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Chhaganlal Uderam Gour Vs. Sobharam Harishankar Gour - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 1 of 1931
Judge
Reported inAIR1934Bom26; (1933)35BOMLR1119
AppellantChhaganlal Uderam Gour
RespondentSobharam Harishankar Gour
DispositionAppeal allowed
Excerpt:
.....upon his having been deprived of his turn, falls within the purview of section 92 of the civil procedure code, 1908, if the prayers imply the removal of the existing trustee or pujari, and the appointment of another in his place, or the vesting of the temple property in the plaintiff, or the giving of directions as to taking accounts. - - it has been stated by him that the temples were public and not private, that it was government who decided that after jadhavbai's death the puja should be performed by mahidhar, that after mahidhar's death the plaintiff as well as defendants nos. the prayers made in the plaint, however, clearly, in our opinion, ask for remedies, which come under section 92, civil procedure code. this prayer would clearly imply the removal of the existing..........dismissed the suit on the ground that it fell within the purview of section 92 of the code of civil procedure, and that the consent of the advocate general had not been obtained as required under that section. the lower appellate court allowed the plaintiff's claim holding that section 92 of the civil procedure code did not apply. the only question before us is whether section 92, civil procedure code, applies to this case.2. it is not disputed that the temples are public temples and not the private properties of the family of the plaintiff and the defendants. there is a cash allowance payable to them from the government treasury.3. an attempt has been made on behalf of the respondent-plaintiff to show that the appointment of the pujari is not made by government and that the rights.....
Judgment:

N.J. Wadia, J.

1. This is a second appeal arising out of a suit brought by the respondent No. 1, Sobharam Harishankar Gour, in the Court of the Subordinate Judge of Andheri, for a declaration that he was the owner of a one-third share in the income derived from two temples of Vithoba and Lakshminarayan at Malode in the Bassein taluka of the Thana District, for an injunction against defendants Nos. 1 and 5, the present appellants, permanently restraining them from obstructing the plaintiff in the enjoyment of the suit property according to his turn, and for awarding him a certain amount for the loss sustained by him through his having been deprived of his turn by the appellants. The trial Court dismissed the suit on the ground that it fell within the purview of Section 92 of the Code of Civil Procedure, and that the consent of the Advocate General had not been obtained as required under that section. The lower appellate Court allowed the plaintiff's claim holding that Section 92 of the Civil Procedure Code did not apply. The only question before us is whether Section 92, Civil Procedure Code, applies to this case.

2. It is not disputed that the temples are public temples and not the private properties of the family of the plaintiff and the defendants. There is a cash allowance payable to them from the Government Treasury.

3. An attempt has been made on behalf of the respondent-plaintiff to show that the appointment of the pujari is not made by Government and that the rights of the pujari belonged to the plaintiff and the defendants. That this contention is not correct and that the appointment of the pujari is made subject to the approval of Government appear from the admission of the plaintiff himself. It has been stated by him that the temples were public and not private, that it was Government who decided that after Jadhavbai's death the puja should be performed by Mahidhar, that after Mahidhar's death the plaintiff as well as defendants Nos. 1 and 5 applied to the Collector to register their names as worshippers, and that the name of defendant No. 1 was entered as worshipper in the Collector's office. We must, therefore, hold that the temples are a public trust and that defendant No. 1 alone has been appointed or recognised by Government as pujari.

4. It was argued that the reliefs cliamed by the plaintiff did not fall within the purview of Section 92, Civil Procedure Code, and that the case was only one in which the plaintiff as a trustee sought to enforce his personal claims against co-trustees. The prayers made in the plaint, however, clearly, in our opinion, ask for remedies, which come under Section 92, Civil Procedure Code. Defendant No. 1 alone has been recognised as pujari in the Government records and the cash allowance is paid to him alone. He alone, therefore, is entitled to act as pujari from year to year. The first remedy which the plaintiff claimed was for a declaration that he was entitled to act as pujari once every three years and to appropriate the income derived from the offerings made to the deities. This prayer would clearly imply the removal of the existing trustee or pujari, viz., defendant No. 1, from the pujariship for that one year and the appointment of the plaintiff himself as pujari or trustee in his place. It would also mean the vesting of the temple property in the plaintiff to the exclusion of the present pujari defendant No. 1 every third year. The prayer of the plaintiff that he should be awarded a certain amount for the loss sustained by him would also involve a direction by the Court as to the taking of accounts. The prayers, therefore, appear to fall within Clauses (a), (b), (c), and (d) of Section 92. The lower appellate Court took the view that Section 92, Civil Procedure Code, could be held to apply only where the suit alleged a breach of any express or constructive trust and asked for a direction of the Court for the administration of such a trust. It was of opinion that in this case no direction of the Court could be said to have been asked for. Section 92, Civil Procedure Code, does not say that the direction of the Court can be asked for only where there has been a breach of any express or constructive trust. It contemplates cases where the direction of the Court may be necessary even though there has been no such breach of trust. The prayers made by the plaintiff in the case amount, in our opinion, to asking for the directions of the Court for the administration of the trust.

5. The case appears to be on all fours with the unreported case of Maganlal Bhaishankar v. Gangashankar (1924) S.A. No. 458 of 1922, decided by Macleod C.J. and Crump J., on November 13, 1924 (Unrep.). The plaintiff in that case, who was a member of the pujari family connected with a certain temple, filed a suit to recover from one of the co-sharers, who was then officiating as pujari, his share of the temple offerings, and prayed for a declaration that he had the right to officiate as pujari alternately every fourth year and to receive the offerings of the temple, and for an injunction restraining the defendants from collecting the offerings made to the deity during the period of his term to serve as pujari. It was held in that case that the prayer came within the purview of Section 92, Civil Procedure Code.

6. Sakharam Daji v. Ganu Raghu I.L.R. (1920) Bom. 683 23 Bom. L.R. 125 was also a case very similar to the present one. It was held in that case that a suit by the hereditary pujari of a temple to recover from the guravs (temple servants) offerings placed by devotees before the idol was a suit of a civil nature falling within the purview of Section 92, Civil Procedure Code, and that the claim of the pujari to share in the temple offerings amounted to asking for an appropriation of the funds for the benefit of the officiating pujari-a relief which would come within Section 92(e), Civil Procedure Code. We do not see how the facts in that case and in the case of Maganlal Bhaishankar v. Gangashankar can be distinguished from those in the present case. Following those decisions we must hold that the relief claimed by the plaintiff fell within the purview of Section 92 of the Civil Procedure Code, and as the requirements of that section have not been complied with, the suit should have been dismissed.

7. We allow the appeal, reverse the decree of the lower appellate Court, and restore that of the trial Court dismissing the suit. The costs of the appellants will be on respondent No. 1, Sobharam.

Tyabji, J.

8. I agree that the suit falls within the terms of Section 92 of the Code of Civil Procedure. There is a trust for a public purpose of a charitable or religious nature, secondly the directions of the Court are necessary for the administration of the trust, and thirdly the reliefs sought are reliefs falling under Clauses (a), (b), (d), (e) and (g) of Section 92 of the Code of Civil Procedure. The application of this section to the facts of any particular case must depend upon the nature of the trust as well as the particular reliefs sought. It is possible that reliefs very similar in terms may in the case of one trust or institution require or involve directions of the Court in regard to the administration of the trust or institution, and may not require or involve such directions in another trust or institution. It is, therefore, natural that the dicta in the decisions may appear to be conflicting and difficult to reconcile. But for the reasons explained by my learned brother and following the main lines of the two decisions he has referred to-Sakharam Daji v. Ganu Raghu I.L.R. (1920) Bom. 683 23 Bom. L.R. 125 and Maganlal Bhaishankar v. Gangashankar (1924) S.A. No. 458 of 1922, decided by Macleod C.J. and Crump J., on November 24, 1924 (Unrep.)-the appeal ought, in my opinion, to be allowed as proposed by my learned brother.


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