1. This is a notice of motion taken out by the plaintiff for an order that a certain sum of money be set apart out of joint family funds for the maintenance and upkeep out of the interest thereon of a temple situate on a part of the property known as'Raghunath Baug' in the Residency Area, Hyderabad, Deccan, and that a further sum be also set apart sufficient to erect a small wall around the said temple in order to separate the land set apart for the temple from the rest of the land, The suit was filed by the plaintiff as far back as 1917 for partition of the moveable and immoveable properties in the hands of his late father Motilal Shivlal and for other reliefs. A consent decree was taken in this suit on October 12, 1922, and under one of its clauses there was a reference to the Commissioner to ascertain the joint family properties, and the Commissioner was authorised by the Court to sell the immoveable properties by public auction or by private contract with the consent of the parties. Under the last clause of the consent decree liberty to apply was reserved to the parties to the suit, and the plaintiff has presumably taken out this notice of motion by virtue of and under the said liberty to apply.
2. All the immoveable properties have been sold. Amongst the immoveable properties there is this property called'Raghunath Baug' which consists of 22,291 square yards together with the buildings standing thereon, and towards the rear of the property there is this temple in which the image of the deity Hanuman has been installed. This property has also been sold and purchased by the plaintiff himself save and except the portion of the land on which the temple stands and certain other land appurtenant thereto which have been excluded from the sale. The Commissioner made his report on May 11, 1931, and the last para, of the report runs as follows:-
And I lastly certify and report that I have by consent of parties not sold a portion of the property known as Raghunath Baug at Residency Area at Hyderabad Deccan described in the Sohedule IV hereto and the same is set apart as having been dedicated to charity.
3. Plaintiff alleges that the temple was built by his late grand-father who dedicated the same to charity for the purpose of public worship, that it has been so used for the last nearly sixty years, and that throughout that period it has been maintained out of the joint family funds. The plaintiff accordingly now prays that provision should be made by setting apart three and a half per cent. Government Promissory Loan Notes of the nominal value of Rs. 7,000 out of the joint family funds for its maintenance and the payment of the expenses relating to it, and that a further sum be set apart for erecting a wall round the temple land so as to demarcate it from the remaining portion of the property which has been purchased by himself. Some of the defendants who appeared on the notice of motion before me contended in the first place that the notice of motion was misconceived and could not be brought under the liberty to apply which was reserved to the parties under the consent decree. They deny that there was any dedication to charity, and they contend that in any event no sum can be set apart out of the so call ad joint family funds, as there has been a severance of the joint family status on the filing of the suit which has proceeded up to the stage of decree, and that therefore there cannot be, strictly speaking, any joint family funds out of which such provision can be made.
4. The plaintiff relies upon the last para. of the Commissioner's report, which I have set out before, in order to show that the parties admitted before the Commissioner that the portion of this property was dedicated to charity. No exceptions have been filed to the report. Defendant No. 1 made an affidavit which is dated April 8 last, but by some mistake no copy of the same was furnished to the plaintiff's attorneys, and the notice of motion had, therefore, to be adjourned in order that such copy may be furnished and in order that the plaintiff may have an opportunity to put in his affidavit in rejoinder. The plaintiff has pat in his affidavit in rejoinder dated September 3 last, and the motion has again come on for hearing before me today. Defendant No. 1 denies that there was a dedication to charity or that the public were allowed to worship in the temple as a matter of right. He states that when the particulars and conditions of sale of this property were settled in the Commissioner's office, he was persuaded to leave out a portion of the land on which the temple is built and some land appurtenant to the temple in order to facilitate the sale of the rest of the property. I have looked at the notes taken by the Commissioner and I cannot say that they clearly indicate to the Court that the parties were agreed that this temple was dedicated to charity. There is nothing before me in the affidavits which have been read to show that any particular property or any fund had during the last fifty to sixty years been at any time set apart for the maintenance of this temple, or that any trust or endowment had been created by the founder. The mere use of a portion of the joint family funds for a number of years under a sort of a family arrangement before the partition suit was filed cannot, in my opinion, establish such dedication.
5. Assuming, however, that the parties agreed to treat, or they admitted before the Commissioner that they would treat, the temple and the land appurtenant thereto as being dedicated to a charity founded by their ancestor, the descendants of the founder cannot be compelled to continue to maintain the temple especially after the severance of the joint status except by consent of the parties. It has been held inSham Lal Set v. Huro Soonduree Goopta (1866)5 W.R. 29 that where a Hindu ancestor makes no endowment for the support of family idols and creates no trust whereby his descendants are bound to provide for the up-keep and maintenance of the idols, there is no legal obligation on the descendants to support the idols. A fortiori, therefore, there can be no obligation when the descendants have become separated as they have in this particular case. The worship of the family idols can certainly be voluntarily conducted by the descendants, but they cannot be compelled by a Court of law to do so, for the obligation, if any, is at best only a moral obligation. It is open to the plaintiff or to any other member of the family to provide for the upkeep of the temple and to build a wall around it and to create a regular trust or endowment out of his own property for the upkeep and maintenance of the temple.
6. In my opinion liberty to apply really means liberty to carry out the provisions of the decree. Plaintiff's counsel contended that the notice of motion was perfectly in order under that liberty, because the Commissioner was to ascertain what the joint family properties were, and in ascertaining and determining the joint family properties the parties had a right to apply to the Court to have a particular property taken out of the list of joint family properties which he had to determine. Even assuming that the plaintiff was in order in bringing this notice of motion, I do not see how the notice of motion can lie for the purpose of asking the Court to set aside a fund for the maintenance and upkeep of the temple. Any fund that is to be set apart or any trust or endowment that is to be created can only be done by means of separate proceedings. If any party succeeds in establishing that this is a public trust, a settlement of a scheme for the carrying out of that trust can certainly be ordered by the Court. Secondly, under Hindu law, the idol is a juristic entity capable of holding property, and also capable of suing and being sued and proceedings can, if advised, be taken on behalf of the idol.
7. Taking the statements and the affidavits into consideration, I cannot hold that there has been any dedication, either complete or partial, of this temple to charity, and the notice of motion, therefore, must be dismissed with costs. One set of costs as between the defendants who appeared on the notice of motion.