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1 - 10 of 17 (0.28 seconds)The Code of Civil Procedure, 1908
Pramatha Nath Mullick vs Pradyumna Kumar Mullick on 28 April, 1925
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 v. Pradyumna
Kumar Mullick (1) and Kanhaiya Lal v. 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.
Babu Bhagwan Din vs Gir Har Saroop on 10 October, 1939
No doubt, the Privy Council in Babu Bhagwan Din v. 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 seva,puja 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 (Ex. 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.
T.P. Srinivasa Chariar vs C.N. Evalappa Mudaliar on 6 April, 1922
-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 v. 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 s. 5(3) 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.