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On these pleadings, two issues of a preliminary nature were framed by the Civil Judge, one of them being, whether the plaintiffs' suit was barred by res judicata. This issue was decided against the plaintiff and the Civil Judge dis- missed the suit on 18-9-1934 holding that the suit was barred by the rule of res judicata, as an earlier suit brought by five of the Deoprayagi Pandas and claiming iden- tical reliefs against the 'Rawal' was dismissed by the Commissioner of the Kumaun Division in the year 1896. Against this order of dismissal, an appeal was taken by the plaintiffs to the High Court of Allahabad and a Division Bench of the High Court, by its judgment dated 23rd May, 1938, reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits. The case then went back before the Civil Judge and while it was still pending, the Sri Badrinath Temple Act was passed. A temple committee being formed in accordance with the provisions of this Act. the said committee through its Secretary, was impleaded as Defendant No. 2 in the suit. The committee filed a fresh written statement in which certain additional grounds were taken. It was contended primarily that the suit as framed, was not maintainable by reason of the provisions of Sri Badrinath Temple Act of 1939, which abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee. It was asserted, further, that all gifts made within the precincts of the temple would vest in the temple committee under section 3(b) of the Act and that the commit- tee had the absolute right to regulate entry of persons inside the temple.

"In my view under the scheme of the Shri Badrinath Act, the Pandas or pilgrims have no absolute right to go inside the temple, regardless of the conditions imposed by the Committee about entry into the temple, but ordinarily in the entry of the pilgrims or Pandas is in accordance with the rules or bye-laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas, who are enti- tled as devout Hindus to go inside the temple, and perform worship there, and can assist their Yajmans also. In other words, there is no right of the plaintiffs which has to be recognised, and can be recognised, on the grounds of custom, usage, or otherwise, that they can without any let or hin- drance and regardless of the conditions imposed by the Committee, enter the temple with the pilgrims whenever they like. Like other pilgrims, and persons who are all subject to the control of the conditions that may be imposed by the Committee, the Deoprayagi Pandas can also enter the temple, perform worship there, and even help their Yajmans who happen to be inside the temple. To lay down an absolute prohibition against them would not be in accordance with the provisions of Shri Badrinath Temple Act, and similarly to recognise that they have an absolute right to enter the temple with the pilgrims, would also nullify a number of provisions in the Shri Badrinath Temple Act. Issue No. 2 is decided accordingly in the negative, but subject to recogni- tion of the conditional right of the plaintiffs to accompany their pilgrims and help them in the 'darshan', as mentioned above subject to the control of the Committee."

terms abrogated the rights of the donee in regard to a gift made to him within the ,temple and as such gifts come within the definition of 'endowment' as given in the Act, the temple committee gets a controlling hand over them and can make any regulations in relation thereto. Reliance is placed in this connection upon section a (b) of the Sri Badrinath Temple Act which lays down that the expression "endowment" in relation to the Act "means all property moveable or immoveable belonging to or given or endowed for the maintenance or improvement of, or additions to, or worship in the temple, or for the performance of any service or charity connected therewith and includes the idols in- stalled therein, the premises of the said temple and gifts of property made to anyone within the precints of the tem- ple." The definition is undoubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property, a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience, comfort or benefit of the pilgrims.

It is conceded by Mr. Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is quite in accordance with the existing principles of Hindu law. He contends, however, that such gifts could not vest in the donee, as well, in accordance with the definition of ''endowment" given in section a (b) of the Sri Badrinath Temple Act. In other words, according to the interpretation which he would like to put upon sec- tion 3 (b) of the Act, such gifts should be regarded as totally void after the passing of the Act and consequently title to the thing given would still remain in the donor even after the gift is made. This does not seem to us to be a sound view to take. If a legislation wants to take away the proprietary right which a person acquires under the ordinary law, it must express its intention in clear and unambiguous terms. We are unable to spell any such intention out of the language used in section 3 (b) of the Sri Badrinath Temple Act. It may be that the wording of this sub-section is defective and that there is an apparent conflict between the provision of this sub-section and that of section 4 of the Act. It is an arguable point whether the expression "gifts of property made to any one" should not be construed to mean grits made to any one for the benefit of the temple or for other purposes as are specified in section 4. But it is not necessary for our purpose to express any opinion on that point in the present case. All that we desire to say is that there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him.