Day 33 Arguments: 26 August 2019

The Supreme Court is hearing final arguments in the appeals against the 2010 Allahabad High Court judgment. The judgment divided the disputed land title equally among the Nirmohi Akhara (suit number 3), Sunni Waqf Board (suit number 4) and Ram Lala (suit number 5 filed by DN Agarwal).

 

Today, Senior advocate Sushil Jain resumed arguments on behalf of the Nirmohi Akhara. On Friday 24 August, he altered his orginal argument. Now the Akhara no longer claims the title and rather claims shebaitship rights (rights to manage the temple). The bench expressed frustration and indicated that he was contradicting the Akhara's original written statement.

 

Jain primarily focused on two arguments today. He submitted that ideally a shebait should represent a deity in a legal suit. The implication being that the Akhara should represent Ram Lala (and Ram Janmabhoomi) and not DN Agarwal (file suit number 5). Second, he argued that the Akhara was not making any claims in opposition to the deity, despite arguing that DN Agarwal's suit is not maintainable. 

 

Morning Session

SK Jain presented the court with relevent documents to support the claim that the Nirmohi Akhara is the shebait of the idols and temple. He orally presented the documents and didn't adduce any text.

 

He presented the alleged fact that no Hindu party has objected to the Akhara's shebait claim. He submitted that not only does this support the fact that the Akhara is the shebait, but further that the Akhara was not making adverse claims against the deity.

 

Justice Bobde asked whether there were any other significant claims by the Akhara that had not been disputed. SK Jain submitted that no Hindu party had disputed the Akhara's possession claims.

 

Justice Bobde asked whether the Nirmohi Akhara will exclude others from worshipping. SK Jain said that this would go against the Akhara's duties. 'You are claiming that you are also entitled to collect the offerings', Justice DY Chandrachud asked the Akhara. SK Jain responded affirmatively.

 

SK Jain proceeded to argue that DN Agarwal (suit no. 5) recognises the shebait rights of the Nirmohi Akhara. He submitted that DN Agarwal had relied on the written statements of Paramhans Ramchandra Das (plaintiff suit number 2). Ramchandra Das recognised that the Akhara was managing the temple. SK Jain argued that Das accepted the Akhara's shebait rights. He inferred that hence DN Agarwal also recognised them.

 

SK Jain went off on a tangent to describe how the British archaeologist Patrick Carnegie's 1870 report made reference to the Akhara. Justice Chandrachud directed SK Jain to present documents directly relevant to the Akhara's shebait claim.

 

SK Jain substantiated his claim that none of the Hindus parties disputed the shebait claim, by referencing Justice S Agarwal's observation in the 2010 Allahabad High Court judgment. Justice S Agarwal had observed that the Nirmohi Akhara managed the worship of the idol at the Ram Chabutra.

 

SK Jain proceeded to demonstrate the shebait claim by taking the court through various civil disputes concerning properties around the disputed structure, wherein the Akhara or its mahants were litigants. His argument being that the fact that the Akhara litigated demonstrates that it was responsible for managing the site. He referred to the 1885 suit, to which Mahant Rahubar Das was a party. He submitted Das was a member of the Akhara. 

 

Jain returned to P Carnegie, referencing his 19th century sketch of Faizabad to establish that the Akhara's name has continuously being in the historical records. Further, he read out accounts that reference the Akhara in gazetters.

 

Justice Bobde stated that this did not establish the Akhara's shebait rights. SK Jain argued that the accounts establish that the Akhara was in possession of the site. He submitted that references to a 'property Hindu' should be read to mean Nirmohi Akhara.

 

He referenced an agreement reached in 1900 whereby the Akhara was made responsible for providing water to travellers. SK Jain argued that this was an example of the Akhara performing its duty as the shebait. 

 

He reitterated his argument that DN Agarwal (plaintiff number 3 in suit number 5) could not maintain his suit as the deity's 'friend'. He argued that DN Agarwal's statement indicates that Agarwal is not a worshipper.

 

Afternoon Session

After lunch, SK Jain began by reitterating that the Akhara's suit is limited to the inner courtyard. He suggested that no decrees should be passed with regards to the outer courtyard, which he submitted is in the possession of the Akhara.

 

He submitted that there is nothing to suggest that any other party has managed the temple or had any shebait rights. 

 

He presented more historical documents to show the presence of the Nirmohi Akhara (not disputed after 1950) and their management of the temple/idols:

  • cross-examination of witnesses, such as as Abhiram Das, Dharam Das
  • Chief Justice BK Mukherjea's law lectures

 

The bench noted the fact that devotees were only allowed to give prayers at the railing and access to the dome was locked. Sushil Jain submitted that the key were with the Akhara, reading documents where a witness notes that the locks were in control of the Akhara.

 

SK Jain argued that management of the Akhara cannot be disputed. Further, he argued that if the Akhara permitted access to other Hindus to the site, it did not thereby forefeit its management rights.

 

He returned to the maintainability of suit number 5 (Ram Lala) through plaintiff number 3 (DN Agarwal). He argued that at the time DN Agarwal filed his suit, there was no indication in the pleadings that the already working shebait (allegedly the  Nirmohi Akhara), had ceased working in the interest of the deity. He argued that therefore, DN Agarwal could not maintain his suit as the 'next friend' of the deity.

 

Jain clarified that he did not dispute the juridical nature of Ram Lala nor the Ram Janmabhoomi. Justice Chandrachud specified that the Akhara's written statement specifically denies the juridical personality of plaintiff 2 in suit number 5 (Ram Janmabhoomi). Justice Chandrachud stated that it was unecessary for him to oppose DN Agarwal, 'there is nothing stopping you from being a shebait'.

 

Jain submitted that past judgments have established that a shebaitcan file a suit for the recovery of a deity's property without impleading the deity. Justices Bobde and Chandrachud raised the issue of the Akhara's suit being adverse to suit number 5 (Ram Lala's). SK Jain reiterrated that he was only opposed to DN Agarwal acting as the next friend of the deity. 

 

SK Jain proceeded to read out excerpts of judgments on the nature of shebait rights [1951 SCR 1125, 1954 SCR 1005].

 

Justice Chandrachud sought to clarify Jain's argument. First, ideally only the shebait should represent the deity. Second, the Nirmohi Akhara has not been acting against the interest of the deity. Jain added that an idol can only be represented by someone other than the shebait, if the shebait is acting against the interest of the deity.

 

The bench rose for the day. Jain will conclude tomorrow.