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PETITIONER: THAKUR JANKI BALLABHJI MAHARAJ & ANR.

       Vs.

RESPONDENT: THAKUR JANKI BALLABHJI MAHARAJ & ANR.

DATE OF JUDGMENT: 23/07/1969

BENCH: SHAH, J.C. (CJ) BENCH: SHAH, J.C. (CJ) MITTER, G.K.

CITATION:  1970 AIR  532            1970 SCR  (1) 634  1969 SCC  (2) 313

ACT:       Code   of  Civil  Procedure,  s.  92  and  O.  41   R. 33--Temple--Private  Trust--Suit by deity against person  in management--No  previous sanction under s. 92 necessary  for bringing    suit   in   respect   of    mismanagement    and misappropriation of temple property--Under O. 41 r. 33 court has  power  to frame scheme for management  of  temple  even though it was not public trust.

HEADNOTE:       The deity Thakur Janki Ballabhji Maharaj installed  in a  temple at Brindaban brought in the court of  Civil  Judge Mathura  a suit through its manager--an authorised agent  of the  erstwhile Bharatpur State--for a decree for  possession of the temple and its properties as well as for accounts  to be  rendered by R the pujari of the temple.  It was  alleged in the plaint that the temple had been built by the Ruler of Bharatpur who had dedicated it to the deity.  It was further alleged  that R, the defendant who had succeeded the  priest originally   appointed  by  the  Ruler  of   Bharatpur   had mismanaged and misappropriated the temple properties and had failed  to  perform the seva puja of the deity.   R  in  his written statement denied these allegations and contested the suit.  After the merger of Bharatpur State in the  State  of Rajasthan the suit was prosecuted by the District Magistrate of  Bharatpur.  The trial court dismissed the suit  but  the High Court decreed it.  By special leave the defendant  came to this Court.       HELD:   (i)  The  High  Court  rightly  rejected   the defendant’s  plea  based  on  s. 92 of  the  Code  of  Civil Procedure.  It was common ground before the High Court  that the  property  of the temple was not property  of  a  public trust  of  a  religious  or  charitable  nature.   From  the averments  in  the plaint it was clear  that  the  suit  was flied  by the deity against the person in management and  it was  not  a suit filed by the relators.  Section 92  of  the Code of Civil Procedure had no application to. the suit  and the sanction of the Advocate General was not a condition  of the initiation of the suit. [636 F-G]       (ii)  The evidence established that the defendant  had committed several acts of mismanagement and misappropriation

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of  the temple and its properties He had set up. a  personal title  to  the  temple  properties  and  had  converted  the properties to his own use.  He was therefore unfit to remain the pujari of the temple. [637 B-C]       Granting  that  it was not proved that  the  Ruler  of Bharatpur  established the temple and installed  the  deity, there was abundant evidence that the State of Bharatpur  had made from time to. time large donations for the  maintenance of the temple.  The Ruler of Bharatpur had therefore clearly a  substantial interest ’to maintain the suit on  behalf  of the  deity to protect the property.  There was no. merit  in the defendant’s appeal and it must fall. [637 C-D]      (iii)  Since  it would be difficult  for  the  District Magistrate  of Bharatpur or any. other authority  acting  on behalf  of  the  State of Rajasthan to  look      after  the administration of the temple which was situate in the  State of   635 U.P.  it  was an appropriate case for the  exercise  of  the Court’s  powers  under  O. 41 R. 33 of the  Code  of  .Civil Procedure.   The Civil Courts have jurisdiction to  frame  a scheme for the management of a temple even though it is  not a public trust. [637 H--638 B]     Pramatha Nath Mullick v. Pradyumna Kumar Mullick 52 I.A. 245,  Asha Bibi & Ors. v. Nabissa Sahib & Ors.  A.I.R.  1957 Mad.  583 and Shri Mahadeo Jew & Ant. v. Balkrishna  Vyas  & Ant. A.I.R. 1952 Cal. 763, relied on.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  574  of 1966.     Appeal  by  special leave from the  judgment  and  order dated  September  22, 1964 of the Allahabad  High  Court  in First Appeal No. 39 of 1952.     J.P. Goyal and Sobhag Mal Jain, for the appellants.     K.B.Mehta, for respondent No. 2.     The Judgment of the Court was delivered by     Shah,  Ag.  C.J.  Suit No. 41 of 1947 was filed  in  the Court of the Civil Judge, Mathura by the deity Thakur  Janki Ballabhji Maharaj, acting through its manager--L.  Tulsiram, authorised  agent of the Bharatpur State, for a  decree  for possession  of the temple of the deity at Brindaban in  U.P. and  of the temple properties and for\an order calling  upon the defendant, Ramchand, to account for the realisations  of the estate of the deity.     The  case  of the plaintiffs was that the Ruler  of  the State  of  Bharatpur  built  the  temple  at  Brindaban  and installed  the idol. of Thakur Janki Ballabhji  Maharaj  and dedicated  the temple to the deity; that the shebait of  the deity who was a paid employee of the State was appointed  by the Ruler of the State of Bharatpur; that one Chhotelal  was appointed  a  priest to perform the Worship  in  the  temple under  a written agreement dated April 8, 1936;  that  after the  death  of  Chhotelal  on  May  13,  1912  Ramchand  was appointed  the  priest of the temple on  condition  that  he shall  execute the usual agreement in favour of  the  State; that  Ramchand entered upon the duties as pujari but  failed to  execute   the agreement, and in course  of  time  raised various constructions of his own on the premises in  dispute and  converted them into private residential buildings,  and illegaily  used the temple as a lodging house  for  pilgrims "to the utter detriment, loss and desecration of the  deity" and thereby acquired "illegal benefit to himself out of  the

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temple properties"; and that Ramchand was not performing the seva puja of the deity.     The  suit was resisted by Ramchand. He denied  that  the temple,  was built at the expense of the Ruler of the  State of  Bharatpur  or that he---Ramchand was appointed to  be  a priest of the temple by the Ruler of Bharatpur. He contended that  one Ram Narain 636 Kedar  Nath had taken a piece of land at Bindraban  on  rent from the temple of Govindji and after constructing a  temple thereon  and  installing  the Thakurji had given  it  as  an offering   to  Sitaram,  ancestor  of  Ramchand,   and   had appointed  Sitaram  as the Manager of the temple;  that  the temple  had  since then remained in the  management  of  the descendants  of  Sitaram,  and that  he  (Ramchand)  was  in possession of the temple and its properties as "Manager  and proprietor".     The  trial  court dismissed the suit  holding  that  the Ruler  of Bharatpur was never the owner of the temple or  of the articles mentioned in Sobs. A and B of the plaint,  that the  Ruler  was also not the founder of the temple  nor  its shebait;  and that the Ruler had never appointed any  pujari of this temple and was not authorised to appoint or  dismiss such a pujari.     In  appeal against  the decree passed by the   Court  of First  instance  it  was  urged before  the  High  Court  of Allahabad that the trial court erred in dismissing the  suit merely  on  the  finding  that the Ruler  of  the  State  of Bharatpur  "had  no  concern with the  construction  of  the temple or with the installation of the idol in the  temple", and  that in the suit filed by the deity, having  regard  to the acts of mismanagement and misappropriation committed  by the  defendant Ramchand, a decree should have been  made  in favour  of the deity. Counsel for Ramchand  contended   that the  suit being of the nature of a suit under s. 92  of  the Code  of  Civil Procedure could not  be  instituted  without obtaining  the sanction. in writing of the  Advocate-General and  that in  any event the second plaintiff, the  State  of Bharatpur,  could  not  file the suit, since it  was  not  a shebait or the settlor of the temple.     It  was  common ground before the High  Court  that  the property of the temple was not property of a public trust of a religious or charitable nature. From the averments made in the plaint it is clear that the suit was filed by the  deity against the person in management and it was not a suit filed by  the relators. Section 92 of the Code of Civil  Procedure had  no  application  to the suit and the  sanction  of  the Advocate-General  was not a condition of the  initiation  of the  suit.  The High Court therefore  rightly  rejected  the contention  that the suit was not maintainable  without  the sanction of the Advocate-General.     The  High  Court  held  that it  was  open,  even  to  a worshipper, if he possesses sufficient qualifying  interest, to  start  a  suit to protect the  property  of  the  deity. Observing that the defendant Ramchand had raised residential buildings of his own in the temple premises and that he  was lodging  pilgrims  in  a part of  those  buildings  and  was asserting  a  proprietary  title to them  and  was  on  that account guilty of conduct detrimental to the interest of the deity 637 and  had  rendered  himself liable to be  ejected  from  the temple  and its properties, and that he was unfit to act  as pujari,  the  High Court reversed the decree passed  by  the trial court and decreed the plaintiffs’ suit for  possession

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of  the  temple  and  its  properties  and  restrained   the defendant  Ramchand by an injunction from  interfering  with the management of the temple  and, performance of worship of the deity. With special leave, Ramchand has appealed to this Court.      Ramchand  has committed several acts  of  mismanagement and  misappropriation of the temple and its  properties.  He has set up a personal title to the temple properties and has converted  the  properties  to  his  own  use.  Ramchand  is therefore  not fit to remain in possession as pujari  or  as manager  of  the  temple.  The suit is filed  by  the  deity acting through the Manager.  Granting that it is not  proved that  the  Ruler ’of Bharatpur established  the  temple  and installed  the  deity, there is abundant evidence  that  the State  of  Bharatpur  had  made  from  time  to  time  large donations  for the maintenance of the temple.  The Ruler  of Bharatpur  had therefore clearly a substantial  interest  to maintain  the  suit on behalf of the deity  to  protect  the property.  There is no merit in the appeal and therefore  it must fail.      It  is, however, necessary to make an effective  decree in this appeal. It may be noticed that even though the  suit has  been  filed and prosecuted on behalf of  the  State  of Bharatpur  and later by the State of Rajasthan  through  its District Magistrate, the temple is situate within the  State of  U.P.  and  it  would  be  difficult  for  the   District Magistrate  or any other authority acting on behalf  of  the State  of Rajasthan to look after the administration of  the temple and to protect its properties from  misappropriation. This  is  undoubtedly a private trust but the  civil  courts have  jurisdiction  to frame a scheme for the management  of the  temple  which  is  not a  public  trust.  The  Judicial Committee  of the Privy Council in Pramatha Nath Mullick  v. Pradyumna Kumar Mullick(1) directed that a scheme be  framed for  the regulation of the worship of the idol  even  though there  was  no  public trust. In Asha  Bibi  and  Others  v. Nabissa Sahib and Others(2) the Madras High Court held  that a suit for removing the trustees of a private trust and  for framing a scheme was maintainable.  A similar view was also. taken  by  the Calcutta High Court in Shri Mahadeo  Jew  and Another v. Balkrishna Vyas & Another(3).     The  civil court has therefore jurisdiction to  frame  a scheme for management of the temple and its properties.  The present is, in our judgment, a case in which in exercise  of the  powers under     order 41 rule 33 of the Code of  Civil Procedure we should direct (1) 52 I.A. 245.      (2) A.I.R. 1957 Mad. 583. (3)  A.I.R.1952 Cal. 763. 638 that  the  court  of first instance to  frame  a  scheme  of management  of  the temple collections and  the  income  and disbursement of expenses, application of the surplus if  any and for that purpose to appoint a manager of the property of the  deity  and  its  properties,  with  authority  to  take possession  of  the  temple  and  the  properties  from  the defendant Ramchand and, to administer the  property and  its income  under  the  directions  of  the  court.  We   direct accordingly.   The  Court will also take an account  of  his dealings  with the property of the deity from  Ramchand  and determine  his  liability and recover the amount  found  due from   him  on  taking  accounts.   The  Court   will   pass appropriate orders with regard to the constructions made  by Ramchand  and will prevent the property being used  for  the private benefit of Ramchand or any other person.  The scheme to  be framed will be consistent  with  the law relating  to

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private religious endowments, if any, in force in the  State of Uttar Pradesh.     Subject  to this modification, the appeal  is  dismissed with costs. G.C   Appeal dismissed. 639