1. The suit out of which the present appeal arises was brought by plaintiff Sundarlal, s/o Manoharlal Brahmin claiming himself to be the Pujari and Shebait of a temple situated in Lohia Bazar Lashkar. The suit was brought by him as the next friend of the various idols of Ramchandraji, Seetaji, Laxmanji, etc., eight in all. According to Sundarlal the temple where all the above idols are installed is a portion of a bigger area and the entire properties situated in the area, as shown in the map filed along with the plaint, belong to the said idols and constitute a public endowment, the same having been dedicated to the said idols for the up-keep of the temple and for carrying on their worship. According to Sundarlal he used to recover rent of the properties and deposit the same with the defendant who, on the insistence of the members of the Hindu Community of the locality, had utilized part of the funds lying in deposit with him in building a Dharamshala within that area. However, it is said that the defendant in recent years has begun to claim title to the properties aforesaid to deny that of the idols. A declaration was accordingly claimed on behalf of the idols that the entire properties situated in the area belong to the idols and are their property having been dedicated for the up-keep of the temple and for carrying on worship and that any claim of the plaintiff contrary to that of the idol was untenable.
2. The suit was resisted by the defendant who denied the right of the plaintiff to file the present suit on behalf of the idols. It was denied that Sundarlal Brahmin who had brought the present suit as well as his ancestors had been worshipping the various idols as Pujaris. The claim put forward by Snndarlal to Shebaitship was denied. It was denied that the properties situated in the area indicated in the map had been dedicated for the up-keep of the temple and constitute public endowment and that Sundarlal and his ancestors used to recover rent therefrom. The deposit of the income of the properties as 'AMANAT MANDIR' was also denied. It was denied that the defendant constructed the Dharmashala out of the amount lying as AMANAT on public insistence as according to him no member of the public had any such right. It was claimed by the defendant that he is in possession of the properties in his own personal and private right and do not constitute a public endowment. It was also contended that the defendant is in possession of the property in his own right for the last 50 years and a suit for a mere declaration was incompetent. The plaintiff, it is said, should have filed a suit claiming a consequential relief of possession after paying ad valorem court-fees. The plaintiffs claim was, according to the defendant, barred by res judicata due to the decision given by the Gwalior High Court in a ease between the predecessor of the plaintiff and Mavasibaba a former Pujari. Bar of Section 92, C. P. C. was also put forward. On the basis of these grounds it was contended that the suit was incompetent.
3. On the basis of the pleadings aforesaid the following issues were framed by the trial Court:--
1. Whether Suudarlal had a right to file the present plaint on behalf of the idols ?
2. Whether the properties excepting the actual temple where the idols are installed described in para. 3 of the plaint constitute religious endowment ?
3. Whether the defendants are the trustees of the said property ?
4. Whether the suit Is barred by Section 42 of the Specific Relief Act?
5. Whether the suit is within time ?
6. Whether the suit is barred by tha principle of res judicata ?
7. Whether the suit is barred by Section 92, C. P. C.?
8. Whether the court-fees are sufficient ?
9. Whether the defendant is entitled to Rs, 1,000 as damages for vexations' character of the suit
4. The trial Court, after full trial, found that Sundarlal could file the present suit on behalf of the idols. The properties other than the temple, where the idols ace installed, were held to be the debutter properties belonging to the idols and the defendant was held to be a trustee of the said properties. There was accordingly no bar to the present action by reason of Section 42 of the Specific Relief Aet, Sections 11 and 92, C. P. C. or of limitation. The defendant was held to be entitled to no damages for the alleged vexatious character of the suit as the suit was not of that description. The trial Court accordingly granted a declaration claimed on behalf of the idols.
5. This appeal is directed against that decision.
6. Mr. Chitale, who appeared for the appellant, contended that the materials on record indicated that Sundarlal, who has filed the present suit, is the nephew of one Jwalaprasad who had been appointed by the defendant as a Pujari at the temple and he was permitted to worship at the temple by reason of his relationship with Jwalaprasad. He was, it was contended, no belter than defendant's employee and consequently has no right to file the present suit.
The learned counsel also pointed out that some of the properties claimed on behalf of the idols had been mortgaged by Mayasihaba and in a litigation that followed the properties became the exclusive properties of the defendant. The defendant has been in possession of those properties in his own right and not on behalf of the deities. The claim for mere declaration without a consequential relief of possession which uas claimable on behalf of the idols, was not tenable in view of Section 42 of the Specific Relief Act.
It was next contended that the finding that the defendant was a trustee of the temple is not based on any reliable materials on record but is more or less conjectural. The claim of the plaintiff is also barred by limitation as the defendant had asserted his claim and dented that of the deity as far back as in the year 1921 and the present claim for declaration filed in the year 1953 is barred by limitation.
7. In order to appreciate the contentions raised on behalf of the appellant it will be necessary to refer to oral and documentary materials on record having a bearing on the question as defendant's connection with the temple and other properties in suit.
8. First document to be considered is the entry of the year 1874-73 of the register of Muafi of the erst-while Gwalior State. The entry referred cash-grant of Rs. 48 'Chandwad Shikka' in the name of Sukhramdas Gum Sewadas Bairagi for the Devasthan of Shriram temple. This grant was mentioned as having been discontinued in Samvat Year 1929 but it was later continued from S.Y. 1931 in the name of Mayasi Dafedar as he used to look after the worship of the temple until the appearance of Bankhandi Chela of Sukhramdus.
9. It thus appears that from the Samvat year 1931 Mavasi was. de facto Pujari or Sbebait. The origin of the temple was not clear from this. But it was clear that Sukhramdas Guru Sevadas was its Shebait.
10. The next document to be referred is a registered will executed by Mavasi alias Madhavdas claiming himself to be the Chela of Sukhramdas on 4-1-1900 appointing one Parsadi as a Pujari authorised to continue the worship and recover cash-grant and the income from the shops till the return of his Chela Ramdas after the executant's death.
11. The next document to be referred is the decision in a suit filed by Guttobai, w/o Jamnadas of the shop of Mathuradas Jamnadas against Mavasi on the basis of a registered deed of possessory mortgage, dated 20-5-1884 executed by Mavasi in respect of two shops, one Kotha, Pator together with a Chahulra at the back for Rs. 400. The claim was for the enforcement of the mortgage as the mortgagor had agreed to repay the amount with interest at the end of four years. The suit was decreed for Rs. 400 as against the property mortgaged. There was reference in the decision to other mortgages in respect of other shops for which he was to file a separate suit. There was compromise in execution proceedings with reference to the claim under the decree aforesaid on 4-1-1906 whereby the judgment-debtor agreed to give up his rights of a mortgagor in the property and making the decree-holder absolute owner of the same in satisfaction of the decre. Subsequent to this attempts were made first by one Vishnupant and later by Ramdas Chela of Mavasi to have the decree set aside. Vishnnpant filed a revision petition before the then Chief Justice which was rejected on 22-12-1900 on the ground that he had no right to file the petition. Ramdas filed a suit to set aside the decree. This suit was also dismissed on the ground of res indicata on 14-10-1901.
12. It is thus clear that the defendant had become absolute owner of the property covered by the mortgage of 1884. There was also reference to his possession as a mortgagee with reference to other shops. Suggestions were made in those proceedings indicating willingness on the part of the mortgage to return the properly but they appear not to have been accepted by the defendant's predecessor. The effect of this was that the defendant's claim had become adverse to the then Shebait or de iacto Shebait and his possession was in his own right as absolute owner of part of the property and as a mortgagee as to other.
13. As regards the connection of Sundarlal with the temple property the defendant has produced and proved a document Ex. P-11. This was an agreement executed by Jwalaprasad on 21-2-1920 in favour of the defendant, who was then minor and was represented by his guardian Fulbai, consenting to worship the deities on payment of Rs. 2 P.M. as his remuneration and further acknowledging the right of the defendant to remove him any time. According to Sumlarlal about 2 or 3 years before Jwalaprasad's death he began to perform Puja due to some disability having crept upon him. He admitted that there was nobody in the line of Mavasibaba. He claimed to be a nephew of Jwalaprasad and after his death he continued the worship in accordance with Jwalaprasad's desire. He accepted the fact that during the life-time of Jwalaprasad it was the defendant who recovered rent of all the shops and he continued to do so even there-after. He never gave him anything towards the expenses of the temple or for his maintenance. He also did not repair the temple.
14. It is thus clear from the history of litigation between Mavasi and the defendant as also by the defendant's subsequent acts of employing Jwala-prasad as a mere servant on Rs. 2 P.M. for worship, that the two shops had been in exclusive possession and ownership of the defendant right from the year 1900 and other shops had been in his possession as a mortgagee (sic) the person claiming as Shebait or de facto Shebait was unable to succeed in his claim against the defendant. The defendant moreover is in possession even since Jwalaprasad was appointed in 1920 as is admitted by Smidarlal. In this stale of things two questions arise for consideration at the outset:--
1. Can Sundarial, who had come in as a representative of a person appointed by the defendant as a servant to look after the worship, file the present suit against the defendant?
2. Assuming he can, is the claim tor mere declaration competent and is it in time ?
Answers to both these questions are against Sundarlal.
15. The question as to who can file a suit on behalf of a deity is discussed by B.K. Mukherjea in his book on the Hindu Law of Religions and Charitable Trust--Tagore Law Lectures--1962 Edition at pages 236, 239, 241, 245 and 249. At pages 236-237 it was observed by the learned author:--
'A Hindu idol is sometimes spoken of a perpetual infant, but the analogy is not only incorrect but is positively misleading. There is no warrant for such doctrine in the rules of Hindu Law and as was observed by Rankin, C. J., in Suyendra v. Sri Sri Hhubaneshwari, ILR 60 Cal 54: (AIR 1933 Cal 295), it is an extravagant doctrine contrary to the decision of the judicial Committee in such cases as Damodar Das v. Lakhan Das, 37 Jnd App 147 (PC). It is true that the deity like an infant suffers from legal disability and has got to act through some agent and there is a similarity also between the powers of the Shebait of a deity and those of the guardian of an infant. But the analogy really ends there. For purposes of Limitation Aet the idol does not enjoy any privilege and regarding contractual rights also the position of the idol is the same as that of any other artificial person. The provisions of the Civil Procedure Code relating to suits by minors or persons of unsound mind do not in terms at least apply to an idol; and to build up a law of procedure upon the fiction that the idol is an infant would lead to manifestly undesirable and anomalous consequences. '
16. The learned author after discussing the position of a Shebait, a worshipper, etc., in the matter of their competency to file a suit in their own name or in the name of the idol summed up the result as follows:--
'(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait.
2. Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol.
3. Where the endowment is a private one, the members of the family are the persons primarily interested in its upkeep and maintenance, and they are, therefore, entitled to act on behalf of the deity. But where the endowment is a public one, Section 92 of the Civil Procedure Code prescribes a special procedure when the suit is against the trustee, and the reliefs claimed fall within that section. Such a suit can be brought only in conformity with that section, and the rights of the members of public who are interested in the endowment as worshippers or otherwise to institute proceedings on behalf of the idol are, to that extent abridged. Where, however, the suit does not fall within the ambit of Section 92, the right of the worshippers or persons interested in the endowment to vindicate the rights of the idol under the general law remains unaffected.
4. When once it is found that the plaintiffs, whether they be Shebaits or the founder or the members of his family, or the worshippers and members of the public interested in the endowment, are entitled to maintain the suit--and that is a mailer of substantive law--the further question whether an idol should be impleaded as a party to it or whether the action should be brought in its name is one purely of procedure. Such a suit is really the suit of the idol, instituted by persons whom the law recognises as competent to act for it, and the joinder of the idol is unnecessary. Indeed it may even result in embarrassment. But where the matters in controversy in a suit would affect the interests of the deity, as for example, when the trust is denied, or is sought to be altered, it is desirable that it should also be impleaded as a party.
5. Where the joinder of the idol is necessary or desirable, there is difference of opinion as to whether the provisions of Order 32 of the Civil Procedure Code should, by analogy, be applied to such a suit, and whether it is open to a person to constitute himself as the nest friend of the idol and institute the suit on its behalf. The better opinion is that the provisions of Order 32 cannot be extended to a suit on behalf of the idol, as there is no real analogy between an infant and an idol, that a suit by a person other than the Shcbait could be instituted on behalf of the idol only when the Court grants permission therefor, and that such permission should, as a rule, be given only after hearing the persons interested.'
17. Dealing with the position of a de facto Shcbait although it was recognised by the learned author that a de facto Shebait properly in possession of the office of the manager or head of the institution can maintain an action on behalf of the trust yet the mere fact that a man secures some how or other the custody of an idol and begins to worship it would not by itself make him a de facto Shebait. Reference in this connection was made to the observations of Mukhcrjea, J., in Panchkari v. Amocle, 41 Cal WN 1349: (AIR 1949 Cal 559).
18. These observations indicate that if a person comes forward to sue on behalf of a deity claiming himself to be the Shehait unless he makes out that claim o his he ought not to be allowed to sue so as to bind the deity by the result of the litigation. It is no doubt true that where there is no Shebait or the Shebait refuses to act by sheer difference or negligence or any other cause or where the suit is directed towards assailing the acts of the Shebait which prejudicially affect the interest of the idol the law recognises a right of a person interested on behalf of the idol to file a suit.
19. Now in the present case Sundarlal has come forward to file the present suit claiming himself to be the Shebait. It is, however, clear from the materials on record that he came in when his uncle Jwalaprasad, who was a servant appointed by the defendant to perform worship on a salary of Rs. 2 P.M., was disabled from doing so and on his death about 2 years later continued to work presumably in much the same capacity as his uncle. Thus the basis of Sundarlal's claim to sue as a Shebait not being made out suit filed by him ought to be treated as by an unauthorised person. No specific claim as a mere worshipper for assailing the prejudicial acts of a past Shebait on the ground that there is no Shebait or the Shebait has refused or neglected to act has been put forward. It would, therefore, seem that Sundarlal's right to file the present suit is far from clear. Indications on authorities would suggest that he could not have sued.
20. Assuming, however, that Sundarlal, as a person generally interested in the deity, can file this suit question is whether the present claim for mere declaration is competent.
21. It is clear from the relief claimed in the plaint that a declaration as to the title of the deity is sought by Sundarlal as a Shebait in respect of the entire properties indicated in the map including shops, Kotha, and Chabutra as far back as in the the portion where the deities are actually installed. The history of the previous litigation indicates that the defendant had become absolute owner of two shops, Kotha and Chabutra as far back as in the year 1906. Moreover his claim to possession as a mortgagee in respect of the other shops, etc., was acknowledged by the then de facto or de jure Shehait Mavasi. Not only this the defendant has been admittedly recovering rent and it is not proved that this he did on behalf of the deity. He is clearly recovering them on his own account. In the year 1920 he even takes upon himself to appoint a servant on his behalf to worship the deity. He has admittedly not spent for the deity out of income thus recovered. The complaint in the plaint is that he is claiming title in himself. It is thus clear that the defendant is in possession of the substantial part of the property adversely to the deity. In face of this a suit for a mere declaration would be clearly incompetent in view of the provisions of Section 42 of the Specific Relief Act more especially so as the suit is filed in the name of the deity and by a person who claimed himself to be a Shebait.
22. With these findings it would be really unnecessary to record a conclusive finding in this suit whether the deities are public deities or deities of a private person, whether there is a public endowment or a private endowment. It would further be unnecessary to find which properties out of the suit properties belong to the deities and which do not. But it would prima facie appear that a claim for a declaration with reference to substantial portion of the property including shops, Kotha, Chabutra, etc., would be barred by time as the defendant has secured title adverse to the deity in a litigation between an ex-de facto Shebait and subsequent attempt to challenge the decision had been held to be barred by res judicata. Even a claim for declaration with reference to the other shops would appear to be barred by limitation as the defendant had claimed to be in possession on his own account since long for some time as a mortgagee and later as absolute owner and more than 30 years had elapsed since then.
23. In view of our findings on the first two questions the present suit is unsustainable.
24. The appeal is, therefore, allowed and thesuit is dismissed. Costs of the defendant both hereand in the Court below shall be paid by Sundarlal.