1. This is an appeal from a decree made by the District Judge of Ahmedabad who has dismissed the, plaintiffs' suit with costs. The suit purported to be a suit filed under Section 92 of the Civil Procedure Code with the permission of the Collector. The plaint, which is somewhat diffuse in its references to the history of the property, may be summarised as containing averments that the whole of the property referred to is public charitable property of the Vaishnavs ; that the defendants, of whom the second is the wife of the first, were mere pujaris, or as is expressly stated, trustees appointed by the Vaishnavs for the worship of the idol ; that the defendant, that is to say, the real defendant, the husband, although a trustee, did not properly look after and take care of the Mandir; that he refused to show the income of the Mandir to the Vaishnavs interested. Misconducting himself in this and other ways, say the plaintiffs, he datwrrot- discharge his duties as a pujari and trustee, and he has thereby committed and commits breach of trust. The plaint goes on to say that when remonstrated with on this misconduct the defendant refused to acknowledge his responsibility to anybody, but gave a reply to the following effect: '' I am the independent owner of the Mandir and all the immoveable and moveable property appertaining to the Mandir, and the Vaishnav people have no right whatever, and I have full right to make such use of the Mandir and all the immoveable and moveable property appertaining to the Mandir as I may think proper, inasmuch as the Mandir, and the property appertaining to the Mandir, belong to me by right of independent ownership and the same are not public charitable property.' The prayers were that the defendants should be removed from their possession and vahivat of the Mandir; that the said property should be given in trust, and other persons should be appointed as Vahivatdars, that is to say, trustees, and other fit and proper persons should be appointed as pujaris; that an account should be taken from the defendants ; and that a scheme should be framed for the administration of the trust. This in substance is the character of the plaintiffs' suit, and the first question which arises is whether it properly falls under Section 92 of the Civil Procedure Code. The learned Judge below was of opinion that it was outside the section and that the plaintiffs' proper remedy would have been by an ordinary ejection suit in some form or other in the ordinary Court. The Judge based this opinion upon the ground that the plaintiffs' case, as developed in the evidence, was that the principal Vaishnavs of the locality were the owners and managers of the Mandir, and were themselves trustees on behalf of the community, while the defendant was merely their servant, whom they had a right to appoint and dismiss at pleasure. It appears to us that the learned Judge in looking beyond the plaint to the evidence of the witnesses for the ascertainment of the nature of the suit was in error, and that he attached undue importance to the evidence which upon this point was given. The character of the suit is primarily to be ascertained by a reference to the pleadings, and is not dependent upon the plaintiffs' success at the trial; moreover the mere use of the English word ' trustee ' by the Gujarati witnesses is not a circumstance of any real importance in deciding the real nature of the suit.
2. Section 92 of the Civil Procedure Code provides for a suit in the case of any alleged breach of a public charitable trust or in the case where the direction of the Court is deemed necessary for the administration of any such trust. And we cannot doubt that, properly regarded, this suit falls directly within the purview of the section. As we have shown by reference to the terms of the plaint, the plaintiffs' case was that the defendant was a trustee of this Mandir, the Mandir itself being public charitable property ; that the defendant, both by setting up au adverse title of his own and in other ways, had been guilty of breaches of his trust; and that, therefore, the defendant should be removed from his possession and the Court's direction should be given as to the administration of the trust. Such a suit is in our view strictly within the limits of Section 92. And in truth this particular suit is of a very familiar type and follows a very familiar course. The type of the suit is not altered by the circumstances that, as usual in this class of litigation in India, the plaintiffs, like the defendants, have been, guilty of exaggeration. Stripped, however, of this form of decoration, the real controversy in the suit is perfectly plain. It is a controversy between the plaintiffs, interested Vaishnav worshippers, who allege that this temple is public charitable property, and the pujari defendant who claims that the property is his own private property. That is the point upon which, as the pleadings show, the real dispute turned and the decision of the Court was required. It is, in our opinion, a mistake to lead the plaint as if it alleged that other people, in the position of the supervisors, were trustees of the temple and that the defendants were not the trustees. On the contrary, according to the plaint, the defendants were in possession of the trust property, and were in receipt of the income accruing to it; and the plaintiffs' clearly expressed case is that in relation to this Mandir the defendant's position was that of a trustee. If that is so, then apart altogether from the question whether supervision had been exercised over him in the past, or whether he had refused to show his accounts, or committed any other act of misconduct, the mere circumstance that he set up in himself a private title adverse to the trust would constitute a breach of trust; see Damodar v. Bhat Bhogilal ILR (1896) 22 Bom. 493 and Chintaman Bajaji Dev v. Dhondo Ganeah Dev ilr (1888) 15 Bom. 612; such a denial of his trust and the consequent need of the Court's directions with regard to the administration of the property amply suffice for the application of Section 92....
3. The suit then was properly brought under that section and the question which arises, the only substantial question between the parties, is whether the plaintiffs have succeeded in showing that the property is public charitable property. As we have indicated, it must be conceded that the plaintiffs upon this point have exaggerated the truth in their assertion that in the past pujaris like the defendant have been formally appointed by direction of the Vaishnavs. These formal appointments, as we know, are not the custom in India, but the absence of them by no means indicates that the property involved is other than public property. In the same way the circumstance that the pnjariship has gone down uniformly by inheritance or grant is also a circumstance of singularly little significance in a country where every office tends to become hereditary. It is common knowledge that in India parties on both sides acquiesce in this slipshod state of affairs until some act is done or some claim made which makes it essential to have their rights formally determined.
4. These then are circumstances which, as it seems to us, touch but the fringe of the case. The real question is whether there is evidence to show that the Mandir has with the approval of the pujaris been treated as public charitable property. Upon this part of the case the plaintiffs assert that for several years including the period between 1876 and 1884 the pujari was one Ranchod Keshavram. According to the plaintiffs he admittedly held as a mere worshipper and acknowledged that the property of the Mandir was in the Vaishnavs. These acknowledgments of Ranchod's being indisputable, the defendants in their written statement are driven to an attempt to suppress the intervention of Ranchod Keshavram, and to allege that the Mandir belonged to Ranchod's wife Sankli who by a deed of gift transferred it to the defendants' predecessor-in-title Bai Javer. We say a deed of gift because by the defendants' purshis Ex. 51 it is admitted that the gift was recorded in a written instrument. No such instrument is, however, produced by the defendants, and the evidence makes it quite clear that the real pujari was Ranchod Keshavram himself, and his admissions go a long way to establish the plaintiffs' case. These admissions are to be found in Ranchod's will made in 1881, or three years before his death. The will is registered and admittedly is a genuine document. In the course of it Ranchod speaks of the Mandir in suit as ' belonging by right of ownership to the Vaishnavs which appertains to my vahivat and in which I perform worship etc., and one house appertaining to the said Mandir.' He repeats the same words in later passages of the will, and it is clear that his contention was that, although he had an indefeasible right to perform the worship of the Deity, the property in the Mandir was in the Vaishnavs.
5. The learned District Judge upon this piece of evidence has observed that ' it is inconclusive without there being very much more information than we possess as to the conditions under which Ranchod made that statement.' ' It would seem,' says the learned Judge, ' that at the time when he made it he had no particular interest in the property.' We have some difficulty in following the learned Judge here, because it is admitted before us that as late as 1876 Ranchod was the pujari, and that there is no evidence whatever that his possession underwent any change between that date and the date of his making his will in 1881. We must therefore infer that at the d ate of the will Ranchod had a very direct personal interest in this property and in the pwjariship, and his statements disclaiming all right to the property of the Mandir are statements against his interest, and therefore the more worthy of acceptance.
6. Two witnesses were called on behalf of the defendant to say that at some undetermined time prior to his death Ranchod became insane; but we are unable to attach any importance to this statement coming from interested witnesses, since we have the undisputed fact that probate of Ranchod's will was granted.
7. In Ex. 64 we have a further piece of evidence consisting of the 1st defendant's own statement made to the Mamlatdar on the occasion when the Collector was instituting an inquiry for the purpose of ascertaining whether he should consent to the filing of this suit under Section 92. In this statement made in April 1908, the first defendant admits, what he takes great pains to deny in the written statement to this suit, that his title comes to him by devise from Ranchod Keshavram. If that is so, the defendant's title can stand no higher than that of his devisor, and upon that footing having regard to Ranchod's will it is manifest that the defendant would be a mere trustee. He has sought to escape from the effects of this statement by the allegation that the statement was made in a hurry and without due consideration, but we are unable to accept that allegation.
8. Next we have the evidence furnished by extracts from the City Survey which go back' to a period about 1870. The first of these extracts is Ex. 104 which refers to the house and temple in suit. The house is described as belonging to Ranchod Keshavram who, as we have seen, Was the pujari at that date, and the temple is described as Ranchod's Mandir. By an entry made on the 31st December 1876, it is noted that an order has been passed for this number being entered as Wakf property. The word ' Wakf' without more clearly denotes, in our opinion, public charitable property. A similar extract for the year 1876 is supplied by Ex. 105. There the property is entered as Ranchodji's Mandir per Manager Ranchodji Keshavji, and in another column we read that the Manager has charge of this shrine. Not only, therefore, have we the word ' Wakf' but we have the allusion to the Manager, in place of any mention of an owner, to support the inference that this property was then regarded as public charitable property. In 1870 and 1872 the Municipal receipts Ex. 13 and 14 were issued in the name of Ranchod Keshavram as Manager. In this context it may also be observed that though unquestionably some Sanad must have been issued by the Survey authorities to the defendants as Managers in possession of the Mandir, yet no such Sanad has been produced.
9. Further the evidence shows that repairs were made to the property in 1890 and were made by subscriptions among the Vaishnav community. No doubt this fact in itself is by no means conclusive, since the evidence shows that public sub-criptions are also invited for the repair of private places of worship; but so far as it goes the fact suggests an inference in favour of the plaintiffs, and that is the more obvious from the keenness with which the defendant sought to deny that public subscriptions were used for these repairs (see para 10 of the written statement). The evidence, however, leaves no doubt that public subscriptions were so devoted.
10. Then we have the admitted fact that from 1890 onwards a substantial part of the moveable property belonging to this Mandir, namely, ornaments worth about Rs. 500 have remained in the plaintiffs' possession ; but if this Mandir were the private property of the defendants no reason appears and no reason has been suggested to us to explain why this property should be in the possession of outsiders with no interest in it. We find also upon the evidence that the temple is shown always to have been kept open to the public for worship at all usual and reasonable hours, and there is no suggestion that any member of the Vaishnav public was ever excluded or sought to be excluded.
11. Upon this evidence, which is not in any manner met or contradicted by the evidence called on behalf of the defendants, we are satisfied that the plaintiffs have succeeded in proving the main proposition, for the establishment of which this suit was brought, the proposition, namely, that the Mandir is public charitable property, and is not, as the defendants claim, the defendants' private property. We think a declaration must be made to this effect in the plaintiffs' favour, There is, in our opinion, no evidence at the present stage which would justify the removal of the defendants from their present office, and upon that part of the case, therefore, the plaintiffs cannot succeed. At the same time we think that some scheme of however simple a character should be devised in order to impose an effective control upon these pujaris who have been treating the property as if it were their own and who manifestly stand in need of some supervision. The District Judge, however, will be in a better position than we can occupy to frame such a scheme and we remand the suit to him for the purpose of doing so.
12. The result is that we must reverse the District Judge's decree and in its place substitute a decree declaring that the property in suit is public charitable property, and for the rest remand the case to the District Judge for the framing of a suitable scheme.
13. The plaintiffs-appellants must have their costs throughout.