1. This appeal arises out of a suit filed by one Sitaram son of Ghasiram Medh Rajput of Gwalior, in the name of the idol Shree Baldauji. The idol was claimed to have been installed in the temple at Ujjain known after that name by the ancestor of said Sitaram by name Rambuxji about one hundred and fifty years prior to the suit and the properties of the temple were said to have been developed with the aid of funds donated by the founder and his successors including Ghasiramji the father of Sitaram. Claim was also made, which appears to have been abandoned later on, that the temple of Baldauji was not a public temple but a private one. It is however asserted even now that the right to manage the affairs of the temple and its property vests solely in the members of the founder's family and in exercise of this right they have all along appointed Pujaris and bore expenses in relation to the ceremonies and worship at the temple. Ghasiramji, the father of Sitaram had become too old and unable to move about due to weak eye-sight and it was for this reason that he did not figure to represent the idol.
2. The dispute in this case relates to two items of property. Item No. 1 forms part of the temple which bears municipal No. 7462 and is known as Bada and described in para 3(b) of the plaint. On all the lour sides of this Bada are Verandahs covered over with corrugated iron sheets, and on the Southern side is a built portion. There is also a tap inside and a latrine on the West corner. Thereis pavement throughout the Bada. The portion of the building in which the idol is instiled is on the Northern side of this part.
The second item consists of properties developed on the land said to have been acquired from Chhatrasingh Jamidar under instructions of Ghasiramji's father Narayanji by Sobharamji, Ganpatji and Chaturbhujaji, The land actually acquired from Chhatarsingh adjoined the temple. Part of the land was meant for the personal use of Narayanji and his family and a house was constructed thereon which even now belongs to his family.
The remaining part of the total acquisition was intended for the benefit of the idol and was to be the idol's property. Upon this portion of the land a building was constructed with shops on the ground floor and a Dharamshala on the first floor. The expenses for this construction was met by public subscription from amongst the members of Medh Rajputs, the family of Sitaram being the largest subscriber. It was said to have been agreed then between Ghasiramji and Ganpatji that the amount needed in excess of what had been collected should be spent by Ganpatji from his own pocket and he may later get himself reimbursed from the income which the shops might yield.
After Ganpatji's dues were fully paid off, theshops were to revert to the idol and would then be managed by Ghasiram along with the other temple property. While the shops were thus under the management of Ganpatji, he died. Later his son Narayanji continued the management. Sometime in 1938 certain members of Medh Rajput caste filed a suit impleading said Narayanji as well as Ghasiramji and one Hiralal for accounts claiming the said premises of shops and Dharamshala as belonging to the caste.
The suit was however dismissed on a technical point. After Narsyanji's death his son Ramchandra continued the management but the caste Panchas, it is said, by the exercise of threats of expulsion and undue influence induced him to give up the possession of the shops. Later disputes also were raised about the Dharamshala. Pujari Badrinarain, who was appointed by Ghasiram prevented the attempts of the members of the caste to take forcible possession of the Dharamshala by breaking open the locks.
This led to criminal proceedings and the property was entrusted to a Receiver under the orders of the Court. Later on in the year 1945 one Poonamchand obtained a decree against Medh Rajput Association (registered) as a result of collusion between himself and certain members of Medh Rajput caste and in execution of that decree the aforesaid shops were attached. Badrinarain Pujari put up objection to this attachment. The objection was however given up on certain assurances given by the decree-holder Poonamchand.
3. The present suit was therefore filed against Medh Rajput Association, who claimed the shops and the Dharamshala as belonging to Medh Rajput casto at Uj'jain, Ramchandra, grand son of Ganapali and Poonamchand. Badrinarain is also impleaded as the action of Badrinarain in abandoning the objection accepting dues of Poonamchand as proper was without the knowledge and consent of Ghasiram or any member of his family.
4. A declaration was therefore claimed that the property marked yellow in the plan attached to the plaint consisting of Dharamshala, Padasala. Saya-van and latrine etc. should be declared as belonging to the idol with right of management vested in Sitaram. As regards the shops, it is claimed that the possession of Medh Rajput Association should be removed and the same may be given to Sitaram fortheir management on behalf of the idol. Other reliefs were also claimed which are no longer material.
5. Principal defence was put up by the MedhRajput Association. Ramchandra asserted that he hadvoluntarily given possession to the Association andnot as a result of threats or undue influence. Hedid not reply the rest of the plaintiff's allegations.
6. The defendant No. 1 Medh Rajput Association contended that the temple did not belong to the idol Baldauji but is a temple with idols of Kam, Laxman and Janki. They denied the right of management of the temple to belong to Ghasiram's family and further denied appointment of Badrinarain in pursuance of that right. Sitaram's right to tile the present suit on the ground of Ghasiram's inability to move out was denied. Purchase of land from Thakur Chhatarsingh under the instructions of Narayanji grand-father of Sitaram was denied and it was asserted that the same was acquired by the members of the caste for and on behalf of the caste.
The caste Panchas after purchase of land constructed a building thereon. This purchase was not meant for the idol Baldauji. It was never dedicated to the idol and the caste Panchas were never required to seek the permission of Badrinarain or Ghasiram for the use of Dharamshala by them. It was further alleged that the agreement regarding construction of shops and Dharamshala was not between Ganapatji and Ghasirarn but it was between Ganpatji and the caste Panchas whereby it was agreed that after Ganapatji was fully reimbursed from the income of the shops he should make over the possession of the same to Panchas.
It was in compliance with this agreement, according to them, that Ramchandra handed over the possession of the shops to them. Defendant No. 1 claimed ultimately the temple as well as properties appertinent to it as the property of the Panchas and denied the right of management of the temple as vesting in Sitaram's family. The appointment of receiver in respect of Dharamshala portion was admitted but this, according to them, was the result of improper dispute raised by Badrinarain. Consequently it was contended that the suit ought to be dismissed.
7. The trial Court framed eleven issues. Principal amongst them are issues Nos. 2, 3 and 4. Issue No. 2 is regarding the temple being installed with the idol of Baldauji with idols of Ram, Laxman and Janki in addition and as to the right of management of the properties of the temple and its worship being vested in the Sitaram's family. Issues Nos. 3 and 4 raised questions regarding the title of idol Baldauji to the two items of property described in paras 3 fb) and 10 of the plaint and also referred to above.
These two items of property will be termed as Bada and shop-portion respectively hereafter for convenience of reference. The exact location of these two items will be clear by reference to the plan. The shop-portion is shaded red in the plan and bears Municipal No. 7486. The Bada is to the West of this and is a part of the property bearing Municipal No. 7462.
8. Each party came to Court with a case which, it is now conceded, was in excess of what it was justified in putting forward. Plaintiff claimed the Temple of Baldauji as a private temple but alleged title in the idol. This was rather inconsistent. But it is conceded by Mr. Chitale before us that the plaintiff never meant to treat the temple or its property as the one in which the family of Ghasiram had exclusive title. That the title rests withthe idol of Baldauji, is not and was never disputed.
The defendants on the other hand denied the temple being of Baldauji but alleged it to be one of Kam Janki and the title of the idol on that account was denied. Mr. Shankar Prasad Bhargava now does not dispute the existence of idol of Baldauji nor does he dispute that it had been installed several generations back and was ancient.
9. Formally the contest is as to the title of item No. 1 Bada but the real dispute which gave rise to the present suit is as regards item No. 2 shop-portion. Right o management of the temple and its property being vested in the family of the plaintiff is also disputed before us. The Medh Rajput Association in which name members of the caste have registered themselves claim the management ultimately vesting in the Panchas and seek to explain certain acts of Sitaram's father and ancestors as being for and on behalf of the Panchas.
10. The trial Court found that the temple is of Baldauji and was being managed under the supervision of Sitaram's family and since his father Ghasiram became too old to look after the management Sitaram had been doing so. The defendants, according to it, gave no evidence to prove that they were in ultimate charge of management and controlled appointment of Pujaris and paid their salaries or remuneration. Issue No. 2 was therefore found in plaintiff's favour.
It however held that the plaintiff had failed to establish, either by documentary evidence or evidence as to possession, that either of the two items in question namely 'Bada' and Shop-portion belonged to the idol and forms part of the temple property. As a result of these findings the suit was dismissed.
11. In this appeal these findings are assailed on behalf of the plaintiff. As mentioned earlier Mr. Chitale on behalf of the appellant stated that next friend Sitaram does not want to contend that the temple of Baldauji is the private property of his family. He conceded that it is a public trust of religious and charitable nature and the ultimate ownership of all the property is vested in the deity Baldauji.
According to him the right of management however vests in the family of Sitaram and all the items of property including the disputed portions namely Bada and shops belonging to the idol. In order to ascertain whether the Bada and the shops formed part of the temple property or was the exclusive property of the Panchas having no connection with the temple, it will be necessary to refer to the title-deeds under which the land underneath these two items of properly had been acquired and the circumstances in which these had been constructed. It will also be necessary to take into account the source of money which had gone in bringing these two items into existence in the form in which they are to-day.
12. It will further be necessary to find who was managing these properties or was in control of their management? Whether it was the family of Sitaram or the Panchas, with the managing member of Sitaram's family, though occupying a prominent place, being merely a member of the Panchayat? The position of the Pujaris, their appointment and control including that of pujari Badrinarayan will also have to be taken into account in this connection.
It is only on taking stock of all these facts that we will be in a position to arrive at a correct solution of this somewhat queer dispute which ulti-mately should turn out to be a nominal one sinceon either view the beneficiaries are in any case the members of the community of Medh Rajputs to which both Sitaram's family and the defendants belong.
13. The following is the description and the relative position of each of the four items of property which will figure prominently in the evidence pertaining to the disputed questions. (1) The house bearing the Municipal No. 7486 said to belong toSitaram's family (2) the temple proper in which the idol of Baldauji stands installed including a Chouk, Sabha Mandap etc. marked blue in the map Ex. D/8 to the East of No. 1. (3) The portion known as 'Bada' including Chowkhandis and 'Sayevans' with extensionfor a kitchen place in the South West corner lying to the south of portion (2), and partly of portion (1) and lastly the portion known as shops with first 'floor used as part of Dharamshala bearing Municipal No. 7486 lying to the South of No. 1 and West of No. 3 and marked pink in Ex. D/8. These portions are marked 1, 2, 3 and 4 respectively in Ex. D/8 and it will be convenient hereafter to refer to them by Roman figures as property Nos. I, II, IIIand IV. It may be remembered that the dispute in the present case relates to items III and IV.
14. The document Ex. P-190 produced on behalf of the plaintiff and not seriously disputed bythe defendant is of 5-1-1893- It refers to two piecesof land one piece--measuring 30' East West and 21' North South and the other piece measuring 22 1/2' 'East West and 66' North South. The document mentions the temple as of Baldauji as founded by Rambux and recites that the pieces of land forming part of his Zamidari property was being given for the idol Baldauji on receipt of consideration. Thedocument is addressed to Ganapatji, Kisanji, So-bharamji and Chaturbhuj who are the members of the caste of Medh Rajput.
The exact location of this land is not clear by reference to any documentary evidence. Sitaram, who belonged to the founder's family and has filed this suit states that the land covered by this document is now partly covered by the property IV known as shops. He too, beyond stating this, does not give the exact location. He denied that any portion out of property IV was acquired from the Improvement Trust Ujjain for the idol of Baldauji. He had earlier admitted that the pieces IV and I had been acquired from the Improvement Trust.
15. Badrinarayan Pujari who was worshipping the temple for over fifty years says that part of the land covered by the shops property IV was acquired from the Zamindar and the front portion out of property IV was acquired from the Improvement Trust, So also he says part of No. 1 was acquired from the Zamindar and part from Improvement Trust. The acquisition from Improvement Trust was said to be due to Ganapatji's efforts,
16. On behalf of the defendants witness Hiralal admitted Ex. P-190 to be a copy of Kawala granted by Chhatarsingh Jamidar but he stated that he could not locate the pieces thus acquired under that deed. He further stated that he had no knowledge whether the land acquired from the Jamidar was for the benefit of the idol Baldauji. He however said that the shops were constructed over part of the land acquired from the Improvement Trust. Over the other part Ghasiram Jagirdar constructed his own house. Both he and his brother Poonamchand who had secured a decree against the Medh Rajput Association for Rs. 800/- and had attached the property IV (shops) in execution denied knowledge where the title-deed of the land acquired from Improvement Trust was.
17. The oral and documentary evidence is therefore not sufficient to locate the property acquired from the Jamidar but the document makes it clear that the temple of Baldauji was founded by Rambus and that land in two pieces was being acquired from him by certain members of the Panchas including the father of Hiralal and Poonam-chand for the idol.
18. The evidence of both sides indicates that the shops (property IV) is constructed at least over a portion of the land acquired from the Improvement Trust. The property I which is claimed by Sitaram as his private property also is constructed over a portion acquired from the Improvement Trust. Both sides have not produced the title deeds about this acquisition. Sitaram even went on to state that no land was acquired from the Improvement Trust but only permission was taken from the Trust for construction. But in view of the statement of Badrinarayan and his own statement at another place to the contrary this last mentioned statement cannot be accepted.
19. As regards property III the land consists partly of a portion ot the temple land as originally existing, a portion acquired from Kashibai and Gajarabi by Ganpatji, and partly probably of land acquired from the Chhatarsingh Zamidar. The exact location of these three different pieces cannot be ascertained but it may be assumed that the land immediately at the back of the temple was the original temple property and land now adjoining Manohar-lal and Balmukund Jaiswal's property must have been acquired from Kashibai and Gajarabai. Part of this land was sold by Ganpatji and others to the neighbour Manoharlal. The original title deed of the temple, it was stated by Sitaram, did exist and had been given to Ganpatji for its being shown to the Improvement Trust authorities but had thereafter never been returned.
20. The earliest reference in connection with 'Saibans' which existed in the property III known as Bada is in document Ex. P-131. It is a letter by Ghasiram to Badrinarayan, wherein he gave instructions to the latter to require Kisanji the father of D. W. Hiralal and D. W. Poonamchand to apply Rs. 40/- borrowed by him at Lashkar, for constructing a Saibans as per his promise. It appears immediately then or by Samvat 1967 corresponding to 1910 A. D. verandahs covered over with sheets had been constructed in a portion of the Courtyard.
In 1920 further additions were made to these verandahs. In 1919 Badrinarayan sought permission to construct a latrine. When in 1920 construction in the back yard (property III) was contemplated Pane-has decided to contribute, Ghasiram the father of Sitaram contributing Rs. 101/-. This is disclosed in document Ex. D/l dated 29-6-1920. It was then decided to give that portion the appearance of a Dharamshala. Prior to this there was practically an open courtyard where animals belonging to the founder's family as well as to Badrinarayan Pujari used to be tied. A pipe line had been taken and a tap existed in that part as well as a latrine and a shed even from before.
In Ex. D/- 1 although the temple as well as Dharamshala were mentioned as belonging to Pan-chas the collection was associated with the name of the idol. Doors' of this back portion opened into the portion where the idol proper stood installed. Later by the resolution of the Panchas Ex. D/S dated 20-5-1923 a separate door was opened in order to have access into the Eada from the East instead of having to get through the temple to the latrine situated in the 'Bada' (property III) Panchas on 9-1-1921 decided to donate dust and rubbish oftheir goldsmiths' shops for adding to the structureof the Dharamshala.
In 1923 some land was purchased from Kashibai and Gajarabi daughters of a neighbouring Kumar Nathuji for Rs. 496/-. This land was to the South of the Dharamshala portion known as Bada and was amalgamated with it although the purchase was in the name of Ganpatji and his son Narayan. Part of this land was sold by Ganapatji and Narayan to Balmukund and Manoharlal.
The Panchas contemplated expenses for construction work of Dharamshala in excess of what was contributed by the panchas. It was decided on 4-9-1921 that any member of the Panchas whose money was spent in excess would be entitled to keep possession of the property and on being recouped for the excess spent by him the building might be made over to the Panchas. It appears there was some hitch in obtaining land from the Improvement Trust.
The title deeds of the temple property were required. Ganpatji obtained them from Ghasiram, In a letter to Badrinarayan dated Pous Section 8/1980 Ex. P-125 Ghasiram mentioned this fact and complained that he had faiied to return the same.
21. By 1928 it appears Ganpatji succeeded in obtaining land. On Pous B. 1/1985 i.e. January 1929 Ganpatji informed Ghasiram about the success in securing land. There was urgency about construction. He therefore got the plinths constructed over both the portions one near the Dharamshala and the other near the temple that is portions IV and I. Ganpatji thereon pressed Ghasiram to come to Ujjain as, according to him, it was only on his arrival that it was possible to undertake expenses for further construction. At the end he expressed that things will shape what Baldauji would bring about and that Ghasiram would acquire fame.
In that year itself Ghasiram, in a letter Ex. P-126 to Badrinarayan, had expressed resentment at Gan-patji's conduct in undue interference with the temple property. Ganpatji, it appears, had demanded money spent by him in the construction of plinth in the portion I. Resentment was also expressed by making construction instead of asking him to have it done through Badri Maharaja and then pressing for his dues. Map submitted by Ganpatji in the Improvement Trust for seeking permission to build was also a subject matter of disapproval.
This application for construction was in the name of Panchas. This appears from Ex. D-29 Ganpatji thereafter effected construction of shops and the upper floor to be used as Dharamshala and retained possession of the property IV till his death. His son Narayan also continued to keep possession with him. After the death of Narayan his son Ramchandra handed over the property to Panchas. The disputes at this stage arose or 'rather disputes' had already begun some time before this. This founder's family maintained that the property was of the temple though it has to be used as Dharamshala while Panchas, by reason of the efforts of Ganpatji on behalf of the Panchas in acquiring land and constructing a building over it, claimed it as exclusive property of Panchas.
In order to take the matter beyond controversy a consent decree was obtained by Poonamchand son of Kisanj'i against Jagannath' the President of the Association and in execution of that decree the nronerty IV was attached and was sought to be sold. Badrinarayan submitted objection for this attachment but on assurance by the decree-hoWer that property would not be sold by auction the objection was withdrawn. Panchas induced Ramchandra to deliver the property IV to them as his dues hadbeen paid. When this was done the present suit was filed.
22. It thus appears that so far as property III is concerned substantial portion of the property formed part of the temple and even a roofed osari,. latrine and tap existed in this portion from before. Addition of property to this portion even by purchasing land in the name of Panchas out of contribution from the members of the caste including founder's family cannot alter the substantial character of it particularly when at the time of seeking funds from the members the name of the idol was! associated.
The situation of the property, the existence of door on the side of the portion where the deity was installed, control of both the temple and the backyard by the Pujari Badrinarayan on behalf of Ghasiram and his father Narayan who belonged to founder's family, payment of water tax throughout for the tap existing in that portion from a very long time all go to show that the property III belonged to the idol although like the temple proper, ultimate beneficiaries were the members of the caste.
23. It appears that as the founder's family resided in Gwalior the actual management was in the hand of Badri Maharaja and certain influential members of the Panchas for whose ultimate benefit the temple was available exercised some supervision with the assent of the members of the family the right, ultimate control and supervision had not been renounced by them nor was any right created in the Panchas by custom or usage.
24. As regards the portion IV part of the land over which it was constructed was probably one acquired by Chhatrasmgh Zamidar. Exhibit P-190 clearly indicated that this acquisition though in the name of the Panchas was for the idol. The acquirers were merely agents in the real sense of the term. A portion of it was acquired from Improvement Trust. Exact representation made by Ganpatji or his son in making This acquisition is not clear as no evidence is adduced on either side to indicate on whose account or in whose name the acquisition was made. But letter of Ganpatji Ex. P-130 sent to Ghasiram soon after the acquisition contains expressions of gratitude to the idol.
25. As regards the source of money by which the properties III and IV (Bada and Shops) came to acquire the present form it appears, from the resolution dated 29-6-1920 of the Panchas Ex. D-l, that the Dharamshala in portion III was meant to be a part of the temple property. Mr, Shankar Prasad Bhargav for the defendant had urged before us that the name of the temple of Baldauji was referred to indicate the location.
I do not agree with this contention firstly because the back-yard or Bada where the construction was to be made was already a temple property and secondly it was mentioned in Ex. D-l in so many words that the Dharamshala was for the temple both temple and Dharamshala being referred to as Panchayati. And in a sense they are so. But the title is with the diety who is the owner in a secondary sense. Moreover the backyard or Bada even today has no separate Municipal numbers and formed part of the property included in number 7462.
26. As regards the portion IV part of the money was by collection from the members of the caste, part by what they might have contributed out of the dust and rubbish collected from their Goldsmiths' shops and part was money spent by Ganpatji from his own pocket and which was ultimately recovered from the income oF the property.
These appeared to be clear change of attitudein Ganpatji subsequent to the acquisition of the land from the Improvement Trust and construction of the shops thereon although that attitude to ascertain extent existed earlier. Both he and his son during then life-time did not part with its possession though Ramchandra, Ganpatji's grandson, was pursuaded to part with its possession in favour of the Panchas.
27. At this stage it will be proper to refer to certain principles established by authorities on the subject-matter regarding the nature of shebaitship and the relationship between the idol and ihe she-bait with rights and obligations of the latter. In Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee, 16 Ind App 137 (PC) their Lordships of the Privy Council laid down that
'when a worship of a deity has been founded, the shebaitship is held to be vested in the heirs of the lounder in default of evidence that he has disposed of it otherwise or there has been some usage, course of dealing or some circumstances to show different mode of devolution.'
Their Lordships at another place pointed out as follows:
'It is true that money was raised to build the temple, and was raised mainly from the worshippers, and in the name of the Thakoor Dowjee. But the facts of this case are not such as to raise an equity of the kind suggested at the Bar, and favoured by one of the judgments delivered in the Division Court. There is no reason to suppose that the subscribes did not know of Munnee Bibi's deed; and there is no evidence that the subscriptions, though given 1,0 the Thakoor Dowjce. were given with any reference to the question who should be his she-bait.'
28. In Ananda Chandra v. Brpja Lal, AIR 1923 Cal 142, Sir Asutosh Mookerjee J. observed at page 146:
'Now it is well settled that when worship of an idol has been founded, the shebaitship is vested in the founder and his heirs, unless he has disposed of it otherwise, or there has been some usage or coarse of dealing which points to a different mode of devolution, ILR 17 Cal 3 (PC); Jagindra Nath Roy v. Hemanta Kumari, ILR 32 Cal 129 (PC); Mahan Lalji v. Gordhan Lalji, ILR 35 All 283 (PC); Ramanathan Chetti v. Murugappa Chetti, ILR 29 Mad 283 (PC); Sital Das v. Protap Chandra, 11 Cal LJ 2; Raj Krishan De v. Bepin Senary Dey, ILR 40 Cal 245; Sheo Prasad v. Aya Ram, ILR 29 All 663; Kunjamani Dasi v. Nikunja Behary Das, 32 Ind Gas 823: (AIR 1916 Cal 312); Baldeo Das v. Gobind Das, ILR 36 All 161: (AIR 1914 All 59). In the application of this rule, it may not be always easy to determine, who are the founders. One person may provide the site of the temple another may build the temple and establish the idol, while a third may dedicate property for the performance of the daily services of the idol. Where the owner of the site relinquishes his right in the land, he may not be a founder, unless he indicates, at the time, expressly or impliedly, that he will associate himself with the others in carrying out the object of the foundation, Venkata v. Narain, 1854 Mad SDA 100. Prima facie all the persons who establish the worship are entitled to take part in thp management. In England, it has been ruled that the person providing the original endowment is the founder rather than the person who performs the act of incorporation, which involves a distinction between the fundatio incipiens and the fundatio percipiens, Sutton's Hospital case, (1613-10 Coke 23a); Anon 12 Mod 233; Selford on Mortmain p. 27. If a num-ber of persons provide the original endowment,. they may apparently together constitute the founder: Re St. Leonard, Shoreditch, Parachial Schoois, (1884) 10 App Cas 304. But persons who, subsequent to the foundation, furnish additional contributions, do not thereby become joint founders; their benefaction is regarded as nothing beyond an accretion to an existing foundation: Appasami v. Nagaopa, ILR 7 Mad 499; Annasarai v. Ramakrishna,, ILR 24 Mad 219: 16 Ind App 137-147 (PC).'
29. It appears clear from the principles enunciated in the aforesaid cases that since the Deily Baldauji had been founded by Rambuxji as appears from Ex. P-190 and also by the subsequent acts of the members of the family in supervising and controlling the temple and the worship of the deity right from the time of Rambuxji up to the time of Ghasiramji, it is that family which is ordinarily entitled to possess the right of Shebaitship. Even assuming that the Dharamshala portion in the Bada. had been developed as a result of contribution by the Panchas that would at the most be an accretion to the property of the temple but that would not confer any right of shebaitship either with respect to the temple or even with respect to the property developed out of the contribution, particularly in the absence of any evidence as to imposition of any condition as to division of the shebaitship between the founder's family and the persons sub-scribing,
30. The same may be said about the property IV known as shops. The exact circumstances in which the land underneath this property was acquired from the Improvement Trust are not brought on record. Apparently it is not distinct and separate from portion III particularly when the first floor is admittedly meant for Dharamshala and is from the nature, construction and situation an appendage to the Dharamshala portion 111. A portion of the land underneath is clearly meant for the idol as is clear from Ex. P-190 though exact location of this land cannot be ascertained from the materials on record. Persons subscribing are worshippers i'or whose benefit the temple is founded.
31. There is therefore greater reason to take this property, as well as an accretion to the temple as belonging to the idol.
32. This brings us to the question whether we should declare Sitaram's right to have possession of the properties III and IV on behalf of the idol and further direct the defendants to pay mesne profits in respect of property IV for their having collected the income of the same.
33. In this, case Ghasiram who in the present circumstances will be entitled to be the shebait has not come forward. A suit for the benefit of the idol no doubt can be filed by a prospective she bait where the shebait holding office is unable or unwilling to act, vide Giris Chandra Saw v. Upendra Nath, 35 Cal WN 768: (AIR 1931 Cal 776); Panchkari v. Amode Lal, 41 Cal WN 1349: (AIR 1937 Cal 559) and Pramatha Nath v. Pradhyumna Kumar, 52 Ind App 245: (AIR 1925 PC 139).
34. Ghasiram in this case has not even figured as a witness. Exhibit D-9 dated 2-9-1952 is produced on behalf of the defendant. It is a printed notice circulated by Ghasiram cancelling the power of attorney of his son attributing to him acts of mismanagement of the properties.
35. Badrinarayan Pujari who happened to be associated with the family stated that a house in Daulatgani had been dedicated to the deity and the income of the house used to be utilised for the upkeen and worship of the deity but that the same had been mortgaged by the Jagirdar.
36. As regards the Panchas they have attempted to screen property IV from the deity by obtaining a consent decree in the name of Poonamchand as against the defendant and by seeking to attach and sell the property.
37. In this state of things it appears necessarythat the question who should be in charge of the idol's property and what scheme should be framed for the management of the temple and property and the worship of the idot ought to be examined by the Trial Court and remand for that purpose isnecessary.
38. In settling the scheme for management the trial court may examine the claims of Sitaram, his father and the Panchas and after considering objection may devise a scheme which will have the effect of carrying out the worship and bringing the idol's properties under proper management. While settling the scheme the idol might be allowed to be represented by a disinterested next friend. The suitability of such a course is suggested by the decision of the Privy Council in 52 Ind App 245 (261): (AIR 1925 PC 139 at p. 145).
39. The appeal is therefore partly allowed and it is declared that properties III and IV referred to as 'Bada' and shops belong to the idol Baldauji. Asregards claim made by Sitaram for possession and accounts as to mesne profits it is ordered that the trial Court should consider the question of formulating a scheme for management alter hearing the claims and objections to founders family being allowed to continue in management as shebait, a question which was not specifically considered in detail.
In case the trial Court formulates a scheme, dueconsideration may be given tor representation of the founder's family, in the managing body. The consequential order for possession and accounts as to mesne profits will also be passed. It will be open for the trial Court to pass any interim and suitable order for providing for due worship of the idol andthe management of its properties.
40. Having regard to the fact that each of the parties tried to put forward cases which to a certain extent were higher than what they should have done, parties should bear the costs of this appeal and of the Court below. Costs hereafter will begoverned by the order of the trial Court which will ,be passed at the conclusion of the trial.
41. The case is remanded to the trial Court whc shall deal with the case in light of the observations made above.
42. I agree.