Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 September, 1959

Coram: M. Hidayatullah, S.K. Das

In this case the Court noted that the appeal, accompanied by a certificate of the High Court of Judicature at Bombay, challenged the judgment and decree dated 22 April 1949 rendered in First Appeal No. 403 of 1945. That earlier judgment had confirmed the decision and decree of the Civil Judge, Senior Division, Nasik, in Special Suit No. 5 of 1943, a suit that had been decided on 14 August 1945. The High Court had altered the award of costs only to a small extent, a point to which the Court said it would refer later.

The plaintiff, who was the appellant before the Court, was identified as a descendant of Ganpati Maharaj, a devotee of Shri Venkatesh Balaji. Ganpati Maharaj had died in the year 1701 at the age of ninety‑eight years. When Ganpati Maharaj was seventy‑two years old, he reported that, in a dream, he was told that an image of Venkatesh Balaji would be discovered by him in the Tambraparni River located in Tirunelveli District. Acting on that vision, he found the image, brought it to his residence in Junnar in Poona District and installed it there for worship. After his death he left three sons and a daughter. His eldest son, Timmayya, was twelve years old at the time of Ganpati Maharaj’s death. Timmayya succeeded his father and lived until 1768, dying at the age of seventy‑nine years. During his lifetime Timmayya acquired several properties by way of gifts and presents. The present suit related to those properties, which were listed in the schedules annexed to the plaint. The appellant traced his lineage directly through the eldest male line descending from Ganpati Maharaj, whereas respondents numbered one to four were descended from Ganpati’s daughter, Nagubai.

On 23 April 1942 the first four respondents filed an application before the District Court invoking section 3 of the Charitable and Religious Trusts Act, 1920 (No. 14 of 1920), hereinafter referred to as the Act. Their application was directed against the appellant and two other persons, seeking an order that the appellant be compelled to provide full details of the properties, their use, and to produce accounts of the income generated as well as the accounts of the properties for the three preceding years. In response, the appellant denied the existence of any trust, let alone a public trust, and asserted that the idol and the associated properties were private in nature. He then undertook to commence a suit under section 5(3) of the Act. That suit, from which the present appeal arose, was filed on 21 March 1943. In the pleadings the appellant sought three declarations: (1) that ‘Shri Vyankatesh Balaji Deity’ and ‘Shri Vyankatesh Balaji Sansthan’ were not legal trusts as alleged by the defendants and that their nature was not as described by the defendants; (2) that if the Court were to find a trust existing in relation to ‘Shri Vyankatesh Balaji Deity’ and ‘Shri Vyankatesh …’

In the suit, the plaintiff asked the Court to make three separate declarations. The first declaration sought to affirm that both “Shri Vyankatesh Balaji Deity” and “Shri Vyankatesh Balaji Sansthan” were not legal trusts as alleged by the defendants and that their nature was not as described by the defendants. The second declaration requested that, if the Court found that a trust in respect of “Shri Vyankatesh Balaji Deity” and “Shri Vyankatesh Balaji Sansthan” did exist, it should be declared that such a trust was not a public trust, that it had not been created for religious or charitable purposes, and that the Religious and Charitable Trusts Act of 1920 (No. 14 of 1920) did not apply to it. The third declaration asked the Court to state that the defendants, either individually or as representatives of the whole Hindu Community, possessed no right or authority over “Shri Vyankatesh Balaji Deity” and “Shri Vyankatesh Balaji Sansthan.” It further claimed that neither the defendants nor the entire Hindu Community had any right, in any capacity, to interfere with matters concerning the deity or the Sansthan, to demand a list of the properties (referred to as “Yadi”), to demand accounts of income from those properties, or to seek any of the reliefs listed in the prayer clauses of Miscellaneous Application No. 19 of 1942. The trial judge then framed eight issues for determination. The first two issues corresponded to the two declarations concerning the existence and character of the trust. Three further issues examined the positions of defendants numbered 1 to 4, 6 and 7 with respect to maintenance, their share in the right of customary worship, and the management of the religious establishment. One issue considered whether the suit was defective because the deity had not been joined as a party. The remaining two issues were consequential matters that depended on the resolution of the preceding questions.

The trial judge eventually decided all eight issues against the appellant. He held that the properties in dispute were not the appellant’s personal or private assets and that the plaintiff was barred (estopped) from asserting such a claim. The judge further concluded that the deity was neither a family deity nor a private deity; rather, the deity Shri Venkatesh Balaji was the legal owner of the properties, and consequently a public, religious, and charitable trust existed in respect of those assets. Nevertheless, the judge recognized the appellant’s status as the hereditary shebait (caretaker) and ruled that the appellant was entitled to manage the trust’s affairs. Regarding the first four defendants, the judge found that they were entitled to customary worship and to receive emoluments as determined by the Pujadhikaris who were descended from the eldest branch of Bapaji Buva, and that these defendants could be removed if they failed to perform their assigned duties. The application filed under section 3 of the Act was held to be competent, but the suit itself was deemed defective because the deity had not been joined as a necessary party. As a result, the trial judge dismissed the suit and ordered that two separate sets of costs be awarded to the defendants. After the suit was filed, a public notice under Order 1, Rule 8 of the Code of Civil Procedure was issued, and additional defendants representing the Hindu Community were joined. In the early stages of the litigation, the first four defendants raised the issue that the deity should be joined as a necessary party and that a guardian‑ad‑litem should represent the deity. The appellant opposed this application, arguing that, since he claimed the deity and the properties were his personal property, there was no need to join the deity. The trial judge, surprised by the plaintiff’s position, accepted the appellant’s contention and refrained from joining the deity, but warned that if the deity were later found to be a necessary party, the suit could be dismissed on that ground alone.

The defendants argued that the temple functioned as a public institution and that its assets were public religious endowments; consequently they contended that the deity need not be joined as a party. The trial judge, although surprised by the plaintiff’s position, accepted the defendants’ contention and did not order the deity to be joined. Nevertheless, the judge cautioned the appellant that, should the court later determine that the deity was a necessary party, the suit could be dismissed solely on that ground. Following the judgment dismissing the suit, the appellant appealed to the High Court of Bombay. The learned judges of that court, Justice Rajadhyaksha and Justice Chainani, rejected the appeal but altered the cost order, directing that only one set of costs be awarded to the defendants. In their analysis, the High Court examined the historical acquisition of the various properties involved and observed that, for certain properties, there was no doubt they constituted public religious endowments, whereas for other properties they were inclined to treat them as personal holdings of the deity. However, the court held that it could not render a definitive declaration because the deity had not been joined as a party. Despite this limitation, the High Court issued a certificate of fitness under Article 133 of the Constitution, read with sections 109 and 110 of the Code of Civil Procedure, thereby permitting the present appeal to be filed.

Before addressing the substantive issues on appeal, the Court found it necessary to outline significant milestones in the history of Shri Venkatesh Balaji and the family associated with the deity. It was previously noted that the deity was originally placed in the house of Ganpati Maharaj at Junnar in Poona District. Ganpati Maharaj himself did not acquire any property, but during his son’s lifetime the deity was relocated from Junnar to Nasik. Family tradition records that this move resulted from a dream experienced by Timmayya, who was warned that Junnar would be razed and that the deity must be removed. Subsequently, Timmayya introduced the local populace to the deity’s miraculous powers and, extending his efforts, presented the deity before the courts of various rulers, thereby securing properties, monetary allowances, and gifts that are now the subject of dispute. After Timmayya’s death, his eldest son, Bapaji Buva, received a plot of land as a gift from the Peshwa near the bank of the Godavari River at Nasik, on which he constructed a temple. The deity was installed in this temple and has remained there ever since. Bapaji Buva raised a loan to finance the temple’s construction, a substantial portion of which was later repaid by the Peshwa and other rulers such as Holkar and Scindia. During his tenure, a large Sabha Mandap was erected within the temple precincts, designed to accommodate approximately six hundred persons for darshan and worship of the deity.

Disputes emerged within the family and a document titled Tahanama (Exhibit 121) was executed, which vested the right of management of the temple property in the eldest male member of the senior branch of the family. The same instrument also provided for the maintenance of the senior branch as well as the junior branches. In the year 1800 further family disagreements occurred and a second document called Tharav Yadi (Exhibit 122) was drawn up. Under the terms of that agreement the cash allowances previously made for the upkeep of the various branches were replaced by the allocation of specific villages to each branch. Subsequently the Inam Commission was constituted under the Bombay Rent‑free Estates Act, 1852 (Bombay Act 11 of 1852). According to the policy laid down by Lord Bentick, every jagirdar and inamdaar was required to prove the source of his title and to state the conditions on which the jagir or inam was held. The Assistant Inam Commissioner recorded the grant of the villages referred to in the Tharav Yadi under Rule 3 of Schedule B of that Act as personal inams. Damodar Maharaj, who at that time held the offices of Pujadhikari and Sansthanik, appealed to the Inam Commissioner and asserted that the villages were not personal inams but Devasthan inams, which under the law could be recorded only under Rule 7 of Schedule B. The distinction lay in the fact that personal inams survived only while the family existed, whereas Devasthan inams were permanent and were to be recorded as such. The Inam Commissioner accepted Damodar Maharaj’s contention and ordered the entries to be altered from personal inams to Devasthan inams for the villages in question. Damodar Maharaj died in 1885 and was succeeded by Krishnarao Maharaj, who died in 1893. The latter’s eldest son, Bhagwantrao Maharaj, died in 1900 and was succeeded by the present appellant. During the appellant’s minority the property was placed under the management of a guardian appointed by the Court. The appellant attained majority in 1921 and thereafter assumed direct control of the management of the properties concerned.

In 1929 the appellant commissioned a written history of the deity and published it under his own name. The court indicated that reference to all of the documents mentioned above would be required in order to examine the argument as to whether the disputed properties constituted a religious endowment of a public character or whether they were privately owned. It was further noted that both the lower courts had concurred in holding that the deity was not merely a family deity to which the public had no interest, and that the properties given to the deity formed a religious and charitable endowment of a public nature. Ordinarily such a finding is treated as a finding of fact and is not open to further scrutiny by this Court. Nevertheless, the appellant argued that the legal inference drawn from the proven facts was erroneous, thereby raising a point of law. The appellant submitted that a mistaken inference drawn from documents, in the absence of any misconstruction of those documents, remains a finding of fact. Accordingly, the principle that an erroneous inference without misconstruction should be treated as a factual error was urged to be applied to the examination of the documentary evidence in the present case, because if there was no misconstruction, the concurrent findings of the lower courts would be factual rather than legal conclusions.

The Court observed that any conclusion reached by the lower courts concerning the nature of the property would be a finding of fact rather than a determination of law, and that any mistake, if it existed, would likewise be a factual error. Both the trial court and the appellate court had examined in detail a large collection of documents, numbering several hundred, and each had concluded that nothing in those documents contradicted the respondents’ claim that the property constituted a religious and charitable endowment of a public character for the benefit of the deity. The appellant, before this Court, attempted to overturn that conclusion by arguing that the documents actually indicated grants made to private individuals who were then managing the affairs of a family deity. In addition to the documentary analysis, the two lower courts placed considerable reliance on admissions made by the appellant’s predecessors in title dating back to the year 1774. Counsel for the appellant argued that those documents had been misinterpreted and that the inferences drawn from them, including the admissions, were precisely opposite to the conclusions reached by the lower courts. Consequently, the sole issue to be decided on appeal was whether the inferences drawn by the lower courts were tainted by a misconstruction of the documents. The appellant further asserted that the suit was filed under section 5(3) of the Charitable and Religious Trusts Act, 1920, and that the burden of proof rested on the respondents to establish the existence of a religious and charitable trust of public character in favour of the deity. He maintained that the lower courts had shifted the burden onto him, requiring him to produce positive evidence that the deity was merely a family deity and that the property belonged to him privately. In his view, the defendants should have proved their case, and had they failed to provide affirmative proof, the suit should have been decided in his favour. The Court explained that the term “burden of proof” can signify two distinct concepts: at times it denotes the necessity for a party to establish an allegation before a judgment can be rendered in its favour; at other times it indicates that, on a contested issue, one of the opposing parties must introduce evidence. However, the Court found that this distinction was academic in the present matter because both sides had presented evidence regarding the nature of the deity and the status of the property and each sought to prove its own case. The lower courts had not decided the case on an abstract question of who bore the burden of proof, nor could the matter be resolved on that basis alone. The burden of proof becomes crucial only where a party’s failure to meet that burden inevitably leads to an adverse outcome. When the parties have joined the issue, offered evidence, and the conflicting evidence can be weighed, the abstract discussion of burden of proof loses practical significance. Accordingly, in the present case, the Court determined that the question of burden of proof did not merit further consideration, for the parties had already presented their respective evidence and the issue could be resolved on the merits of those evidences.

In the present dispute the appellant and his ancestors, whose title he asserts, had repeatedly acknowledged that the public possessed a right to worship the deity and that the lands in question were held as Devasthan inams. This acknowledgment was reflected in the revenue records, which uniformly described the grants as Devasthan, except for a few instances that will be mentioned later. Because of these admissions and the corresponding revenue documents, the appellant was required to establish that those admissions were mistaken and therefore did not bind him. An admission, while not absolutely conclusive, constitutes the strongest evidence that an opposing party may rely upon, and it can only be overturned by successfully withdrawing it or proving it erroneous. The Court therefore examined those admissions briefly, considering their scope and the frequency with which they were repeated. The earliest admission that the property belonged to the Devasthan and that there was no private ownership appeared in the Tahanama dated 1774 (Exhibit 121). This Tahanama was executed by the sons of Timmayya Maharaj before the present dispute arose, in the presence of five witnesses. It recorded that “Shrimant Pant Pradhan and other Sardars of both Nizam and Deccan States have granted Inam villages for the purposes of Seva (worship) of Shri (the deity).” The document further stated that the newly constructed temple on the banks of the river Ganga (Godavari) belonged to Shri’s Sansthan and that no individual held any share therein. By virtue of the Tahanama, the three brothers set aside a specific sum for the Seva of the deity, a sum that was not to be reduced under any circumstances. They nevertheless retained a small portion of the income as their own Nemnuk (maintenance), which was to be reduced if the income proved insufficient to meet the expenses of the deity. Counsel for the appellant argued that the lower courts had misinterpreted the Tahanama, asserting that it indicated a private temple and that the three brothers had created a private trust for the benefit of the deity, dividing the income between the deity’s worship and their personal maintenance. The Court found this interpretation strained. The deity was described as “Swayambhu,” not as a consecrated idol, and none of the family members claimed any interest or share in the temple or its properties. Consequently, the properties could not be characterised as private, nor could the idol be deemed a family idol. The document clearly treated the deity as the owner and the family as its servants, a conclusion reinforced by the later Tharav Yadi of 1800, which described the Nemnuk allowance as Vetan (remuneration) for service to the deity and “Sansar Begmi” for personal use. The term “Vetan” signifies payment for service rather than ownership. Thus, from as early as 1774 through 1800, the appellant’s predecessors regarded themselves as servants of the deity and merely arranged the funds so that the deity could enjoy its own property while they received regular payment for their services.

The Court observed that the portion of family income taken out was labelled as “Vetan,” meaning remuneration for service rendered to the deity, and as “Sansar Begmi,” representing the family’s personal share. The term “Vetan” was explained as indicating paid service rather than any claim of ownership. Historical records dating from 1774 to 1800 showed that the ancestors of the appellant regarded themselves as servants of the deity. Their principal activity was to arrange the use of funds in a stable manner so that the deity could enjoy its own property, while the servants received regular pay for their duties. The Court then turned to the establishment of the Inam Commission, which was constituted to investigate jagirs and inams that had come under the jurisdiction of the East India Company after the passage of Act No. 11 of 1852. The Commission was claimed to have been created under that Act for the specific purpose of conducting inquiries as prescribed therein. During the period from 1857 to 1859, the Assistant Inam Commissioner at the time held that the inam in question was a personal inam and directed that it be entered in the records as such. Dissatisfied with this classification, Damodar filed an appeal before the Inam Commissioner, alleging that the inams had been wrongly recorded as personal and should instead be recorded as Devasthan inams. The appeal, filed as Exhibit D‑643 on 5 March 1858, contended that the mokass Amal, the jagir and the Sardeshmukhi in the villages had been granted “for the expenditure on account of the Shri.” Damodar supported his claim by referring to the Sanads, which indicated that the Amals (revenue shares) were intended for worship and Naivedya (food offering) to the Devasthan of Shri Venkatesh. He further argued that the Assistant Inam Commissioner’s order was erroneous because the inams ought to be recorded in the name of the deity pursuant to Rule 7 of Schedule B to the Act of 1852, rather than under Rule 3 as had been ordered. The Court noted the distinct effects of the two rules and pointed out that proviso (6) to Rule 7 expressly prohibited the permanent recording of a personal inam under that rule. The purpose of Damodar’s appeal was therefore to obtain a permanent recognition of the deity’s rights over the inam properties, excluding any share for the family except the reasonable remuneration that the Pujadhikaris might periodically receive in accordance with the earlier Tahanama and Tharav Yadi documents. The Inam Commissioner accepted this argument, examined all the Sanads presented in the case, and issued an order cancelling the earlier order of the Assistant Inam Commissioner. The Commissioner directed that, under Section 7, Supplement No 2 of Act 11 of 1852, the remaining portion of the village be held as a perpetual inam in favor of the Devasthan of Shri Vyankatesh, with its management to continue from generation to generation.

The documents referred to in the record specifically mention the lineal descendants together with the male descendants of Timaya Gosavi, son of Ganesh Gosavi, and Apatia, son of Konher Gosavi. The cumulative effect of these documents was to obtain, in invitus, formal recognition of the deity’s title as owner of the property in question. Moreover, the documents disclose that within the family of Bapaji Buva there existed hereditary Pujadhikaris, also known as Shebaits, who were entitled only to a reasonable fee for performing their religious duties and possessed no additional proprietary rights over the deity’s assets.

In the year 1907, while the plaintiff remained a minor, his mother gave evidence as a witness. She testified that the Annachatra and Sadavarat Kulkarni Inams, together with other Inams, were all held by the Sansthan and that no private or personal property existed. She further described the gardens as belonging to the deity rather than to any individual, a position that the plaintiff’s guardian consistently maintained throughout the plaintiff’s minority. Earlier, in 1899, the father and uncle of the present appellant asserted that the village of Savergaon, one of the Devasthan’s properties, was not privately owned by any person. They stated, “Except this Shri Vyankatesh deity no one else has any right, 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.” This declaration was recorded in Suit No. 515 of 1898.

Subsequently, in the written statement dated 5 November 1920, filed as Exhibit 700 by the plaintiff’s guardian in Civil Suit No. 295 of 1920, it was expressly denied that Damodar Timayya or any other individual owned the Balaji Sansthan in a personal capacity. The statement emphasized that the Balaji temple belonged to the Sansthan and that several villages had been granted to the Balaji Sansthan solely for temple purposes by Sanads issued by the British Government, with the defendant’s family serving only as the vahiwatdar. It was further affirmed that Damodar Timayya possessed no separate property of his own. A similar denial was made in an application submitted by Ramabai, the appellant’s mother, identified as Exhibit 702.

Although the documents prepared during the plaintiff’s minority might not be binding on the appellant, the appellant himself, on 1 December 1927, affirmed that the village of Savergaon was a Devasthan Inam alienated to the deity Shri Venkatesh, who was the rightful owner. He referred to the family settlement of 1801 and contended that other villages were likewise dedicated to the deity. He observed that in a Devasthan Inam the idol functions as the grantee and true owner, while the management of such property must be undertaken by a human caretaker.

The Court observed that the individual described as the manager administered the villages solely on behalf of the deity Shri Balaji and never asserted personal ownership. He further explained that his role was limited to managing the village for the deity, Shri Balaji, and presented a certified copy of the Land Alienation Register to demonstrate that Shri Venkatesh was listed as the alienee. The plaintiff’s genealogy, exhibited as Exhibit 634, was prepared by Bhagwant Annaji, who was the uncle of Damodar Timmayya. In that document Bhagwant Annaji recorded that Timmayya had acquired nine villages and had established Puja Naivedya, Utsav, Annachhatra and Sadavarat dedicated to Shri Venkatesh, and it was expressly stated that the villages were grants made to the deity. Similar admissions appeared in the Yadi dated 15 December 1886 (Exhibit 626), a communication from the Mamlatdar addressed to Krishnarao Damodar, and in a letter dated 1922 (Exhibit 199) written by the plaintiff to Mankarnikabai, the wife of Krishnarao Damodar. In numerous other suits filed by third parties, the defendant was described as “Shri Venkatesh Balaji Sansthan, Nasik, through manager,” identifying the appellant as the manager who represented the owner, namely the deity. The Court further noted a historical account of the Sansthan prepared by the appellant in 1931, based on original documents supplied by him and filed as Exhibit 642. In his deposition the appellant admitted his intimate involvement in the preparation and publication of that history. The document provides a narrative of the idol and the temples and explains how, over time, the Peshwas and various Sardars granted villages to the “Shri” and dedicated them to the deity. Although the history is extensive, it contains repeated admissions that the Sansthan belongs to the deity and that members of the Timaya Maharaj family serve only as managers and administrators, not as owners. The history explicitly states that “the management of it shall not be like that of a private property.” The Court further referred to the records of the Inam Commission, set out in Exhibits 135 to 144, 634 and 644, which show that the deity was recorded as the owner and that the jagirs and inams were classified as Devasthan. Counsel for the appellant argued that these admissions merely indicated that the Balaji Mandir establishment was described as a Sansthan and that ownership lay with family members. The Court could not accept this argument because it contradicted the clear tenor of the documents. The Court found that the documents did not admit, but actually denied, any family ownership of the temple, the deity or the deity’s properties. Instead, the consistent assertion throughout the evidence was that the family members were merely servants of the deity who received remuneration for their services.

The Court observed that the ownership of the property vested solely in the deity and in no other entity. In light of these admissions, the Court noted that the issue of which party bore the burden of proof was essentially theoretical. Nevertheless, if any burden existed, it rested on the appellant, who was required to rebut the admissions with clear and persuasive evidence showing that those admissions were mistaken and should not be accepted as proof. The admissions were of two kinds: first, they related to the character of the property that was being contested; second, they concerned the character of the idol itself. In addition to these matters, the Court considered the decisions made by the Inam Commissioner regarding the villages, which had been entered in the records as Devasthan inams after Damodar had appealed against an order that classified them as personal inams. The importance of the Inam Commissioner’s decisions had previously been examined by the Judicial Committee in a number of cases, and the Court found it sufficient to cite one representative case. In the case of Arunachellam Chetty v. Venkatachellapathi Guru Swamigal [(1919) L.R. 46 I.A. 204], the Judicial Committee, while reviewing the Inam Register for the year 1864 that had been produced for inspection, accorded the Register the highest significance. The Committee stated that although the Register was initially prepared to determine whether particular lands were exempt from tax, it must also be remembered that the preparation of the Register represented a substantial act of the State, and its contents had been subject to extensive deliberation documented in detailed reports and minutes. The Committee further explained that the Inam Commissioners, through their officers, conducted on‑site inquiries, heard testimonies, examined documents, and thereby provided the Government not only with conclusions about tax exemption but also with a statement of each property's history and tenure. While the Committee acknowledged that such a report could not replace genuine and authentic evidence in individual disputes, it emphasized that when such direct evidence was unavailable, the Board could not disregard the information contained in the Inam Register, as it formed an essential part of the property’s historical record. Accordingly, the Court held that the nature and extent of the right and interest in the land were derived from the Inam Registers and the enquiries that preceded them. Consequently, the Court found it doubly necessary for the appellant to produce before the Court every document by which his title had been created, recognised, or confirmed. The appellant, however, submitted only a selective portion of the available material and failed to introduce into evidence the full range of documents that were in his possession as late as 1931. The Court pointed out that in 1931 the appellant had caused a history of the Sansthan to be published, a work that referenced numerous documents that have not been presented in this proceeding. The learned judges of the High Court also observed this omission and concluded that, because of the appellant’s failure to produce the complete set of documents, reliance could not be placed on the papers that had been exhibited.

In the present case the appellant was required to establish beyond any doubt that a title superior to the one recorded by the Inam Commission was available to him. The High Court had held that because the appellant could not prove such a higher title, the documents that he had introduced could not be relied upon. The present Court therefore examined whether that conclusion was justified in the complete factual and evidentiary context of the case.

The subject matter of the dispute comprised eleven villages together with cash allowances and certain urban properties, each of which will be discussed separately. All eleven villages had previously been examined by the Inam Commission, and the Commission’s decisions were consistent for ten of the villages. Only one village was affected by a technical objection, but otherwise the Commission’s findings were uniform. During the proceedings the appellant presented documents relating to two of the villages to illustrate the nature of the title he claimed to possess. It is noteworthy that the appellant himself made no segregation among the various properties; he asserted that every one of the villages and the associated assets were held by him under a single, identical title. At the hearing of the appeal the appellant attempted to argue that the villages had been granted to him as a reward for services rendered to a deity. That contention, however, was not the position he had taken before the District Court under the Charitable and Religious Trusts Act, nor was it reflected in the plaint that initiated the present suit. Consequently the appellant could not now alter his original pleading concerning ownership, and the Court was bound to decide the matter on the basis of the appellant’s claim that the properties were private holdings.

The first group of documents that attracted the Court’s attention pertained mainly to the village of Vihitgaon. These documents were numbered as Exhibits 200 to 206. The initial four exhibits consisted of letters addressed to the Mukadams, Kamavisdars and Mamlatdars, urging them to continue the Mokasa, Sahotra or Inam in favour of a person named Timayya, to whom the village had been allotted as a Madade‑Mnash. The earliest of these letters dated back to the year 1714, while the latest was dated 1755. Exhibits 204 and 206 referred to still earlier sanads, and Exhibit 206 specifically mentioned the original grant issued by the ruler Mahomed Shah, bearing his personal seal. However, the original sanads cited in those references were never produced before the Court, nor were the sanads of the Peshwas that the Inam Commission had referred to in Exhibit 135. None of the produced documents disclosed the precise terms on which the original grant had been made. Because the evidence was sparse and inconclusive, the High Court was justified in accepting the Inam Commission’s finding that the grant was made to the Devasthan and therefore constituted a Devasthan Inam.

The second village for which documents were examined was Belatgaon. Similar to the Vihitgaon material, the papers relating to Belatgaon were of relatively later dates, and the original grant document was not produced. The Inam Commission, in its assessment of Belatgaon, also concluded that the village was a Devasthan Inam. The documents submitted in the present proceedings did not contradict that conclusion. They consisted principally of letters and what were described as “so‑called sanads” that instructed the Mukadams and other revenue officials to remit a portion of the village’s revenue to Timayya. Counsel for the appellant argued that the documents concerning the other villages were of a comparable character. The Court noted these submissions while continuing its evaluation of the evidentiary record.

In the record, the documents concerning the other villages were described as being of the same nature as those previously examined, and the Court’s own inspection confirmed this characterization. Each order issued by the Inam Commission for every village made reference to earlier sanads of older dates, yet none of those earlier sanads were produced before the Court. The respondents, in the proceedings before the Court of First Instance, issued a notice requiring the appellant to produce every sanad that he openly acknowledged possessing and that was listed in Exhibit 642; the appellant, however, evaded compliance by claiming that the notice was vague. Consequently, the Court found no basis to hold that any document had been misinterpreted. Conversely, the judgments of the two lower Courts proceeded on the premise that the appellant, having been given a full opportunity to rebut the findings of the Inam Commission and the various admissions made over time, deliberately withheld the original grant documents that he alleged conferred the villages upon him. Instead, he presented letters and purported sanads dated later, which essentially functioned as mere payment orders to sustain the privilege originally granted by the rulers in the earlier documents. The Court therefore concluded that there was no misreading of the documents that had been produced, and it affirmed that the appellant’s admissions and the revenue records remained unchallenged.

The discussion then turned to the cash allowances that had been allotted from the villages to the predecessors‑in‑title of the appellant, a collection comprising several hundred documents. These documents were likewise letters addressed periodically to the Mukadams, Kamavisdars and Mamlatdars, directing the payment of arrears of annuities, Varshashan, and Aivaj to Haribakthi Parayana Rajeshri Timayya Gosavi. Almost every letter referenced the filing of the original sanads, yet those original sanads were never produced. In contrast, the respondents produced certain documents—Exhibits 228, 229, 639, 230, 231 and 233—that demonstrated the original grant was made to the Devasthan and, in some instances, specifically mentioned it was for the expenses of “Shri.” The respondents linked these exhibits with the historical record of Shri Venkatesh Balaji Sansthan (Exhibit 642) to argue that similar documents concerning the grant of all villages and cash allowances existed but had not been produced. The appellant also admitted, through Exhibit 151, that his ancestors had received the grants to perform Puja, Archa, Sadavarat and related religious rites for the deity. From these circumstances, the two lower Courts inferred that the grant could not be treated as a personal conveyance but must be regarded as an endowment in favour of the deity or the Sansthan. Accordingly, the appellant asserted that all properties, including the temple and the idol, were held in the name of the “Sansthan,” using the term broadly to describe both the properties and the Vahiwatdar, a stance the Court noted indicated the appellant’s awareness of the underlying legal characterization.

The Court observed that the appellant was aware of the weakness of his case because the grants made to the Sansthan or to the “Shri” could not be treated as grants to a private individual. Consequently, the appellant incorporated both himself and the deity within the term “Sansthan” so that he could argue the grants were effectively made to him as well as to the deity. The appellant then contended that the present dispute fell under the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroop [(1939) L.R. 67 I.A. 1]. The Court explained that the cited case was entirely different. In that case a single grant was made to an individual and his heirs in perpetuity, with no evidence to the contrary. The Judicial Committee interpreted the grant as favouring the individual, specifically stating that it was made to one Daryao Gir and his heirs forever. The Committee observed that had the grant been intended as an endowment for an idol, the language would have been substantially different; the reference to the grantee’s heirs and the Arabic expression “naslan ba’d a naslin was batnam ba’d a batnin” (descendant after descendant and generation after generation) could not be reconciled with the notion that the grantor was creating a wakf for a Hindu religious purpose, even if that hypothesis were not otherwise untenable. The Court noted that, although the origin of the idol in that case was not fully traced, the grant disclosed the existence of a sanyasi possessing an idol in a mud hut, to whom the grant was made, not to the small temple itself. The history of that deity is well known and illustrates how such grants were repeatedly made. Applying that decision to the present facts, the Court held, was impossible. Instead, the Court found the appropriate principle to be the one articulated by the Privy Council in Srinivasa Chariar v. Evalappa Mudaliar [(1922) L.R. 49 I.A. 237], where it was observed that “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. On the contrary, the onus is heavily upon the trustee to show by the clearest, most unimpeachable evidence the legitimacy of his personal acquisition.” The appellant further argued that the properties for which the High Court had inclined to find them private should at least be declared private. He also moved to join the deity as a party to the appeal and requested that this Court issue an order for the Court of First Instance, in the presence of the deity, to determine whether those properties were private. The Court indicated that these matters would be addressed later, after deciding the immediate issue of whether the public possessed any right of worship in the temple.

In this case, the Court examined whether the public possessed any right of worship in the temple. Both the lower courts had concurred that the deity and the temple were of a public character. The High Court correctly observed that the issue must be decided in line with the dictum of Justice Varadachariar in Narayanan v. Hindu Religious Endowments Board, a matter that arose under section 9 of the Hindu Religious Endowments Act. That provision defines a “temple” as a place used for public religious worship and dedicated to, or for the benefit of, or used as of right by the Hindu community, or any part thereof. The learned judge explained that the intention to dedicate a place for public use or for use by the public as of right is a matter that must be inferred from the nature of the institution, the character of its users, and the manner in which the institution has been administered. He further stated that once a long course of public usage for worship is established and a separate trust endowment for the deity is proved, it is reasonable to infer that the institution was dedicated for public use unless the contrary is shown. This inference is especially strong when the temple’s character, its construction, the arrangement of its various parts, and the nature of the deities installed are similar to those of acknowledged public temples. Likewise, when it is shown that a worship‑ping public exists in the locality, it is not unreasonable to presume that the public’s right to use the temple is as of right, unless clear circumstances indicate that the use was merely permissive or that the temple authorities exercised arbitrary exclusion, thereby indicating a private character. Applying this reasoning, the two Courts below concluded that the public enjoyed a right of worship in the temple and in respect of the idol, based on several factual considerations. First, the temple building itself manifested a public character: the staircase led directly to the idol and the public were permitted to enter the premises from seven in the morning until ten at night. Second, there was no evidence that any member of the public had ever been excluded from worship, except for a single instance in which a family member was barred because he had used abusive language toward the mother of the present appellant. Third, the public were openly invited to worship the deity, and no offering or gift presented by devotees was ever refused. Fourth, the merchants of the locality maintained a separate account, or khata, in the name of the deity, and regularly set aside a portion of their earnings as kangi, which was paid to the temple on a continual basis. These facts collectively supported the conclusion that the temple functioned as a public place of worship, granting the public a right of worship in the deity.

The Court observed that the range of ceremonies performed at the temple demonstrated that the deity attracted public interest rather than serving merely a family shrine. It noted that celebrations called Utsavs and other festivals were held regularly, and that each day a large number of Brahmans and other worshippers were provided with food; during festivals, all visitors were also fed. The Court further stated that on festival occasions the deity was taken out in processions along a marked route, using ten carriages in which the idol was carried for ten successive days. These festivals were described as being celebrated with great éclat, and the Court recorded that people not only from Nasik but also from many other parts of the country freely participated in them. In addition, the Court pointed out that the daily routine of the deity differed from the routine normally associated with family deities. It mentioned that the appellant had admitted that the idol was worshipped with Rajopachār, a form of elaborate worship. The Court added that for the purpose of playing music or performing other services, the deity had granted hereditary ināms to those who attended to these duties. Finally, the Court noted that a collection box was placed in the temple, inviting members of the public who wished to do so to make offerings.

Turning to legal precedent, the Court referred to the Privy Council decision in Babu Bhagwan Din v. Gir Har Saroop [(1939) L.R. 67 I.A. 1], which held that the mere acceptance of public offerings could not by itself provide a safe basis for concluding that the deity was a public one. Nevertheless, the Court explained that the extent and regularity of the offerings and gifts could fairly indicate not only the popularity of the deity but also the breadth of the public’s right in it. The Court contrasted the present case with the Judicial Committee’s earlier case, where only a single perpetual grant to a Mahant was at issue and the temple was a simple mud‑hut. In the present matter, the Court observed, the temple occupied several acres, possessed a vast structure, and included a Sabha Mandap capable of seating six hundred persons. The Court found it inconceivable that such a large edifice could have been erected solely for family use, and it inferred that a right of invitation to the public had existed for two hundred years without any interference. The Court further remarked that it was unusual for rulers to make grants to a family idol; the fact that many rulers had granted land and cash allowances for seva, puja, and related purposes indicated the public character of the trust. Accordingly, the Court concluded that the size of the temple and the numerous grants made to it were significant circumstances for assessing the nature and extent of the public right. It recalled that earlier documents cited in the judgment referred to special endowments for festivals, which would not have been made if the deity were a private family deity. The Court also mentioned a Gazetteer covering the Nasik District that described the temple, reinforcing the view of its public nature.

In the record, the Gazetteer provides a complete description of the temple and the deity, and passages from it have been quoted by both courts, demonstrating that the temple functions as a public place of worship. Furthermore, the history of the deity, which the appellant himself prepared and is reproduced as Exhibit 642, expressly points to a public right in the deity. In response to this evidence, the appellant argued that certain circumstances suggested that the deity should be regarded as a family deity. He relied upon the testimony of Dr. Kurtkote, who offered several reasons for the view that the shrine was not a public temple but merely a Deva‑ghar. Dr. Kurtkote observed that the idol of Balaji did not appear to be firmly installed, that it was situated on an upper floor, that members of the priestly family lived within the temple premises, and that daily worship was suspended whenever there was a birth or death in the family. He further contended that because the deity was movable, it must be treated as a family deity. The appellant also highlighted the practice of inviting the deity to private residences during festivals for a dinner, presenting this as additional proof that the temple was private and the deity belonged to a family. The court then set out to examine each of these points to determine whether they outweigh the extensive evidence indicating the public character of the deity that had already been considered.

The court first addressed a minor issue raised concerning the absence of a dome or kalas on the Balaji temple at Nasik. While this fact was admitted, the plaintiff‑turned‑witness, Vasudev, also admitted that the Balaji temple at Devalgaon Raja, which is recognized as a public temple, likewise lacks a dome or kalas, as do several other temples mentioned in the proceedings. Consequently, the existence or non‑existence of a dome or kalas does not appear to be determinative, and no legal authority was cited that would make such architectural features a conclusive indicator of a temple’s public status. The court also recalled that the idol in question was discovered in a river and therefore did not require the consecration ceremonies that are mandatory for a newly fashioned idol placed in a newly constructed shrine. Initially, the idol was placed inside the residence of Bapaji Buva in Junnar, but it was later removed following instructions that the deity is said to have conveyed to Bapaji Buva’s successor. The idol was subsequently installed at Nasik, where a large temple complex has since developed. While members of the priestly family do reside in certain portions of the building, no objection has been raised by any other party, and the sheer size of the structure makes it implausible to consider those quarters as part of a private residence or that the Thakurbari forms a private dwelling. The Gazetteer’s description, which the appellant himself acknowledges, clearly distinguishes the temple area from any residential quarters. Regarding the placement of the idol on the first floor, the court had already noted that the staircase from...

The Court observed that the ground floor of the building leads directly to the sanctum. Dr Kurtkote acknowledged that the deity in the Bindu Madhav temple at Benares is likewise installed on an upper storey, but he explained that beneath that idol there is a solid stone pedestal extending continuously from the ground level up to the first floor. No enquiry was made to determine whether the deities there are firmly fixed or capable of being moved. Dr Kurtkote further conceded that the text of the Prathista Mayukha contains no restriction prohibiting the placement of an idol on an upper floor. In the Court’s view, because no scriptural provision bars such an installation, no inference may be drawn that the temple is a private one. The Court noted that the principal basis for the claim that the deity is a family deity is its apparent capacity to be moved from one location to another, and that in fact it has been moved. Evidence was produced showing that in the early history of the temple the Pujadhikaris carried the deity on visits to various ruling chiefs, and documentary material demonstrated how arrangements were made for those journeys and how instructions were issued to all concerned to provide necessary facilities. It was also admitted that when the deity is invited to private residences for festive occasions, a substitute idol is left at the main temple for the public to worship. All such removals are temporary; the deity is subsequently returned and re‑installed in its regular abode. The Court cited the practice at the Jaganath temple in Puri, where the deity is periodically shifted for processions and then brought back to its permanent place. Dr Kurtkote explained that an idol may be installed either in a movable form (chala) or a stationary form (sthira) as mentioned in the Prathista Mayukha, and he admitted that the fact that an idol can be moved does not mean that it has not been properly installed. No other authority was cited before the Court regarding whether an idol, even when installed in a movable form, may be moved from its place of installation. The Court then referred to earlier decisions on similar issues. In Ram Soondur Thakoor v. Taruck Chunder Turkoruttun [(1873) 19 Weekly Reporter 28], a temple was destroyed by river erosion, and the plaintiffs sought a declaration that they could remove the idol to their own house for the period of their turn of worship. The lower court granted that relief. On appeal, Judges Dwarknath Mitter and Ainslie held that the lower court should have precisely defined the period for which the plaintiffs were entitled to worship the idol before issuing the declaratory decree, and they directed that if the appellate court found that both plaintiffs and defendants were jointly entitled to worship during any part of that period, the plaintiffs should not be allowed to remove the idol for that portion of time. The judgment indicated that the plaintiffs, if allowed to remove the idol, must bear the expense of returning it to the location where it stood at the commencement of the suit. The appellate judges qualified their decision by noting that the case did not raise the question of whether the idol was non‑removable under Hindu Shastras. The Court also mentioned Hari Raghunath v. Anantji Bhikaji [(1920) I.L.R. 44 Bom. 466], where the temple was held to be a public one, and the High Court’s ruling on that matter was noted.

The lower appellate Court held that the plaintiffs were entitled to worship the idol until such time as the declaratory decree, which had been passed in their favour, could be made. The Court also directed that, if the lower appellate Court found that both the plaintiffs and the defendants were jointly entitled to worship the idol during any portion of the period claimed by the plaintiffs, then the plaintiffs should not be permitted to remove the idol to their own house at Khatra for that specific portion of time. The judgment further indicates that, although the plaintiffs were allowed to move the idol to their residence, they were required to return the idol, at their own expense, to the location where it stood at the commencement of the suit. The learned judges, however, qualified this order by observing that the case had not presented any contention that the idol could not be moved according to the Hindu Shastras.

In the earlier decision of Hari Raghunath v. Anantji Bhikaji [(1920) I.L.R. 44 Bom. 466], the temple involved was a public temple. The High Court held that, under Hindu law, the manager of a public temple does not possess the right to remove the image from the old temple and install it in a new building, particularly when a majority of the worshippers object to such removal. It is noteworthy that Dr. P. V. Kane appeared in that case and argued that “according to the Pratishtha‑Mayukha of Nilkantha and other ancient works an image is to 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.” Justice Shah observed that the existence of a ruinous building may necessitate a temporary removal of the image for repairs, but he questioned whether the manager could lawfully remove the image with the intention of installing it in a nearby new building. Taking a liberal view of the manager’s powers, Justice Shah concluded that a public‑temple manager cannot exercise the authority claimed, namely to remove the consecrated image from its present position and install it permanently in a new structure.

In this case the Court observed that the image had remained in its present location for many years and that the existing temple was built around it. Removing the image from that temple and installing it in another building would, in effect, create a new temple in place of the old one. Although Hindu law may sometimes permit the installation of a new image as a substitute for an old one, the Court found no evidence from the defendant that the dilapidated condition of the present building justified permanently moving the image to a different location. The suit did not raise the issue of a temporary removal that might be required while repair work on the existing structure was carried out. Consequently, the Court held that the authority cited by the defendant could not be used to support a permanent relocation, because such a step would amount to establishing a new temple rather than merely repairing the old one. The decision affirmed the principle that an idol may not be permanently shifted to another place unless a clear and compelling reason is shown, whereas a temporary removal agreed to by the public could be permitted for a legitimate purpose.

The Court then referred to the earlier judgment in Pramatha Nath Mullick v Pradyumna Kumar Mullick [(1925) L.R. 52 I.A. 245], where a deed of trust expressly barred the removal of the deity. The deed stipulated that the shrine was to be held forever by Jadulal Mullick, his heirs, executors, administrators and representatives for the exclusive use of the deity Thakur Radha Shamsunderji, so that the deity could be worshipped only in the designated premises. It provided that only if, at some future time, it became expedient for Jadulal Mullick or his successors to relocate the deity, they could do so only after providing and dedicating another suitable Thakur Bari of equal or greater value than the original premises. Until such a replacement shrine was established, the deed declared that the deity could not, under any circumstances, be removed from the premises, and once relocated, it could not be removed again. The Privy Council examined this clause and concluded that the final condition rendered the idol immovable unless a new shrine of comparable or higher value was provided. The Council emphasized that the “will of the idol” concerning its location must be respected, and that if, during proper administration of worship by the Shebait, it is thought appropriate to change the idol’s location, the decision must reflect the idol’s expressed will as conveyed through its guardian.

The Court noted that the earlier judges had ordered the selection of a disinterested next friend whose duty was to communicate with the deity and determine the appropriate course of action, after which the instructions allegedly received from the deity were implemented. In the case before them there existed a family deity and a provision that allowed the idol to be moved to another, more suitable Thakur Bari when such a need arose. The wishes of the deity were therefore taken into consideration and consulted. However, the Court observed that the record did not make it entirely clear whether the idol could be removed from one place to another under every circumstance, leaving some uncertainty on that point.

The Court then referred to the most recent authority on the matter, the case of Venkatachala v. Sambasiva (A.I.R. 1927 Mad. 465; 52 M.L.J. 288). The headnote of that decision was quoted in full: “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.” Following that, Justice Devadoss cited passages from the Kamika Agama and referred to the Prathista Mayukha by Nilakanta, the Purva Karana Agamam and the Nirnaya Sindhu. He also relied on specific extracts from the Purva Thanthiram of Brighu, the Kamika Agama, the Siddhanta Sekhara and the Hayasirsha Pancharatra, and based on those authorities concluded that the entire body of worshippers, if acting unanimously, could permanently relocate an idol to another dwelling. The effect of that precedent, the Court explained, was that a unanimous group of worshippers possessed the power to move an idol permanently.

Applying those principles to the present facts, the Court observed that the idol in the case had not been permanently removed except for a single occasion when it was taken from Junnar and installed at Nasik, an action undertaken at the expressed wish of the deity itself. After that event, the deity, which is maintained in a removable form (chala), has been temporarily taken out for processions, invitations to dine, and visits to other parts of India so that devotees may have the opportunity to worship it closely. This practice has continued for more than 250 years without any objection. A large gathering of worshippers traditionally follows the deity each time it is taken out temporarily, thereby providing the faithful a chance for close‑quarters devotion. The Court described this as a custom that has been recognized from antiquity and has enjoyed the consent of the worshipping public. Moreover, whenever the deity is absent, a substitute idol is placed in the temple so that the dedicatee never loses possession of the shrine.

Considering these circumstances, the earlier cases cited, and the fact that no scriptural text or legal authority was presented to oppose such conduct when it enjoys the worshipping public’s consent, the Court found no reason to hold that the temple was a private property or that the deity was merely a family idol.

In this case, the Court noted that no text or legal authority had been cited to oppose the practice of moving the deity with the consent of the worshipping public, and therefore it saw no justification for declaring the temple to be private or the deity to be a mere family idol. The appellant put forward a special argument claiming that certain properties were private. He relied on observations made by the learned Judges of the High Court, who indicated an inclination to treat those properties as private but refrained from issuing a declaration because the deity had not been joined as a party. The properties in question were jat inams, newly constructed assets such as the Balaji temple and the “Shree Theatre,” together with an allowance paid in the name of Kulkarni amounting to a nominal sum of Rs 24 per year. The Court acknowledged that the appellant faced a real difficulty. He had avoided joining the deity in the suit, not because it was absolutely necessary, but at least because it would have been the proper party to the proceedings. Had he included the deity and allowed a disinterested guardian to represent it, the guardian could have raised necessary pleas against the appellant’s contention and could also have produced evidence. The appellant attempted to mask his omission by asserting that the suit was filed under Order 1, Rule 8 of the Code of Civil Procedure and that the Hindu public had been joined, with the deity being adequately represented. In a suit of this nature, however, it is essential that all necessary parties be joined so that any declaration issued is effective and binding. A declaration rendered against the interests of the deity cannot bind the deity, even though the broader Hindu community might be bound by it. The Court observed that the appellant could have avoided unnecessary procedural delay if he had complied with the respondents’ reasonable request to bring the deity onto the record as a party. Instead, he staunchly opposed that step and only at a very late stage before this Court applied to have the deity joined. At that point, it was too late to follow the approach adopted by the Privy Council in Pramatha Nath Mullick v. Pradyumna Kumar Mullick [(1925) L.R. 52 I.A. 245] and Kanhaiya Lal v. Hamid Ali [(1933) L.R. 66 I.A. 263], given the appellant’s own conduct and the warning issued to him by the trial Judge in his order. Another reason the case could not be reopened was that the appellant had not distinguished among the various properties with respect to his claim of ownership; he maintained that each item of property had been acquired and owned in exactly the same manner as the others. The Court then turned to the arguments concerning the Balaji Mandir, situated on survey numbers 1353 and 1354. This land had been granted to an ancestor of the appellant by the Peshwa, as evidenced by Exhibit 571. At the time of the grant, three bighas of land were conveyed to Bapaji Buva, son of Timayya, because he was regarded as a “worthy and respectful” Brahman, with the express purpose of constructing a temple. The names of the Vahiwatdar appear in Exhibits 878 and 153, the latter being a sanad issued by the Governor of Bombay confirming that the grant was free from land revenue. The original grant was therefore clearly made not to the individual Brahman but for the specific purpose of building a temple upon the land. The Court had already held that the public possessed a right in the deity and that the temple was a public institution; consequently, the grant should be regarded as part of the deity’s property. It was significant that after the temple’s construction, a sum of not less than Rs one lakh was paid to the Peshwas and other rulers to satisfy them. Hence, the findings of the learned Judges of the High Court could not be sustained in the absence of the deity, and the Court concluded that the case must be decided on the basis of the pleadings as presented.

Buva, the son of Timayya, was described as a “worthy and respectful” Brahman and the grant of the land was made expressly for the purpose of constructing a temple. The grant documents identified the Vahiwatdar, as shown in Exhibits 878 and 153, the latter being a sanad issued by the Governor of Bombay that confirmed the grant was free from land‑revenue liability. It is clear that the original concession was not intended to vest ownership in the Brahman individually but was conditioned on the erection of a temple on the specified parcel. The Court has previously recognized that the deity enjoys a public right and that the temple itself is a public institution; consequently, the land grant must be treated as part of the deity’s property. After the temple’s construction, the parties borrowed money from external sources and subsequently paid the Peshwas and other rulers a sum of at least one lakh rupees to satisfy their claims. Because the High Court’s findings were rendered without the deity being a party, those findings cannot be sustained. In view of the pleadings, the declaration sought should have been denied and no adverse remarks concerning the deity should have been made. A court confronted with a fundamental issue should not decide matters that are beyond its jurisdiction, even if those matters might be relevant in a different proceeding between other parties. Accordingly, the Court concluded that no declaration could now be granted concerning this property. The next item examined was the “Shree Theatre,” in which the appellant asserted a one‑third share. The appellant relied on extracts from the property register and cited Exhibit 290, a deed of purchase, together with Exhibit 691, the municipal permission to erect the building. It was essential for the appellant to demonstrate that the theatre was financed from private funds and not from the income of the Devasthan. The appellant failed to provide satisfactory evidence; he explained that the money used came from the sale of another property, asserting that the sale proceeds financed the theatre. The record, however, indicates that the proceeds were actually employed to acquire Balaji Vihar, and the claim before this Court was that the sale proceeds of Balaji Vihar were used for the theatre’s construction. If that were correct, evidence linking the theatre to Balaji Vihar should have been produced and a specific pleading made. The Court cannot accept an argument in place of a proper pleading and evidence, and it finds that the appellant did not present the necessary proof to support a finding. This claim suffers from the same deficiencies as the earlier one: the deity was not joined as a party, and there was no distinction made between different categories of property. For these reasons, the High Court should not have proceeded with the decree.

The Court observed that it was improper for any party to express an opinion that was adverse to the deity when the deity was not joined as a party to the suit. The same observation applied to items three through ten listed in the first part of Schedule A that was annexed to the plaint, as well as to the three survey numbers concerning Belatgavan, Deolali and other jat inams. The Court held that examining the evidence relating to those properties would serve no useful purpose because the deity, who is the relevant interested party, was absent from the proceedings. It was further pointed out that the appellant had not maintained separate accounts for those properties and had made no distinction between them and the other properties that had been discussed earlier in the case. The Court reiterated the principle that a trustee must not mix private property with trust property, for doing so imposes a heavy burden of proof on the trustee to show that any particular parcel of land belongs to him personally and not to the trust. The Court cited the authority in Lewin on Trusts, 16th edition, page 225, and referred to the observations made in Srinivasa Chariar v Evalappa Mudaliar [(1922) L.R. 49 I.A. 237]. Consequently, the declaration that the appellant sought—that the temple, the deity and the plaint properties were all privately owned—was correctly refused by the lower courts. The trial judge had nonetheless declared that defendants 1 to 4 were entitled to customary worship and maintenance, a finding that the Court considered unnecessary in a suit filed under section 5(3) of the Act. The Court remarked that the appellant had partly caused the difficulty by framing a case of private ownership that centred all rights on himself, prompting defendants 1 to 4 to argue that the appellant was merely a manager and to assert their own rights in the property. The Court thought that the lower courts could have avoided pronouncing on the defendants’ individual rights and limited their decision to whether the property constituted a public trust. However, the Court declined to give any further direction because the plaintiff’s suit had been dismissed in its entirety, and any additional observations might invite further litigation, which would not be in the interest of the deity.

The Court then turned to the cost applications raised by respondents 6 and 7. Those respondents claimed that the trial judge had initially awarded two separate sets of costs, which the High Court later reduced to a single set. The Court held that the respondents should have cross‑objected to the High Court’s order; because they did not do so, no cost relief could be granted to them. For the same reason, no relief could be granted to respondent 7, whose finding that he had no right to perform the seva or receive the associated emoluments—findings that applied similarly to respondents 1 to 4—had not been vacated, unlike the finding against respondent 6. The Court noted that these cost matters were unrelated to the substantive issues of the suit and therefore remained outside the scope of the present proceedings.

In this case the Court observed that the questions raised related to the suit that had been filed and that those matters were not within the scope of the present proceedings, so the Court did not intend to examine or rule on them. Accordingly the Court determined that there was no ground on which to modify the earlier disposition and therefore concluded that the appeal had to be dismissed. The Court further ordered that the appellant should personally shoulder the costs that had been awarded to Respondent 1, meaning that the appellant alone would be liable for those expenses. With respect to the remaining respondents, the Court directed that each of them was to bear his or her own costs, and no cost sharing or additional cost award was to be imposed on any of them. By these orders the Court finalized the disposition of the matter, reiterating that the appeal was dismissed and that the cost allocation described above applied to the parties.