TaxTMI 
TaxTMI 
1959 (9) TMI 53
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....hat 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 a 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 described 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 descendants from Ganpati's daughter, Nagubai. On April 23, 1942, the first four respondents made an application to the District Court tinder 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 th....
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.... respect of them. It was, however, held that the appellant was entitled as the hereditary shebait to manage them. The trial Judge also gave a finding that the first four defendants were entitled to customary worship and emoluments as might be fixed by the Pujadhikaris descended from the eldest branch of Bapaji Buva and could be removed for failure to perform the duties assigned to them. The application under s. 3 of the Act was held to be competent, and the suit was also held to be bad in the absence of the deity. In the result, the trial Judge dismissed the suit, awarding two sets of costs to the defendants. It may be pointed out that after the suit was filed, a public notice under s. 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 a necessary party to such a suit, and desired that the deity should be joined, represented by an independent guardian-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 propertie....
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....that temple, and has continued in that abode ever since. Bapaji Buva had raised a loan for the construction of the temple, and a substantial portion of it was paid off by the Peshwa and other Rulers like Holkar and Scindia. In Bapaji's Buva's time, a 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 a Tahanama (Ex. 121) was executed, whereby the right of management 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 a Tharav Yadi (Ex. 122) was drawn up. By that agreement, instead of the cash allowances for the maintenance of the branches certain villages were assigned to them. Next came the Inam Commission under the Bombay Rent-free Estates Act, 1852 (Bom. 11 of 1852), by which in accordance with the policy laid down by Lord Bentick, all jagirdars and inamdars were required to prove the sources of their title and the conditions on which the jagirs or inams were held. The Assistant I....
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....s a religious and charitable endowment of a 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 a 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 a misconstruction of the documents as such. The appellant contended that this was a special suit under s. 5(3) of -the Charitable and Religious Trusts Act, 1920, and that the burden lay upon the respondents to prove that there was a religious and charitable trust of a public character in favour of the deity. He contended that the two Courts below had placed the burden of proof upon him to show b....
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....in the Tahanama (Ex. 121) of the year 1774. This Tahanama was entered into by the sons of Timmayya Maharaj in the presence of Panchas long before the present dispute arose. -It is stated there that " Shrimant Pant Pradhan and other Sardars of (both) Nizam and Deccan (States) have granted in Inam villages for the purposes of Seva (worship) of Shri (deity)." It *as again stated that the Shri's temple which was newly built on the banks of the river Ganga (Godavari) belonged to Shri's Sansthan and nobody had a share therein. By the Tahanama, the three brothers set apart a 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 a small portion of the income as their own Nemnuk (maintenance), which Nemnuk 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 a private temple, and if anything could be spelt out from this document, it was that the three brothers constituted a private trust in favour of the d....
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....misioner was erroneous, because the inams must be recorded in the name of the deity under R. 7 of Sch. B to the Act of 1852 and not under R. 3, as was ordered by the Assistant Inam Commissioner. We have already pointed out the different effect of the two Rules, and proviso (6) to R. 7 stated that no personal inam could be recorded permanently under R. 7. The effect of this appeal was to claim on behalf of the deity a permanent recognition of its rights to the inam properties without any share on behalf of the family, apart from remuneration such as the Pujadhikaris might from time to time settle, in accordance With the Tahanama and the Tharav Yadi of the earlier times. The Inam Commissioner acceded to this contention; and after examining all the Sanads that had been produced in the case, ordered that, " the order issued by Meherban, Assistant Inam Commissioner be annulled and under Section 7 (sic.) Supplement No. 2 of Act 11 of 1852 the remaining portion of this village . ... to remain as perpetual Inam with the Devasthan of Shri Vyankatesh ... and the management do remain continued from generation to generation of the lineal descendants with the male descendants of Timaya Gos....
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....llage in question (Savergaon) was a Devasthan inam, and was alienated 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 and the real owner, and since the property Had to be managed by a 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 Balaji, and did not claim any private ownership. At that time, he referred to the Land Alienation Register and produced a certified copy of the Register to show that Shri Venkatesh was shown as the alienee. Ex. 634 is the genealogy filed by the plaintiff wherein Bhagwant Annaji, uncle of Damodar Timmayya, wrote against the name of Timmayya that he had acquired nine villages, and was the founder of Puja Naivedya, Utsav, Annachhatra and Sadavarat dedicated to Shri Venkatesh. It was stated there that the villages were grants to the deity. Similar are the admissions in the Yadi, Ex. 626 dated December 15, 1886, by the Mamlatdar addressed ....
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....t these admissions were erroneous and need not be accepted-in proof. These admissions are two-fold; they concern the nature of the properties in dispute and the nature of the idol. Added to these are the decisions of the Inam Commissioner in respect of the villages, which were recorded as Devasthan inams at the instance of Damodar, who appealed against the order to record them as personal inams. The value to be attached to the decisions of the Inam Commissioner had come up for consideration before the Judicial Committee in a series of cases. It is sufficient to refer to only one of them. In Arunachellam Chetty v. Venkatachellapathi Guru Swamigal (1) (1919) L.R. 46 I.A. 204., the Judicial 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 a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and....
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....ies 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 open 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 the Mokasa, Sahotra or Inam to Timayya, to whom the village was given as Madade-Mnash. The earliest of them is of 1714 and the last is of 1755. Exs. 204 and 206, however, mention even earlier sanads and the latter particularly mentions the original grant of the ruler, Mahomed Shah, under his own seal. Those sanads, however, have not been produced, as also some of the sanads of the Peshwas, which were mentioned 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 Hi....
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....iginal sanads had been filed, but the original sanads have not been produced. The respondents, 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 expenses of " Shri ". These are Exs. 228, 229, 639, 230, 231 and 233. The respondents 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 considered as personal but must be regarded as one made in favour of the deity or the Sansthan. It is for this reason also that the appellant stated that all the properties including the temple and the idol go in the name of ' Sansthan', and that this word was used compendiously to describe the properties and the Vahiwatdar. In our opinion, the appellant was cons....
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....espect of which the High Court felt disposed to giving a finding that they were private, should at least be declared as private properties, He also made an application in this Court for joining the deity as a party to the appeal, and requested that this Court should send down an issue for a finding by the Court of First Instance in the presence of the deity, whether these properties were private. We shall deal with these matters a 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) A.I.R. 1938 Mad. 209.. In that case which arose under s. 9 of the Hindu Religious Endowments Act, the definition of a temple' meant a place used as a 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 a place of religous worship. The learned Judge observed as follows: " The question of i....
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....the visitors are also fed. The deity also goes out on such occasions in processions through a 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 a form uncommon in the case of family deities. The appellant himself admitted that the idol was being worshipped with Rajopchar. It may be mentioned that for playing music or performing the services, the deity has conferred hereditary inams upon those who attend to them. There is also a collection box placed at the temple where the public, who are so minded, are invited to place their offerings. No doubt, the Privy Council in Babu Bhagwan Din v. Gir Har Saroop (1) (1939) L. R. 67 I. A. 1. stated that the mere fact that offerings were accepted from the public might not be a safe foundation on which to build an inference that the deity was public. Still, the extent to which the offerings and the gifts go, may be a fair indication not merely of the popularity of the deity but of the extent of the public right in it. As has been pointed o....
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....ons to see whether they outweigh the evidence of the public character of the deity, which we have analysed above. We begin with a very small point which was made that the temple of Balaji at Nasik has no dome or Kalas. This is an admitted fact, but vasudev (P.W. 12) admitted that there was no dome or Kalas at Balaji temple at Devalgaon Raja, which is a public temple. So also other temples mentioned in the case. It seems that nothing really turns upon the existence of a dome or Kalas, and no authority has been cited before us to show that it is a conclusive circumstance in deciding that the temple is public. It must be remembered that this idol was found in a river and did not need consecration ceremonies, which are necessary for a new idol, which is set up in a new temple. It was first placed inside the house of Bapaji Buva at Juniar, and was removed from that place as a result of instructions vouchsafed by the deity itself to Bapaji Buva's successor. It was then installed at Nasik ' Where a big temple has grown. No doubt, in some portions of this building the family of the Pujadhikhris reside without any objection from any person The extensiveness of the building makes it....
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....l cannot at all be moved from the place where it is installed, even though it may be installed in a movable form (chala). There are, however, cases in which this matter has come up for consideration before the Courts. In Ram Soondur Thakoor v. Taruck Chunder Turkoruttun (1) (1873) 19 Weekly Reporter 28., there was a 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 a 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 K....
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....position for a number of years and there is the existing temple. To remove the image from that temple and to instal it in another building would be practically putting a new temple in place of the existing temple. Whatever may be the occasions on which the installation of a new image as 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 a ground for practically removing the image from its present place to a new place permanently. We are 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, because that would be tantamount to establishing a new temple. However, if the public agreed to a temporary removal, it could be done for a valid reason. In Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1) (1925) L.R. 52 I.A. 245., 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 : ....
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....s the decision, and may be quoted here: " Where all the worshippers of a temple, who are in management of it, decide to build a 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 their demolishing the old temple and building a new temple, the Court is not entitled to prevent the whole body from removing the temple with its image to a new site in the circumstances." Devadoss, J., quoted passages from Kamika Agama, and referred to Prathista Mayukha by Nilakanta, Purva Karana Agamam 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 worshippers, 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 pointed out, that was at the behest of the deity itself. Afterwards, the deity which is instal....
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.... the declaration may be effective and binding. It is obvious enough that a declaration given against the interests of the deity will not bind the deity, even 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 a party. He stoutly opposed such a move, but at a 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. Pradyumna Kumar Mullick (1) (1925) L.R. 52 I.A. 245.and Kanhaiya Lal v. Hamid Ali (2) (1933) L.R. 66 I.A. 263,, 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 ....
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....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 a 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 a finding, This matter also suffers from the same defects,-namely, the failure to join the deity as a party and also not waking a distinction between one, kind of property and another. Here too, the High Court should not have expressed any opinion adverse to the deity, without the deity being a party. The same has to be said of items 3 to 10 in the first part of Sch. A annexed to the plaint and three survey numbers of Belatgavan, Deolali and other jat inams. No useful purpose will be served in examining in detail the evidence relating to these properties in the absence of the deity. It may also be pointed out that the appellant maintained no separate accounts for these properties, and made no distinction between them and the other properties to which we have referred earlier. A trustee must not mix private property with trust property, because if he does so, he undertakes a heav....