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Amardas Mangaldas Sadhu Vs. Harmanbhai Jethabhai Patel - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 309 of 1939
Reported inAIR1942Bom291; (1942)44BOMLR643
AppellantAmardas Mangaldas Sadhu
RespondentHarmanbhai Jethabhai Patel
DispositionAppeal allowed
civil procedure code (act v of 1908), section 92--suit relating to public charity--advocate general--sanction to file suit to be given to named persons--suit involving issues beyond scope of section 92--endowments to idols--temple, visited by worshippers--descent of property from chela to chela--whether indicia of public religious trust--indian evidence act (i of 1872), section 68--document --proof--attesting witness--scribe. ;the permission, required by section 92 of the civil procedure code, 1908, must be given to two or more named persons. it is not sufficient for the advocate general or the collector to nominate one person and give him a blank cheque to join any other person or persons he chooses as co-plaintiffs. where, however, certain persons apply to the proper officer for.....broomfield, j.1. this is an appeal by some of the defendants, three out of four, against the preliminary decree in a suit filed by the respondents and others as relaters under section 92 of the civil procedure code in respect of a temple at boriavi in the kaira district and properties alleged to appertain thereto.2. the principal allegations in the plaint, which it is necessary to set out rather fully, are as follows. the temple known as the temple of shri gopalji maharaj (gopalji i may say is one of the names of krishna) in the village of boriavi, taluka anand, was built by the village people for the spiritual benefit of the hindu community. it is about 200 or 300 years old. the idol of shri gopalji has been consecrated and is the owner of the properties attached to the temple. every.....

Broomfield, J.

1. This is an appeal by some of the defendants, three out of four, against the preliminary decree in a suit filed by the respondents and others as relaters under Section 92 of the Civil Procedure Code in respect of a temple at Boriavi in the Kaira district and properties alleged to appertain thereto.

2. The principal allegations in the plaint, which it is necessary to set out rather fully, are as follows. The temple known as the temple of Shri Gopalji Maharaj (Gopalji I may say is one of the names of Krishna) in the village of Boriavi, taluka Anand, was built by the village people for the spiritual benefit of the Hindu community. It is about 200 or 300 years old. The idol of Shri Gopalji has been consecrated and is the owner of the properties attached to the temple. Every Hindu has a legal right to take part in the worship. Gifts have been made to the temple in the shape of lands, corn, money, etc., and the income derived there from has been devoted to the worship of the deity and the maintenance of the temple. The worship of the deity is entrusted to a person called a sadhu who resides in the temple and carries on the worship. The last sadhu was Baldevdasji who was the pujari till about the year 1932. (He died in fact in February, 1933). Baldevdas made a will in which he said that the properties belong to the deity and had been acquired out of the income. By his will he appointed six persons trustees, three of whom are dead ; plaintiffs Nos. 1 to 3 are the remaining trustees. Baldevdas made defendants Nos. 1 and 2 his chelas, but they had deserted him and accordingly directions were given in the will that if they were willing to worship they were to be allowed to do it, but the trustees were to see that the properties were not wasted and that the worship was properly done. In case of default the trustees were directed to remove the chelas and appoint another. After the death of Baldevdas defendant No. 1 undertook to perform the seva puja of the deity and so was allowed to remain, but he got the properties of the deity transferred to his name and led an immoral life. Baberbhai the natural brother of Baldevdas was murdered and in April, 1934, defendant No. 1 was arrested for the murder. Defendant No. 2 was then allowed to perform the worship and he also did not behave properly. Defendant No. 1 was acquitted in September, 1934, and after that both he and defendant No. 2 asserted a hostile title. It is alleged in the plaint that both of them are unfit to remain as pujaris, having neglected the seva puja. It is also alleged that some of the temple properties had been alienated to defendants Nos. 3 and 4. For all these reasons it is alleged that it is not in the interest of the institution that these defendants should be allowed to remain in the temple any longer. Plaintiffs being residents of Boriavi and worshippers of the idol and having obtained the consent of the Collector of Kaira instituted the suit claiming the following reliefs: a declaration that the properties described in the schedules to the plaint are public charitable and religious trust properties of Shri Gopalji Maharaj, accounts to be taken from defendants Nos. 1 and 2, an injunction to defendant No. 3 not to assert any right in pursuance of a mortgage deed in his favour, possession of properties comprised in a sale-deed in favour of defendant No. 4, lastly, a direction for the framing of a scheme for the worship of the deity and the effectual management of the affairs of the temple.

3. The main defences to the suit were that the properties are the private properties of defendants Nos. 1 and 2 and that there is no public trust for religious purposes. The suit is said to be a malicious one as several of the plaintiffs were concerned in bringing a false charge of murder against defendant No. 1. The alienations made by defendant No. 1 are said to have been necessary for his defense against this false charge.

4. The trial Court found on the issues raised that the will of Baldevdas was properly proved and that it empowered the plaintiffs to remove defendants Nos. 1 and 2, that Baldevdas had, however, no power to make a will in respect of trust property, that defendants Nos. 1 and 2 had not ceased to be the chelas of Baldevdas, that the suit properties belong to the deity and are public trust properties and that the plaintiffs are entitled to bring the suit. A preliminary decree has been passed declaring that the suit properties consisting of moveables and immoveables and outstandings are public trust properties of a religious nature for the deity Shri Gopalji Maharaj intended for upkeep and maintenance of the seva puja of the deity and festivals connected therewith and to the benefit of the Hindu devotees of the village. Defendants Nos. 1 and 2 were directed to render accounts of whatever income they received from the date of the suit until possession was taken from them by receivers appointed by the Court. No relief was granted against defendants Nos. 3 and 4 except a declaration that the property in their hands was trust property. Plaintiffs and defendants Nos. 1 and 2 were called upon to submit a draft scheme, and in the meantime it was provided that the latter should continue to perform the worship.

5. On behalf of the defendants-appellants a preliminary objection was taken that the suit is not competent. The Collector's certificate under Section 93 of the Code is exhibit 193. It is addressed to Mr. Becharbhai Samalbhai (i.e. plaintiff No. 1) 'and others of Boriavi' and gave permission for the institution of a suit against the defendants for the reliefs enumerated in Section 92. It was held in Gopal Dei v. Kanno Dei (1903) I. L. R. 26 All. 162 that the permission required by Section 92 must be given to two or more named persons. It is not sufficient for the Advocate General or the Collector to nominate one person and give him a blank cheque to join any other person or persons he chooses as co-plaintiffs. That no doubt is the law, but if certain persons apply to the proper officer for permission to sue and he grants the application, the omission to set out the names of all the applicants in the permission order does not render it invalid. That was decided in Jafarkhan v. Daudshah (1910) 13 Bom. L.R. 49. The application made by the plaintiffs here to the Collector has not been put on record, probably because this particular objection to the suit has never been raised before. It was alleged in the plaint that all the plaintiffs obtained the Collector's consent and there is no specific denial of this in the written statement. Plaintiff No. 4 has sworn to the fact and he has not been cross-examined as to that. We see no reason to doubt but that the Collector gave permission to the particular persons, viz. the plaintiffs, who applied to him for it. That being so there is nothing in this point.

6. The other objection urged against the maintainability of the suit is that it is a composite suit based partly on the alleged will of Baldevdas and not wholly within the scope of Section 92. The issues relating to Baldevdas's will, issues Nos. 1 to 3 in the trial Court, are not really appropriate to a suit under the section. However, the plaint undoubtedly contains the allegations necessary to bring the suit within the section. The reliefs granted are all within it. The fact that some issues have been raised which have no direct bearing on the issues which arose under the section does not in our opinion affect the maintainability of the suit.

7. The suit property consists of lands, the building called the temple, a house, an orda (room) and certain moveables and outstandings amounting to Rs. 11,000 and odd. 'The lands are of three kinds, devasthan, inam and sarkari. The devasthan lands consist of four survey numbers measuring in all 13 acres 33 gunthas. The total area of the lands in suit is 50 acres 39 gunthas. There is a plan put in showing the nature of the temple premises. Entering the main door there are two wings, one to the right and one to the left. In the right wing there is an open ravesh or verandah in which is a room containing the idol. There is a row of other rooms. There is also an upper storey in which there are more rooms. In the left wing which abuts on the road there is a line of shops. It seems that there is no dome and the usual architectural features of a Hindu temple are wanting. According to the defendants the building is not really a temple but an ordinary house, which has been converted. It is undisputed that the temple is three or four hundred years old. It is also undisputed that the worship has always been performed by a sadhu of the Ramanandi sect and that each sadhu has initiated a chela who has succeeded him. Little or nothing is known of the early history The sadhu in 1862 was one Jugaldas. He had two chelas, Girdharidas and Narandas. Narandas also had two chelas Haridas and Govinddas. But in 1882 Haridas transferred his rights to Govinddas by a formal conveyance which is on record, exhibit 221. It is an interesting document as it appears that the temple or rather 'one house called temple' and lands amounting to 28 acres 3 gunthas were transferred as though they were private property for the sum of Rs. 200. Govindas's chela was Baldevdas and his chelas were defendants Nos. 1 and 2.

8. The plaintiffs have relied partly on oral and partly on documentary evidence. The oral evidence deals mainly with such points as the tradition in the village as to the origin of the temple, the use which the Hindu villagers have made of the temple, the income of the temple, how obtained and how used, the alleged control of the sadhus by the villagers and the manner in which they have been installed. Plaintiff No. 4, who is perhaps the most important witness, has asserted that the temple was got built by the village people about 200 or 250 years ago, but he has admitted that there is no document to show this and that his evidence is mere hearsay. Plaintiff No. 2 in his evidence has made the same assertion and the same admission. As to the public user plaintiff No. 4 says that people of the village go to make darshan in the temple and no one has ever been prevented from doing so. Certain festivals are observed there when people attend and sing songs and make presents of corn and small coins to the deity. Every day the deities are washed and garlanded by the sadhu and the arti ceremonies are performed morning and evening. Village people assemble at the time of the artis. According to this witness the income of the temple is derived from the lands attached to it and people of the village have given lands and out of the income the property has increased. Another source of income is the gift of a rupee on the occasion of the marriage of a daughter in a patidar family. Similar gifts are made on some other occasions. The total amount of the income according to him is about Rs. 2,000, but obviously the greater part of that must be derived from the income of the fields. No accounts have been produced in the case except some which were kept by Baldevdas for a period of twelve years altogether during his time. They are not regularly kept accounts, but monthly balances are drawn. No details are given, but the sums received or paid are entered with the name of the payer or payee and the account is headed with the name of the God. I may say, as I have mentioned the accounts here, that it is not clear that they contain any entries relating to the lands which are not devasthan lands.

9. Plaintiff No. 4 has stated that on the death of Baldevdas the village people asked defendant No. 1 whether he was willing to live in the temple. He also says that Baldevdas used to spend money out of the temple property with the consent of the villagers, and he tried to make out that at the time of the installation of each succeeding sadhu the village people took part in the ceremonies. Some of the other witnesses have also stated that at the time of the installation ceremonies village people present chadars to the sadhu, but it is clear that the ceremonies were really performed by sadhus. The attempt made by plaintiff No. 4 to show that the sadhus have been in any way effectively controlled by the villagers is not supported by other witnesses and even in his own case it does not appear to be based upon personal knowledge.

10. One of the properties in suit, lot No. 3, is a house, and plaintiff No. 4's account of this is interesting. He says that there used to be a small temple in Boriavi known by the name of Lalji Maharaj, Lalji being the child of Krishna. A house belonged to one Bai Jamna who had installed the idol there. She had given it for worship to one Dharamdas, a Ramanandi sadhu. In course of time it happened that there was no one to look after this temple and the idol was then removed to the Gopalji Maharaj and has become part of the property of that temple. Both plaintiffs and defendants seem to have attached some importance to this transaction, but it is difficult to see what bearing it really has upon the case. The temple of Lalji Maharaj was quite obviously a private temple, and the fact that the idol when it became derelict was removed and set up in the suit temple can hardly assist us in determining whether a public trust has been created in respect of the latter. No doubt plaintiff No. 4 in his usual fashion has asserted that the Lalji idol was entrusted to the suit temple by the village people. There is nothing in writing to show this, and he admits that he was not present at the time.

11. Plaintiff No. 2 has given evidence very much on the same lines as plaintiff No. 4. The evidence of the other inhabitants of Boriavi adds very little to what the plaintiffs themselves say. According to some of them the temple and its properties belong to the villagers, according to others they belong to the deity Gopalji. But their evidence is all hearsay and opinion. It does not show even a definite tradition in the village. Most of the witnesses say that visitors to the temple for darshan offer small copper) coins to the idol and that sums of a rupee or two are paid on such occasions as marriages. The evidence is conflicting as to whether the latter payments are made by. all classes or only by the patidars, as to whether they are compulsory payments (lagas) or purely optional and as to whether the payments are made to the deity or to the sadhu. There is no doubt of course that in any case the sadhu is intended to use the money. Prima facie learned counsel for the appellants seems to be right in his contention that there is nothing in the oral evidence which points definitely to the conclusion that this is a public institution. The evidence as to the building of the temple by the villagers is worthless, that as to the control of the sadhus by the villagers almost' equally worthless. The festivals which are observed and the ceremonies performed are such as might be observed and performed in private temples as several of the plaintiffs' witnesses admit. Offerings of small sums of money are also no proof of the public character of the institution. As to public user and its value as evidence I shall have something more to say later on.

12. It is clear that the decision of the issues must depend mainly on the documents in the case. The oldest document, exhibit 194, is an extract from an old village register called the kalambandi. Kalambandi according to Wilson's Glossary is a document showing the state and management of a district. According to Robertson's Glossary it is the statements which upon the introduction of British rule were yearly made for each village in which everything relating to the lands and revenues, population, etc., of the village was entered in detail. There seems to be no justification for the view of the learned trial Judge that this register was peculiar to narva villages. The material portion of exhibit 194 gives details of the village expenses, and under the heading devasthan dharmada there is a reference to three fields as being assigned apparently for defraying the expenses of Shri Gopalji Maharaj of Shri Thakor Mandir. Mandir is a temple. The Thakor of Kuna is the Talukdar of Boriavi village and owns the wanta lands therein. It seems that the temple is called after him. There are also entries of small sums paid for keeping lights in the temple and for expenses at certain religious festivals.

13. The document is to be read in connection with exhibit 192, which is a Summary Settlement Sanad dated June 19, 1865. This shows that three fields, evidently the same as those referred to in exhibit 194, were the endowment properties of the temple of Shri Gopalji Maharaj of which the worshippers and managers were Beragee Girdhari Joogaldas and Haridas Narandas and that they were to be held on payment of quit rent only as long as the managers should continue to be the loyal and faithful subjects of the British Government. Exhibit 191 is another sanad dated December 1, 1886, which confirms with the same conditions the grant of an annual cash allowance of Rs. 7 to the temple of Gopalji Maharaj which had been made by the pre-British Government.

14. As there is no reason to suppose as far as we are aware that the Peshwa or the Gaikwar, whoever it was who made the original grant, would only have made it in the case of a public temple, the existence of this cash allowance has little bearing on the main issue in this suit. The grant of three fields out of the village lands for the maintenance of the temple is more important. But this also may have been and indeed almost certainly was a grant by the former Government. The Kaira district was ceded to the British Government according to the Gazetteer partly in 1803 and partly in 1817. The entries in the kalambandi and the sanad of 1865 are no doubt consistent with the view that the temple was originally dedicated to the deity Shri Gopalji Maharaj or to the use of the villagers of Boriavi for worship. But it cannot be said that they necessarily point to such a dedication. They are also consistent with the defendants' case that the shrine of Gopalji Maharaj was set up by some sadhu in a private building belonging to him and maintained by him, no doubt with the object that the idol should be worshipped and that ceremonies should be performed and festivals observed in which the villagers might participate, but without any intention of dedicating either the building itself or any properties acquired out of the income to the deity or for the use of the public.

15. The learned trial Judge was of opinion that Boriavi was at one time a narva village and he thought that in such a village no lands could be set apart for al temple unless all the people interested in the narva had a common object in setting up the temple. But apart from some very vague and quite useless statements of plaintiff No. 4 there is no evidence that Boriavi was a narva village at the material time, and even if it was, the learned Judge's inference does not seem to be justified. His finding that these documents prove a dedication of the temple by the villagers cannot possibly be sustained. The documents may no doubt be said to prove that a trust in favour of the temple or idol was created by the grantors of the cash allowance and the three devasthan fields. Those grants were made not by the villagers but presumably by the Peshwa or the Gaikwar. These particular properties would be held by the sadhu for the time being in trust. That position Mr. Thakor for the appellants has conceded. The same may be said about a fourth field which is shown in the village records as devasthan and which appears to have been given by some Thakor of Kuna. The present Thakor's statement that it was given to one of the sadhus does not rest on any solid foundation. But it is very far from clear in our opinion that the trust created in respect of these properties can be regarded as a trust for public purposes.

16. Mr. Shah on behalf of the respondents advanced the proposition that whenever a gift of property is made to an idol, the trust created for the benefit of the idol is necessarily a public trust involving the operation of Section S2. He relied on Girijanund Datta Jha v. Sailajanund Datta Jha I.L.R. (1896) 23 Cal. 645 and Manohar Ganesh Tambekar v. Lakhmiram Govindram I.L.R. (1887) 12 Bom. 247. In the former case the question for decision was whether property dedicated to an idol belongs to the idol or to the shebait or priest. The point as to whether the trust in such a case would be a public or a private one does not seem to have arisen, because admittedly it was a public idol. Manohar Ganesh Tambekar v. Lakhmiram Govindram is the famous Dakor Temple case. That temple is a very ancient institution dating from the 12th century. Its devotees come from all over the country and two whole villages have been assigned for its maintenance. It is obviously not in the same category with the petty temple house which is the subject of this suit. It is very easy to understand therefore why this Court held that the Dakor temple was a public institution, and when the case went in appeal to the Privy Council (Chotalal v. Manohar Ganesh Tambekar I.L.R. (1899) 24 Bom. 50 that point appears to have been conceded without argument. The first paragraph of the head-note in Manohar Ganesh Tambekar v. Lakhmiram Govindram is: 'A trust for a Hindu idol and temple is to be regarded in India as one created 'for public charitable purposes', within the meaning of Section 539 of the Code of Civil Procedure', which corresponds with the present Section 92, That does no doubt lay down what appears to be a general proposition. But the foundation for this is not easy to extract from: the judgment in the case. It seems rather to rest on the judgment in a previous suit relating to the temple which was not brought by relaters under Section 539 and which was dismissed by Mr. Justice West (see the note at the end of the report in Manohar, Ganesh Tambekar v. Lakhmiram Govindram). We think that no such general proposition can be laid down without qualification. It is well settled that family idols may be endowed with property without any question of a public trust arising, and the same we think may be true of some idols which are not family idols. We may refer in that connection to Prasaddas Pal v. Jagannath Pal. I.L.R. (1932) 60 Cal. 538

17. Assuming, however, that we are wrong on this point and that the endowment of the idol with a cash allowance of Rs. 7 and fields amounting in area to some fourteen acres in all, coupled with the fact that all classes of Hindus in the village, except untouchables, go to the temple now and again for worship, is enough to show that a trust has been created for public charitable purposes, it would certainly not be enough to justify the interference of the Court under Section 92. There is no evidence that, the worship of the temple has not been maintained or that the income of the devasthan lands has been in any way misapplied. The plaintiffs have made various allegations against the character of the defendants but have not been able to substantiate them. There could toe no necessity for appointing other trustees or for framing a scheme, and in all probability the suit would never have been brought at all, if the endowment of the temple is confined to the properties to which I have so far referred.

18. The most important point in the case is whether the additional lands which have been acquired by the sadhus from time to time and the profits of the business carried on by Baldevdas are also to be regarded as part of the temple properties. The sanadi fields and the field given by the Thakor are thirteen acres thirty-three gunthas in area. In 1882 when Haridas transferred the properties to Govinddas exactly as if they were all private properties the total area was twenty-eight acres three gunthas. In 1902 when Govinddas made a will the area was thirty-one acres fourteen gunthas. At the end of Baldevdas's time the area was fifty acres thirty-nine gunthas. There are on record certified copies of three sale-deeds in favour of Govinddas and seventeen in favour of Baldevdas, also of six sale-deeds executed by Baldevdas. Five of these and also some of the sale deeds in his favour were attested by plaintiff No. 1. The recitals in these documents all indicate that the properties were dealt with as private properties and there is no reference to the temple or any trust. All the lands other than the four original devasthan fields have always been shown in the revenue records as the private property of the sadhu. They are, so shown now in the Record of Rights. No reference has ever been made to the temple in connection with them.

19. Plaintiffs' case which the trial Judge has accepted is that these lands have all been acquired out of the income of the temple and that the capital for the business which Baldevdas admittedly carried on in cotton seeds and other commodities and also for his money-lending business came from the same source. This is an assumption merely and an assumption for which we cannot find any justification. There is no evidence to show what the income of the devasthan fields actually was, but it seems unlikely that it can have been more than sufficient for the maintenance of the temple and its worship and that of the sadhus themselves. In addition there would be the money payments on marriages and other such occasions, but it has frequently been held that no trust can be implied in the case of such payments.

20. I need only cite Chhotabhai V. Inan Chandra Basak in that connection. It has already been pointed out that there was as long ago as 1882 an area of over fourteen acres of lands in addition to the devasthan. Assuming, as one well may under the circumstances, that the devasthan lands would suffice for the maintenance of this small temple and of the sadhu himself, the fourteen acres of non-devasthan lands would afford a nucleus from which the remaining lands could easily have been acquired. It is necessary for the plaintiffs to show therefore that this nucleus formed part of the temple properties in respect of which a trust for religious purposes of a public nature has been created.

21. In the case to which I have just referred, Chhotabhai v. Inan Chandra Basak, the Privy Council held that in order to constitute an express or constructive trust created or existing for a public purpose of a charitable or religious nature to which the Charitable and Religious Trusts Act XIV of 1920 applies, the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty, and further, the purpose of the trust, the trust, property and the beneficiaries must be indicated so as to enable the Court to administer the trust if required. It is true that was not a case under Section 92, but it is difficult to see why similar principles should not apply also to suits under that section. The learned trial Judge referred to this case and his finding was that the village people of Boriavi when it was a narva village were the authors of the trust. The deity is the beneficiary and the object is to afford an institution for offering prayers. He is clearly wrong in holding that the village people can be regarded as the authors of the trust, because, as I have shown, there is no evidence of that at all. So far as concerns the properties with which we are now dealing, it seems clear that there cannot be any trust unless it has been created by the sadhus themselves. So far as we can see, there is nothing in the history of the institution which points to the conclusion that they have done so.

22. Both the learned trial Judge and Mr. Shah who appears for the respondents have relied on certain propositions that were laid down in Doribhai v. Pragdasji : AIR1938Bom471 in a judgment to which I was a party, viz. that public user of a temple for a long period without objection is strong evidence of the temple being a public temple and that where property has been acquired by a sadhu and has descended from chela to chela there is a presumption that it has been dedicated to religious uses. The value to be attached to evidence of public user in cases' of this kind has been recently discussed by the Privy Council in Babu Bhagwan Din v. Gir Har Saroop. . Their Lordships said in this connection (page 9):--

Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol; they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away ; and, as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.

23. Although in that particular case there was evidence of an original dedication to a private individual, we think these observations of their Lordships have some application to the present case. As I have already pointed out, there seems to be nothing in the evidence as to public user here which is really inconsistent with the temple being a private one.

24. As for the presumption which in Indar Singh v. Fateh Singh I.L.R. (1920) 1 Lah. 540 and other cases cited in Dhoribhai v. Pragdasji has been held to arise where succession is from chela to chela, that seems on further examination of the authorities to be limited to cases where the religious persons concerned are grihasthas and not celibates, so that there may be a conflict between the chela and the natural heirs of the guru. A sanyasi's heir is always his chela. Mr. Shah has pointed out quite correctly that these particular sadhus have evidently not renounced the world completely because they are permitted to acquire and dispose of property and carry on business. Nevertheless they admittedly belong to a celibate order, and so far as we know there has never been any question of any property held by them, whether trust property or secular property, going by succession to any one but their chelas. Under the circumstances we are not prepared to say that the fact that all these properties have been held by chelas gives rise to any presumption.

25. The trial Judge's conclusion has been mainly influenced it appears by exhibit 251 which is a sort of will alleged to have been executed by Baldevdas on March 4, 1918. The first question that arises in connection with this is whether it is legally proved. It purports to be attested by three persons, one at least of whom is alive, and therefore s. 68 of the Indian Evidence Act requires that one of them should have been examined as a witness. The only witness who has been examined is the writer Kasandas. He says in his evidence that Baldevdas signed the will in his presence and it is contended that this is enough to comply with the law. But an attesting witness is one who signs as a witness [see the dictum of Lord Campbell in Burdett v. Spilsbury (1843) 10 Cl. & F. 340 which is approved by the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan (1912) I.L.R. 35 Mad. 607 P.C. and by this Court in Ranu v. Laxmamao I.L.R. (1908) 33 Bom. 44 and Dalichand Shivram v. Lotu Sakharam I.L.R. (1919) 44 Bom. 405. In the cases to which Mr. Shah refers, Govind Bhikaji v. Bhanu Gopal I.L.R. (1916) 41 Bom. 384, and Yakubkhan V. Guljarkhm (1927) 30 Bom. L.R. 565 the scribe was held to have signed as a witness and not merely as a scribe.

26. The question then is whether Kasandas signed as a witness. He does not say that he did. The only circumstance on which the plaintiffs can rely is this. Immediately below the body of the will Kasandas wrote two column headings 'Here signature'. 'Here witness', and he then put his own signature at the top of the column for witnesses. But apparently he did not sign as a witness, for his signature is preceded by the letters 'Li' i.e. likhitan (writer). The signatures of the attesting witnesses are preceded by the word 'sakshi' (witness). We are not prepared to say therefore that Kasandas signed as a witness merely because his signature appears in this column, especially as he had to sign somewhere and he had left no space in which he could sign except in one or other of the columns. We do not consider that the requirements of Section 68 are satisfied, and therefore the document cannot be admitted in evidence, at any rate as a will. Mr. Shah has contended that the document can nevertheless be looked at and that he is entitled to rely on the statements made by Baldevdas. For that purpose he has been able to cite the authority of a full bench Madras case, Chidambara Reddiar v. Nallammal (1908) I.L.R. 32 Mad. 410, F.B. and also Shyam Lal v. Lakshmi Narain. [1939] All. 366.

27. Conceding this, however, and even assuming that the document is admissible for all purposes, we should not be disposed to attach much importance to it under the circumstances. It is a very remarkable document. It begins by stating that the Chelas, defendants Nos. 1 and 2, were not obedient and not residing in the temple at the time. Then it says 'They might return to the temple after my death and lest they do not waste the property I make this writing in my proper senses'. So that apparently he recognised the right of the chelas to succeed to the property. Then he goes on to give a description of the various properties, and after this we have this recital:

Of the properties thus mentioned, some have been acquired by my predecessors and some by me. But all these properties have been acquired from the income of Gopalji Maharaj. I am doing vahivat of the same till now, and I shall continue to do so as long as I live. After my death, if the two chelas, mentioned above who are not with me, return, they are to worship Gopalji Maharaj and also do vahivat of the whole estate. After my death the said two chelas, are not to waste the said property, and if they do not do worship in good faith, they] are to be removed and replaced by another Sadhu, who should go on properly for worship and management, by my trustees mentioned below.

28. The names of the six trustees are then given, but there is no devise of the property to them or indeed to anybody. The will concludes with the direction 'My trustees are to get the lands transferred to the name of Gopalji Maharaj'.

29. If there was already a trust in existence, which is what the learned Judge thought, the will of course would be otiose. If there was no such trust in existence, it could not be said that any trust was created by the will because, as I have said, there is no devise of the estate to anybody, and the powers given to the trustees are repugnant to the rights of the chelas as heirs. However, Mr. Shah for the plaintiffs does not appear to rely upon the document as a will. What he argues is that because Baldevdas gave directions that his successors should only do vahivat and that the lands were to be entered in the name of the deity that shows that he himself regarded the properties as trust properties. That conclusion is supported by his admission that they were all acquired from the income of the temple. Now, in one of the cases to which I have already referred, Dhoribhai v. Pragdasji, we were much impressed by the fact that each of the mahants who succeeded to the headship of the institution had made a will the provisions of which showed in our opinion that he recognised that he held the properties subject to a trust. That was the principal ground on which we held in that case that the properties were not the private properties of the mahants. But the circumstances were very different. Everyone of the mahants from the foundation of the institution had made a will of this nature, and the evidence showed that these wills were published and approved by the devotees as though they were part of the constitution. The evidence further showed that the mahants had acted in accordance with these provisions.

30. This so-called will of Baldevdas on the other hand is an isolated document. In 1882 the properties were transferred by Haridas to Govinddas without any reference to or recognition of any trust. Govinddas in his will which is on record dealt with the estate, including even the devasthan lands, as though it was private property. Baldevdas made this will long before his death, apparently at a time when he was annoyed with his chelas. He did not inform anybody about the will and there is not the slightest reason to suppose that it affected his own conduct in any way or that he ever acted otherwise than as the full owner of the suit properties. The attempt made in the will to restrict the powers of his successors, he himself having enjoyed the property as a private owner, cannot in our opinion have any material bearing on the question whether there is a public charitable trust. Nor can we attach much importance to the assertion that all the suit properties were acquired from the income of Gopalji Maharaj. The meaning of this statement is by no means clear and anyhow Baldevdas could have no knowledge as to how the original nucleus of non-devasthan properties was acquired.

31. For these reasons we are of opinion that the plaintiffs have failed to make out their case under Section 92. The appeal must be allowed and the suit dismissed with costs throughout. Cross-objections are also dismissed with costs.

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