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Vinayak Shivrao Aras, Manager of the Temple of Shri Narayan Dev Vs. Atmaram Rayaji Netravali and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in76Ind.Cas.152
AppellantVinayak Shivrao Aras, Manager of the Temple of Shri Narayan Dev
RespondentAtmaram Rayaji Netravali and ors.
Excerpt:
.....in plaint that certain money due to plaintiff from temple as well--claim, whether adverse to temple--suit, maintainability of. - 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 of no help to accused. - 4. the trial court found clearly that the plaintiff had received rent in respect of this claim in lieu of interest up to the year 1907-08. the last payment of rent is evidenced, by a receipt, a certified copy of which has been put in as exhibit 32 in the case. there is no other objection taken to..........the suit. they also contended that the claim on the mortgage-bond was time-barred, and that the suit lands were not the lands originally mortgaged by the owner.2. the trial court found that the three mortgages in suit, one of 1869 and two of 1870, were proved. it also held that the plaintiff's claim was in time, that the lands in suit were the lands mortgaged; and that defendants nos. 1 and 2 were agriculturists. as there was some doubt in the course of the suit as to whether the plaintiff claimed money for his own benefit or for the benefit of the temple, a purshis was taken from him whereby he made his position clear. in the result the court passed a decree against defendants nos. 1, 2 and 4 and in favour of the plaintiff as vahivatdar of the temple of shri narayan dev of ankola for.....
Judgment:

1. The plaintiff in this case sued as the manager of the temple of Shri Narayan Dev of Ankola to recover certain amounts due on three mortgage-bonds mentioned in the plaint. The claim was to enforce the mortage-bonds by sale of the mortgaged property. Defendants Nos. 1 ana 2 at the date of the suit were purchasers of the equity of redemption in some of these lands, and defendant No. 4 was the Court purchaser of the interest of the original mortgagor in some lands, which need not he detailed. Defend ant No. 3 was joined, as he was said to be the Muktesar of this temple appointed by the Temple Committee. The plaintiff stated in the plaint that the members of his family had been managers of the said temple from times immemorial and that the money was advanced in that capacity to the original mortgagor by his grandfather Shrinivas Sajroba. The defendant No. 3, the Muktesar, did not appear. Defendants Nos. 1 and 2 and defendant No. 4 raised several contentions. They contended that the plaintiff had not the right to maintain the suit. They also contended that the claim on the mortgage-bond was time-barred, and that the suit lands were not the lands originally mortgaged by the owner.

2. The Trial Court found that the three mortgages in suit, one of 1869 and two of 1870, were proved. It also held that the plaintiff's claim was in time, that the lands in suit were the lands mortgaged; and that defendants Nos. 1 and 2 were agriculturists. As there was some doubt in the course of the suit as to whether the plaintiff claimed money for his own benefit or for the benefit of the temple, a purshis was taken from him whereby he made his position clear. In the result the Court passed a decree against defendants Nos. 1, 2 and 4 and in favour of the plaintiff as Vahivatdar of the temple of Shri Narayan Dev of Ankola for payment of Rs. 433-5-0 and interest on Rs. 318 at 10 percent from the date of suit by yearly instalments of Rs. 75 payable every year in December beginning from 1920.

3. Defendants Nos. 1 and 2 did not appeal from his decree, but defendant No. 4 appealed to the District Court. The learned District Judge, without going into the question relating to the merits of the claim, has dismissed the plaintiff's suit on the ground that the plaintiff claimed the money for his own benefit, and that the present claim was in effect adverse to the temple. The learned Judge was of opinion that the plaintiff could not maintain the suit as he was not a trustee, and as he was suing avowedly on his own account.

4. The plaintiff has appealed to this Court and the first question that arises in appeal is whether the view of the lower Appellate Court is right on the question as to whether the plaintiff was entitled to maintain the suit. It seems to us that the view of the lower Appellate Court is not right. The plaintiff has sued in terms as manager of the temple of Shri Narayan Dev of Ankola and he has also stated in the plaint that the members of his family have been managers of the said temple from times immemorial. The plaintiff's grandfather has been described in the plaint as manager of the temple. Defendant No. 1 admits that the plaintiff is the manager of the temple, and against this there is no evidence in the case to show that the plaintiff is not the manager of the temple.

5. The whole difficulty has arisen in consequence of the plaintiff having stated in the plaint that in fact he had spent certain moneys on the temple, and that he would be entitled to recover from the temple those sums. He also stated in the plaint that defendant No. 3 had no connection whatever with the management, and that he was appointed Muktesar for the purpose of recovering the cash amount due to the idol from the Government. It is true, as pointed out by the District Judge, that the plaintiff does put forward a certain claim against the temple. That, however, is a matter which is foreign to the scope of this suit, and is really outside the controversy between the plaintiff, as representing the temple and the defendants who have to satisfy the claim under the mortgages. We think, therefore, that there is no reason to defeat the plaintiff's claim on this technical ground, particularly when the Trial Court has made it clear in the decree that the plaintiff is to recover the amount as Vahivatdar of Shri Narayan Temple of Ankola.

6. The next question is whether we should remand the case for findings on the other issues, or we should decide those issues under section 103, Civil Procedure Code, here. We have heard Mr. Murdeshwar on behalf of defendant No. 4, who alone has appeared before us, and we think that it is really unnecessary to remand the case, defendants Nos. 1 and 2 did not appeal to the District Court and they have not appeared before us. Having regard to the statements of defendant No. 1 it is clear that defendants Nos. 1 and 2 did not mean to contest the decree of the Trial Court. We have to consider the contention raised on behalf of defendant No. 4. The Trial Court found clearly that the plaintiff had received rent in respect of this claim in lieu of interest up to the year 1907-08. The last payment of rent is evidenced, by a receipt, a certified copy of which has been put in as Exhibit 32 in the case. There is really no answer to this on the part of defendant No. 4 except this, that a certified copy is not admissible in evidence because the original is not proved to have been lost. It must be remembered, however, that this certified copy was put in by the plaintiff who was not expected to have, and who had not, the custody of the original document. Defendants Nos. 1 and 2 could have, if they had the receipt in their custody, produced it as it was produced by them in the suit against their tenant. But they did not do so, and it appears from defendant No. 1's statement that he does not remember whether he took it back from the Court. The defendant No. 4's objection that this certified copy is not admissible, seems to us untenable, and if that certified copy is looked at, it is quite clear that the rent was received within twelve years prior to the date of the suit. The claim is, therefore, in time.

7. The only other objection which was taken in the Trial Court, and which has been mentioned before us, is that the lands in suit are not the lands which were originally mortgaged. The Record of Rights has been relied upon by the Trial Court as indicating that the lands are sufficiently identified, and they are the same lands as were originally mortgaged. It is quite true that when the mortgages were effected only the muli numbers were given, and after the Survey Settlement, Survey numbers were given to the land. Defendant No. 4 has adduced no evidence whatever on this point, and there is nothing really in the case to throw any doubt on the finding of the Trial Court.

8. We must, therefore, find in favour of the plaintiff on those points which are covered by Issues Nos. 3 and 4 in the Trial Court. There is no other objection taken to the claim of the plaintiff on behalf of the temple which seems to be perfectly just, and there is really no defence which defendant No. 4 could reasonably urge against his claim. We, therefore, reverse the decree of the lower Appellate Court and restore that of the Trial Court with costs here and in the lower Appellate Court to be added to the mortgage claim.


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