G. Ramanujam, J.
1. The first defendant is the appellant. He unsuccessfully resisted in the Courts below the suit, O.S. No. 2728 of 1960 filed originally on behalf of Sri Sai Baba temple for declaration of title and for possession of a room in the first floor of premises No. 13, Big Street, Triplicane, Madras-5 which is in his occupation. The facts and circumstances which led to the filing of the above suit and the rival pleadings between the parties have been fully and elaborately set out in the judgments of the Courts below and ( do not consider it necessary to set them out here again in much detail I therefore, straightway proceed to consider the questions involved in this second appeal.
2. The substantial questions that are raised and are to be considered in this second appeal are : (1) whether door No. 13, Big Street, Triplicane, Madras-5, belonged to the joint family of Loganatha Mudaliar and his sons, including the appellant at any time or whether the same remained as self-acquired property of Loganatha Mudaliar till he executed the settlement deed, Exhibit A-3 in favour of his daughter, Leela, (2) whether the settlement deed Exhibit A-3 executed by Loganatha Mudaliar in favour of his daughter, Leela in respect of the suit property is true and valid as urged by the plain-tiffs or whether it is invalid or sham and nominal as contended by the appellant, (3) whether, even if the settlement deed Exhibit A-3 is true and valid, the trust created by the said Leela under Exhibit A-4 in favour of Sri Sai Baba, the first plaintiff is illusory and invalid as contended by the appellant and (4) whether the suit as framed is maintainable.
[After discussing the evidence on the question whether the suit house was the self-acquired property of Loganatha the learned Judge proceeded as follows--Ed.]
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Therefore, I see no reason to interfere with the finding of fact given by the Courts below that the suit property continued to be the self-acquired property of Loganatha till he executed the settlement deed Exhibit A-3, in favour of his daughter, Leela.
4. On the second question also, lam inclined to agree with the view taken by the Courts below that the settlement deed, Exhibit A-3 executed by Loganatha in favour of his daughter, Leela, is true and valid and that it has not been shown to be sham and nominal by the defendants.
[The discussion of facts is omitted--Ed.]
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Therefore, the settlement deed. Exhibit A-3 taken in the light of the compromise in the said suit, should be deemed to have been acted upon and given effect to at least at the time of the compromise and that the settlee has become the absolute owner of the property ever since. Therefore, it is not possible to take any exception to the finding given by the Courts below that the settlement deed. Exhibit A-3 is true and valid and it is not sham and nominal as alleged by the first defendant.
5. The next question is as to whether the trust deed, Exhibit A-4, dated 30th June, 1958 executed by Leela in favour of Sri Sai Baba temple constituting her father Loganatha as a trustee during his lifetime is true and valid or whether it is illusory and invalid as contended by the first defendant. It is urged that the conduct of both Loganatha and his daughter Leela shows that for some ulterior motive the property was put in the name of Leela and again got back by Loganatha in the form of this trust deed, Exhibit A-4 and that the terms of the trust deed themselves showed that it was only illusory Here again, I am not in a petition to disagree with the view taken by the Courts below that the trust deed executed by Leela was real and not illusory. A reading of the trust deed shows that there has been a dedication of the property to Sri Sai Baba Temple, Guindy, the object being to maintain the said temple and also for performance of pooja therein on the third day of February every year. It is not in dispute that all the members of the family were very much devoted to Sri Sai Baba. Exhibit A-5 dated 3rd February, 1949 a trust deed executed by Loganatha himself shows that he had erected a temple for Sri Sai Baba in the land owned by him at Guindy and he had endowed about 11 grounds of land for the purpose of performing the pooja and annual festival in the temple. This trust deed has not been challenged as illusory in these proceedings. The trust deed Exhibit A-5, executed by Loganatha has been attested by the members of the family including the first defendant. In fact, the recital in the document, Exhibit A-5 shows that the family members are subscribing their signatures thereto in token of their interest and sincerity in carrying out the trust. It is also not in dispute that in fact Sri Sai Baba temple exists in Guindy. Leela, the author of the trust deed, Exhibit A-4 has remained unmarried and the evidence shows that she is very much devoted to Sri Sai Baba and had decided not to lead a married life. It is in this background it has to be seen whether Exhibit A-4 is real or illusory.
6. On behalf of the first defendant various circumstances have been pointed out to show that the trust deed, Exhibit A-4 was only illusory. It is pointed out that Exhibit A-4 provides for the application of the in come from the property for the maintenance of the temple and for performing the annual festival only after clearing the debts over the property, which means, that there will be practically no income left for carrying out the object of the trust. It is also pointed out that in respect of the direction for discharging the debts over the suit house, the trustee name of Leela and again got back by Lodging the debts over the suit house, the trustee Loganatha did not pay any part of tile debt and that it was Leela, herself who had been discharging the debt even subsequent to Exhibit A-4. The third circumstance pointed out is that Leela had appointed only her father Loganatha as the life trustee of the trust and this showed that Loganatha has been put in effective possession of the property with no liability to account for the income. But, all these circumstances do not, in any view, establish that the trust deed Exhibit A-4 was illusory. It may be that though the trustee was directed to discharge the debts out of the income, Leela herself discharged the debts from out of her own earnings as a lecturer in a city College so as. to preserve the suit property in fact for the purpose of the trust. The fact that the father Loganathan was appointed as a life trustee is also innocuous Loganatha has already constructed a Sai Baba temple and endowed certain properties for its maintenance. Therefore, his daughter Leela might have thought, while executing Exhibit A-4 that Loganatha was the proper person to administer the trust. One other circumstance that is pointed out is that the trust deed. Exhibit A-4 gives a right of residence to the trustee in a portion of the premises. The fact that the trustee is allowed to live in a small portion of the suit property will not also go against the truth of the trust deed. But the evidence discloses that even though the recital in Exhibit A-4 is to the effect that the trustee can take up residence in a small portion of the suit property, Loganatha actually took up his residence in the Sri Sai Baba temple which he built, and he has been looking after the temple affairs there. The fact that the trustee is not accountable to others in administering the trust created under Exhibit A-4 will not also make the trust illusory. Such a clause might have been introduced only with a view to see that the trust, being a private one, the public or any worshipper in the temple may not seek an account from the trustee. Therefore, I see no substance in the first defendant's contention that the trust deed, Exhibit A-4 Is in any away illusory.
7. To appreciate the last contention regarding the maintainability of the suit, the following facts are to be noted. At the first Instance the suit was filed in the name of Sri Sai Baba temple by sole trustee M. J. Loganatha Mudaliar. As already stated, the dedication in the trust deed. Exhibit A-4 was in favour of Sai Baba temple represented by sole trustee M. J. Loganatha Mudaliar and perhaps that is the reason the plaintiff was styled in such a manner. But, the defendants raised the plea in their written statement that the suit as framed is not maintainable as temple not being a person in the eye of law cannot maintain the suit. With a view to meet such a plea by the defendant, the cause-title was amended showing the .first plaintiff as Sri Sai Baba represented by its Trustees, M. J. Loganatha Mudaliar. T. A. Rama-swami Reddiar, Venkataswamy Nagarathna Mudaliar and M. L. Leela The second and third plaintiffs are M L. Ramakrishnan and M. L. Sampathkumar and they had been added after the death of M. J Loganatha Mudaliar who had been constituted as the trustee for life in the trust deed. Exhibit A-4. Even after the amendment, the defendants raised the plea that the first plaintiff, Sri Sai Baba, is not a deity capable of acquiring or owning any property or of suing and being sued as such, that the Sai Baba was only a spiritual person and is not a God or deity recognised by the Hindu Pantheon or by the Aghamasastras capable of owning the property, that the deletion of the word 'Temple' in the plaint will not cure the defect as to the maintainability of the suit. The defendants also contended that the persons shown as trustees of Sri Sai Baba the first plaintiff, are only trustees of Sri Sathya Sai Mandali, an institution created under the trust deed, dated 3rd February, 1949 executed by Loganatha and that they cannot be said to be trustees entitled to represent Sri Sai Baba even assuming that Sri Sai Baba is a deity. It has also been contended that the second and third plaintiffs also cannot and do not purport to represent Sri Sai Baba. It is also pleaded that Sri Sai Baba temple having been located in the burial ground of the family of Loganatha was only a Samadhi and that, therefore, there cannot be any valid dedication for a Samadhi and for performing the death anniversary of the deceased Sai Baba. Though the various grounds set out above have been taken in the written statement, some of the grounds were not pursued before me. As regards the contention that the temple was only a 'Samadhi' and that therefore, there cannot be any valid dedication of the properties to the same, admittedly Sri Sai Baba was not buried or cremated in that place, and there is no question of Sri Sai Baba temple being treated as a 'Samadhi'. Naturally, therefore, this question was not pressed. It is also not in dispute that there is a statue or idol of Sri Sai Baba installed in Sri Sai Baba temple at Guindy by Sri Sathya Sai Baba. Even the first defendant admits in his evidence that he was present during the installation ceremony. Therefore, the crucial question is whether the idol of Sri Sai Baba installed in the Sri Sai Baba temple at Guindy is a legal person who is capable of suing and being sued.
8. Mr. Sundaram Iyer, learned Counsel for the appellant contends that unless the idol of Sri Sai Baba is treated as a deity, it cannot have the requisite legal personality of suing and being sued and that such an idol cannot be recipient of a donation and cannot own property, that unless the idol even if located in a temple is treated as a deity, it cannot be treated as a juristic entity and that a gift or dedication to a temple as such cannot be recognised in law Reference is made to decision in Thakardwara Amritsar v. Ishar Das A.I.R. 1928 Lah 375, where a Division Bench expressed the view that though a deity of a mutt is a juridical person, the building in which the idol is located cannot become a religious institution, and that such unwanted extension of the juristic personality to the building in which the idol is located would result in two juridical persons co-existing in the same institution. Sri Gajanan Maharaj Sansthan, Shegaon v. Ramarao I.L.R. 1954 Nag. 302, was also referred. There it was held that though the statue of idol or a mutt as a juristic entity has been sanctified by Hindu religious usage and has obtained judicial recognition, the temple or a secular institution stands on a different footing and they are per se only inanimate objects which, in the eye of law, are incapable of holding property and acting for its protection. The reason given by the learned Judges for taking that view was that in the case of a temple the building is obviously intended for the abode of a deity and until the idol is consecrated, it is only a structure of brick and lime, devoid of life and soul ; whereas, in the case of a Sans than, the object associated with the religious teacher and installed in the institution may itself symbolise the spirit of the sage and impart to it a spiritual existence and therefore, it has the same juristic personality which an idol is recognised to possess. It is true that these two decisions, make a distinction between a deity and the structure called 'temple' in which the deity is located. But the question here is whether the idol or image of Sai Baba is a deity, now that the plaintiffs have deleted the word 'Temple' by amending the cause title.
9. The question is what are the deities which could normally be recognised under the Hindu pantheon as juristic entities. In Vidya Varuthi v. Balusami Ayyar I.L.R. (1921) Mad. 831 : 15 L.W. 38 : 65 I.C. 161 : 48 I.A. 302 : 4l M.L.J. 346 : A.I.R. 1922 P.C. 123, their Lordships of the Judicial Committee held that under the Hindu Law the image of a deity of the Hindu pantheon is, as has been aptly called, a 'juristic entity' vested with the capacity of receiving gifts and holding property, and that religious institutions, known under different names, are regarded as possessing the same 'juristic' capacity, and gifts are made to them eo nomine. According to Mr. Sundaram Iyer for the appellant all idols or images cannot be treated as juristic persons and it is only such idols which can properly be called deities which can own properties and sue and be sued as a living person, and that it is only those idols which represent the Trinity or its various forms can be treated as deities according to the Hindu theology and Sastras. The question is how far this contention could be accepted.
10. One of the earliest cases is M Ganesh Tambhokar v. Lakshmiram Goindram I.L.R. (1918) Bom. 247, West. J., stated:
The Hindu Law, like the Roman Law, and those derived from it, recognises, not only corporate bodies with rights or property vested in the corporation apart from its individual members, but also the juridical persons or subjects called foundations.
11. In Gosami Sri Gridhariji v. Romanlalji Gosami I.L.R. (1890) Cal. 3 : 16 I.A. 137, the Privy Council treated even a consecrated portrait of a Sadhu which was worshipped by his disciples to be legal person to whom property could be gifted. In Bankey Lal v. Peare Lal I.L.R. (1930) All. 70, there was an endowment in favour of one of the Gods of the Hindu Pantheon, who was mentioned by name as 'Sri Ram Chanderji Maharajji, the God of the two worlds' and the deity was not associated with any particular idol or shrine. It was argued that such an endowment was void for uncertainty according to Hindu Law and as such it cannot be operated. The Court held:
It is true that under the Hindu system of jurisprudence a general endowment for the worship of an impersonal God for whom the benefit of an endowment was intended to take effect was void for uncertainty. This has been held in Khundan Lal v. Arya Prithi Nidhi Sabha I.L.R. (1911) All. 793, and in Ghandi Charan Mitra v. Haribola Das I.L.R. (1919) Cal. 951. In the present case it could not be argued that the endowment was void for uncertainty. Here we have a trust created in favour of Sri Ram Chanderji Maharaj, who is worshipped as an incarnation of Vishnu.
In Bhupati Nath Smrititirtha v. Ram Lal Mautra I.L.R. (1910) Cal. 128, there was a gift to certain trustees who were to employ the surplus income of the properties by spending the same in the establishment and pooja of Goddess Kalee under the name and style of 'Iswar Anandamoyee Kalee'. It was contended that the bequest is invalid as it is not in favour of a sentient person who is capable of accepting it and that a trust for the establishment and consecration of the image of Goddess Kalee and her worship was void inasmuch as the deity had not been established at the time of the gift. In rejecting the said contention Mukerjee, J., expressed that the proposition that gift to be valid must be in favour of a sentient person in existence and capable of taking from the donor at the time when the gift is take effect is inapplicable in the case of bequests for the establishment of images for the deity and for their worship, and that it is established beyond the possibility of dispute that the ordinary conception of a gift is not applicable to the case of a dedication to a deity:
Under the English Law it is well-settled that a gift for the advancement of religion in general terms, as for instance, a gift to be employed' in the service of My Lord and Master' or 'for the worship of God' are valid.' ... It is further clear that under the English Law, a valid gift may be made to a charity not in case at the time but to come into existence at some uncertain time in the future, provided there is no gift of the property in the first instance for the benefit of any private corporation or person, or perpetuity in a prior taker.
The learned Judge ultimately summed up the position thus-
(i) The view that no valid dedication of property can be made by a will to a deity the image of which is not in existence at the time of death of the testator is based upon a double fiction, namely, first, that a Hindu deity is for all purposes a judicial person, and secondly, that a dedication to the deity has the same characteristics and is subject to the same restrictions as a gift to a human being. The first of those propositions is too broadly stated, and the second is inconsistent with the first principles of Hindu jurisprudence:
(ii) The Hindu law recognises dedication for the establishment of the image of a deity and for the maintenance and worship thereof. The property so dedicated to a pious purpose is placed extra commercium and is entitled to special protection at the hands of the Sovereign whose duty it is to intervene to prevent fraud and waste in dealing with religious endowments.
Chatterjee, J., in his separate but concurring judgment made a distinction between 'an image' and 'a deity' and expressed the view that the deity exists and manifests itself in the image upon the invocation of the worshipper with certain mantras and that such a deity will be a sentient being, and that the Hindu idea of the various forms attributed to God is only for the convenience of worship. The learned Judge observes:
A particular image may be insentient until consecrated but the deity is not. If the image is broken or lost, another may be substituted in its place and, when so substituted, it is not a new personality, but the same deity and properties previously vested in the lost or mutilated Thakur become vested in the substituted Thakur A Hindu does not worship the 'idol' or the material body made of clay or gold or other substance, as a mere glance at the mantras and prayers will show. They worship the eternal spirit of the deity or certain attributes of the same, in a suggestive form, which is used for the convenience of contemplation as a mere symbol or emblem. It is the incantation of the mantras peculiar to a particular deity that causes the manifestation or presence of the deity or, according to some, the gratification of the deity.
Jenkins, C.J. said:
But whatever may be the true view on this obscure and complex question it is at least clear that the rule which requires relinquishment should be to a sentient person does not forbid the gift of property to trustees for a religious purpose, though that purpose cannot in strictness be called a sentient person : Ramtonoo Mulk's case (1829) 1 1 Kna 245. It would seem that the rule propounded by Jimutawahana had regard rather to the general proposition for which he was contending. e.g., that the act of the giver is the cause of property, than to its application to particular objects of benevolence. The fiction that an idol is a person capable of holding property must be kept within its proper limits, and were we to accede to the argument that has been advanced before us, we should be allowing fiction to be built on fiction to the hindrance and not for the furtherance of justice.
12. In Ramaswami Servai v. Board of Commissioner, H.R.E., Madras : AIR1951Mad473 , a Hindu executed a deed of gift on 18th March, 1920, endowing certain properties for the upkeep of 'Alagarswami temple now under construction'. The deed of gift provided for the installation of the deity and kumbabnishekam after the completion of the temple and also for constitution of the donor and two others as trustees for the carrying out of the objects of the trust. When the Hindu Religious and Charitable Endowments Board attempted to levy contribution from the trustees, they resisted the same contending that there was no temple in existence and therefore, the endowment was outside the scope of the Act. When the matter ultimately came before this Court the main question was whether the institution was a 'temple' as defined in the Madras Hindu Religious Endowments Act (11 of 1927) Satyanarayana Rao., J. expressed the view that:
In the case of a temple, it becomes a place of public religious worship when the idol was installed and consecrated and the pranaprathishta or vivification ceremony was performed. Until then, it is elementary knowledge that the image does not become an object of worship. The deity does not begin to reside in the idol (the visible image) until the consecration or the appropriate ceremony is completed. After the image is completed by the artist, it is brought in procession from the artist's place to the hall of ablution and thenceforward the ceremonies of consecration commence. This applies to prathishta sthalams i. e , to the temples in which the deity is established newly by observing a certain set of rules as opposed to swayambhu sthalams, temples in which the idol or the deity is swayam vyektha or self-revealed i.e., the image is not established by the act of men....Unless and until these ceremonies are gone through, the place where the idol is installed idol itself, does not become a fit object of religious worship.
13. But Viswanatha Sastri, J., took a slightly different view. The learned Judge says:
It is common knowledge that there are in this Presidency many institutions of a fixed character, whose exact place among religious and charitable foundations is likely to be a matter of doubt or dispute. There are some samadhis or tombs and sculptures of holy men, where an image of Siva is usually installed and worship, regular or on occasions, is offered. Some of them have come to be considered as public temples by reason of the sanctity of the persons interned. There are private mausoleums where idols are installed and pooja offered, but which are not temples as defined in the Act, because the public either do not care or are not allowed to worship at such places : Draiviasundaram v. Subramania : AIR1945Mad217 , Veluswami Goundan v Dandapani : AIR1946Mad485 . There have been cases where memorials erected originally in honour of heroes or martyrs have developed into places of public worship and have been declared to be public temples : Board of Commissioners for the H.R.E Madras v. Narasimhan : AIR1939Mad134 . There are institutions like bhajana matams where pictures or idols of gods of the Hindu pantheons are kept, the public congregate daily or on stated occasions, sing the praise of God and receive prasadams.
As regards the observation of Satyanarayana Rao, J. that a temple could come into existence only if and when the building is completed and the deity is installed and consecrated in the manner prescribed by the Agama Sastras the view of Viswanatha Sastri, J. was:
Consecration according to the ceremonial rites prescribed by the Agama Sastras is not a legal requisite, though it is a sacerdotal necessity according to the views of the orthodox. The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras. If the public or any section of the public who go for worship consider that there is a divine presence-in a particular place and by offering worship at that place, they are likely to be the recipients of the bounty or blessings of God, then, you have got the essential features of a temple as defined in Section 9 Clause (12) of the Act. The presence of an id l, though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in Section 9, Clause (12) of the Act.
14. In Ratnavelu Mudaliar v. Commissioner for H.R. and C.E. : AIR1954Mad398 the above observation of Viswanatha Sastri, J., were cited with approval while considering the question whether an institution which had its origin in a samadhi could come under the definition of 'temple'. It was held in that case that where the public had for a long period regarded an institution as a place of religious worship which the public was entitled to use as a matter of right though the institution had its origin in a samadhi and continued to retain traces of its origin, the institution will be a temple as defined in Section 9(12) of Madras Act II of 1927. In Senthilvel Pillai v. Kulandaivel Pillai (1969) 82 L.W. 472, Srinivasan, J., speaking for the Bench expressed the view that where an idol has been installed, even if it happens to be a private family idol and the family endows property for the upkeep of the idol and for the performance of poojas and the like, the idol as a distinct entity becomes the owner of the property and thereafter the donors, the members of the family, have no surviving power to take away the property from the idol.
15. In Jogendra Nath v. Income-tax Commissioner : 74ITR33(SC) , the Supreme Court had occassion to consider the question whether a Hindu deity could be treated as a unit of assessment under Sections 3 and 4 of the income-tax Act, 1922. After considering some of the vedic tests the Supreme Court said:
It is well established by high authorities that a Hindu idol is a juristic person in whom the dedicated property vests.
16. The Supreme Court cited with approval the following passage from the judgment of Subramania Ayyar, J, in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami I.L.R. (1904) Mad 435 : 4 M.L.J. 105.
It is to give due effect to such a sentiment, widespread and deep-rooted as it has always been, with reference to something not capable of holding property as a natural person, that the laws of most countries have sanctioned the creation of a fictitious person in the matter, as is implied in the felicitous observation made in the work already cited 'perhaps the oldest of all juristic persons is the God, here or the saint.
(Pollock and Maitland' History of English Law Volume I P. 481).
17. The learned Judges also referred to the observations of Lord Shaw in Pramatha Nath Mullick v. Pradyumna Kumar Mullick 49 M.L.J. 30 : 22 L.W. 492 : 52 I.A. 242 : A.I.R. 1925 F.C. 139.
A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a 'juristic entity'. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for this doctrine, thus simply stated is firmly established.
According to their Lordships of the Supreme Court the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the pran pratishta ceremony and it is not correct that the supreme being of which the Idol is a symbol or image is the recipient and owner of the dedicated property, and the correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests. The view of the Supreme Court was that a dedication to a deity is not only a compendious expression of the pious purpose but also a material embodiment of the pious purpose, and though there is difficulty in holding that the property can reside in the aim or purpose itself it would be quite consistent with sound principles of jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person and regarded as owner of the property which is dedicated to it. The Supreme Court, however, pointed out the distinction between spiritual and legal aspect of the Hindu idol which is installed and worshipped. According to them from the spiritual standpoint the idol may be to the worshipper a symbol (pratika) of the Supreme God-head intended to invoke a sense of the vast and intimate reality, and suggesting the essential truth of the real that is beyond all name or form and it is a basic postulate of Hindu religion that different images do not represent different divinities, but they are really symbols of One' Supreme Spirit and in whichever name or form the deity is invoked the Hindu worshipper purports to worship the Supreme Spirit and nothing else. It is, however, possible that the founder of the endowment or the worshipper may not conceive on this highest spiritual plane but held that the idol is the very embodiment of a personal God, but that is not a matter with which the law is concerned. The relevant observations are:
Neither God nor any supernatural being could be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it There is no principle why a deity as such, a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property to realise rent and to defend such property in a Court of law again in the ideal sense.
The legal position, therefore, appears to be this. Normally the images worshipped by the Hindus are Visible symbols representing some form of the three-fold attributes of God based upon the Hindu idea of Trinity, namely, creator, preserver and destroyer. The object of worship is not the image but the God believed to be manifest in the image for the benefit of the worshippers who cannot conceive or think of the deity without the aid of perceptible form on which they may fix their minds and concentrate attention for the purpose of meditation. According to the Hindu notion the image itself is not the God but it the visible personified deity manifesting itself to the devotees by means of the image. Where a Hindu dedicates property for the worship of a God by means of an image, the property is, by a legal fiction, deemed to be vested in a juristic or juridical person, and the God which is believed to be manifest in the image is to be deemed the fictional person holding property. Material image is merely a means of worship of God and the consecrated image is the body of which the invisible spirit is the soul.
18. Mukherjee in his Treatise on 'Hindu Law of Religious and Charitable Trusts' third edition, traces history of idol worship. He says that:
It is difficult to say at what period of time idol worship was introduced among the Hindus.... the Gods that are popularly worshipped by the Hindus at the present day are for the most part Puranic deities, descriptions of which occur in the various Puranas. The Puranic Gods became popular in India after the rise of the School of Buddhism....Some Puranas extol the worship of Vishnu while others are in favour of Siva worship. Upanisnads which embody the philosophical truth of the Vedas describe Brahman or the Supreme being as that from which all things are born, that by which when born, they live and into which they enter at death. These creative, preservative and destructive functions or aspects of the divinity constitute the trinity of the Purana and are symbolised respectively by Brahma Vishnu and Siva. The Puranas say expressly that Brahma, Vishnu and Siva though three in form really constitute one entity and there is no difference amongst them execpt that of attributes The reason is that each of the functions of creation. preservation and destruction implies the others and contains the others is a latest form.
19. At page 31 the learned author, while considering the question whether property can reside in the aim or purpose, says that:
After all, juristic personality is a mere creation of law and has its origin in a desire for doing justice by providing as it were centres for jural relations. In the Hindu Debutter it seems that the position is slightly different and in such cases not , whole endowment but the ideal which as an embodiment of a pious or benevolent idea constitutes the centre of the foundation, is looked upon as the juristic being in which the Debutter property vests.
According to the learned author 'dedication to a deity'' is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that the property can reside in the aim or purpose itself, it would be quite consistent with sound principles of jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it. This view has been accepted by the Supreme Court in Jogendra Nath v. Income-tax Commissioner : 74ITR33(SC) .
20. In this case it is urged by the appellant that the image of Sri Sai Baba installed in the temple in question is symbolic of a human being and not of any of the attributes of the Trinity and as such, it cannot be called a 'deity' with, a juristic personality of owning property and with the power to sue and being sued. It is well known that Hindus worship not only the various attributes of the Trinity but also other forms of mages. The decisions referred to above go to show that the worship of Gurus who have been held in reverence by their disciples and of warriors who have been held in esteem was not unknown among the Hindus Therefore, the mere fact that the idol is in a human form cannot make it (sic) any the less a deity if it is worshipped as personifying the Supreme being. It is also well known that the Hindu religion recognises or, tolerates the worship of certain deities personal to them, that is, 'Ishta Devatha'. As a matter of fact, Hindu religion preaches the worship of personal God and such personal God may take the snaps of the Guru or Sage who has exhibited certain extraordinary spiritual power. Therefore, the whole question depends upon the faith of the persons who worship the idol and if they feel that by worshipping that idol they are elevated spiritually that idol can be said to be a deity symbolising the particular religious purpose.
21. In this case originally the deity of Sri Sai Baba Temple was shown as the first plaintiff represented by its trustee, Loganatha Mudaliar. But after Loganatha's death, his sons, plaintiffs 2 and 3 have been impleaded in their capacity as trustees. Later, the word 'Temple' was deleted and Sri Sai Baba alone was shown as the plaintiff represented by Sai Baba Mandali trustees of whom Loganatha was one. It is said that the Mandali trustees cannot be the trustees of Sri Sai Baba even if it is treated as a deity and that they cannot maintain the suit. But Loganatha was one of the persons shown as a trustee and he can validly represent the deity of Sri Sai Baba as he is the only named trustee under Exhibit A-4. After his death, his other sons have come on record and they can continue the suit as representing the deity of Sri Sai Baba.
As pointed out in Guru Charan v. Satyanarayana A.I.R. 1971 Ori 15:
As to whether the deity represented by some of its shebaits is adequately represented or as to whether the suit proceeds with the consent and approval of the entire body of shebaits is in the final analysis a mere question of procedure and expediency and is meant more to protect the interest of the shebaits than of the deity itself. Therefore, if the Court is satisfied keeping in view the facts of the particular case before it that the deity is adequately represented and on account of non-inclusion of some of the co-shebaits the deity is not affected, the suit cannot be thrown out.
22. Therefore, the suit has to be held to have been properly constituted. In my view the suit is maintainable and the objection taken by the appellant as to the maintainability of the suit cannot be sustained. The second appeal, therefore, fails and is dismissed with costs. No leave. Time for possession four months.