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PETITIONER: NARAYAN BHAGWANTRAO GOSAVIBALAJIWALE

       Vs.

RESPONDENT: GOPAL VINAYAK GOSAVI AND OTHERS

DATE OF JUDGMENT: 22/09/1959

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, SUDHI RANJAN (CJ) DAS, S.K.

CITATION:  1960 AIR  100            1960 SCR  (1) 773  CITATOR INFO :  R          1964 SC 136  (11)  R          1965 SC 364  (238)  R          1966 SC1457  (17)  R          1970 SC2025  (16)  R          1976 SC 871  (33,34)  R          1981 SC 798  (10)  RF         1992 SC1110  (20,29)

ACT: Charitable and Religious Trust-Test-Inference drawn from meaning  of-Admission, evidentiary value of -Frame of  suit- Deity, if a necessary party-Charitable and Religious  Trusts Act, 1920 (14 of 1920), s. 5(3).

HEADNOTE: The  question for determination in this appeal, arising  out of  a  suit  filed by the appellant under  s.  5(3)  of  the Charitable and Religious Trusts, Act, 1920, was whether  the ancient  temple  of Shri Balaji Venkatesh at Nasik  and  its Sansthan constituted a charitable and religious trust within the  meaning  of  the  Act.  The  deity  was  Swayambhu  and revealed  itself in a dream to one Ganapati Maharaj who,  at its behest, brought the deity from the river Tambraparni and installed  it  in his house.  Ganapati’s  son  Timmaya,  who removed  the deity to Nasik, took the idol to the courts  of Rulers  and  acquired the properties in suit  consisting  of lands and cash.  Timmaya’s eldest son obtained an  extensive plot  of land as a gift from the Peshwa and thereon built  a vast  temple with a Sabha Mandap which could accommodate  no less  than 600 persons and installed the deity in the  first floor  with a staircase leading straight to it.   The  Hindu public has been worshipping at the temple for more than  200 years  and there was no evidence to show that they had  ever been  excluded from it and any gift had ever  been  refused. The ceremonies performed in the temple were appropriate to a public  deity.   It was admitted by the sons of  Timmaya  in Tahanama,  executed by them in 1774, that the Inam  villages were  granted  for the worship of the deity and  the  temple belonged  to the Sansthan, none of them having any share  in it.   In the Tharav Yadi of 1800, the maintenance  allowance provided by the said Tahanama for the different branches  of

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the family was described as ’Vetan’.  The Inam Commissioner, functioning under Act 11 of 1852, recorded the Inam villages as  permanently held Debasthan inams at the instance of  the then  Sthanic and on the basis of original sanads  filed  by him,   reversing   the  decision  of  the   Assistant   Inam Commissioner who had recorded them as personal inams.  Those sanads  were not filed in the suit.  In 1931  the  appellant published  a history of the Sansthan wherein it was  clearly stated  that  the  Sansthan  was not  a  private  or  family property  but was the property of the deity, the members  of the  family  being merely the managers.  The deity  was  not made  a  party to the suit although representatives  of  the Hindu public were joined as 98 774 parties  under  s. 1, r. 8 of the Code of  Civil  Procedure. The  High Court, while it concurred with the trial judge  in holding  that  the  deity was a public deity  and  that  its Sansthan   constituted     a  public  trust,  was,   however, inclined  to  hold  that some of  the  properties  might  be personal  properties of the appellant but refused  to  grant any such declaration on the ground that no effective  decree could  be  passed against the deity in its absence,  It  was contended on behalf of the appellant in this court that  the courts below had misconstrued the document and were wrong in drawing the inferences they did and that the burden of proof had  been  wrongly  placed  on the  appellant  to  prove  by positive evidence that the deity was a family deity and  the properties his private properties. Held,  that  the courts below were right in  coming  to  the conclusion they reached, and the appeal must fail. A  mistaken  inference  drawn from documents is  no  less  a finding  of  fact,  if there is no  misconstruction  of  the documents  and no misconstruction of documents  having  been proved, the appellant could not succeed. An admission is the best evidence that an opposing party can rely  upon,  and, although it is not  conclusive,  is  often decisive  of  the  matter  unless  it  can  be  successfully withdrawn or proved to be     erroneous. The  expression " burden of proof " means one of two  things (1)  that  a party has to prove an allegation before  it  is entitled to a judgment in its favour, or (2) that the one or the  other  of the two contending parties has  to  introduce evidence  on  a contested issue.  The question  of  onus  is material  only where the party on which it is  placed  would eventually  lose if it failed to discharge the same.   Where issues  are,  however,  joined, evidence  is  led  and  such evidence  can be weighed in order to determine  the  issues, the question of burden becomes academic. In  the present case, if the onus lay on any party,  it  was clearly  on the appellant to prove by cogent  evidence  that the admissions made by his predecessors-in-title and by  him were either erroneous or unavailable and this he had  failed to  do.  The earlier sanads, admittedly in  his  possession, not having been produced and those produced not being in any way  inconsistent  with the said admissions or  the  revenue records,  no  question of any misconstruction  of  documents could arise. Babu  Bhagwan Din v. Gir Nar Saroon, (1939) L.R. 67 I.A.  1, held inapplicable. Srinivasa Chariar v. Evalappa Mudaliar, (1922) L.R. 49 I.A. 237, applied. The entries made in the Inam Register prepared under Act  11 of  1852,  were entitled to great weight and  although  they could  not  displace  actual and authentic  evidence  in  an

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individual  case,  it was well-settled that, in  absence  of such evidence, they must prevail, 775 Arunachalam  Chetty  v.  Venkatachalapathi  Guru   Swamigal, (1919) L.R. 46 I.A. 204, referred to. Held, further, that the vastness of the temple, the mode  of its  construction, the long user by the public as of  right, grant of land and cash by the Rulers, taken along with other relevant factors were consistent only with the public nature of the endowment. Narayanan  v. Hindu Religious Endowments Board, A.I.R.  1938 Mad. 209, relied on. The  absence  of a dome or Kalas on the temple  was  not  by itself a decisive factor as to its public character, nor was consecration imperative of a deity that was Swayambhu. Nor  is  the temporary movement of the idol  from  place  to place inconsistent with its public character. Ram Soondur Thakoor v. Taruk Chunder Turkoruttum, (1873)  19 Weekly  Reporter  28; Hari Raghunath  v.  Apantii  Bhikajii, (1920)  I.L.R.  44  Bom.  466;  Prematha  Nath  Mullick   v. Pradyumna  Kumar  Mullick,  (1925)  L.R.  52  I.A.  245  and Venkatachala v. Sambasiva, A.I.R. (1927) Mad. 465; 52 M.L.J. 288, considered. The  defect in the frame of such a suit resulting  from  the omission  of the deity as a party to it, cannot be  remedied by  the  subsequent addition of the representatives  of  the Hindu Public as parties to it, and no effective decree could be passed against the deity in such a suit.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 261 of 1955. Appeal from the judgment and decree dated April 22, 1949, of the  Bombay  High  Court, in Appeal No. 403  of  1945,  from Original Decree arising out of the judgment and decree dated August 14, 1945, of the Civil Judge Senior Division,  Nasik, in Special Civil Suit No. 5 of 1943. Purshottam Tricumdas, Mrs. E. Udayaratnam and S.  S. Shukla, for the appellant. R.   Ganapathy  Iyer,  K.  L. Hathi and R.  H.  Dhebar,  for respondent No. 1. W.   S. Barlinge, Shankar- Anand and A. G. Ratnaparkhi,  for respondents Nos. 6 and 7. 1959.   September  22.   The  Judgment  of  the  Court  .was delivered by HIDAYATULLAH  J.-This appeal with a certificate -Hi, of  the High Court of Judicature, Bombay, has been filed against the judgment and decree of that Court 776 dated  April  22,  1949, in First Appeal No.  403  of  1945, confirming  the  judgment  and decree of  the  Civil  Judge, Senior  Division,  Nasik,  in Special Suit No.  5  of  1943, decided  on August 14, 1945.  The High Court made  a  slight modification in the matter of costs, to which we shall refer later. The plaintiff, who is the appellant here, is the  descendant of  one  Ganpati  Maharaj,  who was  a  devotee  of  "  Shri Venkatesh Balaji ". Ganpati Maharaj died in 1701 at the ripe age  of 98.  When Ganpati Maharaj was 72 years old,  it  was vouchsafed  to  him in a dream that an  image  of  Venkatesh Balaji  would  be  found  by him  in  river  Tambraparni  in Tirunelveli District.  He found the image, brought it to his house  in  Junnar (Poona District) and  installed  it.   The worship of Shri Venkatesh Balaji was carried on by him,  and

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when he died, he left behind him three sons and a  daughter. His  eldest son, Timmayya, at the time of his death  was  12 years  old.   Timmayya succeeded Ganpati Maharaj  and  lived till  1768, when he died at the ripe age of 79.  During  his lifetime,  Timmayya obtained several properties as  presents and gifts.  The present suit concerns those properties which are described in the schedules attached to the plaint.  The, appellant is the direct descendant of Ganpati in the  eldest male  line, and respondents 1 to 4 are the descendants  from Ganpati’s daughter, Nagubai. On  April  23,  1942, the first  four  respondents  made  an application  to  the  District  Court tinder  s.  3  of  the Charitable and Religious Trusts Act, 1920 (No. 14 of  1920), hereinafter  called the Act, against the appellant  and  two others asking that the appellant be directed to furnish full particulars of the properties and their application and  for accounts of the income as also of the properties during  the three  preceding years.  The appellant in reply denied  that there was a trust, much less a public trust, and claimed the idol and the properties as private.  He understook to  bring a  suit under s. 5(3) of the Act, and the suit out of  which the present appeal arises, was filed on March 21, 1943.   He claimed  in  the  suit three  declarations,  which  were  as follows : 777 (1)  It may be declared that ’Shri Vyankatesh Balaji  Deity’ and ’Shri Vyankatesh Balaji Sansthan’ are not legal trust as alleged by the Defendants and their nature also is not  such as alleged by the Defendants. (2)  If  the court holds that a trust in the matter of  Shri Vyankatesh   Balaji  Deity’  and  ’Shri  Vyankatesh   Balaji Sansthan’  exists,  then it may be declared  that  the  said trust  is not a public one, that the same has not come  into existence for the religious and charitable purposes and that the  Religious  and Charitable Trusts Act (sic.)(No.  14  of 1920) is not applicable to the same. (3)It may be declared that the Defendants for themselves  or as the representatives of the entire Hindu Community have no right  and  authority whatever over ’Sri  Vyankatesh  Balaji Devta’ and Shri Vyankatesh Balaji Sansthan’ and that they or the  entire  Hindu  Community has  no  right  and  authority whatever in any capacity whatever to interfere in the matter of Devta’ (deity) and ’ Sansthan ’ or to ask for the Yadi  ’ (list)  of  the  properties or accounts in  respect  of  the income  thereof and to ask for reliefs mentioned  in  prayer clauses of the Miscellaneous Application No. 19 of 1942." The trial Judge framed eight issues.  The first two involved the   declarations  sought.   Three  others  concerned   the position  of  defendants  1  to 4, 6 and  7  in  respect  of maintenance,  share  in the right of customary  worship  and management.  One issue raised the question whether the  suit was  had because the deity was not joined and the  remaining two were consequential. The   trial  Judge  decided  all  the  issues  against   the appellant.   He held that the suit properties were  not  the personal  or private properties of the appellant,  that  the plaintiff  was estopped from making such a claim,  that  the deity itself was not a family or private deity, and that the deity Shri Venkatesh Balaji was the owner of the properties, and that there was a public, religious and charitable  trust in  respect  of  them.   It  was,  however,  held  that  the appellant  was entitled as the hereditary shebait to  manage them. 778 The  trial  Judge also gave a finding that  the  first  four

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defendants were entitled to customary worship and emoluments as  might  be fixed by the Pujadhikaris descended  from  the eldest  branch  of  Bapaji Buva and  could  be  removed  for failure  to  perform  the  duties  assigned  to  them.   The application under s. 3 of the Act was held to be  competent, and  the suit was also held to be bad in the absence of  the deity.   In the result, the trial Judge dismissed the  suit, awarding  two  sets of costs to the defendants.  It  may  be pointed  out that after the suit was filed, a public  notice under  s. 1, R. 8 of the Code of Civil Procedure was  issued and  other  defendants were joined, representing  the  Hindu Community.   During the early stages of the suit, the  first four  defendants raised the question whether the  deity  was not  a necessary party to such a suit, and desired that  the deity  should  be  joined,  represented  by  an  independent guardian-ad-litem.   This  application was  opposed  by  the appellant, who stated that inasmuch as his case was that the deity and the properties were his personal properties, there was no need to join the deity because of an averment by  the defendants  that  the  temple  was  a  public  one  and  the properties  were  public religious  endowments.   The  trial Judge  after  expressing some surprise  that  the  plaintiff should have taken this stand, acceded to his contention  and did not join the deity as a party.  He, however, warned  the appellant  by his order that in case the deity was found  to be  a necessary party, the suit might have to  be  dismissed for that reason alone. Against the decree dismissing the suit, an appeal was  taken to,  the  High Court of Bombay.  The learned Judges  of  the High  Court (Rajadhyaksha and Chainani, JJ.), dismissed  the appeal  but modified the order about costs,  directing  that only one set of costs be paid to the defendants in the suit. The  learned  Judges  traced  the  history  of  the  various properties and how they were acquired, and concluded that in respect  of some of the properties there was no  doubt  that they formed religious endowments of a public nature, but  in respect  of others, though they were inclined to  hold  that they were personal properties, 779 they  held  that no declaration could be  given,  since  the deity  was not a party to the proceedings.   They,  however, granted  a  certificate  of fitness under Art.  133  of  the Constitution, read with ss. 109 and 110 of the Code of Civil Procedure,  and  the  present appeal has  been  filed  as  a result. Before  dealing with the appeal proper, it is  necessary  to refer to certain landmarks in the history of Shri  Venkatesh Balaji  and  this family.  As we have  stated  earlier,  the deity  was placed in his house by Ganpati Maharaj at  Junnar in  Poona  District.  Ganpati Maharaj did  not  acquire  any property,  but  in the lifetime of his son,  the  deity  was moved from Junnar to Nasik.  A tradition in the family  says that  this  was the result of a dream by Timmayya,  who  was warned  that  Junnar would be burnt to ashes and  the  deity must be removed.  Timmayya soon acquainted the people of the locality  with the miraculous powers of the deity,  and  not content with this alone, he took the deity to the Courts  of the  various Rulers and also from place to  place  acquiring the properties in dispute, cash allowances and gifts.  After Timmayya  died his eldest son, Bapaji Buva, obtained a  plot of  land  in  gift  from the Peshwa near  the  bank  of  the Godavari river at Nasik and built a temple on it.  The deity was  installed  in that temple, and has  continued  in  that abode  ever  since.  Bapaji Buva had raised a loan  for  the construction of the temple, and a substantial portion of  it

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was paid off by the Peshwa and other Rulers like Holkar  and Scindia.  In Bapaji’s Buva’s time, a large Sabha Mandap  was built in the premises of the temple to accomodate about  600 persons at the time of darshan and worship of the deity. In  1774 family disputes arose and a Tahanama (Ex. 121)  was executed, whereby the right of management was vested in  the eldest  male member of the senior branch of the family,  and provision  was  made for the maintenance of that  branch  as well  as  the  junior  branches.   Again  in  1800,  further disputes  took  place in the family and a Tharav  Yadi  (Ex. 122)  was drawn up.  By that agreement, instead of the  cash allowances for the maintenance of the branches certain 780 villages  were  assigned  to  them.   Next  came  the   Inam Commission  under  the Bombay Rent-free  Estates  Act,  1852 (Bom.  11 of 1852), by which in accordance with  the  policy laid  down by Lord Bentick, all jagirdars and inamdars  were required  to  prove  the  sources of  their  title  and  the conditions  on  which the jagirs or inams  were  held.   The Assistant  Inam  Commissioner  recorded  the  grant  of  the villages  under  R.  3 of Sch.  B to that  Act  as  personal inams.   Damodar  Maharaj who was then  the  Pujadhikari  or Sansthanik appealed to the Inam Commissioner, and  contended that  the villages were not held as personal inams but  were Devasthan  inams  and could only be recorded under R.  7  of Sch.   B.  The  difference between the two  Rules  was  that whereas  personal  inams could be held only so long  as  the family  survived, Devasthan inams were held permanently  and were to be recorded as such.  The Inam Commissioner accepted this  contention, and caused the entries to be changed  from personal  inams  to  Devasthan  inams  in  respect  of   the villages.   Damodar Maharaj died in 1885, and was  succeeded by  Krishnarao Maharaj, who died in 1893, whose eldest  son, Bhagwantrao  Maharaj died in 1900 and was succeeded  by  the appellant, during whose minority the property was managed by a  guardian appointed by Court.  The appellant became  major in  1921, and took over the management of these  properties. In  1929, the appellant caused a history of the deity to  be written  and  it was published by him.  A reference  to  all these documents will be necessary hereafter to consider  the argument whether there was a religious endowment of a public nature, or whether the properties in dispute were  privately owned. As pointed out already, the two Courts below have  concurred in  holding  that the deity was not a mere family  deity  in which  the public had no interest, and that  the  properties given  to the deity constituted a religious  and  charitable endowment of a public nature.  Ordinarily, such a finding is a  finding  of fact, not open to further  scrutiny  by  this Court, but the appellant contended that the legal  inference drawn from the proved facts in the case was erroneous and  a point of law 781 therefore arose.  A mistaken inference from documents is  no less  a finding of fact, if there is no  misconstruction  of the  documents, and this principle should be applied to  the discussion of the documentary evidence in this case, because if  there  was  no  misconstruction  of  the  documents,-the concurrent findings would be not of law but of fact and  the error, if any, equally of fact. Both the Courts below have analysed at length the  documents which  number  several hundreds, and have pointed  out  that there  was nothing inconsistent in them with the  contention of the respondents that there was a religious and charitable endowment  of  a public character in favour  of  the  deity.

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Before  us,  the attempt of the appellant was to  show  that this  conclusion  was  not correct and  that  the  documents pointed  to  grants in favour of individuals  for  the  time being  managing the affairs of a family deity.  In  addition to  the examination of the documents, the two  Courts  below relied strongly against the appellant on the admissions made by  his  predecessors-in-title from 1774  onwards.   Learned counsel for the appellant contended that the documents  were misconstrued  and  thus, the inference from  them  in  which these  so-called admissions were contained, was exactly  the opposite  of what the Courts have deduced.  In this  appeal, therefore,  all  that  is necessary is to  see  whether  the inferences   are  vitiated  by  a  misconstruction  of   the documents as such. The  appellant contended that this was a special suit  under s.  5(3) of -the Charitable and Religious Trusts Act,  1920, and  that the burden lay upon the respondents to prove  that there  was  a  religious and charitable trust  of  a  public character in favour of the deity.  He contended that the two Courts below had placed the burden of proof upon him to show by positive evidence that the deity was a family deity,  and that the properties were his private properties.   According to  him the defendants ought to have proved their case,  and if  they failed to prove affirmatively that case,  then  the suit  ought  to  have  been  decreed  in  his  favour.   The expression  "burden  of proof" really  means  two  different things.  It means sometimes that a party is 99 782 required to prove an allegation before judgment can be given in  its favour; it also means that on a contested issue  one of  the  two contending parties has to  introduce  evidence. Whichever way one looks, the question is really academic  in the  present  case,, because both  parties  have  introduced their  evidence on the question of the nature of  the  deity and  the properties and have sought to establish  their  own part of the case.  The two Courts below have not decided the case on the abstract question of burden of proof ; nor could the  suit be decided in such a way.  The burden of proof  is of  importance only where by reason of not  discharging  the burden which was put upon it, a party must eventually  fail. Where,  however,  parties  have joined issue  and  have  led evidence  and  the conflicting evidence can  be  weighed  to determine  which way the issue can be decided, the  abstract question of burden of proof becomes academic. In the present case, the burden of proof need not detain  us for  another reason.  It has been proved that the  appellant and,  his  predecessors in the title which  he  claims,  had admitted  on numerous occasions that the public had a  right to  worship the deity, and that the properties were held  as Devasthan inams.  To the same effect are the records of  the revenue authorities, where these grants have been  described as Devasthan, except in a few cases, to which reference will be  made subsequently.  In view of all these admissions  and the  revenue records, it was necessary for the appellant  to prove  that the admissions were erroneous, and did not  bind him.   An  admission is the best evidence that  an  opposing party can rely upon, and though not conclusive, is  decisive ’of  the  matter, unless successfully  withdrawn  or  proved erroneous.   We shall now examine these admissions in  brief and  the extent to which they went and the number  of  times they were repeated. The  earliest  admission that the property belonged  to  the Devasthan  and that there was no private ownership is to  be found  in  the Tahanama (Ex. 121) of the  year  1774.   This

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Tahanama was entered into by the sons of Timmayya Maharaj in the presence of 783 Panchas long before the present dispute arose. -It is stated there  that  " Shrimant Pant Pradhan and  other  Sardars  of (both)  Nizam  and  Deccan (States)  have  granted  in  Inam villages  for  the  purposes  of  Seva  (worship)  of   Shri (deity)."  It *as again stated that the Shri’s temple  which was  newly built on the banks of the river Ganga  (Godavari) belonged to Shri’s Sansthan and nobody had a share  therein. By the Tahanama, the three brothers set apart a certain  sum for the Seva (worship) of the deity in accordance with their practice  which  sum  was not to  be  diminished  under  any circumstance.   They, however, took a small portion  of  the income  as their own Nemnuk (maintenance), which Nemnuk  was to  be reduced if the income was not sufficient to meet  the expenses of Shri (deity). Learned  counsel for the appellant stated that the  Tahanama was misconstrued by the two Courts below.  He contended that this  was a private temple, and if anything could  be  spelt out  from  this  document, it was that  the  three  brothers constituted  a  private  trust  in  favour  of  the   deity. According  to  him, the brothers were  dividing  the  income which was theirs into two parts, namely, (1) for the Seva of the  deity  and (2) for their maintenance.   This,  in,  our opinion,  is a strained reading of the document as a  whole. This deity was " Swayambhu " and not a consecrated idol.  If none  of the members of the family had any interest  in  the Shri’s  temple  or  any shares in  the  properties  thereof, obviously  the properties were not private  properties,  nor the idol a family idol.  The document clearly shows that the deity  was  regarded as the owner and the  family  were  its servants.   This is made clear by the  subsequent  document, which is the Tharav Yadi of 1800; the Nemnuk allowance which the  members of the family had taken out of the  income  was described  as Vetan (remuneration) for doing service to  the deity  and Sansar Begmi " for themselves.  The  use  of  the word  Vetan  "  does  not indicate  ownership,  but  on  the contrary,  paid service.  Even as far back as 1774 to  1800, the  predecessors of the appellant considered themselves  as the servants of the deity, and all that they did was to make a stable arrangement for the 784 application of the funds, so that the deity could enjoy  its own property and the servants were regularly paid. When  the  Inam Commission was established to  enquire  into the jagirs and inams which had passed into the territory  of the East India Company, Act No.  1 of 1852 was passed.   The Inam  Commission purported to be established under that  Act and  for  purposes of enquiry as laid down under  that  Act. The  Assistant Inam Commissioner at that time held that  the inam was a personal one, and ordered that it be recorded  as such.  This was in the years 1857 to 1859.  Damodar at  that time went up in appeal to the Inam Commissioner, complaining against  the  record of the inams as personal,  and  claimed that they should be recorded as Devasthan inams.  His appeal is  Ex.  D-643 dated March 5, 1858.  He stated therein  that the  mokass  Amal  and the jagir  and  Sardeshmukhi  in  the villages  were granted " for the expenditure on  account  of the Shri ". He relied on the Sanads, in which it was  stated that  the  Amals (revenue shares) were for  the  purpose  of worship  and  Naivedya (food offering) to the  Devasthan  of Shri  Venkatesh.   He referred to the earlier  documents  to which  we have referred, and claimed that the order  of  the Assistant Inam Commisioner was erroneous, because the  inams

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must be recorded in the name of the deity under R. 7 of Sch. B  to the Act of 1852 and not under R. 3, as was ordered  by the  Assistant Inam Commissioner.  We have  already  pointed out  the different effect of the two Rules, and proviso  (6) to  R.  7  stated that no personal inam  could  be  recorded permanently  under  R. 7. The effect of this appeal  was  to claim on behalf of the deity a permanent recognition of  its rights to the inam properties without any share on behalf of the family, apart from remuneration such as the Pujadhikaris might  from  time  to time settle, in  accordance  With  the Tahanama and the Tharav Yadi of the earlier times.  The Inam Commissioner acceded to this contention; and after examining all  the Sanads that had been produced in the case,  ordered that, " the order issued by Meherban, Assistant Inam  Commissioner be annulled and under Section 7 (sic.) 785 Supplement No. 2 of Act 11 of 1852 the remaining portion  of this  village  . ... to remain as perpetual  Inam  with  the Devasthan  of  Shri  Vyankatesh ... and  the  management  do remain continued from generation to generation of the lineal descendants  with the male descendants of Timaya Gosavi  bin (i.e.  son  of) Ganesh Gosavi and Apatia bin (i.e.  son  of) Konher Gosavi." The  effect  of  all these documents therefore  was  to  get recognition  in  invitum of the right of the  deity  as  the owner.  It also indicated that in the family of Bapaji  Buva there  were the hereditary Pujadhikaris or Shebaits  of  the deity who were not entitled to anything more than reasonable remuneration for their services of the deity. In  the year 1907 when the plaintiff was still a minor,  his mother  made  a deposition as a witness.   She  stated  that there were Annachatra and Sadavarat Kulkarni Inams and other Inams, but that they all belonged to the Sansthan, and  that there was " no private (or personal) property at all".  Even the gardens were described by her as belonging to the  deity and not to any individual.  The guardian also took the  same stand  throughout  the  minority  of  the  plaintiff.   Even earlier,  in  1899  the  father and  uncle  of  the  present appellant  stated  that the village, Savergaon, one  of  the items  of  the properties of the Devasthan, was not  in  the private  ownership  of any person.  It was  stated  on  this occasion as follows: "Except this Shri Vyankatesh deity no one else has anyright, interest  or  ownership with regard to the village  and  the Sansthan.   We  both  are  the  managers  of  the  aforesaid Sansthan  and we have been looking after all the affairs  of the  Sansthan and in that connection we are carrying on  the management of the aforesaid village." The  statement was made in Suit No. 515 of 1898.  Again,  in Ex.  700,  the  written statement by  the  guardian  of  the plaintiff,  in Civil Suit No. 295 of 1920, it was stated  as late as November 5, 1920, as follows: "It  is  denied  that  Damodar  Timmayya  or  any  other   " particular individual owned the Balaji 786 Sansthan at any time in his individual capacity.  The temple of  balaji belongs to the Sansthan and several villages  are granted  to  Balaji Sansthan purely for temple  purposes  by Sanads granted by the British Government and the Defendant’s family is appointed only the vahiwatdar." The  said  Damodar Timaya had no separate  property  of  his own." To  the same effect is the application made by Ramabai,  the mother of the present appellant, in Ex. 702.

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These later documents may not bind the appellant, who was  a minor  at  the time, but as late as December  1,  1927,  the appellant   himself   stated  that   village   in   question (Savergaon)  was a Devasthan inam, and was alienated to  the deity, Shri Venkatesh, who was the owner.  He also  referred to the family settlement of 1801, and stated that the  other villages  were  also  similarly  given  to  the  deity.   He observed that in the case of Devasthan inam the idol was the grantee and the real owner, and since the property Had to be managed  by  a human beinG, the so-called  manager  therefor managed  the  villages on behalf of the deity.   He  claimed only  to be-the manager of the village for and on behalf  of the  deity,  Shri  Balaji, and did  not  claim  any  private ownership.  At that time, he referred to the Land Alienation Register  and produced a certified copy of the  Register  to show that Shri Venkatesh was shown as the alienee. Ex.  634  is the genealogy filed by  the  plaintiff  wherein Bhagwant  Annaji, uncle of Damodar Timmayya,  wrote  against the name of Timmayya that he had acquired nine villages, and was  the  founder of Puja Naivedya, Utsav,  Annachhatra  and Sadavarat dedicated to Shri Venkatesh.  It was stated  there that the villages were grants to the deity.  Similar are the admissions in the Yadi, Ex. 626 dated December 15, 1886,  by the  Mamlatdar  addressed  to Krishnarao Damodar  and  in  a letter,  Ex.  199,  by the plaintiff  himself  addressed  to Mankarnikabai,  wife  of  Krishnarao Damodar  in  1922.   In several  suits which others filed, the defendant  there  was described as " Shri 787 Venkatesh  Balaji Sansthan, Nasik, through manager" that  is the appellant.  He represented as manager the owner, namely, the deity. Lastly,  there is the history of this Sansthan published  by the  appellant himself and written from  original  documents supplied  by him.  This was in 1931.  The appellant  in  his deposition  admitted that he was intimately  connected  with this writing and its publication.  This history is Ex.  642. It  gives  an  account  of the idol  and  the  temples,  and describes how from time to time Peshwas and various  Sardars granted  villages to the " Shri " and dedicated them to  the deity.   The  conclusion alone need be stated,  because  the document is a long one ’and the admissions are contained  in numerous places in it.  This is what was stated; "The  reader of the present history will have observed  that the  sansthan belongs to the deity and (the members  of  the house  of)  Timaya  Maharaj  are  merely  the  managers  and administrators of the same............... The  management  of it shall not be like that of  a  private property." As a result of the Faisalnamas of the Inam Commission  which are to be found in Exs. 135 to 144, 634 and 644, the  record of  rights showed the deity as the owner and the jagirs  and inams  as  Devasthan.   Learned counsel  for  the  appellant contends  that  these admissions do no prove  anything  more than this that the entire establishment of Balaji Mandir was described  as ’a Sansthan and the ownership thereof  was  in the   members  of  the  family.   We  cannot   accept   this contention,  which runs counter to the plain tenor of  those documents.  In these documents, the ownership of the  family over  the temple, the deity and the properties of the  deity is not only not admitted but is denied.  On the other  hand, the assertion always has been that the members of the family were  merely the servants of the deity getting  remuneration for  their  services and that the ownership  vested  in  the deity and none other.

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In  view  of  these admissions, the question  of  burden  of proof, as we have already pointed out, is really 788 academic, and if any burden lay upon any party, it was  upon the appellant to displace by cogent and convincing  evidence that  these  admissions  were  erroneous  and  need  not  be accepted-in  proof.   These admissions  are  two-fold;  they concern  the  nature of the properties in  dispute  and  the nature of the idol.  Added to these are the decisions of the Inam  Commissioner  in respect of the villages,  which  were recorded as Devasthan inams at the instance of Damodar,  who appealed against the order to record them as personal inams. The  value  to  be attached to the  decisions  of  the  Inam Commissioner  had  come  up  for  consideration  before  the Judicial  Committee in a series of cases.  It is  sufficient to  refer  to only one of them.  In Arunachellam  Chetty  v. Venkatachellapathi Guru Swamigal (1), the Judicial Committee while dealing with the Inam Register for the year 1864 which had been produced for their inspection, attached the  utmost importance to it.  It observed : "  It is true that the making of this Register was  for  the ultimate  purpose  of determining whether or not  the  lands were  tax-free.   But  it must not  be  forgotten  that  the preparation  of this Register was a great act of State,  and its  preparation  and  contents were  the  subject  of  much consideration   under  elaborately  detailed   reports   and minutes.  It is to be remembered that the Inam Commissioners through  their  officials made enquiry oil the  spot,  heard evidence  and  examined documents, and with regard  to  each individual  property, the Government was put  in  possession not  only ?of the conclusion come to as to whether the  land was tax-free, but of a statement of the history, and  tenure of the property itself.  While their Lordships do not  doubt that  such a report would not displace actual and  authentic evidence  in individual cases; yet the Board, when  such  is not available, cannot fail to attach the utmost  importance, as  part of the history of the property, to the  information set  forth in the Inam Register." The  nature  and quantum of  the right and interest  in  the land   was  thus  gathered  from  the  Inam  Registers   and enquiries, which preceded them, (1)  (1919) L.R. 46 I.A. 204. 789 Thus,  it  was doubly necessary for the appellant  to  bring before  the Court all the documents in which his  title  was created,  recognised or confirmed.  He has,  however,  filed only  a  selection,  and has refrained  from  bringing  into evidence all the material in his possession which as late as 1931  was available to him.  We have pointed out above  that in 1931 he caused a history of the Sansthan to be published, and  it refers to numerous documents, which have  not  found their way into Court.  The learned Judges of the High  Court also  mentioned  this fact, and stated that in view  of  the failure of the appellant to prove conclusively that a higher title  than the one made out before the Inam Commission  was available  to  him, no reliance could be  placed  upon  such documents  as  had been exhibited.  We have to  see  whether this statement is correct in ’all the circumstances of  this case. The  property in the case consists of eleven villages,  cash allowances  and  other urban properties  to  which  separate reference  will be made.  All the eleven villages  were  the subject  of  an  enquiry by the  Inam  Commission,  and  the decisions were uniform, except in one case where a technical ground  came  in the way.  We were taken  through  documents

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relating  to two such villages as indication of the kind  of title enjoyed by the appellant.  It may be pointed out  here that the appel. lant himself made no distinction between one property  and  another, and stated that all  the  properties were  held by him under an identical title.  At the  hearing of  the appeal, he attempted to show that  these  properties were  granted to him, impressed with service of  the  deity. But that was not the case he had made out either before  the District Court under the Charitable and Religious Trusts Act or in the plaint filed in this case.  It is not open to  him now to change his plea with regard to his ownership, and the case  must  be  decided  only on  the  contention  that  the properties were private. The  first  batch of documents to which  our  attention  was drawn,  concerns mostly Vihitgaon.  It consists of Exs.  200 to  206.   The first four are letters written  to  Mukadams, Kamavisdars and Mamlatdars to continue 100 790 the Mokasa, Sahotra or Inam to Timayya, to whom the  village was given as Madade-Mnash.  The earliest of them is of  1714 and the last is of 1755.  Exs. 204 and 206, however, mention even earlier sanads and the latter particularly mentions the original  grant  of the ruler, Mahomed Shah, under  his  own seal.   Those  sanads, however, have not been  produced,  as also some of the sanads of the Peshwas, which were mentioned by the Inam Commission in Ex. 135.  None of these  documents shows the terms on which the original grant was made, and in view of the meagreness of this evidence and its inconclusive nature,  the  High  Court was  justified  in  accepting  the finding  of  the Inam Commission that the grant was  to  the Devasthan and constituted a Devasthan Inam. The next village of which the documents were shown to us  is Belatgaon.  Here too, the documents are of later dates,  the original grant not being produced.  In connection with  this village also, the Inam Commission held that the village  was a Devasthan inam, and the documents produced in this case do not  show  anything to the contrary.   These  documents  are merely letters and so-called sanads and direct the Mukadams, etc.,  to  pay a share of the revenue to  Timayya.   Learned counsel  for  the  appellant stated that  the  documents  in respect   of  the  other  villages  were  also  of   similar character.  On an examination, we have found them to be  so. In  all the order,-, made by the Inam Commission in  respect of  each  and every village, there is a reference  to  other sanads of earlier dates, which have not been produced before us.   The respondents bad, in the Court of  First  Instance, served a notice upon the appellant to produce all the sanads admittedly  in his possession and mentioned in Ex. 642,  but the appellant avoided doing so by pretending that the demand was  vague.  In this view of the matter, it cannot  be  said that-there has been a misconstruction of any documents.   On the  other band, the judgments in the two Courts below  have proceeded  on  the  ground  that  the  appellant  having  an opportunity  to prove his case against the findings  of  the Inam  Commission and the admissions made from time to  time, had suppressed 791 the  original documents conferring villages upon him  as  he alleged,  and had produced letters and so-called  sanads  of later  dates,  which were no more than  mere  pay-orders  to continue the privilege which had been granted by the  rulers in  the  earlier documents.  We do not  therefore  find  any misconstruction of the documents such as have been produced, and  we  hold that the admissions-and  the  revenue  records

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remain uncontradicted. This  brings us to the cash allowances, which  were  granted from  the  villages  to  the  predecessors-in-title  of  the appellant.  These documents number a few hundreds.  They too are  merely  letters  written  from  time  to  time  to  the Mukadams,  Kamavisdars and Mamlatdars to pay the arrears  of annuities, Varshashan, Aivaj to Haribakthi Parayana Rajeshri Timayya  Gosavi.   In almost all the documents, there  is  a reference  that the original sanads had been filed, but  the original sanads have not been produced.  The respondents, on the  other  hand, produced some of these documents  to  show that  the  original grant was to the Devasthan and  that  in some of them, there is specific mention that it was for  the expenses of " Shri ". These are Exs. 228, 229, 639, 230, 231 and  233.  The respondents connect these documents with  the history of Shri Venkatesh Balaji Sansthan (Ex. 642) to  show that similar documents exist with regard to the grant of all the  villages  and  the cash allowances but  have  not  been produced.   The appellant also admitted in Ex. 151 that  his ancestors  had  received these grants in order  to  do  Puja Archa, Sadavarat, etc., of the deity.  The two Courts  below have from these circumstances ,drawn the conclusion that the grant cannot be considered as personal but must be  regarded as  one made in favour of the deity or the Sansthan.  It  is for this reason also that the appellant stated that all  the properties including the temple and the idol go in the  name of ’ Sansthan’, and that this word was used compendiously to describe the properties and the Vahiwatdar.  In our opinion, the  appellant  was conscious of the weakness of  his  case, because the grants to Sansthan or to the "Shri" could not be regarded as grants to an 792 individual, and he therefore included himself and the  deity in the expression ’Sansthan’, so as to be able to show  that the grants to the Sansthan were grants to him as much as  to the deity. The appellant, however, contended that this case was covered by the decision of the Privy Council in Babu Bhagwan Din  v. Gir  Har  Saroop  (1).  That case  was  entirely  different. There,  the  grant which was a single one, was  made  to  an individual  and his heirs in perpetuity from  generation  to generation,  and  there  was  no  evidence  otherwise.   The Judicial  Committee interpreted the grant in favour  of  the individual,  and stated that it was made to one  Daryao  Gir and his heirs in perpetuity.  It observed: " Had it been intended as an endowment for an idol it  would have  been very differently expressed; the reference to  the grantee’s  heirs, and the Arabic terminology  ’naslan  ba’da naslin wa batnam ba’da batnin’ (descendant after  descendant and  generation after generation) are not reconcilable  with the view that the grantor was in effect making a wakf for  a Hindu religious purpose, even if it be assumed that this  is not otherwise an untenable hypothesis." Though,  in  that  case,  the origin of  the  idol  was  not completely traced, the grant itself disclosed the  existence of a sanyasi, with an idol in a mud hut, to whom and not  to the  little  temple  the grant, in effect,  was  made.   The history of this deity is well-known, and it shows the manner in  which the grants were made from time to time.  To  apply that case to the facts here is impossible.  In our  opinion, the principle to apply to this case is the one stated by the Privy Council in Srinivasa Chariar v. Evalappa  Mudaliar(2). It was there observed: "  Their Lordships must dissent entirely from the view  that where  the  discoverable origins of property show it  to  be

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trust  property the onus of establishing that it  must  have illegitimately come into the trustee’s own right rests  upon the  beneficiaries.  Upon the contrary, the onus is  heavily upon   the  trustee  to  show  by  the  clearest  end   most unimpeachable  evidence the the legitimacy of  his  personal acquisition." (1) (1939) L.R. 67 I.A. 1. (2) (1922) L.R. 49 I.A. 237. 793 The  appellant next argued that those properties in  respect of  which the High Court felt disposed to giving  a  finding that  they  were  private, should at least  be  declared  as private  properties,  He also made an  application  in  this Court  for joining the deity as a party to the  appeal,  and requested  that this Court should send down an issue  for  a finding  by the Court of First Instance in the  presence  of the deity, whether these properties were private.  We  shall deal  with  these  matters a little  later,  because  it  is necessary  at this stage to decide whether the  public  have any  right of worship in the temple.  Both the Courts  below have agreed that the deity and the temple were public.   The High  Court correctly pointed out that the matter has to  be judged  in accordance with the dictum of Varadachariar,  J., in  Narayanan v. Hindu Religious Endowments Board  (1).   In that  case  which arose under s. 9 of  the  Hindu  Religious Endowments  Act, the definition of a temple’ meant  a  place used  as a place of public religious worship  and  dedicated to, or for the benefit of, or used as of right by the  Hindu community,  or any section thereof as a place  of   religous worship.  The learned Judge observed as follows: "  The question of intention to dedicate the place  for  the use  of the public or of the user by the public being as  of right is necessarily a matter for inference from the  nature of  the institution and the nature of the user and  the  way the institution has been administered ... once a long course of  user  by  the  public for  the  purpose  of  worship  is established,  and the fact of a separate endowment in  trust for  the deity is also proved, it is fair to infer that  the institution must have been dedicated for user by the  public (unless  the contrary is established)-particularly when  the character  of the temple, its construction, the  arrangement of  the  various parts of the temple and the nature  of  the deities  installed  there  are similar to  what  obtains  in admittedly  public  temples.  Similarly, when  user  by  the public  generally  to  the  extent  to  which  there  is   a worshipping public in the locality is established, it is not unreasonable to (1)  A.I.R. 1938 Mad. 209. 794 presume that the user by the public was as of right,’ unless there  are  circumstances clearly suggesting that  the  user must have been permissive or that the authorities in  charge of  the  temple  have  exercised  such  arbitrary  power  of exclusion  that  it  can only be  ascribed  to  the  private character of the institution." The two Courts below reached  the conclusion that the public had  a  right in the temple and the idol from  a  number  of considerations.  Shortly, they are as follows: The  building of the temple is public in character    inasmuch   as    the staircase leads straight to the idol,   and  the public  are admitted  throughout  the  day between 7 a.m.  and  10  p.m. There-is  no evidence to show that the public or any  member of  it were ever excluded from the worship.  There  is  only one  instance when a member of the family was excluded,  but that  was because he had used abusive language  towards  the

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mother  of  the present appellant.  Indeed, the  public  are invited  to worship the deity, and no gift is ever  refused. The  merchants of the locality keep a separate khata in  the name  of  the deity, in which they set a-part a  portion  of their  earnings  as kangi, which is paid  regularly  to  the temple.   The  extent  of the ceremonies  performed  at  the temple also indicates the existence of a deity in which  the public are interested rather than a family deity.  There are celebrations,  Utsavs  etc.,  and daily a  large  number  of Brahmans and others are fed and at the time of the festivals all  the visitors are also fed.  The deity also goes out  on such  occasions in processions through a marked  route,  and there  are  ten carriages in which it rides for-  ten  days. These  festivals are celebrated with great e’clat,  and  the public  not only of Nasik but of other parts of the  country freely join in them.  Even the daily routine of the deity is of  a  form  uncommon in the case of  family  deities.   The appellant   himself  admitted  that  the  idol   was   being worshipped  with  Rajopchar.  It may be mentioned  that  for playing  music  or performing the services,  the  deity  has conferred  hereditary inams upon those who attend  to  them. There  is also a collection box placed at the  temple  where the  public, who are so minded, are invited to  place  their offerings. 795 No  doubt, the Privy Council in Babu Bhagwan Din v. Gir  Har Saroop  (1)  stated that the mere fact that  offerings  were accepted  from the public might not be a safe foundation  on which  to  build  an inference that the  deity  was  public. Still,  the extent to which the offerings and the gifts  go, may be a fair indication not merely of the popularity of the deity  but of the extent of the public right in it.  As  has been  pointed out above, the Judicial Committee was  dealing with  a  single grant which was made to the Mahant  in  per- petuity,  and  the temple itself was a mud hut.   Here,  the temple  covers  several  acres  of  land,  and  has  a  vast structure.  There is a Sabha Mandap, which accommodates  600 persons.   It  is inconceivable that such a big  temple  was built  only  for the use of the family.  It  indicates  that there was an invitation to the public to use it as of right, and  user and continuous user for 200 years, without let  or hindrance, by the public has been proved in the case  beyond doubt.   It is also unusual for Rulers to make grants  to  a family idol.  The fact that many Rulers have made grants  of land and cash allowances to the deity for seva,puja etc., is itself indicative of the public nature of the trust. We think that the extensiveness of the temple and of  grants to  it are pertinent circumstances to be taken into  account in  judging the nature and extent of the public  right.   It may  be  remembered that in the documents to which  we  have referred  in an earlier portion of this judgment,  there  is reference  to  special  endowments  for  festivals.    These endowments  would  not  be made if the deity  was  a  family deity.   In the Gazetteer dealing with Nasik District  there is a full description of the temple and the deity.  Extracts from  it have been quoted by the two Courts below, and  they show  that the temple is a public one.  Indeed, the  history of  the  deity  written at the  instance  of  the  appellant himself (Ex. 642) indicates the public right in the deity. As  against these, the appellant contended that  there  were other  circumstances  which indicated that the deity  was  a family diety.  He examined Dr. Kurtkote, (1)  (1939) L. R. 67 I. A. 1. 796 who gave some reasons for an opinion that the temple was not

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a public one but a mere Deva-ghar.  He stated that the  idol of  ’Balaji  did not appear to have been  firmly  installed, that  it was installed on an upper floor, that  householders resided  in the temple and that daily worship was  suspended when  there was a birth or death in the family, and last  of all,  he  stated  that  the deity  being  movable,  must  be regarded as a family deity.  It may be pointed out here that the deity is sometimes invited to private residences at  the time  of festivals, for dinner.  This circumstance was  also pleaded  as  indicating that the temple is private  and  the deity  a family deity.  We shall now briefly  examine  these reasons  to  see whether they outweigh the evidence  of  the public character of the deity, which we have analysed above. We  begin  with a very small point which was made  that  the temple of Balaji at Nasik has no dome or Kalas.  This is  an admitted fact, but vasudev (P.W. 12) admitted that there was no  dome or Kalas at Balaji temple at Devalgaon Raja,  which is a public temple.  So also other temples mentioned in  the case.  It seems that nothing really turns upon the existence of  a dome or Kalas, and no authority has been cited  before us to show that it is a conclusive circumstance in  deciding that the temple is public. It  must be remembered that this idol was found in  a  river and   did  not  need  consecration  ceremonies,  which   are necessary  for a new idol, which is set up in a new  temple. It  was  first  placed inside the house of  Bapaji  Buva  at Juniar,  and  was  removed from that place as  a  result  of instructions vouchsafed by the deity itself to Bapaji Buva’s successor.   It  was then installed at Nasik ’ Where  a  big temple  has  grown.   No doubt, in  some  portions  of  this building  the family of the Pujadhikhris reside without  any objection from any person The extensiveness of the  building makes  it impossible to think that they are residing  within the  temple, or that the Thakurbari is within their  private residence.   Indeed, the description of the temple as  given in  the  Gazetteer clearly shows that the  temple  in  quite distinct 797 from the residential quarters, and that also is the evidence of  the appellant himself.  With regard to the  installation of  the idol on the first floor, we have  already  mentioned that  the  staircase  from the ground leads  direct  to  the sanctum.   It was, however, admitted by Dr.   Kurtkote  that the  deity  at  Bindu  Madhav  temple  at  Benares  in  also installed  on  the upper storey, though  he  explained  that beneath the idol there is a solid stone pedestal, which runs right  from the ground to the first floor.  No question  was put  to  him as to whether the deities  there,  were  firmly installed  or moveable, He, however, admitted that the  text of  Prathista Mayukha did not mention that the  idol  should not be installed on an upper storey.  In our opinion, in the absence  of  any text prohibiting the  installation  of  the deity  on an upper floor, we cannot draw any inference  that the temple is private. The  real ground on which the claim has been made  that  the deity is a family deity is that it is capable of being moved from  one  place  to another, and, in  fact,  is  so  moved. Evidence  was led to show that in the early history of  this temple  the  Pujadhikaris took the deity on  visits  to  the various  ruling chiefs.  Documents have been filed  to  show how arrangements were made for the journey of the deity  and instructions issued to all concerned to give all  facilities for it.  It is also in evidence-and is indeed  admitted-that when  the deity is invited on festive occasions  to  private residences,  a  substitute  idol is also left  at  the  main

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temple  for  the  public to  worship.   Further,  all  these removals  are temporary, and the deity is brought  back  and installed  in  its  abode  afterwards.   The  deity  at  the Jaganath  temple  at  Puri  is  also  shifted  for  periodic processions, and is brought back to its place. Dr.  Kurtkote stated  that the installation of an idol can be either in  a movable form (chala) or -stationary form (sthira), and  that it  is  so  mentioned in the  Prathista  Mayukha.   He  also admitted  that  it could not be said that the idol  was  not installed  because  it  could be moved  from  one  place  to another.   No  other authority was cited before  us  at  the hearing as to whether s a idol cannot at all be 101 798 moved  from the place where it is installed, even though  it may be installed in a movable form (chala). There  are, however, cases in which this matter has come  up for consideration before the Courts.  In Ram Soondur Thakoor v.  Taruck Chunder Turkoruttun (1), there was a  destruction of  the temple by the erosion of the river on the  banks  of which  the  idol was installed.  The suit was filed  by  the plaintiffs  for a declaration of their right to  remove  the idol to their own house and to keep it there for the  period of  their  turn  of worship.  This claim  was  decreed.   On appeal,  Dwarknath Mitter and Ainslie, JJ., interfered  only to the extent that the lower Court ought to have defined the precise  period  for which the plaintiffs were  entitled  to worship  the  idol  before it  could  make  the  declaratory decree,  which  it had passed in their  favour.   They  also directed  that if it was found by the lower appellate  Court that the plaintiffs and the defendants were jointly entitled to worship the idol during any part of the period  mentioned by  the  plaintiffs, the,lower appellate  Court  should  not allow  the plaintiffs to remove the idol to their own  house at  Khatra  for that portion of time.  It appears  from  the judgment  that though the plaintiffs were allowed to  remove the  idol to their own house, they were to re-convey  it  at their  own expense to the place where it was at the time  of the  institution of the suit.  The learned Judges,  however, qualified their judgment by saying that it was not contended in  the  case before then that the idol  was  not  removable according to the Hindu Shastras. In  Hari Raghunath v. Anantji Bhikaji (2), the temple was  a public one.  It was held by the High Court that under  Hindu law,  the manager of a public temple has no right to  remove the  image from the old temple and instal it in another  new building,  especially when the removal is objected to  by  a majority of the worshippers.  It is interesting to note that in  this case Dr. P. V. Kane appeared, and in the course  of his argument, he stated as follows: "According to the Pratishtha-Mayukha of Nilkantha and  other ancient works an image is to (1) (1873) 19 Weekly Reporter 28. (2) (1920) I.L.R. 44 Bom. 466. 799 be   removed  permanently  only  in  case   of   unavoidable necessity, such as where the current of a river carries away the image.  Here the image is intact.  It is only the temple that  is dilapidated.  For repairing it, the image need  not necessarily  be  removed.  Even if it may  be  necessary  to remove  the  image,  that will  be  only  temporarily.   The manager  has  under Hindu law no power to  effect  permanent removal of an image in the teeth of opposition from a  large number  of the worshippers.  In the instances cited  by  the appellant,   worshippers  had  consented  to  the   removal.

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Permanent removal of an image without unavoidable  necessity is against Hindu sentiment." (italics supplied) Shah, J. (Crump, J. concurring) observed as follows: "  It  is not disputed that the existing building  is  in  a ruinous condition and that it may be that for the purpose of effecting  the  necessary repairs the image may have  to  be temporarily  removed.   Still the question  is  whether  the defendant as manager is entitled to remove the image with  a view to its installation in another, building which is  near the existing building.  Taking the most liberal view of  the powers of the manager, I do not think that as the manager of a  public temple he can do what he claims the power  to  do, viz.,  to remove the image from its present position and  to instal it in the new building.  The image is consecrated  in its present position for a number of years and there is  the existing  temple.  To remove the image from that temple  and to  instal  it  in another  building  would  be  practically putting  a  new  temple in place  of  the  existing  temple. Whatever may be the occasions on which the installation of a new  image  as  a substitute for the old  may  be  allowable according to the Hindu law, it is not shown on behalf of the defendant  that  the  ruinous  condition  of  the   existing building is a ground for practically removing the image from its  present place to a new place permanently.  We  are  not concerned  in this suit with the question of  the  temporary removal which may be necessary when the existing building is repaired." 800 The  case is an authority for the proposition that the  idol cannot be removed permanently to another place, because that would be tantamount to establishing a new temple.   However, if  the  public agreed to a temporary removal, it  could  be done for a valid reason. In Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1), the deed  of trust created an injunction against the removal  of the deity.  The following quotation from that deed of  trust shows the powers of the manager : "  Shall be for ever held by the said Jadulal  Mullick,  his heirs, executors, administrators and representatives to  and for  the  use of the said Thakur Radha Shamsunderji  to  the intent that the said Thakur may be located and worshipped in the  said  premises and to and for no other  use  or  intent whatsoever provided always that if at any time hereafter  it shall  appear  expedient to the said  Jadulal  Mullick,  his heirs, executors, administrators or representatives so to do it  shall  be  lawful  for him or them  upon  his  or  their providing and dedicating for the location and worship of the said  Thakur  another suitable Thakur Bari of  the  same  or greater  value than the premises hereby dedicated to  revoke the trusts hereinbefore contained and it is hereby  declared that  unless and until another Thakur Bari is  provided  and dedicated  as  aforesaid the said Thakur shall  not  on  any account  be removed from the said premises and in the  event of  another  Thakur  Bari being provided  and  dedicated  as aforesaid  the  said Thakur shall be  located  therein,  but shall  not  similarly be removed therefrom  on  any  account whatsoever." The  Privy Council analysed this provision, and stated  that the  last  condition made the idol  immovable,  except  upon providing for the dedicatee another Thakur Bari of the  same or larger value.  It observed: "  The  true view of this is that the will of  the  idol  in regard to location must be respected. if, in the course of a proper and unassailable administration (1)  (1925) L.R. 52 I.A. 245.

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801 of  the  worship of the idol by the Shebait, it  be  thought that  a family idol should change its location the  will  of the  idol  itself, expressed through his guardian,  must  be given effect to." Their  Lordships ordered the appointment of a  disinterested next  friend, who was to commune with the deity  and  decide what course should be adopted, and later the instructions of the  deity  vouchsafed to that representative  were  carried out.  In this case, there was a family deity and there was a provision  for removing the idol to another better and  more suitable Thakur Bari, if it appeared necessary.  The  wishes of  the  deity  were considered and  consulted.   The  case, however,  is  not quite clear as to whether in  all  circum- stances the idol can be removed from one place to another. The  last case on the subject is Venkatachala  v.  Sambasiva (1).  The headnote quite clearly gives the decision, and may be quoted here: "  Where  all  the  worshippers of  a  temple,  who  are  in management of it, decide to build a new temple, the old  one being  in  ruins  and the site on which  it  stood  becoming insanitary  and inconvenient for worshippers,  then,  unless there is clear prohibition against their demolishing the old temple and building a new temple, the Court is not  entitled to prevent the whole body from removing the temple with  its image to a new site in the circumstances." Devadoss,  J.,  quoted  passages  from  Kamika  Agama,   and referred  to  Prathista Mayukha by Nilakanta,  Purva  Karana Agamam and Nirnaya Sindhu.  He, however, relied upon certain passages  from  Purva Thanthiram by  Brighu,  Kamika  Agama, Siddhanta  Sekhara and Hayasirsha Pancharatra, and  came  to the  above conclusion.  The effect of the decision  is  that the whole body of worshippers, if they are of one mind,  can even permanently remove an idol to another habitation. In  the present case, the idol was not  permanently  removed except once when it was taken away from Junnar and installed at Nasik.  As we have already (1)  A I.R. 1927 Mad. 465; 52 M.L.J. 288. 802 pointed  out,  that was at the behest of the  deity  itself. Afterwards, the deity which is installed in a removable form (chala)  has  been  temporarily  removed  for  purposes   of -processions,  invitations  to dinner and  visits  to  other parts  of  India, so that worshippers may have a  chance  of making  their  devotion.  This has continued  for  over  250 years, and has not been objected to at any time.  Indeed,  a huge  concourse of worshippers always followed  and  follows the  deity  every time it is taken out temporarily  for  the purpose  of  affording the votaries chances  of  worship  at close  quarters.   This  appears to be a  custom  which  has received recognition by antiquity and by the consent of  the worshipping public it may be noted that the deity is brought back  to the old site after its temporary sojourn  at  other places, and that further during the absence of the deity,  a substitute  idol is placed, so that the dedicatee  is  never out of possession of the temple. In  view  of these circumstances and the cases to  which  we have  referred,  and in view, further, of the fact  that  no text  or authority was cited against such course of  conduct with  the consent of the worshipping public, we do  not  see any  reason for holding that the temple was private and  the deity, a family idol. The  appellant  raised  a special  argument  in  respect  of certain  properties,  which, he stated,  were  private.   He relied  upon the observations of the learned Judges  of  the

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High  Court  that  they were inclined  to  hold  that  these properties  were  private  but  refrained,  from  giving   a declaration in view of the fact that the deity had not  been joined.   These  properties are jat  inams,  recently  built properties,  namely,  the  Balaji  temple  and  the   ’Shree Theatre’,  and  an  allowance  which goes  in  the  name  of Kulkarni  commutation  amounting to Rs. 24  per  year.   The difficulty  in  the  way  of  the  appellant  is  real.   He refrained from joining the deity, if not as a necessary,  at least  as a proper party to the suit.  If he had joined  the deity  and  the  deity was represented  by  a  disinterested guardian, necessary pleas against his contention could  have been  raised  by the guardian, and it is  likely  that  some evidence would also have been given.  The appellant seeks to 803 cover  up his default by saying that the suit was one  under s.  1,  r. 8 of the Code of Civil Procedure,  and  that  the Hindu  public  was  joined  and  the  deity  was  adequately represented.   In a suit of this character, it is  incumbent to  have all necessary parties, so that the declaration  may be  effective  and  binding.  It is obvious  enough  that  a declaration  given against the interests of the  deity  will not bind the deity, even though the Hindu Community as  such may be bound.  The appellant would have avoided circuity  of action, if he had acceded to the very proper request of  the respondents  to  bring on record the deity as a  party.   He stoutly  opposed  such a move, but at a very late  stage  in this  Court  he has made an application that  the  deity  be joined.  It is too late now to follow the course adopted  by the  Privy  Council in Pramatha Nath  Mullick  v.  Pradyumna Kumar Mullick (1) and Kanhaiya Lal v. Hamid Ali (2), in view of  the  attitude adopted by the appellant himself  and  the warning  which  the  trial Judge had issued to  him  in  his order.   There is yet another reason why the case cannot  be re-opened,  because the appellant himself did not choose  to make  any  distinction between one property and  another  as regards  the  claim of his ownership.  He stated  that  each item  of property was acquired and owned in the same  manner as another. Arguments  were addressed with regard to the Balaji  Mandir, which  is situated on S. Nos. 1353 and 1354.  This land  was granted to one of the appellant’s predecessors by Ex. 571 by the  Peshwa.   At that time 3 bighas of land were  given  to Bapaji  Buva, son of Timayya, because he was a  "worthy  and respectful " Brahman, for the express purpose of building  a temple.   No  doubt,  in Exs. 878 and 153 the  name  of  the Vahiwatdar has been mentioned, and the latter is a sanad  of the  Governor of Bombay confirming the grant free from  land revenue.   The original grant was obviously made not to  the Brahman concerned but for the express purpose of building  a temple upon the land.  We have already held that the  public have a right in the deity and the temple is also public and (1) (1925) L.R. 52 I.A. 245. (2) (1933) L.R. 66 I.A. 263, 804 that, therefore, the grant must be regarded also as part  of the property of the deity.  It is significant that after the temple  was  built with borrowings from others a sum  of  no less than Rs. one lakh was paid the Peshwas and other Rulers to  satisfy them.  The finding of the learned Judges of  the High  Court could not therefore given in the absence of  the deity, and we think that we should only say that in view  of the  case as pleaded, the declaration should have  been  re- fused  without any comments adverse to the deity.   A  Court should not, in a case which goes by the board on a  cardinal

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point,  decide matters which cannot arise in it but  may  be pertinent  in  another case between different  parties.   We are,  however, clear that no declaration can now be  granted in respect of this property. The  next  property which was specially  mentioned  for  our consideration  is  the  "  Shree Theatre  ",  in  which  the appellant  claims  to hold a third share.   Here  also,  the extracts from the property register have been filed, and the appellant  has  drawn our attention to Ex. 290, which  is  a deed  of  purchase  and  Ex.  691,  the  permission  by  the Municipality  to build upon the land.  It was necessary  for the  appellant  to  show that this  Theatre-was  built  from monies derived from a private source and not from the income of  the  Devasthan.   He  has  not  furnished   satisfactory evidence, and in describing the source of money he  referred to the sale of one property, the price whereof according  to him was utilised for the Theatre.  It, however, appears from the record of the case that with that money Balaji Vihar was purchased,  and the case made before us was that it was  the sale  proceeds of Balaji Vihar which were used to build  the Theatre.   If that be so, then the evidence to  connect  the Theatre with Balaji Vihar ought to have been tendered and  a plea to that effect taken.  We cannot accept the argument in lieu  of plea and evidence, and we think that the  appellant has  neglected  to bring the necessary evidence to  reach  a finding,  This  matter also suffers from the  same  defects, -namely,  the failure to join the deity as a party and  also not waking a distinction between one, 805 kind  of  property and another.  Here too,  the  High  Court should not have expressed any opinion adverse to the  deity, without the deity being a party.  The same has to be said of items  3 to 10 in the first part of Sch.  A annexed  to  the plaint  and three survey numbers of Belatgavan, Deolali  and other  jat  inams.   No useful purpose  will  be  served  in examining   in  detail  the  evidence  relating   to   these properties  in  the absence of the deity.  It  may  also  be pointed  out  that  the  appellant  maintained  no  separate accounts  for  these  properties, and  made  no  distinction between  them  and  the other properties to  which  we  have referred  earlier.  A trustee must not mix private  property with trust property, because if he does so, he undertakes  a heavy burden of proving that any particular property is his, as distinct from the trust.  See Lewin on Trusts, 16th Edn., p.  225.   To  the  same  effect  are  the  observations  in Srinivasa Chariar v. Evalappa Mudaliar (1). The  result  is  that the declaration  which  the  appellant sought  in  his suit that the temple, the deity  and  plaint properties  were  all  of  private  ownership,  was  rightly refused  by  the  Courts  below.  The  trial  Judge  gave  a declaration  that defendants 1 to 4 are en titled to  custom ary  worship  and maintenance.  Strictly  speaking,  such  a finding  was not necessary in a case of this character,  and other  matters concerning rights of individuals  should  not have  been gone into in a suit filed under s. 5(3)  of,  the Act.  The appellant is partly to blame.  He set up a case of private  ownership with all rights centred in  himself,  and defendants  1 to 4 therefore not only raised the  plea  that the  appellant  was a mere manager but also  asserted  their rights  in  the property.  We think that  the  Courts  below might have refrained from pronouncing upon the rights of the defendants,  because all that they had to do was  to  decide whether  the  property was trust of a  public  nature.   We, however,  do not wish to give any direction in  the  matter, because  the suit, as a whole, as laid by the plaintiff  has

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been  dismissed, and to make any observations might lead  to further  litigation,  which is not in the interests  of  the deity. (1) (1922) L.  R. 49 I.A. 237. 102 806 Respondents 6 and 7 raised before us the question of  costs. They  stated  that  the trial Judge had given  two  sets  of costs,  which  was  changed to one set by  the  High  Court. These  respondents should have cross-objected on this  point against  the judgment of the High Court, and in the  absence of  any  such cross-objection, no relief can be  granted  to them.   For  the  same reason, no relief  can  be  given  to respondent 7, in respect of whom the finding that he bad  no right of performing the seva and getting emoluments attached to that right, as respondents 1 to 4, has not been  vacated, as  was  done in the case of respondent 6. In  view  of  our observations that these matters were alien to the suit which had been filed, we do not propose to deal with them. In the result, the appeal is dismissed.  The appellant  will personally  pay the costs of Respondent 1. The other set  of respondents will bear their own costs. Appeal dismissed.