JUDGMENT K.N. Srivastava, J. - This is an appeal against the judgment and decreed passed by the Civil Judge, Etah.. 2. The facts giving rise to this appeal are as follows : The plaintiffs filed the suit with the allegation that there was a Mandir in which the grand father of plaintiff No. 2 had constructed and installed the deity of Shri Dauji Maharaj. Certain property was dedicated to this deity., The plaintiff No. 2 was the Sarvarakar of plaintiff No. 1 of the dedicated property .Earlier, he had executed a gift deed in favour of some other persons. According to the defendant No. 2, Swami Nardanand Saraswati was his Guru and he was managing certain Trust Properties at Nimsar. The plaintiff No. 2 was under the influence of Swami Nardanand, who being his Guru was in a position to dominate his will. Swami Nardanand, therefore, virtually got a gift deed dated 15th of July 1965 executed by him making a gift of the endowed property in favour of Siksha Sudhar Samiti, of which Sri Nardanand was Manager. On the ground of fraud and the fact that the property being an endowed property could not be transferred by plaintiff No. 2 by gift deed dated 15th July 1965, in favour of defendant No. 1, it was prayed that the gift deed be cancelled. 3. The suit was contested by defendant No. 1 who pleaded that the plaintiff No. 2 executed the gift deed with full understanding and free sweet will, and without any fraud or undue influence and, therefore, it was not liable to be cancelled. 4. The trial court held that the property in dispute was dedicated to plaintiff No. 1. It further held that the plaintiff No. 2 was the Sarvarakar of the property in dispute. It was also held by the trial court that the plaintiff No. 2 executed a gift deed without any fraud or undue influence and out of his free sweet-will and, therefore, it could not be cancelled as by it only the Sarvarakar's right was transferred to defendant No. 1. On this finding the suit was dismissed. This finding by the trial court was also confirmed in appeal by the lower appellate court. Being dissatisfied, the plaintiffs have filed this appeal. 5. There is not much dispute that the property in dispute is a dedicated property. On this finding the suit was dismissed. This finding by the trial court was also confirmed in appeal by the lower appellate court. Being dissatisfied, the plaintiffs have filed this appeal. 5. There is not much dispute that the property in dispute is a dedicated property. The main question to be determined in this case is as to whether the rights and duties of the Sarvarakar alone were transferred by the plaintiff No. 2 by the gift deed or to the corpus of the dedicated property was transferred. The gift deed is on the file. A perusal of tile gift deed will show that in the first two lines of the gift deed there is a mention that the property is a dedicated property but later on plaintiff No. 2 mentions that he is the owner of the property and he made a recitation in the gift deed that he is making a `Daan' of the entire property to defendant No. 1. In view of this recital in the gift deed, it cannot be accepted that the plaintiff No. 2 transferred only right and powers to defendant No. 1 because in the gift deed he clearly mentions that he is making a gift deed of the corpus of the property. The property being a dedicated property could not be transferred by any Sarvarakar. There is no dispute now that the property is a dedicated property in favour of plaintiff No. 1. 6. There is another significant fact which too has not to be lost sight of at this moment because it would have much bearing on the question as to whether Swami Nardanand was in a position to dominate tile will of plaintiff No. 2. There is a clear mention in the gift deed in question that plaintiff No. 2 had earlier executed a gift deed. The persons who were deputed by Swami Nardanand as well as Swami Naranand knew of this earlier gift deed and they knew also this fact that no second gift deed could be executed unless the first gift deed was cancelled through court. In order to get over the earlier gift deed it was mentioned in the gift deed in question that the earlier gift deed only amounted to a will and it would amount to be cancelled on execution of the disputed gift deed. 7. In order to get over the earlier gift deed it was mentioned in the gift deed in question that the earlier gift deed only amounted to a will and it would amount to be cancelled on execution of the disputed gift deed. 7. Coming to the question as to whether the gift deed in question was executed by the plaintiff No. 2 with his free sweet-will, both the courts below held that Swami Nardanand was not present on the date of execution of the gift deed and had sent two other persons to get the deed executed end, as such, he was not in a position to dominate the will of the plaintiff No. 2 on the date on which the gift deed in question was executed. 8. It is admitted that Swami Nardanand was the Guru of the plaintiff No. 2. There is ample evidence on the record that plaintiff No. 2 had a religious bend of mind and was an old and infirm person. Taking into consideration his old age and mental out-look, there cannot be two opinions that Swami Nardanand was in a position to dominate the will of the plaintiff No. 2. The fact that Swami Nardanand was not present on the date of the execution of the gift deed will be of no consequence if it is borne out from the record that the plaintiff No. 2 was under the influence of Swami Nardanand and he was being made to execute this gift deed. 9. Once it was found that the plaintiff No. 2 was an old man with physical infirmities and there was fiduciary relationship between Swami Nardanand and plaintiff No. 2 of being Guru and Chela, the burden shifted on the defendant to have proved that the plaintiff No. 2 executed the gift deed with free consent and after dully understanding its contents. 10. It was argued by the learned counsel for the appellants that Swami Nardanand was the main person who could state about this fact and his non-appearance would go to show that he was not prepared to tell the truth. Both the courts below cursorily rejected this argument and observed that there was no necessity of examining Swami Nardanand as he was not present on the date of the execution of the gift deed. Both the courts below cursorily rejected this argument and observed that there was no necessity of examining Swami Nardanand as he was not present on the date of the execution of the gift deed. I have already observed that his presence on the date when gift deed was executed was immaterial. There is sufficient evidence to establish the fact that Swami Nardanand being his Guru, the plaintiff No. 2 could act according to his wishes conveyed to him through his men who were present on his behalf on the date of execution of the disputed gift deed. There is no dispute that Swami Nardanand had deputed these two persons to get the gift deed executed. 11. In this connection it has also to be borne in mind that the property in dispute was dedicate& to plaintiff No. 1 by the grand-father of plaintiff No. 2. It is true that plaintiff No. 2 had no issue. But the question will arise as to whether he could change the line of succession of Shebait of the dedicated property. I have not the least hesitation in saying that this line, if any, could be changed by plaintiff No. 2, if at all when the line or management given by the founder had come to an end. It would have been proper to move for scheme of management rather than to transfer the dedicated property in favour of defendant No. 1. 12. Both the courts below have discussed the oral evidence of the parties and have believed the defendant's evidence that plaintiff No. 2 was a party to this gift. This burden was wrongly caused on the plaintiff. I have perused the evidence adduced by the defendant and, in my opinion, the burden which was on the defendant in view of the facts stated above, has not been satisfactorily discharged by the defendant. 13. In my opinion, a trustee or a Shebait ought to apply the property according to the direction of the Trust and, as said earlier, if there was any difficulty the same could have been resolved by taking direction from the court. My above observation finds support from the commentaries of well known writer B. K. Mukherji on the Hindu Law of Religious and Charitable Trusts at page 180. The following observation at page 180 can be read with advantage : 14. My above observation finds support from the commentaries of well known writer B. K. Mukherji on the Hindu Law of Religious and Charitable Trusts at page 180. The following observation at page 180 can be read with advantage : 14. The trusts are to carry out their Administration according to the scheme and in case of any difficulty the scheme can be altered and amended by the court in such way as it considers proper. 15. The Srijib Nayayatirtha and others - Appellants v. Sreemant Dandy Swami - Jagannath Ashram, Mohunt Maharaj, Tarkeshwar and others - Respondents, A.I.R. 1941 Cal. 618 it was observed as tinder "Under the general law a mahant of a religious endowment is the head of the institution; it is he and he alone who has the power of management and administration over the whole institution, over the worship and the properties and all the officers are to be under his control and to act according to his direction in all matters concerning the institution. These powers can be curtailed by the Civil Court in a scheme framed under Section 92, Civil Procedure Code but only to the extent indicated in the scheme either express by or by necessary implication." Thus we find that it was none of his business to have transferred a corpus of the dedicated property under the garb of a transfer of right of Shewaitship. 16. In Mahant Manadeo, appellant v. Mahant Yaduvansh Deo Gopinath, respondent, A.I.R. 1969 Alld. 359 a Division Bench of this Court held that,in a religious institution the Head of the Institution has no power to bargain away his office or alter constitution of the institution. 17. On behalf of the respondents, reliance was placed on a Division Bench decision of this .Court in Dharam Karan Bahadur Asaf Jahi and another Plaintiff-appellants v. Sm. Shahzad Kunwar and others-Defendant-respondents, A.I.R. 1953 Alld. 359. In this reported case it was held that by the right of heritance the Shebaitship should first go to the nephew of the founder. In this case, a deed was executed transferring the property. It was held that the property could not be transferred and the right of shebaitship was conferred on nephew. 18. Reliance was placed on behalf of the respondent on a Supreme Court case Smt. Shahzad Kunwar v. Raja Ram Karan Bahadur, A.I.R. 1965 S. C. 254. In this case, a deed was executed transferring the property. It was held that the property could not be transferred and the right of shebaitship was conferred on nephew. 18. Reliance was placed on behalf of the respondent on a Supreme Court case Smt. Shahzad Kunwar v. Raja Ram Karan Bahadur, A.I.R. 1965 S. C. 254. The facts of this case were altogether different. In this Supreme Court case the gift deed had been made before the dedication was made and, therefore, the Supreme Court case is of no help in this case. 19. Once the dedication has been made the dedicated property could not be transferred by the Shebait under the gift deed. There is nothing on the record to show that the Shebaitship was to pass by the deed of gift plaintiff No. 2. The finding arrived by the courts below is, therefore, against the principles of law and is certainly erroneous and is not legally maintainable. 20. In the result, the appeal proceeds. It is hereby allowed. The judgement and decrees passed by the courts below are set aside and the plaintiff's suit for cancellation of the gift deed dated 15.7.1965 is hereby decreed with costs throughout.