(Prayer: Appeals (disposed of on 30-10-1941) against the decree of the Court of the Subordinate Judge of Tanjore dated 29-1-1938 and passed in O.S. No. 26 of 1932 etc.)

Abdur Rahman, J.

App. No. 163 of 1938 and 37 of 1939 :

These are two connected appeals. They arise out of two cross-suits one of which O.S. No. 26 of 1932 was brought on behalf of the Secretary of State for India in Council against one Krishnaswami Naidu and others and the other O.S. No. 57 of 1932 by Krishnaswami Naidu against the Secretary of State for India in Council to which some of the defendants in the first suit were also impleaded and a decree either in the plaintiffs favour individually or jointly with the other defendants was asked for. The suit on behalf of the Secretary of State for India was instituted first and the whole of the evidence, documentary and oral, on which both the suits were decided was produced in this case, the judgment in the other suit merely recording the findings arrived at in O.S. No. 26 of 1932.

O.S. No. 26 of 1932 was instituted on behalf of the Secretary of State for India in Council for a declaration that the properties described in the schedule appended to the plaint which belonged to one Viralimalai Sadasiva Swamigal, a Sudra ascetic who resided in Tirupavanam in the Kumbakonam taluk and died on the 5th December 1926 without leaving any heirs, had devolved on the Government by escheat. It also contained a prayer for delivery of possession of such of the items of property as happened to be under the control of the various defendants. A decree for past and future mesne profits was also asked for.

The only case put forward on behalf of the Secretary of State for India in Council in the plaint as to the title under which the Swamigal held the items 1, 2 and 3 mentioned in the plaint schedule, which form the subject matter of the present appeal, was that he had been in possession of them as owner for more than twelve years although an attempt was made while the suit was going on to clothe the Swami with a title under a gift made in his favour by defendants 1 to

3. This suit was contested by the 1st defendant as also by defendants 2 and

3. The other defendants also contested the suit but in so far as they have not appealed against the decree passed against them, it is unnecessary to consider their defences now.

The 1st defendant denied the allegations that the Swamigal had owned or dealt with these properties in that capacity. The first of these properties is a building that was alleged to have been constructed by the 1st defendant with the aid of family funds in honour of the Swamigal, for the propagation of his cult and for the worship of the deity to be installed on the sacred remains of the Swamigal after he attained perpetual samadhi but it was alleged before this building came into existence a cattle trough and water pandal and bhajana mutt had been in existence in the south-west corner of the premises and a portrait of Rama was installed therein and bhajana and worship were being regularly conducted there. It was not denied that the Swamigal, during his lifetime, was permitted by the 1st defendant and his brothers to stay there and perform his yogic nishtai and that immediately after his internment, a Sivalingam was set up over the samadhi , a balipeetam and nandi were installed in front after they were duly consecrated and that daily worship and annual gurupuja had been conducted ever since. The other two items consist of wet and dry lands. They were alleged to have belonged to and to have been in the exclusive possession and enjoyment of the 1st defendant and that of his son Chittukutti, his brother Jayaram Naidu, his uncles son Balasundaram Naidu and the members of their families. The defendant in the alternative claimed that even if the aforesaid allegations were not found to be established, the suit was liable to be dismissed as the 1st defendant had inherited these properties as the chief disciple of the said Swamigal according to law and long established custom among the Tamils and was in any case entitled to remain in possession as a founder and entitled to management of the same. Paragraph 5 of the plaint which contained the ground on which the suit was brought and which therefore contained the allegations that the Swamigal had died without leaving any heirs or blood relations or sishyas was specifically denied and formed the subject matter of a separate issue (issue 3).

The learned Subordinate Judge of Tanjore found the Swamigals title to all the three items of property established on account of prescription although the validity of the gift on which some reliance was placed on behalf of the Secretary of State for India during the trial was found against both on the ground of want of registration, and in the absence of proof as to the financial condition of the family, and therefore, of its being within the competence of its manager. As the Swami was found to be the owner of the aforesaid three items of property and to have died without leaving any heirs or blood relations or sishyas , the suit instituted on behalf of the Secretary of State was decreed and the one brought by the 1st defendant dismissed. This decision has given rise to the two appeals which are now before us for disposal.

As the suit was instituted by the plaintiff on the ground that the property had devolved on the Government by escheat, it has first to be ascertained whether the necessary requisites for the establishment of that title have been made out. And both because the plaintiff has come to Court to enforce a right dependent on the existence of certain facts asserted by him and because he would fail if no evidence were adduced on either side, the burden of proving such facts lies on him regardless of the question whether the allegation made by him is affirmative in character or a negative one. If a party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. The distinction between the denial of an affirmative allegation and the assertion of a negative fact and bet ween the proof of the existence or non-existence of a fact and disproof of its existence or non-existence are obvious and should not be lost sight of. There is however no doubt that the degree of proof in regard to affirmative and negative facts must be, in the nature of things, different although in either case the Court has after considering the matters before it, to make up its mind whether it does or does not believe in the existence or non-existence of a fact which has to be established or considers its existence or non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act under the supposition that it exists or does not exist. When an affirmative fact is to be established, direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency; but when a negative fact has to be proved, it may be that in a large number of cases no more than prima facie evidence as to the non-existence of the fact that is alleged not to have existence is available or can be adduced and in such cases, a plaintiff can be expected to do nothing more than produce such evidence to substantiate his allegations prima facie .

In cases where the Crowns title to get a property rests not in possessing any special qualification (barring of course of its being the sovereign which is, in this case not disputed and is in fact indisputable), but in the assertion that no other preferential claimant was in existence at the time of the last owners death, the onus of proving that no such person was in existence would lie on the plaintiff and since a negative fact has to be established by him, the prima facie proof of such non-existence would be obviously enough. But that proof must be of such a character that firstly it may put the matter beyond any reasonable doubt, thereby discharging the onus probandi and secondly of such a nature as may shift the burden of proof on to the defendant to rebut the evidence adduced on behalf of the plaintiff which, if not rebutted, would entitle the latter to the relief he has asked for.

In dealing with the law of devolution of property by escheat, their Lordships of the Judicial Committee observed in the Collector of Masuliptam v. Cavali Vencata Narrainapah (8 M.I.A. 500 at 525), as follows:

According to the law administered by the Provincial Courts of British India, on the death of any owner, being absolute owner, any question touching the inheritance from him of his property is determinable in a manner personal to the last owner. This system is made the rule for Hindoos and Mohamadans by positive regulation; in other cases it rests upon the course of judicial decisions. But when it is made out dearly that by the law applicable to the last owner, there is a total failure of heirs, then th e claim to the land ceases (we apprehend) to be subject to any such personal law; and as all property not dedicated to certain religious trusts must have some legal owner, and there can be, legally speaking, no unowned property, the law of escheat intervenes and prevails, and is adopted generally in all the Courts of the country alike. Private ownership not existing, the state must be the owner as ultimate Lord. Consequently, the claim of the Government, in the present instance, might have been considered with reference to this principle.

In a second case to which our attention was drawn, the Lord Chief Baron of the Exchequer is stated to have observed to the following effect during the course of the arguments in Girdhari hall Roy v. The Bengal Government (12 M.I.A. 448).

In this country in a Writ of Intrusion, or Ejectment, the Crown must, to take lands by escheat, prove that there was an entire failure of heirs, and so also a Lord of a Manor with respect to Copyholds on the death of a Tenant without heirs and cannot rely on the want of title of the party in possession. The Government must show a good title. Here they have shown none.

And in, delivering the decision of the Board, Sir James Colville, while reversing the decree of the High Court of Calcutta, observed at page 469,

The respondent, therefore, was in the position of a plaintiff in an ordinary suit in the nature of an ejectment. The Government could only recover by the strength of their own title. Accordingly, it lay upon the plaintiff to prove, at least prima facie , Woopendro Chunder Roy died without heirs; and, on the other hand, the appellant was entitled to defend his possession not only by proof of his own title; but by setting up any jus tertii that might exist. By an alternative plea he did set up such a bar to the respondents suit; and the title of those persons, who he says, are, failing himself, the heirs to Woopendra Chunder Roy, has never yet been determined. The decree under appeal would remit the cause to the Judge, in order to allow those persons who, according to the practice in India, have intervened as objectors, to litigate their title with Government, casting, apparently, the burden of proof on them. But it seems to deprive the appellant of his right to defend his possession, on the ground of an existing jus tertii .

These decisions were followed by this Court in the Secretary of State for India in Council v. Subraya Karantha (2 L.W. 1175) and Kesar Singh v. Secretary of State for India in Council (49 Mad. 652 (668) = 24 L.W. 878) and by the Bombay High Court in Ganpat Rama Joshi v. Secretary of State for India in Council (45 Bom. 1106). The decisions in Deo v. Griffin (15 East. 293 = 104 E.R. 855) Greeve v. Greenwood (L.R. 2 Ex. D. 289), Mst. Chunna Kunwar v. Lal Mukat Behari Lal (A.I.R. 1934 All. 117), and Rama Row v. Kuttiya Goundan (40 Mad. 654 = 3 L.W. 331), although not in respect of a claim by the Government by escheat, lead to the same conclusion.

Learned Counsel for the respondent relied on the decision in Secretary of State v. Dugappa Bhandari (A.I.R. 1926 Mad. 921) [LQ/MadHC/1925/388] . But we find nothing in that judgment which lays down the law any differently. In fact, it follows the decision in Girdhari Lall Roy v. The Bengal Government (12 M.I.A. 448) although according to the circumstances established in the Secretary of State v. Dugappa Bhandhari (A.I.R. 1926 Mad. 921) [LQ/MadHC/1925/388] the learned Judges held the onus of proof, initially and correctly placed on the Government, to have been discharged.

The question therefore to decide is if the Government has succeeded in establishing, even prima facie , that the Swamigal had died without leaving any heirs that could have succeeded to his property before it could be claimed by the Crown. The evidence adduced on behalf of the plaintiff is extremely meagre and unconvincing. The learned Subordinate Judge held that the Swamigal was not governed by any special rules of succession and as he was found to have died intestate and there was no evidence on the record that he had left any blood relations (vide para. 91 of the judgment), the third issue was decided in favour of the plaintiff only because during the interval of six years (i.e., between 1926 when the Swamigal died and 1932 when the present suit was instituted), no relation or sishya had come forward to claim his estate. Learned Counsel for the respondent wished to rely before us in addition on the notifications published in the Tanjore District Gazette calling for claims to the properties which were, according to the Divisional Officers under whose directions the notifications were published, liable to escheat to the Government. But neither of these two circumstances is enough in our opinion to discharge the onus probandi that lay on the plaintiff. The lapse of a period of six years is not sufficient to draw the conclusion that the Swamigal had left no heirs. Nor is the publication in the local Gazette in Tanjore, to which place the Swamigal did not originally belong, enough to presume that the Swamigals relations, if any, must have come to know of his death or of the Governments notice asking for claims to his estate.

As to the oral evidence, the less said the better. P.W. 1, who in his examination in chief deposed to the fact that the Swamigal had left no heirs or sishyas , had to admit in his cross-examination that he did not know where the Swamigal was born or who his parents were. He does not profess to know any of the Swamigals relations. P.W. 4 stated in his cross-examination that he was not acquainted with the Swamigal and did not know if any relations of his were alive. P.W. 5 stated that the Swamiyar had left no heirs as according to the witness he had no disciple. P.W. 8 did not state that the Swamigal had left no heirs and denied having any knowledge of the place where or of the parents to whom he was born. This is the whole of the evidence adduced on behalf of the plaintiff and it is impossible for us to come to the conclusion on this evidence that the plaintiff had succeeded in establishing that the Swamigal had died leaving no heirs.

This is enough to dismiss the plaintiffs suit. But inasmuch as two other questions were debated before us by learned Counsel for the parties on which the decision of the Courts was expressly invited, it would be better to dispose of them as well. These questions were:

(1) whether the properties in suit were not bequeathed to the Swami personally by means of two gifts but were endowed to the math or asram which had come into existence and the Swami had, as alleged by the defendants intended to take them for the purpose of the math

(2) whether the 1st defendant was a sishya or disciple of the Swami and was entitled to succeed to him in preference to the Crown

As to the first question it has to be remembered that we are dealing with a Swami, who, according to the common case of the parties, was an ascetic. Moreover, the witnesses produced on behalf of the plaintiff described the first item of property to be a matam and admitted that the Swami was buried in it and that a Sivalingam had been installed over his tomb. It was not denied that the gurupuja was performed in that building every year and that feeding took place on every Dwadasi day. It was also admitted by P.W. 4 that one Sundaresa Iyer lived in the matam and had been performing the puja both during the lifetime of the Swami and after his death. Even before the present building came into existence there used to be a bhajana matam with the picture of Rama and puja used to be performed in it. It is true that according to the inscription, Ex. A, the property was said to have been donated to Sadasivaswami who was authorised to hold and enjoy the said property with all rights and according to the inscription, Ex. A-1, the other two properties were said to have been set apart for the expenses of puja, deepam and establishment charges for the Swami at the Samadhi Asram that was built and endowed for the said Swami; but these exhibits do not comply with the provisions of S. 123 of the Transfer of Property Act or of S. 17 of the Registration Act and cannot be, for that reason, admitted in evidence to prove the gifts in favour of the Swami but may be referred to for the collateral purpose of ascertaining the nature of his possession.

The facts that the work of building and repairing is referred to in Ex. A as tiruppani, the compound wall of the Asram as tirumadil, the building in the first item of property referred to as hermitage building and the other two properties in Ex. A-1 as having been set apart for the expenses of puja, deepam and establishment charges of the Swami at the Samadhi Asram and the gift of these properties was said to have been made for Swami puja etc., lead us to conclude without any difficulty that the object of the donor was to erect and maintain a math and the property was endowed for the maintenance of the math and that not being the property of the Swami he was holding it for the benefit of the institution. It was contended by the learned Counsel for the respondent that there was no math in existence before and the first item of property was constructed before the bhajana matam was commenced or even before the picture of Rama was placed therein but these objections cannot anyhow be raised in regard to the other two items of property which were endowed with the object of carrying on the work in the first item of property. As for the first item of property, the intention to endow it as a math was clearly indicated by the very nature of the building and by the purpose for which it was constructed and is fully corroborated by the use to which the building was and has been put after its completion. The property was brought into existence with the manifest intention of the Swami performing his yogic nishtai and for the advancement of his spiritual teachings. A Sivalingam was set up over his samadhi , a balipeetam and nandi were installed after they were duly consecrated soon after his internment in the space provided in the building from the beginning and a daily worship and annual gurupuja have been conducted there ever since. If the Swami cannot be said to have acquired these items of property for himself which, in our opinion, he cannot be said to have done, there can be no question of his having been in adverse possession of the property for his own benefit during his lifetime.

The validity of the gifts on behalf of the defendants was also attacked on the ground that the 1st defendant who was the manager of the joint family had no power to make a gift of the property belonging to the family as the family was not rich enough and the gift to the extent of the property to which it was made could not therefore be upheld. The lower Court upheld that contention for there was no reliable evidence to show the total extent of the family estate or of its income and the proportion that the properties handed over to the Swamigal bore to the entire estate owned by the family. This was because the onus of establishing that the gift by a manager of a joint family to the Swami was not in excess of the extent to which it could have been validly made was held to lie on the plaintiff. It seems to be doubtful but it is unnecessary, in this case, to decide whether the onus was, in view of the fact that the defendants were actually in the know of the financial condition of the family and of its possessions, rightly laid on the plaintiff. But the fact remains that the family did not continue to remain in possession of the properties in dispute and that the Swami was in possession of the same although not for himself or for his own benefit but for the benefit of the math. If the math was in possession of the property through the Swami as of right for over twelve years, the title would be, as against all the persons including the defendants to the suit, complete and the property would thus come to vest in and belong to the math. We are thus of opinion that all the three items of property belong to the math. We are confirmed in this conclusion by the conduct of the 1st and other defendants in relation to these properties and even by the claim which was, at any rate, made by one of them as a sishya of the Swami.

As for the second question, we have been taken through the evidence and having regard to the unsatisfactory nature of the defendants evidence, we find ourselves in complete accord with the trial Judges finding that the 1st defendant has not succeeded in establishing that he was a sishya and could not, therefore, be held entitled to succeed to these properties in his capacity as such.

The question then is as to what order should be passed under the circumstances. The plaintiffs suit has to fail as all the three items of property have been found to belong to the math that was brought into existence by the Swami and because he has failed to establish that the Swami had died leaving any personal property of his own without any heirs or sishyas . The 1st defendants suit has to be dismissed and his title to remain in possession of the property has to be negatived as the property is found to be no longer his or that of the joint family and he is not found to be a sishya .

We think the only suitable order that we might pass in the circumstances is to appoint a receiver who would remain in possession of the property and to run the institution on the lines that it had been run so far until a scheme is framed by the Madras Hindu Religious Endowments Board whom we direct to take proceedings for framing a scheme for the proper administration of the math and of its properties. The receiver will remain in possession of the property until that time and will submit six-monthly accounts to the trial Court. After a scheme has been framed by a competent authority, the possession of all the properties belonging to the math and of any money that may be in his possession will be delivered by him to such person or persons as may be appointed under the scheme to take possession of the institution and of its properties. The appointment of the person who is to function as such and the terms on which he is to be appointed are being left to the trial Court after hearing the parties to the suit. We may state that the learned Government Pleader on behalf of the Government stated that in case we are against the Government and declare also that a valid religious trust has been created, the Government would surrender the moveable property and the immoveable property other than items 1 to 3 herein which were decreed to them for the trust. We do not wish to suggest that the 1st defendant may be appointed as a receiver but we do wish to make it clear that nothing which we have said in this judgment would debar him or the members of his family from submitting their claims to the appointment of that office. They were at one time the owners of the property and had it not been for their munificence, this charity would not have come into existence. Appeal No. 163 of 1938 is accordingly accepted and Appeal No. 37 of 1939 dismissed. But having regard to the special circumstances of this case, we leave the parties to bear their own costs throughout.

In the circumstances we are not called upon to consider the right of a disciple or of a sishya to inherit his gurus property on account of mystic relationship existing between them. The decisions in Ramchandra Martand Waikar v. Vinayek Venkatesh Kothekar (42 Cal. 384 = 1 L.W. 831 (P.C.), Sambasivam Pillai v. Secretary of State for India in Council (44 Mad. 704 [LQ/MadHC/1921/47] = 13 L.W. 638), and Baba Kartar Singh Bedi v. Dayal Das (A.I.R. 1939 P.C. 201), as also the observations in regard to succession of the disciple or a fellow student at page 120 of Saraswathi Vilasa by Foulkes need not therefore be considered.

Cross-objections were filed on behalf of the Government in regard to item 7 of the plaint property against defendants 7 to

9. They were not impleaded by the 1st defendant in Appeals Nos. 163 of 1938 and 37 of 1939 but were added at the instance of the plaintiff as parties by an order of this Court dated the 24th July 1939 in C.M.P. No. 1667 of 193

9. Learned Counsel for these respondents objects that in so far as his clients were not impleaded in the main appeals, it was not open to the Secretary of State to file these objections under O. XLI, R. 22, Civil Procedure Code, particularly when there was nothing in common between them and the appellants as to the reliefs claimed by the Secretary of State. Reliance was placed by him in this connection on a decision of Curgenven J. in Venkatanarasimharao v. Krishnabayamma (A.I.R. 1929 Mad. 479) [LQ/MadHC/1928/270] where it was held that if A did not file an appeal against B, not himself an appellant and the time for so doing had expired, the former, i.e., A could not have B added for the purpose of filing memorandum of objections although the appellate Court may have, upon very unusual grounds, jurisdiction to do so. To more or less the same effect is the decision of the Allahabad High Court in Sabiri Begum v. Radha Kishan (57 All. 580) but with the exception that a cross-objection would not be incompetent, according to the learned Judges who decided that case, where there is a community of interest between the appellant and a co-respondent against whom they are proposed to be filed. One of us sitting alone has taken a different view in Guzulu Devendra Iyer v. P.C. Muthu Chettiar (47 L.W. 760) and having regard to the words of the rule, we are not prepared, with great deference to the learned Judges who decided the two cases cited above, to negative the right of a respondent to file cross-objections against another co-respondent either wholly or even partially. If a respondent although he may not have appealed from any part of the decree, is not only authorised under the terms of that rule to support the decree on any of the grounds decided against him in the Court below but also to take any cross-objections to the decree which he could have taken by way of appeal, what does it matter whether the cross-objections which he intended to file are not directed against the appellant but against one of the parties to the suit who were not made parties to the appeal If he could get his grievance existing against a decree redressed by filing an appeal against a party to the suit, he can do the same by way of cross objections as well although they do not happen to be directed against an appellant or happen to be directed against a party to the suit, whether that party might or might not have been added as a party to the appeal. While it may be possible to defend the view taken by Curgenven J. in Venkatanarasimharao v. Krishnabayamma (A.I.R. 1929 Mad. 479) [LQ/MadHC/1928/270] on the ground that if a decree has become final in favour of a party by the failure of an appeal having been preferred against it within the period prescribed by law and should not for that reason be permitted to be attacked by a respondent who did not choose to file an appeal against it, it is not easy to agree with the Allahabad decision as to the maintainability of a cross objection only in cases where there is a community of interest between the appellant and a respondent who has not been impleaded as a party and the time for preferring an appeal against him has expired. As to the view taken by Curgenven J., which as we have already observed is the more logical of the two, our difficulty in accepting it arises on account of the general words used by the Legislature in O. XLI, R. 22, Civil Procedure Code. While this rule entitles a respondent to file objections in cases where he could have filed an appeal, Curgenven J. would introduce a restriction and suggest that it is not open to him to do so, if the party against whom he intends to file objections was not impleaded by the appellant or had not, in any case, come on the record before the period of appeal against him had expired. To read the words of the rule in such a way would be tantamount to adding something to a statute which we are not authorised to do. We would, therefore, overrule the objection raised on behalf of defendants 7 to 9 that these cross-objections were not competent. But having regard to our finding in the main appeal that the Secretary of State has failed to establish his title, they must be dismissed on the same grounds on which Appeal No. 163 of 1938 has been accepted. Having regard to the circumstances, however, we would leave the parties to bear their own costs.

Appeal No. 329 of 1938 :This appeal was filed by the 5th defendant on the ground that a decree for accounts should not have been passed against him when the 6th defendant was found to have been in possession and management of items, 5, 6 and 8 of the property as an agent and on behalf of the Swami. Since we have come to the finding that the plaintiff has failed to establish his title to any of the properties in suit, this appeal must also be accepted. But having regard to the circumstances of the case, we would do so without allowing any costs to the appellant. The decree of the lower Court ordering the appellant to render accounts is vacated.

We direct a copy of this judgment to be sent to the President, Madras Hindu Religious Endowments Board, for taking the necessary action for framing a scheme for the math.