NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE versus GOPAL VINAYAK GOSAVI AND OTHERS

S.C.R. SUPREME COURT REPORTS

NARAYAN BHAGW ANTRAO GOSA VI f' BALAJIWALE

GOPAL VINAYAK GOSAVI AND OTHERS

(S. R. DAS, C.J., S. K. DAS and M. HIDAYATULLAH, JJ.)

Charitable and Religious Trust-Test-Inference drawn from documents, if and when question of law-Burden of proof, meaning of-Admission, evidcntiary value of-Frame of suit-Deity, if necessary party-Charitable and Religious Ti•usts Act, z920 (I4 of z920), s. 5(3).

The question for determination in this appeal, arising out of suit filed by the appellant under s. 5(3) of the Charitable and Religious Trusts Act, 1920, was whether the ancient temple of Shri Balaji Venkatesh at Nasik and its Sansthan constituted charitable and religious trust within the meaning of the Act. The deity was Swayambhu and revealed itself in dream to one Ganapati Maharaj who. at its behest, brought the deity from the river Tambraparni and installed it in his house. Ganapati's rnn Timmaya, who removed the deity to Nasik, took the idol to the courts of Rulers and acquired the properties in suit consisting of lands and cash. Timmaya's eldest son obrained an extensiv.e plot of land as gift from the Peshwa and thereon built vast temple with Sabha Mandap which could accommodate no less than 600 persons and installed the deity in the first floor with staircase leading straight to it. The Hindu public has been worshipping at the temple for more than 200 years and there was no evidence to show that they had ever been excluded from it and any gift had ever been refused. The ceremonies performed in the temple were appropriate to public deity. It was admitted by the sons of Timmaya in Tahanama, executtd by them in 1774· that the Inam villages were granted for the wor,hip of the deiry and the temple belonged to the Sansthan, none of t~em having any share in it. In the Tharav Y adi of 1800, the maintenance allowance provided by the said Tahanama for the different branches of the family was described as 'Vetan'. The Inam Commissioner, functioning under Act II of 1852, recorded the Inam villages as permanently held Debasthan inams at the instance of t1.e then Sthanic and on the basis of original sanads filed by him, reversing the decision of the Assistant Inam Commissioner who had recorded them as personal inams. Those sanads were not filed in the suit. In 1931 the appellant published history of the Sansthan wherein it was clearly stated that the Sansthan was not private or family property but was the property of the deity, the members of the family being merely the managers. The deity was not made party to the suit although representatives of the Hindu public were joined as

r959 September 1111

Natayan Bhagwantrao Gosavi Balajiwale v. G11pal Vinayak Gosavi

parties under 0. r, r. 8 of the Code of Civil Procedure. The High Court, while it concurred w1\h the trial Judge in holding that the deity was public deity and that its Sansthan constituted public trust, was. however, inclined to hold that some of the properties might be per>onal properties of the appellant but refused to grant any such declaration on the ground that no effective decree could be passed against the deity in its absence. It was contended on behalf of the appellant in this court that the courts belo'v had misconstrued the document and were wrong in drawing the inferences they did and that the burden of proof had been wrongly placed on the appellant to prove by positive evidence that the deity was family deity and the properties his private properties.

Held, that the courts below were right in coming to the conclusion they reached, and the appeal must fail.

mistaken inference drawn from documents is no less finding of fact, if there is no misconstruction of the docnments and no misconstruction of documents having been proved, the appellant could not succeed.

An admission is the best evidence that an opposing party can rely upon, and, although it is not conclusive. is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous.

The expression "burden of proof " means one of two things (r) that party has to prove an allegation before it is entitled to judgment in its favour, or (2) that the one or the other of the two contending parties has to introduce evidence on contested issue. The question of onus is material only where the party on which it is placed would eventually lose if it failed to discharge the same. Where issues are, however, joined, evidence is led and such- evirlence can be weighed in order to determine the issues, the question of burden becomes academic.

In the present case, if the onus lay on any party, it was clearly on the appe!Jant to prove by cogent evidence that the admissions made by his predecessors-in-title and by him were either erroneous or unavailable and this he had failed to do. The earlier sanads, admittedly in his possession, not having been produced and those produced not being in any way inconsistent with the said admissions or the revenue records, no question of

any misconstruction of documents could arise.

Babu Bhagwan Din v. Gir Nar Saroon, (r939) L.R. 67 I.A. I, held inapplicable.

Srinivasa Chariar v. Evalappa Mudaliar, (r922) L.R. 49 I.A.

237, applied.

The entries made in the Inam Register prepared under Act II of r852, were entitled to great weight and although they could not displace actual and authentic evidence in an individual case, it was well-settled that, in absence of such evidence, they must prevail.

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Arunachalam Chetty v. Venkatachalapathi Guru Swamigal, (1919) L.R. 46 I.A. 204, referred to.

Held, further, that the vastness of the temple, the mode of Narayan its construction, the long user by the public as of right, grant of Bh~gwant~ao land and cash by the Rulers, taken along with other relevant Gosaw Bala;iwale factors were consistent only with the public nature of the endow-Gv. ment. . opal •

Narayan Bh~gwant~ao Gosaw Bala;iwale Gv. . opal • V 1nayak Gosa1

Narayanan v. Hindu Religious Endowments Board, . . . A.LR. 1938 Mad. 209, relied on.

The absence of dome or Kalas on the temple was not by

itself decisive factor as to its public/ character, nor was con-secration imperative of deity that was Swayambhu.

Nor is the temporary movement of the idol from place to place inconsistent with its public character.

Ram Soondur Thakoor v. Taruk Chun~er .Turkoruttum, (1873) 19 Weekly-Reporter 28; Hari Raghunath v. Apantii Bhikajii, (1920) I.L.R. 44 Born. 466; Prematha Nath Mullick v. Pradyumna Kumar Mullick, (1925) L.R. 52 I.A. 245 and Venkatachala v. Sambasiva, A.I.R. (1927) Mad. 465; 52 M.L.J. 288, considered.

The defect in the frame of such suit resulting from the omission of the deity as party to it, cannot be remedied by the subsequent addition of the representatives of the Hmdu Public as parties to it, and no effective decree could be passed against the deity in such suit.

CIVIL .APPELLATE JURISDICTION: Civil Appeal No.

261 of 1955.

Appeal from the judgment and decree dated April 22, 1949, of the Bombay High Court, in Appeal No. 403 of 1945, from Original Decree arising out of the judgment and decree dated August 14, 1945, of the Civil Judge Senior Division, Nasik, in Special Civil Suit No. 5 of 1943.

Purshottam Tricumda,s, Mrs. E. UdayaratMm and

S. S. Shukla, for the appellant.

R. GaMpathy Iyer, K. L. Hathi and R. H. DhelJar,

for respondent No. I.

W. S. Barlinge, Shankar Anand and A. G. RatM-

parkhi, for respondents Nos. 6 and 7.

1959. September 22. The Judgment of the Court was delivered by

Hrn!.YATULLAH J.-This appeal with certificate· Hidayatulfnh ./. of the High Court of Judicature, Bombay, has been filed against the judgment and decree of that Court

776 SUPREME COUR'l' REPORTS [1960(1)]

dated April 22, 1949, in First Appeal No. 403 of 1945, confirming the judgment and decree of the Civil Judge, Senior Division, Nasik, in Special Suit No. 5 of 1943, . H. de01ded on ugust 14, 1945. The 1gh Court made slight modification in the matter of costs, to which we shall refer later.

Bh[Naraya,n ]agwan rao Gosavi Balajiwale v. Gopal Vinayak Gosavi

agwan rao . Gosavi Balajiwale de01ded on

The plaintiff, who is the appellant here, is the des-cendn,nt of one Gan pa ti Maharaj, who was devotee one Gan pa ti Maharaj, who was devotee Gan pa ti Maharaj, who was devotee pa ti Maharaj, who was devotee ti Maharaj, who was devotee Maharaj, who was devotee of "Shri Venkatesh Balaji ". Ganpati Maharaj died in 1701 at the ripe age of 98. When Ganpati Maharaj was 72 years old, it was vouchsafed to him in dream that an image of Venkatesh Balaji would be found by him in river Tambraparni in Tirunelveli District. He found the image, brought it to his house in Junnar (Poona District) and installed it. The worship of Shri Venkatesh Balaji was carried on by him, and when he died, he left behind him three sons and daughter. His eldest son, Timmayya, at the time of his death was 12 years old. Timmayya succeeded Ganpati Maharaj and lived till 1768, when he died at the ripe age of 79. During his lifetime, Timmayya obtained several properties as presents and gifts. The present suit concerns those properties which are des-cribed in the schedules attached to the plaint. The appellant is the direct descendant of Ganpati in the eldest male line, and respondents 1 to 4 are the desc.ind-ants from Ganpati's daughter, Nagubai.

Hidayatullah J. cendn,nt of one Gan pa ti Maharaj, who was devotee one Gan pa ti Maharaj, who was devotee Gan pa ti Maharaj, who was devotee pa ti Maharaj, who was devotee ti Maharaj, who was devotee Maharaj, who was devotee

On April 23, 1942, the first four respondents made

an application to the District Court under s. 3 of the Charitable and Religious Trusts Act, 1920 (No. 14 of 1920), hereinafter called the Act, against the appellant and two others asking that the appellant be directed to furnish full particulars of the properties and their application and for accounts of the income as also of the properties during the three preceding years. The appellant in reply denied that there was trust, much less public t1·ust, and claimed the idol and the pro-perties as private. He understook to bring suit under s. 5(3) of the Act, and the suit out of which the present appeal arises, was filed on March 21, 1943. He claimed in the suit three declarations, which were as follows :

S.C.R. SUPREME COURT REPORTS

(1) It may be declared that 'Shri Vyankatesh

z959 N arayan Bhagwantrao arayan BalajitHll v. Gopal Vinayak Gosavi Hidayatullah ;.

Balaji Deity' and 'Shri Vyankatesh Balaji Sansthan' N are not legal trust as al eged y 1 the efendants an Bhagwantrao arayan their nature also is not such as alleged by the Gosavi BalajitHll Defendants. v.

(2) If the court holds that trust in the matter of

'Shri Vyankatesh Balaji Deity' and 'Shri Vyanka-tesh Balaji Sansthan' exists, then it may be declar-ed that the said trust is not public one, that the same has not come into existence for the religious and charitable purposes and that the Religious and Charitable Trusts Act (sic.)(No. 14 of 1920) is not applicable to the same.

(3) It may be declared that the Defendants for

themselves or as the representatives of the entire Hindu Community have no right and authority whatever over 'Sri Vyankatesh Balaji Devta' and Shri Vyankatesh1Balaji Sansthan' and that they or the entire Hindu Community has no right a.nd authority whatever in any. capacity whatever to interfere in the matter of 'Devta: (deity) and ' Sansthan ' or to ask for the ' Yadi ' (list) of the properties or accounts in respect of the income there-of and to a.sk for reliefs mentioned in prayer claases of the Miscellaneous Application No. 19 of 1942."

The trial Judge framed eight issues. The first two involved the declarations sought. Three others con-cerned the position of defendants I to 4, 6 and 7 in respect of maintenance, share in the right of customary worship and management. One issue raised the ques-tion whether the liluit was bad because the deity was not joined and the remaining two were consequential. The trial Judge decided all the issues against thti appellant. He held that the suit properties were not the personal or private properties of the appellant, that the plp.intiff was estopped from making such claim, th.at the deity itself was not family or private deity, and that the deity Shri Venkatesh Balaji was the owner of the properties, and that there was public, religious and charitable trust in respect of them. It was, however, held that the appellant was entitled as the hereditary &kebait to manage them.

'959 The trial Judge also gave finding that the first four Narayan defendants were e.ntitled to customary wor~hip. an?-Bhagwantrao emoluments as might be fixed by the Pu;adhikaris Gosavi Balajiwale descended from the eldest branch of Bapaji Buva and v. could be removed for failure to perform the duties Vina~;f~osavi assigned to them. The application unde~ s. 3 of the Act was held to be competent, and the suit was also Hidaya1ullah J. held to be bad in the absence of the deity. In the result, the trial Judge dismissed the suit, warding two sets of costs to the defendants. It may be point-ed out that after the suit was filed, public notice under 0. 1, R. 8 of the Code of Civil Procedure was issued and other defendants were joined, representing the Hindu Community. During the early stages of the suit, the first four defendants raised the question whether the deity was not necessary party to s1,1eh :; ;iit, and desired that the deity should be joined, represented by an independent guamian-ad-litem. This application was opposed by the appellant, who stated that inasmuch as his case was.that the deity and the properties were his personal properties, there was no need to join the deity because of an averment by the defendants that the temple was public one and the properties were public religious endowments. The trial Judge after expressing some surprise that the plaintiff should have taken this stand, acceded to his contention and did not join the deity as party. He, however, warned the appellant by his order that in case the deit.y was found to be necessary party, the suit might have to be dismissed for that reason alone.Against the decree dismissing the suit, an appeal was taken to the High Court of Bombay. The learn-ed Judges of the High Court (Rajadhyaksha and Chainani, JJ.), dismissed the appeal but modified the order about costs, directing that only one set of costs be paid to the defendants in the suit. The learned Judges traced the history of the various properties and how they were acquired, and concluded that in respect of some of the properties there was no doubt that they formed religious endowments of public nature, but in respect of others, though they were inclined to hold that they were personal properties,

S.C.R. SUPREME COURT REPORTS

they held that no declaration could be given, since the z959 deity was not party to the proceedings. They, how-ever, gran~ed i:" certificate ?f fitness under Art. l::t3 of B/:,,;::~;ao the Const1tut10n, read with ss. 109 and llO of the Gosavi Balajiwala Code of Civil Procedure, and the present appeal has v. been filed as result. Gopal

v. Gopal Vinayak Gosavi

Before dealir.g with the appeal proper, it is nece,s-Vinayak Gosavi sary to refer to certain landmarks in the history of Hidayatullah J. Shri Venkatesh Balaji and this family. As we have stated earlier, the deity was placed in his house by Ganpati Maharaj at Junnar in Poona District. Gan-pati Maharaj did not acquire any property, but in the lifetime of his son, the deity was moved from J unnar to Nasik. tradition in the family says that this was the result of dream by Timmayya, who was warned that Junnar would be burnt to ashes and the deity must be removed. Timmayya soon acquainted the people of the locality with the miraculous powers of the deity, and not content with this alone, he took the deity to the Courts of the various Rulers and also from place to place acquiring the properties in dispute, cash allowances and gifts. After Timmayya died his eldest son, Bapaji Buva, obtained plot of land in. gift from the Peshwa near the bank of the Godavari river at Nasik and built temple on it. The deity was installed in that temple, and has continued in that abode ever since. Bapaji Buva had raised loan for the construction of the temple, and substantial portion of it was paid off by the Peshwa and other Rulers like Holkar and Scindia. In Bapaji's Buva's time, large Sabha Mandap was built in the premises of the temple . to accomodate about 600 persons at the time of darshan and worship of the deity.

In 1774 family disputes arose and Tahanama (Ex. 121) was executed, whereby the right of manage-ment was vested in the eldest male member of the senior branch of the family, and provision was made for the maintenance of that branch as well as the junior branches. Again in 1800, further disputes took place in the family and Tharav Yadi (E~ 122) was drawn up. By that agreement, instead of the cash allowances for the maintenance of the branches certain

'9[59 ]villages were assigned to them. Next came the Inam Na,ayan Commission under the. Bombay Rent-free Estates Bhagwanfrao Act, 1852 (Born. 11of1852), by which in accordance Gosavi Balajiwale with the policy laid down by Lord Ben tick, all jagirdars v. and inamdars were required to prove the sources of . Gopal . their titfo and the conditions on which the jagirs· or Vsnayak Gosam mams • were l l • Th - t ss1s an t I nam omm1ss10ner · · Hidayatullah J. recorded the grant of the villages under R. 3 of Sch. B. to that Act as personal inams. Damodar Maharaj who was then the Pujadhikari or Sansthanik appealed to the Inam Commissioner, and contended that the villages were not held a$ personal inams but were Devasthan inams and could only be recorded under , R. 7 of Sch. B. The difference between the two Rules was that whereas personal inams could be held only so long as the family survived, Devasthan inams were held permanently and were to be recorded as such. The Inam Commissioner accepted this contention, and caused the entries to be changed from personal inams to Devasthan inams in respect of the villages. Damodar Maharaj died in 1885, and was succeeded by Krishnarao Maharaj, who died in 1893, whose eldest son, Bhagwantrao Maharaj died in 1900 and was succeeded by the appellant, during who8e minority the property was managed by guardian appointed by Court. The appellant became major in 1921, and took over the management of these properties. In 1929, the appellant caused history of the deity to be written and it was published by him. reference to all these documents will be necessary hereafter to consider the argument whether there was religious endow-ment of public nature, or whether the properties in dispute were privately owned. ,

, As pointed out already, the two Courts below have concurred in holding that the deity was not mere fa.milydeityin which the public had no interest, and that the properties given to the deity constituted religious and charitable endowment of public nature. Ordi-narily, such finding is finding of fact not open to further scrutiny by this Court, but the appellant con-tended that the legal inference drawn from the proved facts in the case was erroneous and point of law

S.C.R. SUPREME COURT REPORTS

therefore arose. mistaken inference from documents z959 is no less finding of fact, ifthere is no misconstruction Naraya" of the documents, and this principle should be applied Bhagwantrao to the discussion of the documentary evidence in this Gosavi Balajiwale case, because if there was no misconstruction of the v. documents,-the concurrent findings would be not of Gopal Vi~yak 'f. Gosav• law but of fact and the error, I any, equally of fact. Both the Courts below have analysed at length the Hi!l,,yatullah J. documents which number several hundreds, and have pointed out that there was nothing inconsistent in them with the contention of the respondents that there was religious and charitable endowment of public character in favour of the deity. Before us, the attempt of the appellant was to show that this conclusion was not correct and that the documents pointed to grants in favour of individuals for the time being managing the affairs of family deity. In addition to the examination of the documents, the two Courts below relied strongly against the appellant on the admissions made by his predecessors-in-title from 1774 onwards. Learned counsel for the /appellant contended that the documents were misconstrued and thus, the inference from them in which these so-called admissions were contained, was exactly the opposite of what the Courts have deduced. In this appeal, therefore, all that is necessary is to see whether the inferences are vitiated by misconstruction of the documents as such.The appellant contended that this was special suit under s. 5(3) of the Charitable and Religious Trusts Act, 1920, and that the burden lay upon the respond-ents to prove that there was religious and charitable trust of public character in favour of the deity. He contended that the two Courts below had placed the burden of proof upon him to show by positive evidence that the deity was family deity, and that the pro-perties were his private properties. According to him the defendants ought to. have proved their case, and if they failed to prove affirmatively that case, then the suit ought to have been decreed in his favour. The expression "burden of proof" really means tw-o different things. It means sometimes that party ilJ

'[[959 ]]required to prove an allegation before judgment can Narayan be given in its favour; it also means that on cont-Bha~wanirao ested issue one of the two contending parties has to Gosavi Balajiwale introduce evidence. Whichever way one looks, the v. question is really academic in the present case, Gopal Vinayak Gos . ecanse o th par t' 1es ave m ro · t uce th eir · ev1 'd ence ""' on the ques~ion of the nature. of the deity and the pro-Hidayatullah J- perties and have sought to establish their own part of the case. The two Cburts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, party must eventually fail. Where, however, parties have joinea issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. ·

In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated.

The earliest admission that the property belonged

to the Devasthan and that there was no private ownership is to be found in the Tahanama (Ex. 121) of the year 1774. This Tahanama was entered into by the sons of Timmayya Maharaj in the presence of

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Pancha.s long before the present dispute arose. It is .c959 stated there that "Shrimant Pant Pradhan and other N Sardars of (both) Nizam and Deccan (States) have Bha;;:~;ao granted in Inam villages for the purposes of Seva Gosavi Balajiwal• (worship) of Shri (deity)." It was again stated that v. the Shri's temple which was newly built on the banks Gopal Vinayak of the river Ganga (Godavari) belonged to Shri's Gosavi Sansthan and nobody had share therein. By the Hidayatullah J. Tahanama, the three brothers set part certain sum for the Seva (worship) of the deity in accordance with their practice which sum was not to be diminished under any circumstance. They, however, took small portion of the income as their own N emnuk (mainten-ance), which N emnuk was to be reduced if the income was not sufficient to meet the expenses of Shri (deity).Learned counsel for the appellant stated that the Tahanama was misconstrued by the two Courts below. He contended that this was private temple, and if anything could be spelt out from this document, it was that the three brothers constituted private trust in favour of the deity. According to him, the brothers were dividing the income which was theks. into two parts, namely, (1) for the Seva of the deity and (2) for their maintenance. This, in our opinion, is strained reading of the document as whole. This deity was " Swayambhu " and not consecrated idol. If none .of the members of the family had any interest in the Shri's temple or any shares in the pro-perties thereof, obviously the properties were not private properties, nor the idol family idol. The document clearly shows that the deity was regarded as the owner and the family were its servants. This is made clear by the subsequent document, which is the Tharav Ya.di of 1800; the N emnuk allowance which the members of the family had taken out of the income was described as V etan (remuneration) for, doing service to the deity and " Sansar Begmi " for themselves. The use of the word " Vet,an " does not indicate ownership, but on the contrary, paid service. Even as far back as 177 4 to 1800, the predecessors of the appellant con-sidered themselves as the servants of the deity, and all that they did was to make stable arrangement for the

z959 application of the funds, so that the deity could enjoy Na•ayan its own property and the servants were regularly pa.id. Bhawantyao When the Inam Commission was established to en-Gosavi Balajiwale quire into the jagirs and inams which ha.d passed into the into the jagirs and inams which ha.d passed into the the jagirs and inams which ha.d passed into the jagirs and inams which ha.d passed into the and inams which ha.d passed into the inams which ha.d passed into the the 1 [[';;· ]]. k territory of the East India.Company, Act No. 11 ofl852 op~0,;:•>a ,;:•>a was passed. The Ina.m Commission purported to be established under tha.t Act and for purposes of enquiry Hidayatullah J. as laid down under that Act. The Assistant Inam Commissioner at that time held tha.t the inam was personal one, and ordered that it be recorded as such. This was in the years 1857 to 1859. Damodar at that time went up in appeal to the Ina.m Commissioner, complaining against the record of the ina.ms as per-sona.I, and claimed that they should be recorded as Devastha.n ina.ms. His appeal is Ex. D-643 . dated March 5, 1858. He stated therein tha.t the moka.BB Amal and the jagfr and Sardeshmukhi in the villages were granted " for the expenditure on account of the Shri ". He relied on the Sana.ds, in which it was stated that the .Amals (revenue shares) were for the purpose of worship and N aivedya (food offering) to the Devasthan of Shri Venkatesh. He referred to the earlier documents to which we ha.ve referred, a.nd claimed tha.t the order of the Assistant Inam !Jom-misioner was erroneous, because the ina.ms must be recorded in the name of the deity under R. 7 of Sch. to the Act of 1852 and not under R. 3, as was ordered by the Assistant Inam Commissioner. We ha.ve already pointed out the different effect of the two Rules, and proviso (6) to R. 7 stated that no personal ina.m could be recorded permanently under R. 7. The effect of this appeal was to claim on behalf of the deity a. perma.nent recognition of its rights to the inam properties without any share on behalf of the family, apart from remuneration such as the Pujadhi-karis might from time to time settle, in accordance with the Tahanama and the Tharav Y adi of the earlier times. The Inam Commissioner acceded to this contention, and after examining all the Sana.ds that had been produced in the case, ordered that,Gosavi Balajiwale quire into the jagirs and inams which ha.d passed into the into the jagirs and inams which ha.d passed into the the jagirs and inams which ha.d passed into the jagirs and inams which ha.d passed into the and inams which ha.d passed into the inams which ha.d passed into the the

. 1 [[';;· ]]op~0,;:•>a ,;:•>a

" the order issued by Meherban, Assistant Ina.m Commissioner be annulled and under Section 7 (Bic.)

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Supplement No. 2· of Act 11 of 1852 the remaining z959 portion of this village .. ·. to remain as perpetual N Inam with the Devasthan of Shri yyankatesh... Bha;;::;ao and the management do ·remain continued from Gosavi Bijlajiwal1 generation to generation of the lineal c\escend-v. ants with the male descendants of Timaya ,Gosavi Gopal Vinayak bin (i.e. son of) Ganesh Gosavi and Apatia bin (~.e. Gosavi son of) Konher Gosa vi." Hidaya11'Uah 1.

z959 N Bha;;::;ao Gosavi Bijlajiwal1 v. Gopal Vinayak Gosavi Hidaya11'Uah 1.

The effect of all these documents therefore was to get recognition in invitum of the right of the deity as the owner. It also indicated that in the family of Bapaji Buva there were the hereditary Puja4kikaris or Sheba.its of the deity who were not entitled to any-thing more than reasonable remuneration for their services of the deity,

In the year 1907 when the plaintiff 'was still

minor, his mother made deposition as witness. She stated that. there were Annackatra and Sadavarat Kulkarni Inams and other Ina.ms, but that they all belonged to the Sansthan, and that there was "no private (or personal) property a.tall". Even the gardens were described by her as belonging to the deity and not to any individual. The guardian alSo took the same stand throughout the minority of the plaintiff. Even earlier, in 1899 the father and uncle of the present appellant stated that the village,. Savergaon, one of the items of the properties of the Devasthan, was not in the private mynership of any person. It was stated on this occasion as follows :

"Except this Shri Vya.nka.tesh deity no one else has anyright; interest or ownership with regard to the village andthe Sansthan. We both are the man-agers of the aforesaid Sansthan and we have been looking after all the affairs of the Sanstha.n and in that collJlection we a.re carrying on the management of the aforesaid vill!'lige."

The statement was made in Suit No. 515of1898~

Again, .in Ex. 700, the written statement hy the guar-d,ia.n of the plaintiff, in Civil Suit No. the plaintiff, in Civil Suit No. plaintiff, in Civil Suit No. 295 of 1920, was stated as late as November 6, 1920, as follows:

d,ia.n of the plaintiff, in Civil Suit No. the plaintiff, in Civil Suit No. plaintiff, in Civil Suit No. 295 of 1920, it

"It is denied that Da.modar Timmayya or any other " particular individual owned the Balaji

Sansthan at any time in his individual capacity. The temple of Balaji belongs to the Sansthan and several villages are granted to Balaji Sansthan purely for temple purposes by Sanads granted by the British Government and the Defendant's family is appointed only the vahiwatdar."

Narayan Bhagwanlrao Gosavi_Balajiwale v. Gopal Vinayak Gosavi Hidayatullah J.

The said Damodar Timaya had no separate property of his own."

To the same effect is the application made by Rama.-

bai, the mother of the present appellant, in Ex. 702.

These later documents may n:ot bind the appellant, who was a. minor at the time, but as late as Decem-ber 1, 1927, the appellant himself stated tha.t village in question (Savergaon) wa.s Deva.sthan ina.m, and was alieIJ.ated to the deity, Shri Venkatesh, who was the owner. . He also referred to the family settlement of 1801, and stated that the other villages were also similarly given to the deity. He observed that in the case of Devasthan inam the idol was the grantee a.nd the real owner, and since the property had to be managed by human being, the so-called manager therefor managed the villages on behalf of the deity. He claimed only to be the manager of the village for and on behalf of the deity, Shri Ba.Jaji, and did not claim any private ownership. At that time, he refer. red to the Land Alienation Register and produced a. certified copy of the Register to show that Shri V enkatesh wa.s shown a.s the alienee.

Ex. 634 is the genealogy filed by the plaintiff where-

in Bhagwant Annaji, uncle of Damoda.r Timma.yya., wrote against the name of Timmayya. that he ha.d acquired nine villages, and wa.s the founder of Puja Naivooya, Utsav, Annachhatra and Badavarat dedicated to Shri Venka.tesh. It wa.s stated there that the villages were grants to the deity. Similar a.re the admissions in the Yadi, Ex. 626 dated December 15, 1886, by the Mamlatdar addressed to Krishna.ra.o Damoda.r and in letter, Ex. 199, by the plaintiff himself addressed to Ma.nkarnika.ba.i, wife ofKrishna.-rao Damoda.r in 1922. In several suits which others filed, the defendant there wa.s described a.s " Shri

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Venkatesh Balaji Sansthan, N asik, through manager"

r959 NrJrayan Bhagwantr1Jo v. Gopal Vinayak Gosavi

that is the appellant. He represented as manager the owner, namely, the deity.

Lastly, there is the history of this Sansthan publish- Gosavi Balajiwale ed by the appellant himself and written from original v. documents supplied by him. This was in 1931. The Gopal Vinayak Gosavi appellant in his deposition admitted that he was intim-

ately connected with this writing and its publication. Hidayatullahf.

This history is Ex. 642. It gives an account of the idol and the temples, and describes how from time to time Peshwas and various Sardars granted villages to the" Shri" and dedicated them to the deity. The con-clusion alone need be stated, because the document is long one and the admissions are contained in numerous places in it. This is what was stated ;

"The reader of the present history will have

observed that the sansthan belongs to the deity and (the members of the house of) Timaya Maharaj a.re merely the managers and administrators of the same .............. .

The management of it shall not be like that of private property."

As result of the Faisa.lnama.s of the Inam Commis-

sion which are to be found in Exs. 135 to 144, 634and 644, the record of rights showed the deity as the owner and the jagirs and inams as Devasth~.n. Learned counsel for the appellant contends that these admis-sions do no prove anything more than this that the entire establishment of Balaji Mandir was described as Sansthan and the ownership thereof was in the mem-bers of the family. We cannot accept this contention, which runs counter to the plain tenor of tho.se docu-ments. In these documents, the ownership of the family over the temple, the deity and the properties of the deity is not only not admitted but is denied. On the other hand, the assertion always has been that the members of the family were merely the servants of the deity getting remuneration for their services and that the ownership vested in the deity and none other.

In view of these admissions, the question of burden of proof, as we have already pointed out, is really

z959 academic, and if any burden lay upon any party, it N• •r•n was upon the appellant to displace by cogent and con-Bnag;anirao vincing evidence that these admissions were erroneous Gosavi Balajiwale and. need not be accepted in proof. These admissions v. are two-fold ; they concern the nature of the proper-Gopal YinayllA ties in dispute and the nature of the idol. Added to Gos•vi these are the decisions of the Inam Commissioner in Hidayatullah 1. respect of the villages, which .were recorded as Devas-· than inams at the instance of Damodar, who appealed against the order to record them as personal ina.m.s. The value to be attached to the decisions of the Inam Commissioner had come up for consideration before the Judicial Committee in series of cases. It is suffi-cient to refer to only one of them. In Arun1J,Cke1J.am Oketty v. VenlcatackeU.apatki Guru Swamigal ('), the Judi~ cial Committee while dealing with the Inam Register for the year 1864 which had been produced for. their inspection, attached the utmost importance to it. It observed:

" It is true that the making of this Register was . for the ultimate purpose of determining whether or not the lands were tax-free. But it must not be forgotten that the preparation of this Register was great act of State, and its preparation ·and con-tents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remember,ed. that the Ina.m Commissioners through their officials made enquiry on the spot, heard evid-ence and examined documents, and with regard to ea.ch individual property, the Government was put in possession not only of the conclusion come to as to whether the land was tax-free, but of statement of thti history and tenure of the property itself. While their Lordships do .not doubt that such report would not displace actual and authentic evid-ence in individual cases; yet the Board, when ·such is not. available, cannot fail to attabh the utmost importance, as part of the history of the· property; to the infol'mation set forth in the Inam Register." The natul'e and quantum Qf the right and interest in the land was thus gathered from the Inam Rej!isters r.nd enquiries, which ·preceded the;m. (1) (1919) 1..R. 46 LA. ""f·

Thus, it was doubly necessary for the appell~nt to r959 bring before the Court all the documents in which his title was created, recognised . or confirmed. . He has, BhNaraya1agwan rao n however, filed only selection, and has reframed rom Gos,,,vi Balajiwala bringing into evidence all the material in his possession v. which as late as 1931 was available to him. We have Gopal Vinayak pointed out above that in 1931 he caused history Gosavi of the Sansthan to be published, and it refers to Hidayatullah 1. numerous documents, which have not found their way into Court. The learned Judges of the High Court also menti tDed this fact, and stated that in view of the failure of the appellant to prove conclusively that higher title than the one made out before the Inam Commission was available to him, no reliance could be placed upon such doruments as had been exhibited. We have to see whether this statement is correct in all the circumstances of this case.The property in the case consists of eleven villages, ca.sh allowances and other urban properties to which separate reference will be made. All the eleven vil-lages were the subject of an enquiry by the Inam Com-mission, and the decisions were uniform, except in one case where technical ground came in the way. We were taken through documents relating to two such villages as indication of the kind of title enjoyed by the appellant. It may be pointed out here that the appel-lant himself made no distinction bet.ween one property and another, and stated that all the properties were held by him under an identical title. At the hearing of the appeal, he attempted to show that these proper-ties were granted to him, impressed with service of the deity. But that was not the case he had made out either before the District Court under the Charitable and Religious Trusts Act or in the plaint· filed in this case. It is not opPn to him now to change his plea with regard to his ownership, and the case must be decided only on the contention that the properties were private.

The first batch of documents to which our attention was drawn, concerns mostly Vihitgaon. It consists of Exs. 200 to 206. The first four are letters written to Mukadams, Kamavisdars and Mamlatdars to continue

r959 the Mokasa, Sahotra or Inam to Timayya, to whom N the village was given as Madade-Mnash. The earliest Bha;r;;;:i:.0 of them is of 1714 an? the last is o~ 1755. Exs. 204 and GosaviBalajiwale 206, however, ment10n even earlier sanads and the v. latter particularly mentions the original grant of the Gopal Vinayal• ruler, Mahomed Shah, under his own seal. Those Gasavi sanads, however, have not been produced, as also idayatullah J. some of the sanads of the Peshwas, which were men-tioned by the Inam Commission in Ex. 135. None of these documents shows the terms on which the original grant was made, and in view of the meagreness of this evidence and its inconclusive nature, the High Court was justified in accepting the finding of the Inam Commission that the grant was to the Devasthan

and constituted Devasthan Inam.

The next village of which the documents were shown to us is Belatgaon. Here too, the documents are of later dates, the original grant not being produced. In connection with this village also, the lnam Commission held that the village was Devasthan inam, and the documents produced in this case do not show anything to the contrary. These documents are merely letters and so-called sanads and direct the Mukadams, etc., to pay share of the revenue to Timayya. Learned counsel for the appellant stated that the documents in respect of the other villages were also of 11imilar character. On an examination, we have found them to be so. In all the orders made by th11 Inam Commis-sion in respect of each and every village, there is reference to oth11r sanads of earlier dates, which have not been produced before us. The respondents had, in the Court of First Instance, served notice upon the appellant to produce all the sanads admittedly in his possession and mentioned in Ex. 642, but the appellant avoided doing so by pretending that the demand was vague. In this view of the matter, it cannot be said that there has been misconstruction of any documents. On the other hand, the judgments in the two Courts below have proceeded on the ground that the appellant having an opportunity to prove his case against the findings of the lnam Commission and the admissions made from time to time, had suppressed

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the original documents conferring villages upon him z959 as he alleged, and had produced letters and so-called N sana so l ater at~s, w hic [. ]w~r~ no . mo~e th an mere Bhagwantrao araya11 pay-orders to contmue the pnv1lege wh10h had been GosaviBalajiwal~ granted by the rulers in the earlier documents. We v. do not therefore find any misconstruction of the docu-Gopaz Vinayak ments such as have been produced, and we hold that Gosavi the admissions and the revenue records remain un-Hidayatullah ]. contradicted.

This brings us to the cash allowances, which were granted from the villages to the predecessors-in-title of the appellant. These documents number few hundreds. They too are merely letters written from time to time to the ~Jukadams, Kamavisdars and Maml,atdars to pay the arrears of annuities, Varshashan, Aivaj to Haribakthi Parayana Raj~shri Timayya Gosa vi. In almost all the documents, there is refer. ence that the original sanads had been filed, but the original sanads have not been produced. The respond-ents, on the other hand, produced some of these documents to show that the original grant was to the Devasthan and that in some of them, there is specific mention that it was for the expensmrnf" Shri ". These are Exs. 228, 229, 639, 230, 231 and.233. The respond-ents connect these documents with the history of Shri Venkatesh Balaji Sansthan (Ex. 642) to show that similar documents exist with regard to the· grant of all the villages and the cash allowances but have not been produced. The appellant also admitted in Ex. 151 that his ancestors had received these grants in order to do Puja Archa, Sadavarat, etc., of the deity. The two Courts below have from these circumstances drawn the conclusion that the grant cannot be con-sidered as personal but must be regarded as one made in favour of the deity or the Sansthan. It is for this reason also that th~ appellant stated that all the pro-perties including the temple and the idol go in the name of' Sansthan ', and that this word was used compend-iously to describe the properties and the Vahiwatdar. In our opinion, the appellant was conscious of the weakness of his case, because the grants to Sansthan or to the "Shri" could not be regarded as grants to a.n

individual, and he therefore included himself and the deity in the expression •Sansthan', so as to be able to show that the g.rants to the Sansthan were grants to

Narayan

Bhagwantrao

Gosavi Balajiwal• him as much as to the deity.

v. The appellant, however, contended that this case Gopal V inayaA Gosa.n was covered by the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroop ([1]). That case Hidayatullah f. was entirely different. There, the grant· which was single one, was made to an individual and his heirs in perpetuity from generation to generation, and there was no evidence otherwise. The Judicial Committee interpreted the grant in favour of the individual, and stated that it was made to one Daryao Gir and his heirs in perpetuity. It observed :

" Had it been intended as an endowment for an idol it would have been very differently expressed ; the reference to the grantee's heirs, arid the Arabie terminology 'naslan ba'da naslin wa batnam ba'da batnin' (descendant after descendant and generation after generabion) are not reconcilable with the view that the grantor was in effect making wakf for Hindu religious purpose, even if it be assumed that this is not otherwise an untenable hypothesis."

Though, in that ease, the origin of the idol . was not completely traced, the grant itself disclosed the exist-ence ·of sanyasi, with an idol in mud hut, to whom and not to the little temple the grant, in effect, was made. The history of this deity is well-known, and it shows the manner in which the gr.ants were made from time to time. To apply that case to the facts here is impossible. In our opinion, the principle to apply to this case is the one stated by the Privy Council in Srinivasa Ohariar v. Evalappa M udaliar (•). It was there observed:

" T!J.eir Lordships must dissent entirely from the view that where the discoverable-origins of property show it to be trust property the onus of.establishing that it must have illegitimately come into the trus-tee's own right rests upon the beneficiaries. Upon the contrary, the onus is heavily upon the trustee to show by the clParest end most unimpeachable evidence the the legitimacy of his personal acquisition." (1) (1939) L.R. 67 I.A. 1. (•) (19oa1 L.R. 49 I.A, a37.

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The appellant next argued that those properties in .r959 respect of which the High Court felt disposed to giving Narayan finding that they were priv:ate, should at least be Bltagwantrao declared as private properties, He also made an Gosavi Balajiw..U application in this Court for joining the deity as v. party to the appeal, and requested that this Court Gopal ViuyaA should send down an issue for finding by the Court Gosavi of First Instance in the presence of the deity, whether Hidayalullah 1. these properties were private. We shall deal with these matters little later, because it is necessary at this stage to decide whether the public have any right of worship in the temple. Both the Courts below have agreed that the deity and the temple were public. The High Court correctly pointed out that the matter has to be judged in accordance with the dictum of Varadachariar, J., in Narayanan v. Hindu Religious Endowments Board(1). In that case which arose under s. 9 of the Hindu Religious Endowments Act, the definition of 'temple' meant place.used as place of public religious worship and dedicated to, or for the benefit of, or used as of right by the Hindu community, or any section thereof as place of religous worship. The learned Judge observed as follows :

" The question of intention to dedicate the place for the use of the public or of the user by the public being as of right is necessarily matter for inference from the nature of the institution and the nature of the user and the way the institution has been administered ... once long course of user by the public for the purpose of worship is et1tabli:shed, and the fact of separate endowment in trust for the deity is also proved, it is fair to infer that the insti-tution must have been dedicated for user by the public (unless the contrary is established)-parti-cularly when the character of the temple, its con-struction, the arrangement of the various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is worshipping public in the locality is established, it is not unreat1ona.ble to (r) A,I.R, 1938 Mad, 2og.

presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the autho-rities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution." The two Courts below reached the conclusion that the public had right in the temple and the idol from number of considerations. Shortly, they are as follows: The building of the temple is public in character inasmuch as the staircase leads straight to the idol, and the public are admitted throughout the day between 7 a.m. and 10 p.m. There is no evidence to show that the public or any member of it were ever excluded from the worship. There is only on'l instance when member of the family was excluded, but that was because he had used abusive language towards the mother of the present appellant. Indeed, the public are invited to worship the deity, and no gift is ever refused. The merchants of the locality keep separate khata in the name of the deity, in which they set apart portion of their earnings as kangi, which is paid regularly to the temple. The extent of the ceremonies performed at the temple also indicates the existence of deity in which the public are interest-ed rather than family deity. There are celebrations, Ut8avs etc., and daily large number of Brahmans and others are fed and at the time of the festivals all the visitors are also fed. The deity ·also goes out on such occasions in processions through marked route, and there are ten carriages in which it· rides for ten days. These festivals are celebrated with great e'clat, and the public not only of Nasik but of other parts of the country freely join in them. Even the daily routine of the deity is of form uncommon in the case of family deities. The appellant himself admit-ted that the idol was being worshipped with Rajopchar. Jt may be mentioned that for playing music or per-forming the services, the deity has conferred hereditary ina.ms upon those who attend to them. There is also collection box placed at the temple where the public, who are so minded, are invited to place their offerings.

Narayan Bhagwantrao Gosavi Balajiw:Jle v. ·Gopal Vit11:iyak Gosavi Hidayatullah J.

No doubt, the Privy Council in Babu Bhagwan x959 Din v. Gir Har Saroop(1) stated that th~ m~re fact Narayan that offerings were accepted from the public might not Bhagwantrao be a. safe foundation on which to build an inference Gosavi Balajiwale that the deity was public. Still, the extent to which v. the offerings and the gifts go, may be fair indication Gnpal Vinayall not merely of the popularity of the deity but of the Gosavi extent of the public right in it. As has been pointed Hidayatul/ah 1 out above, the Judicial Committee was dealing with single grant which was made to the Mahant in per-petuity, and the temple itself was mud hut. Herc, the temple covers several acres of land, and has vast structure. There is Sabha Mandap, which accom-modates 600 persons. It is inconceivable that such big temple was built only for the use of the family. It indicates that there was an invitation to the public to use it as of right, and user and continuous user for 200 years, without let or hindrance, by the public has been proved in the case beyond doubt. It is also unusual for Rulers to make grants to family idol. The fact that many Rulers have made grants of land and cash allowances to the deity for sei·a, puja etc., is itself indicative of the public nature of the trust.We think that the extensiveness of the temple and of grants to it are pertinent circumstances to be taken into account in judging the nature and extent of the public right. It may be remembered that in the documents to which we have referred in an earlier portion of this judgment, there is reference to special endowments for festivals. These endowments would not be made if the deity was family deity. In the Gazetteer dealing with Nasik District, there is full description of the temple and the deity. Extracts from it have been quoted by the two Courts below, and they show that the temple is public one. Indeed, the history of the deity written, at the instance of the appellant himself (Ex. 642) indicates the public right in the deit.y.

As against these, the appellant contended that there were other circumstances which indicated that the deity was family diety. He examined Dr. Kurtkote, (1) (1939) L. R. 67 I.A. I.

1959 who gave some reasons for an opinion that the temple Narayan was not public one but mere Deva-ghar. He stated B/Jagwan1,.,, that the idol of Ba.Jaji did not appear to have been Gostwi Balajiwal• firmly installed, that it was installed on an upper floor, v. that householders resided in the temple and that daily Gopat Vinayak worship was suspended when there was birth or Gosavi death in the family, and last of a.II, he stated that the Hldayalullah J. deity being mova.blE>, must be regarded as family deity. It may be pointed out here that the deity is sometimes invited to private residences at the time of festivals, for dinner. This circumstance was also pleaded as indicating that the temple is private and the deity family deity. We shall now briefly examine these reasons to see whether they outweigh the evidence of the public character of the deity, which we have analysed above.

We begin with very small point which was ma.de

that the temple of Balaji at Nasik has no dome or Kala8. This is an admitted fact, but Va.sudev (P. W. 12) admitted that there was no dome or Kala8 at Ba.Jaji temple at Deva.Igaon ,Raja, which is public temple. So also other temples mentioned in the case. It seems that nothing really turns upon the existence of dome or Kalas, and no authority has been cited before us to ·show that it i• conclusive circumstance in deciding that the temple is public.

It must be remembered that this idol was found in

river and did not need consecration ceremonies, which a.re-necessary for new idol, which is set up in a, new ttJmple. It was first placed inside the house of Ba.pa.ji Buva. at Junna.r, and was removed from that place ,as result of instructions vouchsafed by the deity itself to Ba.pa.ji Buva.'s successor. It was then installed at Na.sik, where big temple has grown. No doubt, in some portions of this building the family of the Pujadhikaria reside without any objection from any per-son. The extensiveness of the building makes it impossi-ble to think that they a.re residing within the tern pie, or that the Thakur1Jari is within their 'private residence. Indeed, the description of the temple as given in the Gazetteer clearly shows that the temple in quite distinct

S.C.R. SUPREME COURT REPORTS

from the residential quarters, and that also is the z959 evidence of the appellant himself. With regard to the R installation of the idol on the first floor, we have Bha';:~:ao already mentioned that the staircase from the ground Gosavi Balajiwah leads direct to the sanctum. It was, however, admit-v. ted by Dr. Kurtkote that the deity at Bindu Madhav Gopal Vinayak temple at Benares in also installed on the upper storey, Gosavi though he explained that beneath the idol there is HidayalullallJ. solid stone pedestal, which runs right from the ground to the first floor.· No question was put to him as to whether the deities there, were firmly· installed or moveable, He, however, admitted that the text of Prathista Mayukha did not mention that the idol should not be installed on an upper storey. In our opinion, in the absence of any text prohibiting the installation of the deity on an upper floor, we cannot draw any inference that the temple is private.

The real ground on which the claim has been made that the deity is family deity is that it is capable of being moved from one place to another, and, in fact, is so moved. Evidence was led to show that in the early history of this temple the Pujad,hikaris took the deity on visits to the various ruling chiefs. Document.a have been filed to show how arrangements were made for the journey of the deity and instructions issued. to all concerned to give all facilities for it. It is also in evidence-and is indeed admitted-that when the deity is invited on festive occasions to private residences, a. substitute idol is also left at the main temple for the public t.o worship. Further, all these removals are temporary, and the deity is brought back and installed in its abode afterwards. The deity at the Jaganath . temple at Puri is also shifted for periodic processions, and is brought back to its place. Dr. Kurtkote stated that the installation of an idol can be either in mov-able form (chala) or stationary form (sthira), and· that it is so mentioned in the Prathista Mayukha. He also admitted that it could not be said that the idol was not installed because it could be moved from one place to another. No other authority was cited before us a.t the hearing as to whether an idol cannot at a.Ube

JQJ

moved from the place where it is installed, even though it may be installed in movable form (cluila). There are, however, cases in which this matter has come up for consideration before the Courts. In Ram Sooodur Thakoor v. Taruck Chunder Turkoruttun-f), there was destruction of the temple by the erosion of the river on the banks of which the idol was installed. The suit was filed by the plaintiffs for declaration of their right to remove the idol to their own house and to keep it there for the period of their turn of worship. This claim was decreed. On appeal, Dwarknath Mitter and Ainslie, JJ., interfered only to the extent that the lower Court ought to have defined the precise period for which the plaintiffs were entitled to worship the idol before it could make the declaratory decree, which it had passed in their favour. They also directed that if it was found by the lower appellate Court that the plaintiffs and the 'defendants were jointly entitled to worship the idol during any part of the period mentioned by the plaintiffs, the lower appellate Court should not allow the plaintiffs to remove the idol to their own house at Khatra for that portion of time. It appears from the judgment that though the plaintiffs were allowed to remove the idol to their own house, they were to re-convey it at their own expense to the place where it was at the time of the institution of the suit. The learned Judges, however, qualified their judgment by saying that it was not contended in the case before then that the idol was not removable according to the Hindu Shastras.

Naraya• B/lagwanlrao Gosavi Balajiwak v. Gopal Vi""Yak Go!avi Hidayolullah ].

In Hari Raghunath v. Anantji Bhikaji ('), the temple . was public one. It was held by the High Court that under Hindu law, the manager of public temple has no right to remove the image from the old temple and iitstal it·in another new building, especially when the removal is objected to by majority of the worship-pers. It is interesting to note that in this case Dr. P. V.' Kane appeared, and in the course of his argu' ment, he stated as follows : " According to the Pratishtha-Mayuk"ha of Nilkantha. and other ancient works an image is to (1) (•87$) 19 Woekly Reporter 28. (•) (1920) I.L.R. 4• Bom • .j66.

S.C.R. SUPREME COURT REPORTS

be removed permanently only in case of unavoidable z959 necessity, such as where the current of river N carries away the image. Here the image is intact. Bha;:~:ao It is only the temple that is dilapidated. For Gosavi Balajiwal1 repairing it, the image need not necessarily be v. removed. Even if it may be necessary to remove Gopal Vi.ayaA the image, tha.t will be only temporarily. The Gosavi manager has under Hindu law no power to effect HirlayatullaTs J. permanent removal of an image in the teeth of opposition from large number of the worshippers. In the instances cited by the appellant, worshippers had consented to the removal. Permanent removal of an image without unavoidable necessity is against Hindu sentiment." (Italics supplied)

Shah, J. (Crump, J. concurring) observed as follows:

" It is not disputed that the existing building is in . ruinous condition and that it may be that for the purpose of effecting the necessary repairs the image may have to be temporarily removed. Still the question is whether the defendant as manager is entitled to remove the image with view to its installation in another building which is near the existing buikli.ng. Taking the most liberal view of the powers of the manager, I do not think that as the manager of public temple he can do what he claims the power to do, viz., to remove the image from its present position and. to instal it in the new building. The image is consecrated ·in its present position for number of years and there is the existing temple. To remove the image from that temple and to insta.l it in another building would be pra.ct~cally putting new temple in place of the existing temple. Whatever may be the occasions on which the installation of new image a.a substitute for the old may be allowable according to the Hindu law, it is not shown on behalf of the defendant that the ruinous condition of the existing building is ground for practically removing the image from its present place to new place permanently. We a.re not concerned in this suit with the question of the temporary removal which may be necessary when the existing building is repaired."

The case is an authority for the proposition that the idol cannot be removed permanently to another place, becaqse that would be ta~tamount t~ establishing new temple. However, if the pubhc agreed to temporary removal, it could be done for valid

•959 The case is N Bha;r;::,:.0 Gosat1i Balajiwale new temple. v. temporary Gopal Vinayak reason. Gosavi In

Gosavi In Pramatha Nath Mullick v. Pradyumna Kumar Hidayatullah J. M uUick ([1 ]), the deed of trust created an injunction against the removal of the deity. The following quotation from that deed of trust shows the powers of the manager :

"Shall be for ever held by the said Jadulal Mullick, his heirs, executors, administrators and representatives to and for the use of the said Thakur Radha Shamsunderji to the intent that the said Thakur. may be located and worshipped in the said premises and to and for no other use or intent whatsoever provided always that if at any time hereafter it shall appear expedient to the said Jadulal Mullick, his heirs, executors, administrators or representatives so to do it shall be lawful for him or them upon his or their providing and dedicating for the location and worship of the said Thakur another suitable Thakur Bari of th~ same or greater value than the premises hereby dedicated to revoke the trusts herein before contained and it is ·hereby declared that unless and until another Thakur Bari is provided and dedicated as aforesaid the said Thakur shall not on any account be removed from the said premises and in the event of another Thakur Bari being provided and dedicated as afore-said the said Thakur shall be located therein, but shall not similarly be removed therefrom on any account whatsoever."

The Privy Counllil analysed this provision, and stated that the last condition made the idol immovable, except upon providing for the dedicatee another Thakur Bari of the same or larger value. It observed:

" The true view of this is that the will of the idol

in regard to location must be respected. If, in the course of proper and unassailable administration

(1) (1925) L.R. 52 I.A. 245.

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of the worship of the idol by the She bait, it be

thought that family idol should change its location, the will of the idol itself, expressed through his guardian, must be given effect to."

N;;;;an Bltagwantrao

Gosavi Balaji111ale

Their Lordships ordered the appointment of disin-terested next friend, who was to commune with the deity and decide what course should be adopted, and later the instructions of the deity vouchsafed to that representative were carried out. In this case, there was family deity and there was provision for removing the idol to another better and more suitable Thakur Bari, if it appeared necessary. The wishes of the deity were considered and consulted. The case, however, is not quite clear as to whether in all circum-stances the idol can be removed from one place to another.

v. Gopal Vinayak Gosavi

Hidayatullah J.

The last case on the subject is Venkatachala v.

Sambasiva ([1 ]). The headnote quite clearly gives the decision, and may be quoted here :

"Where all the worshippers of temple, who are

in management of it, decide to build new temple, the old one being in ruins and the site on which it stood becoming insanitary and inconvenient for worshippers, then, unless there is clear prohibition against theii: demolishing the old temple and building new temple, the Court is not entitled to prevent the whole body from removing the temple with its image to new site in the circumstances."

Devadoss, J., quoted passages from Ka!llika Agama, and referred to Prathista Mayukha by Nilakanta, Purva Karana Agama.m and Nirnaya Sindhu. He, however, relied upon certain passages from Purva Thanthiram by Brighu, Kamika Agama, Siddhanta Sekhara and Hayasirsha Pancharatra, and came to the above conclusion. The effect of the decision is that the whole body of worship,pers, if they are of one mind, can even permanently remove an idol to 'another habitation.

In the present case, the idol was not permanently removed except once when it was taken away from Junnar and installed at Nasik. As we have already

(I) I.R. 19z7 Ma,d. 465; ,52 M.L.J. 288.

1959 pointed out, that was at the behest of the deity itself. N Afterwards, the deity which is installed in removable Bka;:~::.. form (chala) has been temporarily removed for pur-Gosavi Balajiwale poses of processions, invitations to dinner and visits to v. other parts of India, so that worshippers may have Gopal Vinayak chance of making their devotion. This has continued Gosavi for over 250 years, and has not been objected to at Hidayatullah J. any time. · Indeed, huge concourse of worshippers always followed and follows the deity every time it is taken out temporarily for the purpose of affording the votaries chances of worship at close quarters. This appears to be custom which has received recognition by antiquity and by the consent of the worshipping public. It may be noted that the deity is brought back to the old site after its temporary sojourn at other places, and that further during the absence of the deity, substitute idol is placed, so that the dedicatee is never out of possession of the temple.

In view of these circumstances and the cases to which we have referred, and iu view, further, of the fact that no text or authority was cited against such course of conduct with the consent of the worshipping public, we do not see any reason for holding that the temple was private and the deity, family idol.

The appellant raised special argument in respect of certain properties, which, he stated, were private. He relied upon the observations of the learned Judges of the High Court that they were inclined to hold that these properties were private but refrained from giving declaration in view of the fact that the deity had not been joined. These nroperties are jat inams, recently built properties, namely, the Ba.Jaji temple and the 'Shree Theatre', and an allowance which goes in the name of Kulkarni commutation amounting to Rs. 24 per year. The difficulty in the way of the appellant is real. He refrained from joining the deity, if not as necessary, at least as proper party to the suit. If he had joined the deity and the deity was represented by disinterested guardian, necessary pleas against his contention could have been raised by the guardian, and it is likely that some evidence would also have been given. The appellant seeks to

S.C.R. SUPREME COURT REPORTS

cover up his default by saying that the suit was one z959 under 0. 1, r. 8 of the Code of Civil Procedure, and N that the Hindu public was join~d and .the deity w~s Bha;'.::~~ao adequately represented. In suit of this character, it Gosavi Balajiwale is incumbent to have all necessary parties, so that the v. declaration may be effective and binding. It is obvi-Gopal Vinayak ous enough that declaration given against the Gosavi interests of the deity will not bind the deity, even Hidayatullah 1. though the Hindu Community as such may be bound. The appellant would have avoided circuity of action, if he had acceded to the very proper request of the respondents to bring on record the deity as party. He stoutly opposed such move, but at very late stage in this Court he has made an application that the deity be joined. It is too late now to follow the course adopted by the Privy Council in Pramatha Nath Mullick v. Prad,yumna Kumar Mullick ([1]) and Kanhaiya Lal v. Hamid Ali ([2]), in view of the attitude adopted by the appellant himself and the warning which the trial Judge had issued to him in his order. There is yet another reason why the case cannot be re-opened, because the appellant himself did not choose to make any distinction between one property and another as regards the claim of his ownership. He stated that each item of property was acquired and owned in the same manner as another.Arguments were addressed with regard to the Balaji Mandir, which is situated on S. Nos. 1353 and 1354. This land was granted to one of the appellant's predecessors by Ex. 571 by the Peshwa. At that time 3 bighas of land were given to Bapaji Buva, son of Timayya, because he was "worthy and respectful " Bi;ahman, for the express purpose of building temple. No doubt, in Exs. 878 and 153 the name of the Vahiwatdar has been mentioned, and the latter is sanad of the Governor of Bombay confirming the grant free from land revenue. The original grant was obviously made not to the Brahman concerned but for the express purpose of building temple upon the land. We have already held that the public have right in the deity and the temple is also public and

(1) (1925) L.R. 52 I.A. 245. (2) (1933) L.R 66 I.A. i63.

z959 that, therefore, the grant must be regarded also as pa.rt N of the property of the deity. It is significant that Bha;:;:1:ao after the temple was buil1; with borrowings from others Gosavi Balajiwale sum of no less than Rs. one lakh was paid the v. Peshwas and other Rulers to satisfy them. The Gopal Vinayak finding of the learned Judges of the High Court could Gosavi not therefore given in the absence of the deity, and we think that we ~hould only say that in view of the Hidayalullah [1]· case as pleaded, the declaratfon should have been re-fused without any comments adverse to the deity. Court should not, in case which goes by the board on cardinal point, decide matters which cannot arise in it but may be pertinent in another case between different parties. We are, however, clear that no declaration can now be granted in respect of this property.

The next property which was specially mentioned for our consideration is the "Shree Theatre", in which the appellant claims to hold third share. Here also, the extracts from the property register have been filed, and the appellant has drawn our attention to Ex. 290, which is deed of purchase and Ex. 691, the permis-sion by the Municipality to build upon the land. It was necessary for the appellant to show that this Theatre was built from monies derived from private · source and not from the income of the Devasthan. He has not furnished satisfactory evidence, and in describ-ing the source of money he referred to the, sale of one property, the price whereof according to 'him was utilised for the Theatre. It, however, appears from the record of the case that with that money Ba.Jaji Vihar was purchased, and the case made before us was that it was the sale proceeds of Balaji Vihar which were used to build the Theatre. If that be so, then the evidence to connect the Theatre with Balaji Vihar ought to have been tendered and plea to that effect taken. We cannot accept the argument in lieu of plea and evidence, and we think that, the appellant has neglected to bring the necessary evidence to reach finding, This matter also suffers from the same defects, namely, the failure to join the deity as a. party and also not making a. distinction between one

S.C.R. SUPREME COURT REPORTS

kind of property and another. Here too, the High Court z959 should not have expressed any opinion adverse to the Narayan deity, without the deity being party. The same has Bha&wantrao to be said of items 3 to 10 in the first part of Sch. Gosa•iBalajiwal• annexed to Belatgavan, the Deolali plaint and and other three J0at survey inams. No useful numbers of Gopal Vinayah v. Gosavi purpose will be served in examining in detail the evidence relating to these properties in the absence of Hidayatullah J. the deity. It may also be pointed out that the appel-lant maintained no separate accounts for these pro-perties, and made no distinction between them and the other properties to which we have referred earlier. trustee must not mix private property with trust property, because if he does so, he undertakes heavy burden of proving that any particular property is his, as distinct from the trust. See 'Lewin on Trusts, 16th Edn., p. 225. To the same effect are the observations in Srinivasa Ohariar v. Evalappa Mudaliar(1).

The result is that the declaration which the appellant sought in his suit that the temple, the deity and plaint properties were all of private ownership, was rightly refused by the Courts below. The trial Judge gave declaration that defendants I to 4 are entitled to custom-ary worship and maintenance. Strictly speaking, such finding was not necessary in case of this charac-ter, and other matters concerning rights of individuals should not have been gone into in suit filed under s. 5(3) of the Act. The appellant is partly to blame. He set up case of private ownership with all rights centred in himself, and defendants I to 4 therefore not only raised the plea that the appellant was mere manager but also asserted their rights in the property. We think that the Courts below might have refrained from pronouncing upon the rights of the defendants, because all that they had to do was to decide whether the property was trust of public nature. We, however, do not wish to give any direction in the matter, because the suit, as whole, as laid by the plaintiff has been dismissed, and to make any observations might lead to further litigation, which is not in the interests of the deity.

(1) (1922) L. R. 49 I.A. 237.

Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vi1iayak Go5avi

Hidayatullah ].

Respondents 6 and 7 raised before us the question of costs. They stated that the trial Judge had given two sets of costs, which was changed to one set by the High Court. These resp'.mdents should have cross-objected on this point against the judgment of the High Court, and in the absence of any such cross-objec-tion, no relief can be granted to them. For the same reason, no relief can be given to respondent 7, in respect of whom the finding that he had no right of performing the seva and getting emoluments attached to that right, as respondents 1 to 4, has not been vacated, as was done in the case of respondent 6. In view of our observations that these matters were alien to the suit which had been filed, we do not propose to deal with them.

In the result, the appeal is dismissed. The appellant will personally pay the costs of Respondent 1. The other set of respondents will bear their own costs.

Appeal dismissed.

September z4

THE PUNJAB NATIONAL BANK, LTD.

ITS WORKMEN

(B. P. SINHA, P. B. GAJENDRAGADKAR and K. SuBBA RAo, JJ.)

Industrial Dispute-Dismissal by employer pending adjudication -Omission to hold proper enquiry or obtain permission of the Tribunal-Su.ch dismissal, if wholly void-Jurisdiction of Tribunal, Scope of-Pen-down strike-Legality-If disentitles dismissed employee to reinstatem'ent-Ind·ustrial Disputes Act, I947 (I4 of I947), SS. 2(q), IO, 33, 33A.

The employees of the appellant Bank commenced pen-down strikes, which were followed by general strike, pending arbitra-tion of an industrial dispute between them. The Government of India intervened and as the result of an agreement that followed the Bank reinstated all the employees except lSO, against whom it had positive objections, and the Government referred their cases under s. IO of the Industrial Disputes Act, 1047, to the Industrial Tribunal for arljudication. The two issues before the Industrial Tribunal were whether the rso employees had been wrongly dismissed and what wages and allowances would the