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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 523 of 1960. Appeal from the judgment and order dated December 5, 1957 of the former Madhya Pradesh High Court at Nagpur in First Appeal No. 1 12 of 1952.

C. K. Daphtary, Solicitor-General of India, B. R. L. Iyengar, B. R. O. K. Achar and K. L. Hathi, for the Appellants.

M. C. Setalvad, Attorney General for India, J. B. Dadachanji, o. c. mathur and Ravinder Narain, for the Respondents.

1962. November, 22. The judgment of the Court was delivered by DAS GUPTA, J.-There exists at Raipur in Madhya Pradesh an old Math by the name of Dudhadhari Math within which is a temple where the idols of Shri Ramchandra, Sita, Laxman, Bharat, Satrughan and Hanumanji have been worshipped for very many years. For the expenses of the worship of the deities and for the upkeep of the temple., one village by the name of Hirmi was dedicated by Dinanath Sao, a wealthy inhabitant of the locality. The main controversy in the present litigation is whether another village of the name of Telibandha which also belonged to Dinanath was dedicated absolutely to the temple either by Dinanath Sao himself or later on by his descendants.

The two appellants, both descendants of Dinanath Sao brought the present suit under s. 92 of the Code of Civil Procedure, 1908, for removal of the respondent Kamal Narayan, another descendant of Dinanath Sao, from the office of trustee of the God Shri Ramchandraji Swamy for the village of Telibandha and for accounts. The appellant's case in the plaint was that Telibandha was dedicated to the temple of Shri Ramchandraji as early as 1857 by Dinanath Sao himself and later on in the year 1896 when a partition took place between his descendants who were up till that time living jointly, all the coshares not only re-affirmed the dedication made by Dinanath Sao of this village of Telibandha but themselves dedicated the village Telibandha to the deities in this temple by accepting the award made by the Panchas.

Dinanath died in 1862, leaving his two sons Sobharam and Keshoram. Sobha Ram had three sons, Sarjoo Prasad, Gokul Prasad and jamna Prasad; Keshoram had also three sons, Ramdin, Gajanand and Nand Kishore. At the time of the partition in 1896 Sarjoo Prasad was dead and the parties to the partition were Sarjoo Prasad's four sons, Ram Saran Lal, Ramhirde, Ram Krishna and Ramanuj, representing Sarjoo Prasad's branch and the other five grand-sons of Dinanath. The first appellant Ram Kishore is the son of Nand Kishore Sao, while thesecond appellant, Ramanuj is Sarojoo Prasad's son. The respondent is the son of Ram Saran Lal. By the awardof 1896, it is the plaintiffs' case, Ram Saran Lal was not given any proprietary interest in the village Telibandha but was merely made the Manager on behalf of the deities for this property. On Ram Saran Lal's death in 1930, Kamal Narayan, his son became the trustee. According to the plaintiffs the temple was a public temple and the trust a public trust' The plaintiffs allege that Kamal Narayan committed several breaches of trust by the sale of certain lands of Mouza Telibandha for the sum of Rs. 1,06,774/1/- and in other ways. The plaintiffs first approached the Court of the Additional District judge, Raipur with a petition under s. 3 of the Chartiable and Religious Trusts Act for directions on Kamal Narayan as provided in that section. Directions were accordingly issued by the Additional District judge; but with this the respondent did not comply. It was then that the present suit was brought by the plaintiffs without the previous consent of the Advocate-General as is permitted by s. 6 of the Charitable and Religious Trusts Act. The plaintiffs have prayed for a declaration that Telibandha village was held by the defendant in the trust for Shri Ramchandra of the Dudhadhari Math and that he had committed breaches of such trust; for his removal from the position of a trustee and for appointment of the first plaintiff in his place; for an order on him to render accounts since 1936 and to deposit Rs. 1,06,774/1/- which he got as sale proceeds.

But, says the learned Attorney-General, a partition Award of this nature cannot under the Hindu Law create a valid dedication in favour of a deity. This plea was not taken by the defendant in his written statement nor does it appear to have been urged seriously before the courts below. Assuming it is open to the defendant to raise this point now, it has to be decided on the further assumption that the facts under which the provision of dedication was made in the award were correctly stated there. That is, these provisions were made "with the consent of' and at the instance of all the co- sharers." The act of the Panchas was thus really the act of the owners of the property and as owners had full right to make a valid dedication to the deity the dedication as made in Para. 2 of the Panch Faisla must be held to be valid. This brings us to the question if the dedication thus made has ceased to be valid by anything which happened afterwards. It appears that immediately after the award was made, it was presented before the Sub Registrar, Raipur, for registration. Within a few days, however, an application in connection with this matter appears to have been made before the Civil judge, Raipur. In this Ramsaranlal stated his objection to the award on the ground that "the Panchas did not read out the award before him, that they had asked him to state in writing his objections which he did but they did not take any evidence." The Civil judge rejected Ramsaran Lal's contention and returned the award to the Sub-Registrar with a direction to register it in due course and also directed the Panchas to file it in a Civil Court after it had been duly registered. It appears that after this the award was duly registered. In November of the same year however Ramsaranlal's three brothers brought a suit in the Court of the Civil judge at Raipur in which they sought to have this registered award set aside. Ramsaranlal and other co-sharers were impleaded, in the suit as defendants. After some evidence bad been recorded the hearing was adjourned on the prayer of the parties who wanted to settle the dispute amicably. Mr. Bagchi who was the pleader of some of the plaintiffs was orally requested by the parties to decide whether the award of the panchas was proper or not and to make changes, if necessary, and on May 14, 1896 Mr. Bagchi made his award. On the same date an application for compromise was filed in Court. Accordingly, the Court dismissed the suit as compromised. It has been strenuously contended on behalf of the respondent that this award of Mr. Bagchi made on May 14, 1896 wholly supersedes the previous award and whether the village Telibandha forms the trust property of Shri Ramchandra Swamy or not has to be decided on a construction of this award. We see no force in this contention. It has to be noticed that the 1896 award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchi's award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney-General that Mr. Bagchi's award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchi's award can have no legal effect in respect of the dedication already made., Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind that dedication.