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Sakharam Daji Ganpule Vs. Ganu Raghu Gurao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 864 of 1919
Judge
Reported inAIR1921Bom297; (1921)23BOMLR125; 60Ind.Cas.924
AppellantSakharam Daji Ganpule
RespondentGanu Raghu Gurao
DispositionAppeal dismissed
Excerpt:
.....against guravs (temple servants) for share of offerings to the deity-suit for public religious trust-suit of civil nature.;a suit by a hereditary pujari of a temple against the ouravs (temple servants) to recover his share in the offerings to the deity falls within the purview of section 92 of the civil procedure code 1908.;though such offerings may be uncertain and voluntary yet when made they are the property of the temple; and a suit to recover them is a suit of a civil nature within the meaning of section 9 of the code. - - 1. the plaintiff in this case is one of the pujaris of the well-known temple of shri bhargavram near chiplun. 8. before proceeding to deal with the point as to the effect of section 92, civil procedure code, i desire to make it clear that i am by no means..........proportion. such a claim clearly invites the direction of the court for the administration of this trust property. there is no dispute, and there can be none, that this property is part of a trust created for public purposes of a religious nature. in fact that position had been accepted in the suit filed under section 539 of the code of civil procedure corresponding to the present section 92. it also appears to me that in substance in this suit the court is invited to determine and declare what proportion of this part of the trust property shall be allocated to the pujaris and the guravs. looked at in that light, the suit seems to me to relate to a relief which would be covered by clause (e) of section 92. it is clear that if a shah j. suit had been brought in accordance with the.....
Judgment:

Shah, J.

1. The plaintiff in this case is one of the pujaris of the well-known temple of Shri Bhargavram near Chiplun. He filed the present suit to recover Rs. 91-8-0 as damages from defendants Nos. 1 to 10, the Guravs, connected with this temple. He also prayed for an injunction restraining them from collecting the offerings made to the deity during the period of his turn to serve as a pujari. His allegation was that as one of the hereditary pujaris of this temple he had the right to officiate in the months of Magh and Phalgun of the Shake year 1838 and that during that time the defendants Nos. 1 to 10 forcibly prevented him from entering the temple and from receiving the offerings laid before the deity. The plaintiff's claim was that he was entitled to receive these offerings in accordance with the long-established usage of the institution, according to which the offerings were to be appropriated by the pujaris. The Guravs defended the suit on the ground that they were entitled to the offerings. They also contended that the suit was not maintainable. At a later stage the defendants Nos. 11 to 15, who are members of the Devasthan Committee appointed by the District Court, were joined as parties to the suit. They contended that the Guravs had no right to take the offerings and that the Ganpules were entitled to take the offerings in accordance with the arrangement arrived at in 1841 between the then pujaris and the members of the Devasthan Committee which was at that time appointed by the Collector of the District.

2. The trial Court found that the plaintiff was entitled to act as pujari at the time mentioned in the plaint; that the Guravs had taken away offerings to the extent of Rs. 66 and that, according to the evidence, if the suit was maintainable, the sum awardable to the plaintiff would be Rs. 35. The trial Court was of opinion that the suit was not maintainable in the form in which it was brought on the ground that the offerings to the deity were voluntary and uncertain and that these offerings would not be property within the meaning of Section 9 of the Code of Civil Procedure. In the result, the plaintiff's suit was dismissed.

3. The plaintiff appealed to the District Court, and subject to a slight variation as to the amount, which might be payable to the plaintiff if the claim were maintainable, the appellate Court affirmed the view of the trial Court. It may be mentioned that in the course of the trial, the plaintiff admitted through his pleader that the offerings to the deity belonged in the first instance to the temple and formed part of the property of the temple; but he maintained that in virtue of his right as an hereditary pujari and in accordance with the long-established usage of the institution, he was entitled to appropriate that sum. The decree of the trial Court was affirmed by the Assistant Judge who heard the appeal.

4. The plaintiff has appealed from this decree. It has been urged on his behalf that the lower Courts are wrong in their view that the offerings being temple property the suit is not maintainable. In support of this contention, reliance is placed upon Section 9 of the Code of Civil Procedure. It is contended that it is a suit in which the right to property is contested and that a Civil Court has jurisdiction to try it. It is also urged that of the merits, the lower Courts have taken an erroneous view as to the arrangement between the pujaris and the members of the Devasthan Committee in 1841. It is urged that this arrangement really affirmed what was then an established usage of the institution.

5. On the other hand, on behalf of the Guravs, it has been contended that the suit is not maintainable as there is no right to property in contest within the meaning of Section 9, On the merits it is urged that the finding of the lower appellate Court that the Guravs and the Ganpules are entitled to divide the offerings equally should be accepted.

6. On behalf of the trustees it has been urged that the suit is not maintainable. It has been pointed out that though they took up a position in the trial Court which is not consistent with the position now taken up on their behalf, it was due to a misapprehension on their part of their legal position, and that properly speaking the suit is not maintainable, Though the point was not raised by any of the parties in the course of the argument we felt a doubt as to whether the suit would not be barred in view of the provisions of Section 92 of the Code of Civil Procedure. We accordingly invited arguments on the point, and we have heard the parties fully. It is a point not taken in either of the Courts below and it was not taken before us, though Mr. Gharpure's contention on behalf of the trustees came fairly near the point based on the provisions of Section 92.

7. The amount of the claim in suit is very small; but the plaintiff seeks in this suit to establish his right not only to recover certain amount as damages in consequence of the alleged wrongful act of the Guravs but also to restrain them from obstructing him in the enjoyment of the offerings placed before the deity. No relief is claimed against the trustees. But they are parties to the suit, and if the plaintiff's claim were decided on the merits it is clear that the decision would be binding upon them.

8. Before proceeding to deal with the point as to the effect of Section 92, Civil Procedure Code, I desire to make it clear that I am by no means satisfied that the lower Courts are right in their view that the present suit is not maintainable apart from the provisions of Section 92. It seems to me that though the offerings may be uncertain and voluntary still when the offerings are made, they are the property of the temple Undoubtedly this suit relates to that property, and I do not see how it can be said that the Civil Courts cannot try it, unless it can be shown that the cognizance of such a suit is expressly or impliedly barred.

9. The only bar suggested is that created by the provisions of Section 92. In connection with the point relating to Section 92 it is necessary to state that in 1889 a suit was brought under Section 539 of the Code of Civil Procedure then in force by some of the pujaris against the then members of the Devasthan Committee. The suit was decided in 1897, and a decree was passed appointing certain persons as trustees, and framing a scheme. It is not necessary to set forth this scheme in detail. Clause 2 provides that: The ' members (i. e. members of the Devasthan Committee) shall conduct the affairs of the Devasthan according to the long established usages thereof. They shall keep clear and accurate accounts of all the transactions.... No suit shall be filed and no other new or important step taken without the consent in writing of the majority of the Committee. In all disputed matters the decision shall be according to the opinion of the majority to be recorded in writing.' The scheme further mentions that ' the rules embody all the matters on which it appears at present necessary to give directions.' There is no specific reservation in the scheme for any application to add to or alter the scheme. The question is whether Sub-section (2) of Section 92 creates any bar to this suit. Under that sub-section it is provided that no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to, except in conformity with the provisions of that section. The question is whether the nature of the suit including the relief claimed by the plaintiff brings the case within the scope of Section 92, Sub-section (1). In determining the nature of the suit, we must look not merely to the form but to the substance. As I read the plaint and the prayer clause, it appears that the plaintiff claims to be one of the hereditary pujaris, and to have certain rights in virtue of his position as such hereditary pujari in accordance with the usage of the institution to a certain part of the temple funds. It is common ground that the funds (i. e.. in this case the offerings) laid before the deity belong to the temple and are to be managed and administered by the members of the Devasthan Committee under the scheme. It is in relation to this fund that a relief is asked by the plaintiff which in effect amounts to asking an appropriation of these funds for the benefit of the officiating pujaris. On the other hand, the Guravs maintain that they have a right co this part of the temple property. Undoubtedly, a dispute has arisen, between the pujaris and the Guravs, who are both connected with the temple and whose services in connection with the temple are necessary, as to whether the offerings made to the deity should be given to the pujaris exclusively or should be divided between them and the Guravs, and, if so, in what proportion. Such a claim clearly invites the direction of the Court for the administration of this trust property. There is no dispute, and there can be none, that this property is part of a trust created for public purposes of a religious nature. In fact that position had been accepted in the suit filed under Section 539 of the Code of Civil Procedure corresponding to the present Section 92. It also appears to me that in Substance in this suit the Court is invited to determine and declare what proportion of this part of the trust property Shall be allocated to the pujaris and the Guravs. Looked at in that light, the suit seems to me to relate to a relief which would be covered by Clause (e) of Section 92. It is clear that if a Shah J. suit had been brought in accordance with the provisions of Section 92 by the Advocate General or by any two or more persons interested in the trust with the leave of the Advocate General, and if the directions of the Court had been sought as to the appropriation of the offerings made to the deity, the District Court would have been bound to entertain the suit under Section 92, as such a suit would clearly be covered by Sub-section (1) of that section. In the course of the argument before us it is conceded that if such a suit were brought by the Advocate General, and if the relief as I have stated above were claimed by him, the suit would be well within the scope of Section 92. But it is urged that in the present case the plaintiff seek relief in his private capacity in respect of a right which he asserts against the Guravs to this particular part of the trust property, and that such a suit cannot be said to be within the scope of Section 92. This argument proceeds merely upon the form and not the substance of the suit. The nature of the relief claimed and the allegations in the plaint upon which the claim is based must be looked at. It seems to me to be clearly a suit in which the direction of the Court is sought as to the administration of this part of the trust fund. It is true that under the scheme the trustees themselves, if they had been alive to their duty, might have been able to deal with this matter. If necessary they might have and could have sought further directions of the Court which framed the scheme. But that has not been done by the members of the Devasthan Committee and they have allowed the dispute to go on between the Ganpules and the Guravs, though the trust funds belong to the temple and are liable to be managed and administered by them under the scheme. When once the scheme has been framed it is clear that the funds must be administered in accordance with the provisions of that scheme. No separate suit relating to the apportionment or administration of any part of the funds between any persons connected with the temple who are not themselves trustees but who are under the trustees, can be allowed in view of the provisions of Section 92.

10. In connection with this point I may refer to the case of Ramados v. Hanmantha Rao 1. L.R.(1911) Mad. 364. The facts and the circumstances of that case were undoubtedly different; but the ratio decidendi seems to me to be applicable to the present case. As pointed out at p. 369 of the report the principle adopted is apparently that the scheme once settled by a Court cannot be altered except by the Court. This would seem to preclude suits between parties to establish a private right, which, if established, would interfere with a charitable scheme settled by the Court. In the present case we have a scheme settled by the District Court. True it is that the scheme is not detailed and makes no specific provision for the allocation of this fund. But the duty of managing the temple funds, which would include the offerings placed before the deity is laid on the members of the Devasthan Committee, who are required to administer the same in accordance with the long established usage of the institution. I do not see how if a suit of the present character between the Ganpules and the Guravs were allowed in respect of what is called the private right of the Ganpules against the Guravs, the scheme settled by the Court could remain uninterfered with.

11. It has been urged on behalf of the plaintiff that his position is really that of a stranger with reference to the trust so far as the present claim is concerned. Indeed if that fact were established his suit would be outside the scope of Section 92. But I am unable to accept the contention that the plaintiff is in the position of a stranger. The cases cited to us at the Bar are mostly cases, in which the dispute was between the trustees in charge of the trust and the strangers who had trespassed upon the trust property. I do not see how either the Ganpules or the Guravs can be treated as strangers to the temple and how any suit, to which they and the trustees are parties, could be said to be a suit between the trustees and the strangers as contemplated in these cases. Some of the cases cited before us bear upon the question as to whether any dispute between the trustees would be within the scope of Section 92. We are not concerned in the present case with the decisions which bear on the question as to whether one trustee could maintain a suit against his co-trustee in respect of the alleged wrongful act of the co-trustee. It is sufficient for the purpose of this case to observe that these decisions have no bearing upon the present case in which the dispute is between two classes of servants or hereditary officers of the temple. Such a dispute relates, in my opinion, to the administration of the trust, and any clear and definite direction on the point in the scheme would be decisive and binding upon the parties. In the argument before us it is conceded that it was open to any of the parties to move the District Court to supplement the scheme by specific provisions as to the division of this fund. But it is urged that it was only an additional remedy and did not bar the present suit. I am of opinion that Section 92, Sub-section (2) bars the cognizance of this suit by the Court, in which the suit was filed.

12. The further question as to what is the proper course for the plaintiff to adopt under the circumstances is one upon which, it is not strictly necessary for us to express any opinion. It has been accepted before us at the Bar that it is open to any one interested in this fund to apply to the District Court which framed the scheme to supplement or modify the same. It is not suggested that a separate suit under Section 92 is necessary. Though no liberty to apply is reserved under the scheme, such a reservation can be always implied. An application to the District Court seems to be the obvious, and, as I hold, the only remedy open to the parties under the circumstances to have a direction from that Court as to the offerings laid before the deity.

13. I may add that, though we have not been able to deal with the plaintiff's claim in this suit on the merits, it is clear that the money, which the Guravs are said to have wrongfully taken must ultimately be liable to be distributed in accordance with the direction which the District Court may give as to the disposal of the offerings made before the deity generally and as to the particular amount in question. I also desire to make it clear that merely because the funds belong in the first instance to the temple it does not follow that the hereditary pujaris may not have a right as such to the whole or any part of this fund. That is a matter which must be decided on evidence by the District Court on a proper application. The view taken by the lower Courts on this point must not be taken to have been accepted by this Court.

14. In the result, I would affirm the decree of the lower appellate Court except as to costs. Having regard to the view which we have taken of this case and to the positions taken up by the parties to this litigation, we think that each party should bear his own costs throughout.

Crump, J.

15. I agree.


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