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Mallappa Virbhadrappa Vs. Vasudeorao Keshavrao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 293 of 1953
Judge
Reported inAIR1956Bom628
ActsHindu Law; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 12 - Order 40, Rule 1
AppellantMallappa Virbhadrappa
RespondentVasudeorao Keshavrao and ors.
Appellant AdvocateK.G. Datar, Adv.
Respondent AdvocateV.V. Albal, Adv.
Excerpt:
.....being parted with possession cannot claim repossession of property - court entitled to direct defendants to use property for purpose for which trust was created - order of lower court to appoint receiver to perform naivedya and nanda-deep in case of default by trustees - such order not be implemented as receiver cannot discharge such duties - court directed to appoint proper person to discharge such function in case of failure on part of trustees. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be..........under order 20, rule 12(c), c.p.c. in appeal to the district court at dharwar the learned district judge modified the decree passed by the trial court. the learned district judge held that the grant made by lingappa mudkappa deshpande was not an absolute grant' to dhondopant raste, but it was a grant made subject to a condition, viz., that the income from the suit property should be utilized for defraying the expenses of the naivedya and nanda-deep of the idol shree vishnu at wai which had been consecrated by dhondopant raste. he further held that the grant was resumable and that the plaintiff was not entitled to obtain possession.the learned district judge also took the view that even though there was no express prayer made by the plaintiff for effective restoration of the.....
Judgment:

1. By deed Ex. 112 dated 18-5-1916 executed by one Lingappa Mudkappa Deshpande in favour of Shrimant Dhondopant Raste certain Inam land which now has Revision Survey No. 7 of the village of Kubihal in Kundgol Mahal was granted for the benefit of the Idol Vishnu. The relevant provisions of the deed Ex. 112 are as follows:

'You (referring to Dhondopant Raste) have consecrated (the idol of) Vishnu of Wai Kshetra and constructed a temple (for the same). You asked (requested) me to grant in Inam some of my Inam lands for the purpose of meeting the expenses of Naivedya and Nandadeep etc. of the said temple and Idol. Hence I have given to you of my own free will in Inam as absolute Inam one Mar of Inam land situate at Kubihal which is part of our Inam property for the expenses of Naivedya and Nanda-deep etc. of the Idol Shri Vishnu.....

'This land is bound by our grass land on the east, by the Kundgol Road on the south, by Nadgis's field on the north, & by the field of Laxmangonda Patil on the north. You should enjoy the land including the hidden treasures, mines etc., from generation to generation so long as the sun and the moon endure.'

It appears that after this deed was executed Dhondopant Raste & his descendants continued to manage the property and to defray the expenses of the 'Naivedya' and 'Nanda-deep' of the Vishnu temple. In 1929 the Court of Wards entered upon the management of the lands belonging to the descendants of Dhondopant including Survey No. 7. Thereafter it is the case of the plaintiff who is the descendant of the original settlor Lingappa Mudkappa Deshpande that the defendants did not make any arrangement for the Naivedya and Nanda-deep or the Vishnu temple; and the Court of Wards also managed the property as if it belonged exclusively to the defendants.

According to the plaintiff even after the property was released from management by the Court of Wards, the defendants claimed to hold the property as if it was not subject to the beneficial rights of the deity. The plaintiff filed suit No. 4 of 1949 in the court of the Civil Judge, Junior Division, at Kundgol against the defendants for a declaration that the defendants had committed a breach of the covenants of the grant, and that they were 'no longer fit and desirable persons to continue to perform the service of the temple' under the grant, and that the plaintiff was entitled to recover possession of the suit property and to make other independent arrangement to carry out the services in the temple. On those allegations the plaintiff's claimed to a decree for possession of the suit land.

2. The suit was resisted by the defendants. The learned trial Judge held that the land was given for 'Limited purposes' by Lingappa Mukdappa Deshpande, and that the defendants had committed a breach of the covenants of the grant, and the plaintiff was therefore entitled to obtain possession of the land in dispute. He further held that the suit filed by the plaintiff was within limitation.

The learned trial Judge accordingly passed a decree in favour of the plaintiff for possession and directed mesne profits to be ascertained under Order 20, Rule 12(c), C.P.C. In appeal to the District Court at Dharwar the learned District Judge modified the decree passed by the trial Court. The learned District Judge held that the grant made by Lingappa Mudkappa Deshpande was not an absolute grant' to Dhondopant Raste, but it was a grant made subject to a condition, viz., that the income from the suit property should be utilized for defraying the expenses of the Naivedya and Nanda-deep of the Idol Shree Vishnu at Wai which had been consecrated by Dhondopant Raste. He further held that the grant was resumable and that the plaintiff was not entitled to obtain possession.

The learned District Judge also took the view that even though there was no express prayer made by the plaintiff for effective restoration of the property for the benefit of the deity, the case was one in which a mandatory injunction that the defendants should perform services of Naivedya and Nanda-deep in the temple of Shree Vishnu, should be issued, and 'in the event of the services not being performed to the satisfaction of the court the court should be authorized to appoint a receiver'.

To that course the advocate appearing for the defendants raised no objection, and he invited the court to pass a decree accordingly. Against the decree passed by the District Court the plaintiff has come to this court in second appeal.

3. Evidently on the terms of Ex. 112 even though formal title appears to have been conveyed to Dhondopant Raste the property was given for the benefit of Shree Vishnu Idol for, performance of Naivedya and the lighting of Nanda-deep and allied ceremonies. The idol of Shree Vishnu was the sole beneficiary of the property, and Dhondopant Raste was made a trustee for holding the property for the benefit of the deity.

The settlor Lingo Mudkappa Deshpande having parted with all title to the property, I agree with the view of the learned District Judge that the plaintiff had no right to be restored to possession of the property relying upon the deed of settlement Ex. 112. But that does not mean that the plaintiff, who is the descendant of Lingo Mudkappa Deshpande has no interest in seeing that the property should be utilized for the purposes for which it was granted to Dhondopant Raste and that it should not be diverted to the personal use of his descendants.

The claim made by the plaintiff therefore for possession of the property cannot be sustained. But even if the plaintiff's claim for possession cannot be sustained, and the court has jurisdiction, (and it appears that the defendants in the courts below conceded that the courts had jurisdiction) to direct that arrangement to be made for carrying out the purposes for which the land was granted in Inam by the settlor Lingo Mudkappa.

Even though the defendants appear to have made a claim at one stage to the pioperty as if it was their own, I do not think that at this stage it will be necessary to remove the defendants from the management of the property and the mandatory injunction which has been issued by the learned District Judge directing the defendants to carry out the service of Naivedya and Nanda-deep should be confirmed. The learned Judge had directed that in default of the performance of service by the defendants, the Court may appoint a receiver for carrying out the duties of the defendants.

An order of appointment of a receiver may not be a proper order to make especially when religious services are to be performed. Even though therefore I maintain in substance the decree passed by the District Court, I propose to make certain alterations in the decree as set out in para. 42 of the learned District Judge's judgment.

4. I direct that for the words

'the Court may appoint a receiver of the suit property to take the income and to utilize it for performing Naivedya and Nanda-deep',

the following words be substituted:

'the Court may on application appoint a proper person to perform the Naivedya and Nanda-deep and allied ceremonies of Shree Vishnu in Raste Wada at Wai after collecting the income of the suit property'.

5. In decrees of this nature a liberty to apply clause must always be deemed to be reserved. In order however to avoid any disputes that may be raised. I direct that 'liberty to apply clause be incorporated in the decree reserving liberty to the plaintiff and the defendants and the descendants of the parties to apply to the court for carrying out the provisions of this decree. The application to be made under the liberty to apply clause will be made to the Civil Judge, Hubli.

6. Having regard to all the circumstances there will be no order as to costs of this appeal.

7. Decree varied.


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