of a Gayawal amounts to a mere religious office and the interest is restricted in its enjoyment to the Person holding the office; such an office, according to Mr. Lal Narain Sinha, is not transferable except by custom. Mr. Lal Narain Sinha has referred to the "following decisions in support of his contention, -- Vurmah Valia V/s. Ravi Vurmah Kunshi Kutty, 1 Mad 235 (PC) (F); -- Nallika Dasi V/s. Ratanmani Chakervarti, 1 Cal WN 493 (G); -- Mahamaya Devi v. Haridas Haldar, 1915 Cal 161 (2) (AIR V 2) (H); -- Jagdeo Singh V/s. Ram Saran Pande, 1527 Pat 7 (AIR V 14) (I) and -- Jogesh Chandra V/s. Dhakeshwari Mata, 45 Cal WN 809 (J). The point of these decisions is that a priestly office with emoluments attached to it is inalienable and a custom of transfer of Such office must have the attributes of antiquity, certainty and uniformity, and the custom must not be unreasonable and must be consciously accepted as having the force of law. 11. I do not think that the aforesaid decisions are really of help in the present case. As I have already observed, it was held in 1917 Pat 37 (AIR V 4) (C) that the occupant of a Gayawali gaddi does not hold a priestly office or an office of a religious nature. What the occupant of a Gayawali gaddi holds in a business carried on under the name and style of the gaddi and the occupant has a right of property in both the business and the name. If that is the correct legal position, then the decisions relied on by Mr. Lal Narain Sinha have no application. The transfer which Shyam Lal Kuti made in favour of the plaintiff-respondent was not a transfer of a religious or priestly office, nor of an interest restricted in its enjoyment to the owner personally. It was the transfer of a business with its assets, good-will and name. Lal Narain Sinha have no application. The transfer which Shyam Lal Kuti made in favour of the plaintiff-respondent was not a transfer of a religious or priestly office, nor of an interest restricted in its enjoyment to the owner personally. It was the transfer of a business with its assets, good-will and name. Looked at from that point of view, it cannot be said that the transfer was invalid in law, or that it was necessary for the plaintiff-respondent to place and prove the custom of alienability. 12. For the reasons given above, I am of the view that the appeal is without any substance and must be dismissed with costs. I accordingly dismiss the appeal with costs. Imam, J. 13 I agree.