Gopal Krishnaji Ketkar vs Mahomed Jaffar Mohamed Hussein And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 May, 1953

Coram: Bose, J.

In this appeal, the second plaintiff, who had been legally adopted by the first plaintiff, challenged the order of the lower court. The underlying suit sought a judicial declaration that the second plaintiff was the guardian and vahivatdar of the Darga identified as Haji Malang, and that he alone possessed the exclusive authority to look after the Darga, to manage it, to control, direct and perform all its rites and rituals. The suit further requested a declaration that the second plaintiff was entitled to receive all offerings placed before the tomb of Haji Malang throughout the year, as well as the cash and other contributions that were at that time lying in the Kalyan Treasury under the direction of the District Magistrate of that locality. In addition, the plaintiffs asked the court to grant a perpetual injunction restraining the defendant from interfering with the second plaintiff in the exercise of those rights. The court observed several unusual aspects of the case. Both plaintiffs belonged to the Brahmin community, whereas the Darga that they claimed the right to manage was a Muslim shrine; adjacent to the tomb of the Muslim saint stood the tomb of a Hindu princess. Offerings were made at both tombs by petitioners of various faiths. During the pendency of the original suit, the first plaintiff died, and during the pendency of the present appeal, the defendant also died. The first plaintiff had not asserted any proprietary claim to the Darga; his claim was limited to being its rightful manager and mutawalli. Because he asserted no hereditary right, that portion of the dispute ceased with his death. Consequently, the only matter that remained in issue against the legal representatives of the deceased defendant, and only indirectly, concerned the past offerings that had been deposited in the Kalyan Treasury and had accumulated to a substantial sum during the course of the litigation, as well as a house that the defendant had claimed. The court noted that even this residual dispute arose indirectly because the authorities, acting under sections 145 and 147 of the Criminal Procedure Code, had attached the offerings. On 24 February 1946 the District Magistrate of Kalyan ordered that the attached offerings be kept in the Kalyan Treasury and directed that they should be delivered to whichever party a civil court would later determine to be entitled to them. The plaintiffs relied on this order as one of the principal reasons for instituting the suit. The shrine itself possessed a history that the court described as curious and, in certain respects, legendary. Its origin was lost in antiquity, but the Gazetteer of the Bombay Presidency recorded that the tomb belonged to a Muslim saint who had arrived in India as an Arab missionary in the thirteenth century. The saint’s fame remained considerable when the English first appeared at Kalyan, close to the location of the tomb, in the year 1780. The English presence lasted only two years, and their departure in the year 1782 was, according to contemporary belief, attributed to the power of the dead saint.

The English departure from Kalyan was attributed by the local people to the miraculous power of the dead saint buried in the shrine. At that time the Peshwas exercised authority over the region, and seeing an opportunity created by the English withdrawal they sent a thank-offering under the supervision of a Brahmin named Kashinath Pant Ketkar, who, according to the plaintiffs, was an ancestor of theirs. The shrine was then in a state of disrepair, so Kashinath began repairing it. Tradition records that the dead saint himself miraculously assisted Kashinath, quarried and dressed the large stone blocks that now cover the tomb without any human aid. Although Kashinath succeeded in restoring the structure, he was not satisfied with merely repairing it; he also sought to assume its management. This ambition produced hostility among the Kalyan Muslims, who objected to a Brahmin supervising a Muslim shrine. The tension was intensified because the tomb already had a hereditary Muslim manager named Hydad. The conflict reached a climax in 1817 when it was presented before the Collector, who, invoking the saint’s authority, decided that the saint’s wishes should be determined by casting lots. The lots were drawn three times, each time favouring Kashinath’s representative, and consequently the Collector declared Kashinath’s representative the guardian of the tomb. The plaintiffs assert that their family has continued to manage the shrine from that point forward.

The present suit was instituted by Radhabai, the adoptive mother of the second plaintiff, together with her adopted son Gopal Krishna Ketkar. No opposition was filed against either of them. In their pleading they explained that the substantive rights they claimed belonged solely to the second plaintiff, while the first plaintiff had been joined merely as a precaution to avoid any technical objections. The plaint does not allege any formal title other than de facto management, and it merely states, in vague terms, that “the guardianship and management of the said Darga has been vested in the plaintiffs’ family from the time of their remote ancestors.” The plaintiffs’ grievance against the defendant concerns the performance of services required at the shrine. They contend that these services are divided into two categories: those performed during the annual Urus festival and those performed during the remainder of the year. According to the plaintiffs, both categories were previously arranged by the adoptive mother and subsequently by the adopted son. Since the non-Urus services were relatively light, Radhabai would engage a Muslim individual to carry out the duties and, in return, provided him with maintenance. This arrangement continued uninterrupted until the year 1920, when the defendant requested permission to perform the non-Urus portion of the service himself.

The defendant asked the plaintiff for permission to carry out what could be termed the non-Urus part of the religious service, and the plaintiff, Radhabai, consented to this arrangement. In consideration for his performance, Radhabai allowed the defendant to collect the portion of the offerings that arose during the non-Urus period and to retain those funds for his own maintenance. When the amount collected proved insufficient to support him, Radhabai supplemented his income by providing him with rations of food. Later, as the volume of offerings increased and his need for supplemental rations disappeared, Radhabai ceased sending him food altogether. Regarding the Urus period, the plaintiffs asserted that Radhabai herself collected the offerings “as she chose” and retained them for her own use. After the second plaintiff was adopted, he assumed Radhabai’s role and continued to follow the same practice of collecting the Urus offerings for personal benefit. The plaintiffs further alleged that during the years 1945 and 1946 the defendant began to interfere with their collection of the offerings and actively attempted to prevent them from doing so. This interference gave rise to criminal proceedings under Section 145 of the Criminal Procedure Code, during which the authorities intervened, an intervention that subsequently resulted in the filing of the present suit. The defendant denied each of the allegations made against him, but he offered no explanation of his claimed rights that was more detailed than the plaintiffs’ own explanations. He merely stated that, as a matter of fact, he had acted as Mutawalli, or caretaker, since the year 1902-03, and therefore possessed a continuing right to manage the shrine. He asserted that his claim extended only to his role as Mutawalli and did not encompass any ownership right over the Darga or the dharamashalas attached to it, although he maintained that a house situated on the premises had been constructed at his own expense and thus belonged to him personally. In the plaint, neither plaintiff asserted a hereditary right to management; instead, they claimed that the guardianship and management of the shrine had, in fact, been exercised by their family from the time of their remote ancestors. Curiously, the issue framed for determination asked whether the plaintiff could prove that he was the “hereditary” manager or guardian of the disputed Darga and had acted in that capacity. The trial judge found this issue in favor of the plaintiffs, although the judgment did not specify the evidence upon which that conclusion was based. However, the decree itself limited the finding to the statement that the second plaintiff was the guardian and Vahiwatdar, and that he was entitled to receive all offerings throughout the year, including those made during the Urus. Concerning the defendant’s rights, the learned judge held that he was employed by the plaintiff, having first been taken into service by Radhabai around 1917. The defendant also claimed that he had been associated with the shrine for roughly forty years prior to the suit and narrated a story that a saint had appeared to him in a dream while he was living in Ajmer, directing him to assume charge of the Darga. He further claimed that his right to act as Mutawalli derived from that dream-inspired revelation.

The Court observed that the claim presented by the defendant, which was based on a dream in which a saint supposedly instructed him to take charge of the shrine, had been rejected. On appeal, the High Court affirmed the findings of the trial Judge. Specifically, the appellate judges noted that the plaintiffs had not pleaded any right to hereditary management in their complaint; rather, they asserted only a de facto right to manage the shrine. Although the plaintiffs attempted to establish a hereditary right during the evidence stage, that effort was also rejected. The appellate judges further held that the defendant was allowed to enter the shrine only with the consent of the first plaintiff and that his presence was merely permissive. Whether the defendant acted as a servant or in some other capacity was deemed unnecessary to determine. Consequently, the appellate court concluded that the plaintiffs were entitled to the collections on behalf of the institution.

The appellate judges then summarized their conclusions. First, they held that the plaintiffs were entitled to retain, for the purpose of the institution, the offerings made during the course of the Urus. Second, they observed that offerings made at times other than the Urus had been taken away by the defendant, and they chose not to comment further on such offerings in the present appeal. Third, they stated that the plaintiffs were entitled to take initial charge of the offerings that were made before the shrine. Fourth, they expressed no opinion on the right to serve the institution.

Based on these conclusions, the Court intended to issue an order declaring that the second plaintiff was entitled to the collections on behalf of the institution. However, the judges noted that the plaintiffs had not clearly indicated in their original complaint that the suit was filed on behalf of the shrine and in their capacity as de facto managers. The counsel appearing for the plaintiffs sought permission to amend the complaint to make that intention explicit. The judges agreed that such an amendment should be allowed. The Solicitor-General informed the Court that the judgment was temporarily stayed to permit the plaintiffs to file the amendment. An application to amend, alternatively, was filed and granted. After the amendment was entered, the judges determined that, as a result, the defendant would be entitled to file a supplementary written statement. Consequently, the judges concluded that the decree of the lower court would be set aside and the suit remanded to the lower court for further disposal in accordance with the law.

During the pendency of the suit, Radhabai passed away, and the second plaintiff appealed the remand. His principal grievance was that the suit had been sent back to the lower court. The parties covered extensive ground in their arguments, but the matters truly in dispute were confined to the limited issues identified by the Court.

The issues that required resolution were straightforward, revolving primarily around the management of the religious site and the rights to collect its offerings. The High Court had found, on the basis of the evidence, that the plaintiffs' claim to hereditary managership was not proven, and in fact it had never been pleaded in the plaint. The Court noted that because the hereditary claim was unasserted, it should not have been raised as an issue in the proceedings. The same High Court concurrently concluded that the plaintiffs and members of their family had exercised de facto management of the shrine. The Court held that such de facto control had been in place from at least the years 1886-87 and, in all probability, dated back to 1817, a conclusion supported by exhibits P-67 and P-68. The High Court also found, on the same evidence, that the defendant occupied a permissive position and possessed no independent rights of his own. From these findings arose the central dispute: first, which party possessed the primary right to collect the offerings, and second, who was entitled to the use and benefit of those monies. The parties had expressed some doubt as to whether the plaintiff could claim the entire offerings or only those gathered during the Urus days, but the death of the defendant rendered this issue moot. The defendant had never claimed the offerings for his personal benefit; his sole assertion was the right to collect the offerings and spend them for the upkeep and benefit of the Darga, the mosque, and the pilgrims. Consequently, the Court held that the funds must be retained for those specific purposes and may be transferred only to persons authorized to administer them for such purposes. The Court further ruled that the money could not be given to the defendant’s legal representative, because the defendant had not asserted any hereditary right and any managerial rights he possessed terminated with his death. This conclusion placed the defendant’s legal representative outside the jurisdiction of the suit, leaving only the question of whether the second plaintiff possessed any right to the offerings.

The Court observed that the dispute could not be resolved by applying either Hindu law or Muhammadan law, as the matter did not fall within either legal category. It noted that the structure in question was a composite edifice in which the remains of a Muslim saint and a Hindu princess were interred side by side, and there was no indication that the princess had ever converted to Islam. The defendant described the tombs in the following manner: “In the suit Darga there are two tombs, the second tomb being called Mayi’s tomb. In it is buried the dead body of a Hindu Raja’s daughter treated by Bawa Malang as his own daughter. But the Darga is known as the Darga of Bawa Malang.” The plaintiffs emphasized the cosmopolitan nature of the offerings by stating that people of all religions made contributions around the Darga, and that many individuals who died there, irrespective of being Hindu, Muslim or Parsee, were buried there when they had no heirs. The management of the shrine had historically been in Hindu hands, with assistance from Muslims, although the precise basis or terms of that management remained unclear. The Court concluded that the matter could not be governed by either Hindu or Muhammadan law; instead, it must be regulated either by a specific customary law of the shrine or, in the absence of such a custom, by the general law applicable to public religious and charitable trusts. The Court was unable to pronounce on the existence of a distinctive custom because no such custom had been pleaded, and the vague statements that had been made could not serve as a foundation for a legal finding. The plaintiffs asserted that the right of management lay in their family, but that assertion presupposed that some authority possessed the power to make a selection, and the identity of that authority remained uncertain, unless it was the Collector, who had previously intervened. The record showed that the first Hindu manager was Kashinath Pant, who had displaced a Muslim individual from that position.

The record shows that anyone who dies at the Darga, whether Hindu, Muslim or Parsee, and who has no heirs, is buried there. The management of the Darga has historically been in Hindu hands, with assistance from Muslims, but the exact basis of that management, including the rights and terms governing it, remains uncertain. Consequently, the Court observed that the matter cannot be regulated by either Hindu law or Muhammadan law; instead, it must be governed either by a special custom unique to the Darga or by the general law applicable to public religious and charitable trusts. The Court further explained that it could not make a determination on the existence of a special custom because none had been pleaded, and the limited material that had been presented was vague and indefinite, rendering it insufficient as a foundation for a finding. The plaintiffs asserted in vague terms that the right of management resides “in their family,” which presupposes that some individual or authority possesses the power to make managerial selections. The Court noted that, unless the Collector, who once intervened, is the authorized authority, the identity of such a person cannot be ascertained. The only historical facts established were that the first Hindu manager, Kashinath Pant, displaced a Muslim manager named Hydad in the year 1817. Even if Kashinath Pant were accepted as an ancestor of the plaintiffs—a point that remains disputed—there is a long chronological gap between 1817 and 1886, during which three generations appear to be missing from the plaintiffs’ genealogical tree. After Kashinath, the management passed to the husband of Radhabai, and subsequently, rather than passing to Radhabai herself, it transferred to the widow of his brother, Laxmibai. From Laxmibai the management reverted to Radhabai, and thereafter to the second plaintiff. The Court then turned to the question of the offerings made at the Darga. Even if the plaintiffs’ claim to collect those offerings is accepted, it is unclear for whose benefit the collections are intended, how the funds are to be used, and for what purposes. A notice dated 4-4-46, which the plaintiffs served on the defendant before the suit, claimed that the income could be utilised “according to their sweet will.” The notice made no indication that the plaintiffs were obligated to spend any portion of the income on the trust; rather, the language suggested that they regarded the entire property as their private possession and asserted a hereditary right to the income “from generation to generation.” While the plaint softened this claim, the evidence revealed that the second plaintiff asserted a right to retain any surplus after meeting the “expenses.” However, the same plaintiff also claimed, in his capacity as manager, the authority to determine the extent of those expenses, leading the Court to find this arrangement unsatisfactory, particularly because the Darga appears to be a public trust. The Court explained that a “de facto manager” or a “trustee de son tort” possesses certain limited rights. Such a person may sue on behalf of the trust and for its benefit to recover properties and monies in the ordinary course of management. Nonetheless, the Court cautioned that merely because a person functions as a de facto manager does not automatically entitle him to recover a specific property or sum of money that would otherwise be lost to the trust, for

The Court observed that a person who acts on behalf of a trust and for its benefit in the ordinary course of management may recover property or money for the trust, but it was a different matter to say that such a person could continue to manage the trust indefinitely without any legal title. The Court expressed reluctance to make a sweeping declaration that would grant an indefinite “de facto” right of management without any vestige of title.

It was noted that the Darga in question was not private property. The shrine had existed for about seven hundred years before the ancestors of the plaintiffs arrived, and a Muslim caretaker was recorded as managing it in 1817. Over the long period, and especially after a Hindu princess was buried beside the Muslim saint, it was possible to infer that the shrine may have originated from a lawful source whose details were now lost, and that it could be reasonable for a Hindu manager to retain a portion of the offerings for himself. However, the Court stressed that the property had not been transferred to the plaintiffs’ ancestors as a personal gift, nor could the Collector have lawfully done so. The Collector’s only act was to settle a dispute and, with or without authority, to decide that Kasinath Pant had the right to manage the shrine, which was the entire claim of Kasinath Pant. From that time until the notice dated 4-4-1946, no adverse claim, even to the offerings, had been raised. The Court further acknowledged that the public had taken an interest in the shrine: a dharamshala and other facilities had been constructed by members of the public, including a Parsee, and the shrine attracted large numbers of visitors, particularly during the Urus festival. The Court considered it undesirable to allow the situation to remain uncertain, with no one knowing where the legal right of management lay, how those rights might devolve, or how the substantial charitable offerings collected should be distributed and used.

Having been informed by the learned Solicitor-General that a suit under Section 92 of the Civil Procedure Code was being contemplated, the Court issued interim directions without prejudice to any future proceedings. First, the existing arrangement for collecting and disposing of the offerings was to continue for six months from the date of the judgment. Second, during that period the offerings already collected and those in deposit were not to be handed over to the second plaintiff except to the extent necessary to meet expenses; the legal representatives of the defendant had no right to those offerings. Third, if a suit under Section 92 were filed within the six-month period, the offerings and collections were to be disposed of in accordance with the scheme and directions that might be framed in that suit.

If no suit under Section 92 is filed within the six-month period prescribed, the second plaintiff will continue to hold certain rights concerning the Darga’s offerings. The second plaintiff has been acting as the de-facto manager of the Darga from 13 November 1938, the date on which he was formally adopted, up to the filing date of 7 October 1946. Consequently, he will be entitled to receive the amounts presently deposited in the Treasury on behalf of the Darga and to retain that entitlement for future collections. He may collect all offerings throughout each year on behalf of the Darga and for its benefit until a person with a superior title or a court-derived authority replaces him. The Court then set aside the earlier order of remand, observing that such an order was unnecessary in the present circumstances. Although the plaintiffs had earlier asserted personal rights over the offerings, they failed to include that claim in the plaint, and they also did not specify the relief in the proper legal form. Nevertheless, the factual basis upon which a properly framed relief could have been granted was fully detailed, rendering the amendment merely a formal correction. The Court noted that, had the learned High Court judges considered a reply by the defendant to the amendment necessary, they themselves should have summoned such a reply and then decided the extent of any further proceedings. Each party was ordered to bear its own costs, and the Court declined to award costs to the second plaintiff because he had initially asserted a personal right, withdrawn it in the plaint, and later revived a claim to the residual amount after expenses. Finally, a certified copy of this judgment will be dispatched to the Advocate-General of Bombay.