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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 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.

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 (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.

"It is denied that Damodar Timmayya or any other "

particular individual owned the Balaji 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. 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 Venkatesh Balaji Sansthan, Nasik, through manager" that is the appellant. He represented as manager the owner, namely, the deity.