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 section section Shukla for the appellant
R Ganapathy Iyer K L Hathi and R H Dhebar for respondent No 1
W section 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 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 section 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 section 53 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 sicNo 14 of 1920 is not applicable to the same
3It 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 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 section 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 section 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 article 133 of the Constitution read with sections 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 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 exhibit 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 exhibit 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
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
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 section 53 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 exhibit 121 of the year 1774
This 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 exhibit 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 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 ie son of Ganesh Gosavi and Apatia bin ie 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 exhibit 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 exhibit 702
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
exhibit 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 exhibit 626 dated December 15 1886 by the Mamlatdar addressed to Krishnarao Damodar and in a letter exhibit 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 exhibit 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
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 vs 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 LR 46 IA 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 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 exhibit 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 exhibit 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 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 exhibit 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 exhibit 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 vs 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 vs Evalappa Mudaliar2
It was there observed  Their Lordships must dissent entirely from the view that where the discoverable origins of property show it to be 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 LR 67 IA 1
2 1922 LR 49 IA 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 vs Hindu Religious Endowments Board 1
In that case which arose under section 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 AIR 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 am and 10 pm
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 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 vs 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 sevapuja 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 exhibit 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 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 PW 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 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 vs 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 thelower 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 vs 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 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
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 vs 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 LR 52 IA 245 801 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 vs 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 IR 1927 Mad 465 52 MLJ 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 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 section 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 vs Pradyumna Kumar Mullick 1 and Kanhaiya Lal vs 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 section Nos 1353 and 1354
This land was granted to one of the appellant s predecessors by exhibit 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 LR 52 IA 245
2 1933 LR 66 IA 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 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 exhibit 290 which is a deed of purchase and exhibit 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 vs 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 section 53 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 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 IA 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


Summary:
The appellant filed a complaint against the respondent and another under ss 385 389 500109 of the Indian Penal Code
The Trial Court found that there was no conspiracy to defame the appellant or to extort money from him and a charge under section 500 Indian Penal Code only was framed against the respondent
It was found that the facts mentioned in the charge were not stated in the complaint
The Trial Court holding that a separate complaint should have been filed in respect of the offence with which the respondent was charged acquitted him
The High Court rejected the appellant s application for revision of the order of the Trial Court with the remark  rejected as no offence The appellant appealed by special leave
Held that the offence charged was a separate offence although of the same kind from the offence in respect of which the facts had been stated in the complaint
For this separate offence a separate complaint should have been filed in accordance with the provisions of section 198 of the Code of Criminal Procedure
The Provisions of section 198 of the Code of Criminal Procedure are mandatory
In appeal the Supreme Court could do what the High Court could have done The order of acquittal of the respondent was a nullity and the proper order should be one of discharge