THAKUR JANKI BALLABHJI MAHARAJ & ANR. versus THAKUR JANKI BALLABHJI MAHARAJ & ANR.

TIIAKUR JANKI BALLABIUI MAHARAJ & ANR.

THAKUR JANKI BALLABIUI MAHARAJ & ANR. July 23, 1969

[J. C. SHAH, ACTING C.J. A!'ID G. K. MITTER, J.]

C.:ode of Civil Procedure, s. 92 and 0. 41 R. 33-Temple-Private Trust-Suit by deity against person in 1nanc:gement-No previous sanction 11ru/er s. 92 necessary for bringing suit in respect of n1ismanage1nent and misappropriation of te1nple property-Under 0. 41 r. 33 court has power to f1a1ne sche1ne for n1anagement of tenzple even though it was not public trust.

The deity Thakur Janki Ballabhii Maharaj installt•d in temple at Brindaban brought in lh~ court of Civil Judge f\·fathura suit through its manager-an authorised agent of the cr!itwhilc Bharatpur Stare-for decree for possession of the temple and its properties as well as for accounts to he rendered by R the puiari of the temple. It was alleged in the plaint that the temple had been built by the Ruler of BharJtpur \\'ho had dedicated it to the deity. It was further alleged that R. the defendant \\'ho had succeeded the priest originally appointed by the Ruler of Bharatpur had mismanaged and mis.1ppropriatcd the temple properties and had failed to perform the se\'a puia of the deity. R in his written statement denied these allegations and contested the suit. After 1he merger of Bharatpur State in the State of Rajac;than the su·1t was prosecuted by the District \1agistrate of Bharatpur. The trial court dismissed the suit but the High Court decreed it Hy special leave the defendant came to this Court.

HELD: (i) The High Co..0-t rightly rejected t~c defendant's pica based on s. 92 of the Code of Civil Procedure. It \\'as common ground before the High Court that the property of the temple was not property of public trust of religious or charitable nature. From the averments in the plaint it was clear that the suit was filed by the deity against the person in management and it was not suit filed by the relators. Section 92 of the Code of Civil Procedure had no application to the suit and the sanction of the Advocate General was not condition of the initiation of the ;uit. [636 F-G] (ii) The evidence established that the defendant had committed several acts of mismanagement and misappropriation of the temple and its pro-pet1ies. Re had set up personal title to the temple properties and had converted the oropertics to his own use. He was thclrefore unfit to remain the p11jari of the temple. [637 B-C]

Granting that it was not proved that the Ruler or Bharatpur established the temple and installed the deity, there was abundant evidence that the State of Bharatpur had made from time to time large donations for the maintenance of the temple. The Ruler of Bh:H'atpur had therefore clearly suhstantial interest to maintain the suit on behalf of the deity to protect the pronertv. There was no merit in the defendant's appeal .and it must fail. !637 C-Dl

(iii) Since it would he difficult for the District Ma~istrate of Bharatpur or any other authoritv actiniz on behalf of the State of Raiasthan to look after 1hc administration of the temple which v.•as situate in the State of

U.P. it ~as an appropriate case for the exercise of the Court's powers under 0. 41 R. 33 of the Code of Civil Procedure. The Civil Courts have jurisdiction to frame scheme for the management of temple even though it is not public trust. [637 H-638 BJ Pramatha Nath Mullick v. Pradyumna Kumar Mullick 52 I.A. 245, Asha Bibi & Ors. v. NabisSa Sahib & Ors. A.I.R. 1957 Mad. 583 and Shri Mahadeo Jew & Anr. v. Balkrishna Vy<'s & Anr. A.I.R. 1952 Cal. 763, relied on.

CML APPELLATE JURISDICTION : Civil Appeal No. 574 of 1966.

Appeal by special leave from the judgment and order dated September 22, 1964 of the Allahabad High Court in First Appeal No. 39 of 1952.

J. P. Goyal and Sobhag Mal Jain, for the appellants.

K. B. Mehta, for respQ!ldent No. 2.

The Judgment of the Court was delivered by

Shah, Ag. C.J. Suit No. 41 of 194 7 was filed in the Court of the Civil Judge, Mathura by the deity Thakur J anki Ballabhji Maharaj, acting through its manager-L. Tulsiram, authorised agent of the Bharatpur 'State, for decree for possession of the temple of the deity at Brindaban in U.P. and of the temple pro-perties and for an order calling uPon the defendant, Ramchand, to account for the realisations of the estate of the deity.

The case of the plaintiffs was that the Ruler of the State of Bharatpur built the temple at Brindaban and installed the idol of Thakur Janki Ballabhjl Maharaj and dedicated the temple to the deity; that the shebait or the deity who was paid employee of the State was appointed by the Ruler of the State of Bharatpur; that one Chhotelal was app0inted priest to perform the worship in the temple under written agreement dated April 8, 1936; that after the death of CbJiotelal on May 13, 1912 Ramchand was appointed the priest of the temple on condition that he shall execute the usual agreement in favour of the State; that Ram-chand entered upon the duties as pujari but failed to execute the agreement, and in course of time raised various constructions of his own on the premises in dispute and converted them into private residential buildings, and illegally used the temple as lodging house for pilgrims "to the utter detriment, loss and desecration of the deity" and thereby acquired "illegal benefit to himself out of the temple properties"; and that Ramchand was not performing the seva puja of the deity.

The suit was resisted by Ramchand. He denied that the temple was built at the expen$e of the Ruler of the State of Bharatpur or that he-Ramchand was appointed to be priest of the temple by the Ruler of Bharatpur. He contended that one Ram Narain

Kedar Nath had taken piece of land at Bindraban on rent from the temple of Govindji and after constructing temple thereon and installing the Thakurji had given it as an offering to Sitaram, ancestor of Ramchand, and had appointed Sitaram as the Manager of the temple; that the temple had since then remained in the management of the descendants of Sitaram, and that he (Ramchand) was in possession of the temple and its properties as "Manager and proprietor''.

The trial court dismissed the suit holding that the Ruler of Bharatpur was never the owner of the temple or of the articles mentioned in Schs. and of the plaint, that the Ruler was also not the founder of the temple nor its shebait; and that the Ruler had never appointed any pujari of this temple and was not autho-rised to appoint or dismiss such pujari.

In appeal against the decree passed by the Court of First instance it was urged before the High Court of Allahabad that the trial court erred in dismissing the suit merely on the finding that .ihe Ruler of the State of 13haratpur "had no concern with the construction of the temple or with the installation of the idol in the temple", and that in the suit filed by the deity, having regard to the acts of mismanagement and misappropriation committed by the defendant Ramchand, decree should have been made in favour of the deity. Counsel for Ramchand contended that the suit being of the nature of suit under s. 92 of the Code of Civil Procedure could not be instituted without obtaining the sanction in writing of the Advocate-General and that in any event the second plaintiff, the State of Bharatpur, could not tile the suit, since it was not shebait or the settlor of the temple.It was common ground before the High Court that the pro-perty of the temple was not property of pubhc trust of religious or charitable nature. From the averments made in the plaint it is clear that the suit was filed by the deity against the person in management and it was not suit filed by the relators. Section 92 of the Code of Civil Procedure had no application to the suit and the sanction of the Advocate-General was not condition of the initiation of the suit. The High Court therefore rightly rejected the contention that the suit was not maintainable without the sanction of the Advocate-General.

The High Court held that it was open, even to worshipper, if he possesses sufficient qualifying interest, to start suit to pro-tect the property of the deity. Observing that the defendant Ram-chand had raised residential buildings of his own in the temple premises and that he was lodging pilgrims in part of those build-inj!s and was asserting proprietary title to them and was on that account guilty of conduct detrimental to the interest of the deity

and had rendered himself liable to be ejected from the temple and its properties, and that he was unfit to act as pujari, the High Court reversed the decree passed by .the trial court and decreed the plaintiffs' suit for possession of the temple and its properties and restrained the defendant Ramchand by an injunction from inter-, fering with the management of the temple and. performance of worship of the deity. With special leave, Ramchand has appealed to this Court.

Ramchand has committed several acts of mismanagement and misappropriation of the temple and its properties. He has set up personal title. to the temple properties and has converted the properties to his own use. Ramchand is therefore not fit to remain in possession as pujari or as manager of the temple. The suit is filed by the deity acting through the Manager. Granting that it js not proved that the Ruler of Bharatpur estalJ!ished the temple and installed the deity, there is abundant evidence that the State of Bharatpur had made from time to time large donations for the maintenance of the temple. The Ruler of Bharatpur had there-fore clearly substantial interest to maintain the suit on behilit of the deity to protect tbe property. Tb.ere is no merit in the appeal and therefore it must fail.

It is, however, neqessary to make an effective decree in this appeal. It may be noticed that even though the suit has been filed and prosecuted on behalf of the State of Bharatpur and later by the State of Rajasthan' through its District Magistrate, the temple is situate within the State of U.P. and it would be difficult for the District Magistrate or any other authority acting on behalf of the State of Rajasthan to look after the administration of the temple and to protect its properties from misappropriation. This is un-doubtedly private trust but the civil courts have jurisdiction to frame scheme for the management of the temple which is not public trust. The Judicial Committee of the Privy Council in Pramatha Nath Mullick v. Pradyumna Kumar Mullick(') direct-ed that scheme be framed for the regulation of the worship of the idol even though there was no public trust. In Asha Bibi and Others v. Nabissa Sahib and Others(') the Madra.• High Court held that suit for removing the trustees of private trust and for framing scheme was maintainable. similar view was also taken by' the Calcutta, High Court in Shri Mahadeo Jew and Another v. Ba/krishna Vyas & Another([8]). ·

The civil court has therefore jurisdiction to frame scheme !or ma~agement of the t~mple. an~ its propertie.s. The present is, m, our 1udgment, case m which m exercise of the powers under Order 41 rule 3 3 of the Code of Civil Procedure we should direct

that the court o[ first instance to frame scheme of management of the temple collections and the income and disbursement of ex-penses, application of the surplus if any and for that purpose to appoint manager of the property of the deity and its properties, with authority to take possession of the temple and the properties from the defendant Ramchand and to administer the property and its income under the directions of the coun. We direct accor-dingly. The Court will also take an accounL of his dealings with the property of the deity from Ramchand and determine his liability and recover the amount found due from him on taking accounts. The Court will pass appropriate orders with regard to the constructions made by Ramchand and will prevent the proper-ty being used for the private benefit of Ramchand or any other person. The scheme tobc framed will be consistent with the law relating to private religious endowments, il any, in force in the State of Uttar Pradesh.

is dismissed with

Subject to this modification, the appeal costs. G.C.

Appeal dismissed.