Narayan Bhagwantrao Gosavibalajiwale vs Gopal Vinayak Gosavi And Others

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

Court: supreme-court

Case Number: Civil Appeal No. 261 of 1955

Decision Date: 22 September 1959

Coram: M. Hidayatullah, S.K. Das, Sudhi Ranjan

In this matter titled Narayan Bhagwantrao Gosavibalajiwale versus Gopal Vinayak Gosavi and others, the decision was rendered on 22 September 1959 by the Supreme Court of India. The judgment was authored by Justice M. Hidayatullah, with the bench consisting of Justices M. Hidayatullah and S. K. Das. The petitioner, identified as Narayan Bhagwantrao Gosavibalajiwale, faced the respondents, Gopal Vinayak Gosavi and others. The case is reported in the 1960 volume of the All India Reporter at page 100 and in the 1960 Supreme Court Reporter (First Series) at volume 1, page 773. Subsequent citations appear in later reports, including 1964 SC 136, 1965 SC 364, 1966 SC 1457, 1970 SC 2025, 1976 SC 871, 1981 SC 798, and 1992 SC 1110. The operative statutory provision concerned the Charitable and Religious Trusts Act, 1920 (14 of 1920), specifically section 5(3), which frames the test for determining whether a trust qualifies as charitable and religious, the evidentiary value of admissions, and whether a deity must be joined as a necessary party.

The central issue for determination was whether the ancient temple dedicated to Shri Balaji Venkatesh at Nasik, together with its associated Sansthan, qualified as a charitable and religious trust within the meaning of the Act. According to the historical narrative, the deity was regarded as Swayambhu and is said to have revealed itself in a dream to a person named Ganapati Maharaj. Acting on this revelation, Ganapati Maharaj is reported to have retrieved the deity from the river Tambraparni and installed it in his residence. Ganapati’s son, Timmaya, subsequently transferred the deity to Nasik, presented the idol before the courts of the ruling authorities, and secured lands and cash in a suit. Timmaya’s eldest son later received a large tract of land as a gift from the Peshwa, upon which he erected an extensive temple complex featuring a Sabha Mandap capable of accommodating at least six hundred worshippers, and placed the deity on the first floor accessed by a direct staircase.

The record shows that the Hindu public has been worshipping at this temple for more than two centuries, with no evidence indicating that any member of the public was ever excluded or that any offered gifts were refused. The rituals conducted in the temple are described as those appropriate to a public deity. In a document known as the Tahanama, executed in 1774 by the sons of Timmaya, it was admitted that the Inam villages were granted for the purpose of worshipping the deity and that the temple belonged to the Sansthan, none of the family members claiming any share. A subsequent record called the Tharav Yadi of 1800 describes a maintenance allowance provided by the same Tahanama for various branches of the family as “Vetan.” The Inam Commissioner, operating under the provisions of Act 11 of 1852, recorded the Inam villages as permanently held Debasthan Inams at the request of the then-Sthanic, based on original sanads submitted by him, thereby overturning an earlier decision by the Assistant Inam Commissioner who had classified them as personal Inams. Those original sanads were not produced in the suit. Finally, in 1931, the appellant published a history of the Sansthan expressly stating that the Sansthan was not private or family property but, implicitly, a property held for the deity.

It was held that the land and other assets in question belonged to the deity and that the members of the family served only as managers. Although the deity itself was not joined as a party to the suit, representatives of the Hindu public were impleaded as parties under section 1, rule 8 of the Code of Civil Procedure. The High Court agreed with the trial judge that the deity was a public deity and that the Sansthan functioned as a public trust. Nevertheless, the High Court was prepared to consider that certain portions of the property might constitute the personal property of the appellant, but it declined to issue any declaration to that effect because, in the absence of the deity as a party, no effective decree could be made against it. Before this Court, counsel for the appellant argued that the lower courts had mis-interpreted the documents and had drawn erroneous inferences, and further contended that the burden of proof had been wrongly placed on the appellant to establish by positive evidence that the deity was a family deity and that the assets were his private property. The Court found that the lower courts were correct in their conclusions and that the appeal must fail. The Court explained that an incorrect inference drawn from documents constitutes a finding of fact; when there is no mis-construction of the documents and no proof of such mis-construction, the appellant could not succeed. The Court noted that an admission by the opposing side is the best evidence available, and although it is not conclusive, it often determines the issue unless it can be successfully withdrawn or shown to be erroneous. The expression “burden of proof” was clarified to mean either that a party must prove an allegation before receiving a favorable judgment, or that one of the two opposing parties must introduce evidence on a contested point. The question of onus is significant only when the party upon whom it is placed would lose if it fails to meet that burden. When issues are joined and evidence is adduced, that evidence may be weighed to resolve the issues, rendering the question of burden academic. In the present matter, if any party bore the onus, it was clearly the appellant who had to prove, by convincing evidence, that the admissions made by his predecessors-in-title and by himself were either erroneous or unavailable; the appellant failed to do so. The earlier sanads, which the appellant admitted were in his possession, were not produced, and the sanads that were produced did not conflict with the admissions or with the revenue records; consequently, no question of mis-construction of documents arose. The case of Babu Bhagwan Din v. Gir Nar Saroon (1939) L.R. 67 I.A. 1 was held to be inapplicable, whereas the decision in Srinivasa Chariar v. Evalappa Mudaliar (1922) L.R. 49 I.A. 237 was applied. The entries recorded in the Inam Register prepared under Act 11 of 1852 were accorded great weight, although they could not supplant actual evidence in an individual case.

In this case, the Court observed that entries made in the Inam Register prepared under Act 11 of 1852 were given considerable weight, but they could not replace actual and authentic evidence in an individual dispute; consequently, when such authentic evidence was absent, the register entries were required to prevail, as referenced in Arunachalam Chetty v. Venkatachalapathi Guru Swamigal (1919) L.R. 46 I.A. 204. The Court further held that several physical and historical factors demonstrated that the temple in question was a public endowment. These factors included the large size of the temple, the manner in which it was constructed, the long-standing usage of the premises by the public as a matter of right, and the grants of land and cash made by ruling authorities, all of which were consistent with a public character, a view supported by Narayanan v. Hindu Religious Endowments Board, A.I.R. 1938 Mad. 209. The Court also clarified that the lack of a dome or kalas on the temple did not, by itself, determine its public character, nor was it essential that a deity which was swayambhu be formally consecrated. Moreover, the temporary relocation of the idol from one place to another did not contradict the temple’s public nature. This principle was affirmed in the earlier decisions of Ram Soondur Thakoor v. Taruk Chunder Turkoruttum (1873) 19 Weekly Reporter 28; Hari Raghunath v. Apantii Bhikajii (1920) I.L.R. 44 Bom. 466; Prematha Nath Mullick v. Pradyumna Kumar Mullick (1925) L.R. 52 I.A. 245; and Venkatachala v. Sambasiva, A.I.R. 1927 Mad. 465; 52 M.L.J. 288. The Court further noted that a suit which omitted the deity as a party was fundamentally defective, and adding representatives of the Hindu public later could not cure this defect; consequently, no effective decree could be issued against the deity in such a suit. The judgment proceeded to set out the appellate proceedings: Civil Appeal No. 261 of 1955, arising from the Bombay High Court judgment and decree dated 22 April 1949 in Appeal No. 403 of 1945, which itself affirmed the original decree of the Civil Judge, Senior Division, Nasik, dated 14 August 1945 in Special Civil Suit No. 5 of 1943. Counsel for the appellant included Purshottam Tricumdas, Mrs. E. Udayaratnam and S. S. Shukla; counsel for respondent 1 comprised R. Ganapathy Iyer, K. L. Hathi and R. H. Dhebar; and counsel for respondents 6 and 7 were W. S. Barlinge, Shankar-Anand and A. G. Ratnaparkhi. The judgment was delivered on 22 September 1959 by Justice Hidayatullah. The appeal, filed with a certificate of the High Court of Judicature, Bombay, challenged the High Court’s decision dated 22 April 1949, which had slightly modified the costs awarded; the Court indicated that the cost modification would be addressed later. The plaintiff, who was the appellant, was identified as a direct descendant of Ganpati Maharaj, a devotee of Shri Venkatesh Balaji, who died in 1701 at the age of ninety-eight. At seventy-two, Ganpati Maharaj reported a dream in which he was told that an image of Venkatesh Balaji would be discovered in the Tambraparni River of Tirunelveli District, and he subsequently found the image.

Ganpati Maharaj had brought the image of Shri Venkatesh Balaji to his residence in Junnar, located in Poona District, and had installed it there. He continued the worship of Shri Venkatesh Balaji until his death, after which he left three sons and a daughter. At the time of Ganpati Maharaj’s death his eldest son, Timmayya, was twelve years old; Timmayya succeeded his father, lived until 1768, and died at the age of seventy-nine. During Timmayya’s lifetime he acquired a number of properties that were given to him as presents and gifts. The present suit concerns those properties, which are described in the schedules annexed to the plaint. The appellant in this case is the direct descendant of Ganpati Maharaj through the eldest male line, whereas respondents 1 to 4 are the descendants of Ganpati Maharaj’s daughter, Nagubai. On 23 April 1942 the first four respondents filed an application before the District Court under section 3 of the Charitable and Religious Trusts Act, 1920 (No 14 of 1920), seeking against the appellant and two other parties an order directing the appellant to disclose full particulars of the said properties, their use, and to produce accounts of the income and of the properties for the preceding three years. The appellant opposed the application, denying the existence of any trust—public or otherwise—and asserted that both the deity and the associated properties were his private possessions. He then instituted a suit under section 5(3) of the Act on 21 March 1943, seeking three declarations. First, that “Shri Vyankatesh Balaji Deity” and “Shri Vyankatesh Balaji Sansthan” did not constitute a legal trust as alleged by the defendants and that their nature was not as the defendants claimed. Second, that if the court were to find a trust in respect of the deity and the Sansthan, it should be declared that such a trust was not a public one, that it had not been created for religious or charitable purposes, and that the Charitable and Religious Trusts Act, 1920, was therefore inapplicable. Third, that the defendants, either individually or as representatives of the entire Hindu community, possessed no right or authority over the deity or the Sansthan, could not interfere in matters concerning the deity or the Sansthan, and could not demand a schedule of the properties, accounts of the income, or any reliefs mentioned in the prayer clauses of Miscellaneous Application No. 19 of 1942. The trial judge thereafter framed eight issues for determination. The first two issues concerned the declaratory relief sought by the appellant. Three further issues related to the position of defendants 1 to 4, 6 and 7 with respect to maintenance, their share in the customary right of worship, and the management of the properties. One additional issue raised the question of whether the suit should proceed because the deity had not been joined; the remaining two issues were consequential to this matter.

The trial judge examined whether the suit should have proceeded because the deity had not been joined as a party and held that the two remaining issues were consequential to that question. After reviewing all the matters, the judge decided every issue against the appellant. He concluded that the properties that formed the subject of the suit were neither the appellant’s personal nor private assets, that the plaintiff was therefore estopped from asserting a claim of ownership, that the deity itself was not a family or private deity, and that the deity known as Shri Venkatesh Balaji owned the properties. The judge further determined that a public, religious and charitable trust existed with respect to those properties, although the appellant, as hereditary shebait, retained the right to manage them.

The trial judge also found that the first four defendants were entitled to customary worship and to the emoluments that might be fixed by the Pujadhikaris who were descended from the eldest branch of Bapaji Buva, and that such defendants could be removed if they failed to perform the duties assigned to them. The judge held that the application filed under section 3 of the Act was competent, but that the suit was defective because the deity was absent as a necessary party. Consequently, the trial judge dismissed the suit and ordered that two separate sets of costs be awarded to the defendants.

It is noteworthy that after the suit was filed a public notice under section 1, Rule 8 of the Code of Civil Procedure was issued, and additional defendants representing the Hindu community were subsequently joined. In the early stage of the proceedings, the first four defendants questioned whether the deity was a necessary party and asked that the deity be joined, represented by an independent guardian-ad-litem. The appellant opposed this application, arguing that because he claimed the deity and the properties were his personal assets, there was no necessity to join the deity, and he relied on the defendants’ assertion that the temple was a public institution and the properties were public religious endowments. The trial judge, expressing surprise at the plaintiff’s position, accepted the appellant’s contention and declined to join the deity as a party, but cautioned that if the deity were later found to be a necessary party, the suit might have to be dismissed on that ground alone.

The appellant appealed the decree of dismissal to the High Court of Bombay. The learned judges, Rajadhyaksha and Chainani, dismissed the appeal but altered the cost order, directing that only one set of costs be paid to the defendants. In their reasoning, the judges traced the acquisition history of the various properties and concluded that for some properties there was no doubt they constituted public religious endowments, while for others they were inclined to view them as personal property; however, they held that no declaration could be made because the deity was not a party to the proceedings.

Because the deity had not been joined as a party, no declaration regarding the property could be issued by the trial court. Nevertheless, the trial court issued a certificate of fitness pursuant to Article 133 of the Constitution read in conjunction with sections 109 and 110 of the Code of Civil Procedure. The present appeal was consequently filed under the authority of that certificate. Before examining the merits of the appeal, the Court found it necessary to outline several pivotal events in the history of Shri Venkatesh Balaji and his family. According to the factual narrative already presented, Ganpati Maharaj placed the deity in his residence at Junnar in Poona District. Ganpati Maharaj himself did not acquire any land, but during the lifetime of his son the deity was transferred from Junnar to Nasik. Family tradition records that the relocation resulted from a dream experienced by Timmayya, who was warned that Junnar would be reduced to ashes unless the deity was removed. Subsequently, Timmayya introduced the deity to the inhabitants of the locality, informing them of its reputed miraculous powers. Beyond publicizing the deity, Timmayya also approached the courts of various rulers and, moving from place to place, obtained several disputed properties, cash allowances and gifts.

After Timmayya’s death, his eldest son Bapaji Buva received a parcel of land as a gift from the Peshwa on the banks of the Godavari River at Nasik and constructed a temple on that site. The deity was installed in the newly erected temple and has remained there continuously since that time. Bapaji Buva financed the temple’s construction by raising a loan, a substantial portion of which was later repaid by the Peshwa and other rulers such as Holkar and Scindia. During Bapaji Buva’s tenure, a large Sabha Mandap was added to the temple complex, capable of accommodating approximately six hundred devotees during darshan and worship. In 1774 internal family disputes led to the execution of a document titled Tahanama (Exhibit 121), which vested the right of management in the eldest male member of the senior family branch and also provided for the maintenance of both senior and junior branches. Further discord emerged in 1800, prompting the preparation of another agreement known as Tharav Yadi (Exhibit 122). That agreement replaced cash allowances for branch maintenance with the assignment of specific villages to the respective branches. Subsequently, the Inam Commission was constituted under the Bombay Rent-free Estates Act of 1852 (Bombay Act 11 of 1852) in accordance with the policy formulated by Lord Bentick, requiring all jagirdars and inamdars to substantiate the origin and conditions of their titles. The Assistant Inam Commissioner, applying Rule 3 of Schedule B of the Act, entered the grant of the villages in the official records as personal inams. Damodar Maharaj, then occupying the offices of Pujadhikari and Sansthanik, appealed to the Inam Commissioner, asserting that the villages were not personal inams but Devasthan inams and therefore should be recorded under Rule 7.

The Court explained that Schedule B contained two distinct rules, one dealing with personal inams and the other with Devasthan inams. Under the rule governing personal inams, the rights to the lands could exist only for as long as the family that held them survived; by contrast, Devasthan inams were intended to be permanent interests and therefore had to be entered in the records as such. The Inam Commissioner accepted the argument that the villages concerned were Devasthan inams rather than personal inams, and consequently altered the entries in the official register to reflect the Devasthan status of those villages. The historical succession of ownership was then traced: Damodar Maharaj died in 1885 and was succeeded by Krishnarao Maharaj, who died in 1893; Krishnarao’s eldest son, Bhagwantrao Maharaj, died in 1900 and was succeeded by the present appellant. During the appellant’s minority, a court-appointed guardian administered the property. The appellant attained majority in 1921 and thereafter assumed direct management of the estates. In 1929 the appellant commissioned a written history of the deity and published it himself. The Court noted that reference to all of these documents would be required later to decide whether the subject lands constituted a public religious endowment or were private property. The Court further observed that the two lower courts had agreed that the deity was not merely a family deity with no public interest, but that the lands allotted to the deity represented a religious and charitable endowment of a public character. Usually such a conclusion would be a factual finding beyond the scope of further appellate review, but the appellant argued that the legal inference drawn from those established facts was erroneous, thereby raising a question of law. The Court clarified that an erroneous inference derived from documents, absent any misinterpretation of the documents, remains a factual finding; consequently, if the documents were not misconstrued, the lower courts’ concurrent findings would be factual rather than legal, and any error would likewise be factual. Both tribunals had examined in detail the hundreds of documents presented and had found no inconsistency with the respondents’ claim that the property formed a public-character religious and charitable endowment for the deity. Before the appellate bench, the appellant sought to overturn that conclusion, contending that the documents actually indicated grants made to individuals who were temporarily managing the affairs of a family deity. In addition to the documentary analysis, the lower courts gave considerable weight to admissions made by the appellant’s predecessors in title dating back to 1774. Counsel for the appellant asserted that the documents had been misread and that the inferences drawn from the so-called admissions were precisely the opposite of the conclusions reached by the lower courts. Accordingly, the sole issue for determination in this appeal was whether the inferences relied upon by the lower tribunals were tainted by any misconstruction of the documentary evidence. The appellant also maintained that the suit was a special proceeding under the Charitable and Religious Trusts Act, 1920, and that the burden of proof lay on the respondents to establish the existence of a public religious and charitable trust for the deity.

The appellant argued that the suit was brought under section 5(3) of the Charitable and Religious Trusts Act, 1920, and therefore the onus of proving that a religious and charitable trust of a public character existed in favour of the deity rested on the respondents. He maintained that the two lower courts had incorrectly shifted that burden onto him, requiring him to produce positive evidence that the deity was a family deity and that the lands in question were his private property. In his view, the respondents should have established their case, and if they failed to do so by affirmative proof, the decree should have been in his favour. The term “burden of proof” can be understood in two senses: first, as the requirement that a party must substantiate an allegation before a judgment can be entered for that party; second, as the duty of a party, in a contested issue, to introduce evidence supporting its position. Whichever definition is applied, the question was merely academic in the present matter because both sides had adduced evidence concerning the character of the deity and the status of the properties, each seeking to prove its own case. The lower courts had not resolved the dispute on the abstract notion of who bore the burden of proof, nor could the suit have been decided on that basis alone. The significance of the burden of proof arises only where a party, having been assigned a particular burden, fails to discharge it and therefore must lose. Here, however, the parties had joined issue, presented conflicting evidence, and that evidence could be weighed to determine the appropriate outcome, rendering the abstract discussion of the burden of proof unnecessary. Moreover, the record showed that the appellant, together with his predecessors in title, had repeatedly acknowledged that the public possessed a right to worship the deity and that the lands were held as Devasthan inams. Revenue records likewise described these grants as Devasthan, except for a few instances that would be considered later. Given these admissions and the revenue documentation, the appellant was required to demonstrate that those admissions were erroneous and did not bind him. An admission constitutes the strongest evidence that the opposing party may rely upon; while not conclusive, it is decisive unless successfully withdrawn or shown to be erroneous. The Court therefore examined these admissions briefly, noting their extent and the frequency with which they were repeated. The earliest such admission, that the property belonged to the Devasthan and that there was no private ownership, appeared in the Tahanama (Exhibit 121) dated 1774, entered by the sons of Timmayya Maharaj in the presence of the Panchas, well before the present dispute arose.

In the record it was noted that the document stated that Shrimant Pant Pradhan together with other Sardars of both the Nizam and Deccan states had granted certain villages in Inam for the purpose of Seva, meaning worship, of the deity referred to as Shri. The same document further declared that the temple of Shri, which had been newly constructed on the banks of the river Ganga, known locally as the Godavari, belonged exclusively to the Shri’s Sansthan and that no individual held any share in it. According to the Tahanama, the three brothers who executed the instrument set apart a specific sum of money to be permanently devoted to the worship of the deity, and the amount was expressly stipulated not to be reduced under any circumstances. The brothers nevertheless retained a small portion of the income for their own Nemnuk, which is described as maintenance, and the allowance for Nemnuk was to be reduced if the overall income proved insufficient to meet the expenses of the deity. Counsel for the appellant argued that the lower courts had misinterpreted the Tahanama. He asserted that the temple was in fact a private temple and that the document, if read carefully, revealed that the three brothers had created a private trust for the benefit of the deity. He further contended that the brothers were merely dividing the income that was rightfully theirs into two parts: one portion to be applied to the worship of the deity and the other portion to meet their personal maintenance needs. The Court found that reading the document in that way strained its natural meaning. The deity was described as “Swayambhu,” indicating a self-manifested deity rather than a consecrated idol placed in a family shrine. Consequently, if no member of the family possessed any interest or share in the temple or its properties, the properties could not be characterized as private assets, nor could the deity be regarded as a family idol. The language of the Tahanama showed that the deity was treated as the owner while the family members acted as its servants. This conclusion was reinforced by a later document, the Tharav Yadi of 1800, which identified the Nemnuk allowance taken by the family members as Vetan, meaning remuneration, for services rendered to the deity and for their own sustenance. The term Vetan therefore signified payment for service rather than an indication of ownership. Historical evidence from the period spanning 1774 to 1800 demonstrated that the ancestors of the appellant consistently regarded themselves as servants of the deity, arranging the income in a stable manner so that the deity could enjoy its own property while the servants received regular payment. Later, when the Inam Commission was formed to investigate the jagirs and inams that had come under the jurisdiction of the East India Company, the legislature enacted Act No. 1 of 1852. The Commission, purportedly established under that Act, was tasked with inquiries as prescribed by the statute. The Assistant Inam Commissioner, acting in the years 1857 to 1859, concluded that the particular inam in question was a personal inam and ordered that it be recorded accordingly. Dissatisfied with that determination, Damodar appealed to the Inam Commissioner, seeking a correction of the record and contending that the inam should be classified as a Devasthan inam rather than a personal grant.

In the appeal, the petitioner argued that the inams should be recorded as Devasthan inams rather than as personal inams. The appeal, identified as Exhibit D-643 and dated 5 March 1858, contended that the mokass Amal as well as the jagir and Sardeshmukhi in the villages had been granted for the expenditure on account of the Shri. The petitioner relied on the Sanads which stated that the Amals (revenue shares) were intended for worship and for Naivedya, the food offering, to the Devasthan of Shri Venkatesh. He referred to the earlier documents previously considered and maintained that the order of the Assistant Inam Commissioner was erroneous because, under Rule 7 of Schedule B to the Act of 1852, the inams ought to be recorded in the name of the deity, not under Rule 3 as the Assistant Inam Commissioner had ordered. The difference between the two rules had already been explained, and the proviso (6) to Rule 7 expressly provided that no personal inam could be recorded permanently under Rule 7. The effect of the appeal was to seek a permanent recognition, on behalf of the deity, of its rights to the inam properties, without any share accruing to the family except for remuneration that the Pujadhikaris might receive from time to time in accordance with the Tahanama and the Tharav Yadi of earlier times. The Inam Commissioner accepted this contention; after examining all the Sanads produced, he ordered that the order issued by Meherban, the Assistant Inam Commissioner, be annulled and that, under Section 7 Supplement No 2 of Act 11 of 1852, the remaining portion of the village be held as a perpetual inam with the Devasthan of Shri Vyankatesh, and that the management continue from generation to generation among the lineal male descendants of Timaya Gosavi, son of Ganesh Gosavi, and of Apatia, son of Konher Gosavi. Consequently, these documents aimed to obtain an in-favor recognition of the deity’s ownership. They also indicated that within the family of Bapaji Buva there existed hereditary Pujadhikaris or Shebaits of the deity who were entitled only to reasonable remuneration for their services. In 1907, when the plaintiff was still a minor, his mother gave a deposition as a witness. She testified that there were Annachatra and Sadavarat Kulkarni Inams and other Inams, but that all of them belonged to the Sansthan and that there was no private or personal property at all. She described even the gardens as belonging to the deity and not to any individual. The guardian maintained the same position throughout the plaintiff’s minority. Earlier, in 1899, the father and uncle of the present appellant stated that the village of Savergaon, one of the Devasthan’s properties, was not in private ownership of any person. They declared that except for the Shri Vyankatesh deity, no one else had any right, interest, or ownership in the village and the Sansthan, and that they were merely managers of the Sansthan, looking after its affairs and managing the village accordingly.

In the earlier testimony it was declared that no individual held private ownership of the village of Savergaon. The declaration was phrased as follows: “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 statement had been recorded in Suit No. 515 of 1898. Later, in Exhibit 700, the written statement of the plaintiff’s guardian in Civil Suit No. 295 of 1920, dated 5 November 1920, reiterated the same position. The guardian denied that Damodar Timmayya or any other particular individual ever owned the Balaji Sansthan in a personal capacity. He explained that the temple of Balaji belonged to the Sansthan and that several villages had been granted to the Balaji Sansthan solely for temple purposes through Sanads issued by the British Government, while the defendant’s family served only as the vahiwatdar, or caretaker. The statement also asserted that Damodar Timmayya possessed no separate property of his own. A similar declaration was made in the application of Ramabai, the mother of the present appellant, filed as Exhibit 702. Although those later documents could not bind the appellant because he was a minor when they were executed, the appellant himself, on 1 December 1927, affirmed that the village in dispute, Savergaon, was a Devasthan inam alienated to the deity Shri Venkatesh, who was the true owner. He referred to the family settlement of 1801 and observed that the other villages had likewise been given to the deity. He explained that in a Devasthan inam the idol functioned as the grantee and actual owner, and that human beings managed the property only on the deity’s behalf. Accordingly, he claimed to be merely the manager of the village for and on behalf of the deity Shri Balaji, and he made no claim of private ownership. To support this contention, he cited the Land Alienation Register and produced a certified copy showing Shri Venkatesh listed as the alienee. Exhibit 634 presented the plaintiff’s genealogy in which Bhagwant Annaji, the uncle of Damodar Timmayya, recorded that Timmayya had acquired nine villages and was the founder of Puja Naivedya, Utsav, Annachhatra and Sadavarat dedicated to Shri Venkatesh, while also stating that the villages were grants to the deity. Similar admissions appeared in Yadi Exhibit 626 dated 15 December 1886, a communication from the Mamlatdar to Krishna Rao Damodar, and in letter Exhibit 199 written by the plaintiff to Mankarnikabai, the wife of Krishna Rao Damodar, in 1922. In several suits filed by other parties, the defendant was described as “Shri Venkatesh Balaji Sansthan, Nasik, through manager,” indicating that the appellant represented the manager of the owner, namely the deity. Finally, the appellant himself had authored a history of the Sansthan, reproduced as Exhibit 642, which drew on original documents he supplied. That history, prepared in 1931, recounted the idol and the temples and narrated how the Peshwas and various Sardars had, over time, granted villages to “Shri” and dedicated them to the deity. The history repeatedly emphasized that the Sansthan belonged to the deity and that the Timaya Maharaj family served only as managers and administrators, with the management not being comparable to that of private property.

The history was prepared by the appellant himself and was written using original documents that he had supplied. It was dated 1931, and in his deposition the appellant admitted that he was intimately connected with both the writing and the publication of this work. This history is recorded as Exhibit 642. The document gives a detailed account of the idol and the temples and describes how, from time to time, the Peshwas and various Sardars granted villages to “Shri” and dedicated those villages to the deity. Because the document is lengthy and the admissions appear in many places, the Court found it necessary to state the conclusion expressly. The document declares that the reader will observe that the sansthan belongs to the deity and that the members of the house of Timaya Maharaj are merely the managers and administrators of the sansthan, and further that its management shall not be like that of private property. As a consequence of the Faisalnamas of the Inam Commission, which are set out in Exhibits 135-144, 634 and 644, the record of rights shows the deity as the owner and the jagirs and inams as Devasthan. Counsel for the appellant argued that these admissions merely prove that the entire Balaji Mandir establishment was described as a “sansthan” and that ownership lay with the family members. The Court could not accept this contention, because it ran contrary to the plain tenor of the documents. In those documents the family’s ownership of the temple, the deity and the deity’s properties is not only unacknowledged but expressly denied. Instead, the consistent assertion has been that the family members are only servants of the deity, receiving remuneration for their services, and that ownership resides solely in the deity and in no one else. In view of these admissions, the question of the burden of proof became academic; if any burden existed, it lay on the appellant to overturn the admissions by presenting cogent and convincing evidence that they were erroneous and should not be accepted as proof. The admissions are two-fold: they relate to the nature of the properties in dispute and to the nature of the idol. Added to this are the decisions of the Inam Commissioner regarding the villages, which were recorded as Devasthan inams at the instance of Damodar, who had appealed against the order that recorded them as personal inams. The importance of the Inam Commissioner’s decisions has been considered before the Judicial Committee in a series of cases. One illustrative case is Arunachellam Chetty v. Venkatachellapathi Guru Swamigal, where the Judicial Committee, while dealing with the Inam Register for the year 1864 produced for its inspection, attached the utmost importance to the register. It observed: “It is true that the making of this Register was for the ultimate purpose.”

In this case the Court observed that the purpose of preparing the Inam Register was to determine whether particular lands were exempt from taxation, yet the preparation of that Register represented a substantial act of the State. The Register and its contents had been examined through detailed reports and minutes, and the Inam Commissioners, acting through their officials, had conducted on-site enquiries, heard evidence and examined documents concerning each individual property. Consequently, the Government was not only furnished with a conclusion on the tax-free status of the land but also with a statement of the history and tenure of each property. While the Court did not doubt that such a report could not supplant authentic evidence presented in a specific case, it held that where no such evidence was available, the Board could not fail to give the utmost weight to the information recorded in the Inam Register as part of the property’s historical record. The nature and extent of the right and interest in the land were therefore derived from the Inam Registers and the preceding enquiries. It was consequently doubly necessary for the appellant to produce before the Court every document in which his title had been created, recognised or confirmed. The appellant, however, had filed only a selective set of documents and had refrained from introducing all material that was in his possession as late as 1931. The Court noted that in 1931 the appellant had caused a history of the Sansthan to be published, a history that referred to numerous documents which had not been produced in the proceedings. The learned judges of the High Court had also highlighted this omission and had held that, because the appellant had failed to prove conclusively that a superior title existed beyond that which the Inam Commission had recorded, no reliance could be placed on the documents that had been exhibited. The Supreme Court therefore examined whether that statement was correct in all the circumstances of the present case. The property under dispute comprised eleven villages, cash allowances and other urban properties, each of which would be discussed separately. All eleven villages had been examined by the Inam Commission, and the decisions were uniform except in one instance where a technical ground impeded a uniform outcome. The Court was shown documents relating to two of those villages as an illustration of the type of title claimed by the appellant. It was noted that the appellant himself had made no distinction between the various properties and had asserted that all were held by him under an identical title. At the hearing of the appeal the appellant attempted to demonstrate that the properties had been granted to him in consideration of the service of the deity; however, that claim was not the one he had advanced before the District Court under the Charitable and Religious Trusts Act nor in his plaint. Consequently, the Court concluded that the appellant could not now alter his pleading concerning ownership and that the matter must be decided solely on the contention that the properties were private.

The Court noted that the appellant could no longer vary his plea concerning ownership and that the dispute had to be resolved solely on the claim that the properties were private. The first group of documents examined related principally to Vihitgaon and were numbered as Exhibits 200 to 206. The initial four exhibits comprised letters addressed to Mukadams, Kamavisdars and Mamlatdars ordering the continuation of the Mokasa, Sahotra or Inam in favour of Timayya, to whom the village had been allotted as Madade-Mnash. The earliest of these letters dated from 1714 and the latest from 1755. Exhibits 204 and 206, however, referred to still earlier sanads, and Exhibit 206 specifically mentioned the original grant made by the ruler Mahomed Shah under his own seal. Those earlier sanads, together with some sanads of the Peshwas cited by the Inam Commission in Exhibit 135, had not been produced before the Court. None of the documents presented disclosed the terms on which the original grant had been made, and, because the evidence was scant and inconclusive, the High Court was deemed justified in accepting the Inam Commission’s finding that the grant was made to the Devasthan and therefore constituted a Devasthan Inam. The next village for which documents were shown was Belatgaon. As with Vihitgaon, the papers related to Belatgaon were of later dates and the original grant was not produced. The Inam Commission likewise concluded that Belatgaon was a Devasthan Inam, and the documents before the Court did not contradict that conclusion. The papers consisted merely of letters and so-called sanads directing the Mukadams, Kamavisdars and Mamlatdars to remit a portion of the revenue to Timayya. Counsel for the appellant asserted that the documents concerning the other villages were of a similar nature, and upon examination the Court found this to be correct. In every order issued by the Inam Commission for each village, there was a reference to other, earlier sanads that had not been produced before the Court. The respondents, in the Court of First Instance, had served a notice on the appellant requiring the production of all sanads that the appellant acknowledged possessing and that were listed in Exhibit 642. The appellant avoided compliance by claiming that the demand was vague. In view of these circumstances, the Court held that no misinterpretation of any documents could be said to have occurred. Conversely, the judgments of the two lower Courts proceeded on the basis that the appellant, having had an opportunity to rebut the Inam Commission’s findings and the admissions he had made over time, had suppressed the original documents that allegedly conferred the villages upon him and had instead produced only later letters and so-called sanads, which were essentially pay-orders intended to perpetuate the privileges originally granted by the earlier rulers. Accordingly, the Court did not find any misconstruction of the documents such as those produced.

In this case, the Court observed that the documents that had been presented by the parties, together with the admissions made and the revenue records, had not been contradicted. The Court then turned to the cash allowances that had been granted from the villages to the predecessors of the appellant who held title to the lands. These allowances were documented in a few hundred letters that were periodically addressed to the Mukadams, Kamavisdars and Mamlatdars for the purpose of paying arrears of annuities, Varshashan, and Aivaj to Haribakthi Parayana Rajeshri Timayya Gosavi. Almost every letter mentioned that the original sanads had been filed, but the original sanads themselves had never been produced. By contrast, the respondents produced some of the letters to demonstrate that the original grant had been made to the Devasthan and that certain letters specifically referred to expenses of “Shri.” The documents relied upon by the respondents were exhibited as Exhibits 228, 229, 639, 230, 231 and 233. The respondents linked these exhibits with the history of Shri Venkatesh Balaji Sansthan, shown in Exhibit 642, to argue that similar documents existed concerning the grant of all the villages and the cash allowances, yet those documents remained unproduced.

The appellant had admitted in Exhibit 151 that his ancestors had received the grants in order to perform puja, arch, Sadavarat and other rituals for the deity. From these circumstances, the two lower courts had concluded that the grants could not be regarded as personal grants to an individual; rather, they must be seen as grants made in favour of the deity or the Sansthan. The appellant also asserted that all the properties, including the temple and the idol, were held in the name of “Sansthan,” and that the term was used comprehensively to describe both the properties and the Vahiwatdar. The Court formed the opinion that the appellant was aware of the weakness of his position because the grants to the Sansthan or to “Shri” could not be treated as grants to a private person. Consequently, the appellant incorporated himself and the deity within the expression “Sansthan” so that he could argue that the grants to the Sansthan were effectively grants to him as well as to the deity.

The appellant further contended that the case was covered by the Privy Council decision in Babu Bhagwan Din v. Gir Har Saroop. The Court held that the cited case was wholly different. In that case, a single grant had been made to an individual and his heirs in perpetuity, without any contrary evidence. The Judicial Committee had interpreted the grant as being in favour of the individual, stating that it was made to one Daryao Gir and his heirs in perpetuity, and observing: “Had it been intended as an endowment for an idol it would have been very differently expressed; the reference to the grantee's heirs, and the Arabic terminology ‘naslan ba'da naslin wa batnam ba'da batnin’ (descendant after descendant and generation after generation) are not reconcilable with the view that the grantor was in effect making a wakf for a Hindu religious purpose, even if.” The Court therefore concluded that the reasoning in Babu Bhagwan Din could not be applied to the present facts.

The Court observed that, although the origin of the idol in the earlier case was not fully traced, the grant itself revealed the presence of a sanyasi possessing an idol in a mud hut, and that the grant had been made to that individual rather than to the small temple. The history of the deity in question is well known and illustrates the pattern by which such grants were periodically issued; consequently, applying the earlier decision to the present facts was deemed impossible. In the Court’s view, the appropriate principle to apply was the one articulated by the Privy Council in Srinivasa Chariar v. Evalappa Mudaliar (2). The Privy Council had observed: “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.” (1) (1939) L.R. 67 I.A. 1. (2) (1922) L.R. 49 I.A. 237. Following this principle, the appellant contended that the properties for which the High Court had inclined to hold they were private should at least be formally declared private properties. The appellant also moved this Court to join the deity as a party to the appeal and sought an order directing the Court of First Instance, in the presence of the deity, to determine whether those properties were private. The Court deferred consideration of those specific requests because the immediate issue was whether the public possessed any right of worship in the temple. Both the High Court and the Court of First Instance had concluded that the deity and the temple were public. The High Court correctly referred to the dictum of Justice Varadachariar in Narayanan v. Hindu Religious Endowments Board (1). In that case, arising under section 9 of the Hindu Religious Endowments Act, a “temple” was defined as a place used for public religious worship and dedicated to, or for the benefit of, the Hindu community or any section thereof, as a place of religious worship. Justice Varadachariar explained that the intention to dedicate a place for public use, or for use by the public as of right, must be inferred from the nature of the institution, the nature of its users, and the manner in which the institution is administered. He further stated that once a long history of public usage for worship is established and a separate endowment in trust for the deity is proven, it is reasonable to infer that the institution was dedicated for use by the public, unless contrary evidence clearly demonstrates a private character.

In the Court’s view, once a temple is shown to resemble a public place of worship in its character, construction, layout and the deities installed, the institution must be deemed to have been dedicated for public use unless the opposite is proven. This presumption arises especially when the temple’s architecture, the arrangement of its various parts and the nature of the deities are comparable to those found in unquestionably public temples. Moreover, where a worship-paying public exists in the locality, it is reasonable to presume that the public has a right of use, unless there are clear circumstances indicating that the use was merely permissive or that the temple authorities exercised an arbitrary power of exclusion that would reveal a private character. The Court relied on the judgment reported in A.I.R. 1938 Mad. 209 to support the proposition that public use is presumed unless contrary evidence is shown.

The two lower courts concluded that the public possessed a right to the temple and its idol based on several observations. First, the temple building displayed a public character because a staircase led directly to the idol and the public were admitted continuously from seven in the morning until ten at night. There was no evidence that any member of the public was ever barred from worship, except for a single case where a family member was excluded for using abusive language toward the appellant’s mother. The public were openly invited to worship the deity, and no gifts or offerings were ever refused. Local merchants maintained a separate account, or khata, in the name of the deity and regularly contributed a portion of their earnings as kangi to the temple. The nature and scale of the ceremonies indicated that the deity attracted public interest rather than being a private family shrine; there were celebrations, utsavs and daily feeding of a large number of Brahmans and other devotees, and all visitors were provided meals during festivals. On festival occasions the deity was taken out in procession along a marked route, travelling in ten carriages for ten days, events that drew participants not only from Nasik but from other parts of the country. The daily routine of the deity differed from that of a family idol, as the appellant himself admitted that the idol was worshipped with Rajopchar. The temple also conferred hereditary inams on individuals who performed music or other services for the deity, and a collection box was placed at the temple inviting the public to make offerings. The Court noted that the Privy Council in Babu Bhagwan Din v. Gir Har Saroop had observed that the mere acceptance of offerings from the public is not alone a safe basis for inferring a public deity, but the extent and regularity of those offerings, together with the other circumstances described, strongly indicated a public right in the deity.

The Court noted that the mere fact that offerings were accepted from the public could not alone support a conclusion that the deity was a public one, but it observed that the scale and regularity of such offerings and gifts could fairly indicate not only the popularity of the deity but also the existence of a public right in it. The Court recalled that the Judicial Committee had been concerned with a single perpetual grant made to a Mahant and that the temple involved in that case was merely a mud hut. In contrast, the present temple occupied several acres, comprised a large structure, and included a Sabha Mandap capable of accommodating six hundred persons. The Court found it inconceivable that a temple of such magnitude could have been erected solely for the use of a single family. The continual use of the temple by the public for two hundred years, without any obstruction, had been established beyond doubt. The Court further observed that it was unusual for rulers to make grants to a family idol; the fact that numerous rulers had bestowed both land and cash allowances for the deity’s service and worship strongly suggested a public character of the trust. The extensiveness of the temple and the numerous grants made to it were therefore relevant circumstances for assessing the nature and scope of the public right. The Court also remembered that earlier documents referenced in the judgment mentioned special endowments for festivals—endowments that would not have been made if the deity were merely a family deity. The Gazetteer of Nasik District provided a detailed description of the temple and the deity, excerpts of which had been quoted by the two Courts below and which demonstrated that the temple was public. Moreover, the history of the deity prepared by the appellant himself (Exhibit 642) indicated a public right in the deity. The appellant, however, argued that other circumstances pointed to the deity being a family deity. Citing Dr Kurtkote’s opinion in the 1939 case (L R 67 I A 1), the appellant asserted that the idol of Balaji did not appear to be firmly installed, was placed on an upper floor, that householders lived in the temple, that daily worship was suspended on the occurrence of a birth or death in the family, and that the movable nature of the deity rendered it a family idol. Additionally, the appellant pointed out that the deity was sometimes invited to private residences for dinner during festivals, claiming this also indicated that the temple was private and that the deity was a family deity.

In order to determine whether the reasons presented by the appellant were sufficient to outweigh the evidence of the public character of the deity, the Court first examined a minor observation that the Balaji temple at Nasik lacked a dome or Kalas. This fact was admitted, but it was also admitted by Vasudev (P.W. 12) that the Balaji temple at Devalgaon Raja, which functioned as a public temple, likewise did not have a dome or Kalas. The same situation applied to other temples mentioned in the case. Consequently, the presence or absence of a dome or Kalas did not appear to be decisive, and no authority had been cited that treated this architectural feature as a conclusive indication of a public temple. The Court also noted that the idol had been recovered from a river and therefore did not require the consecration ceremonies that are normally necessary for a newly installed idol in a new shrine. Initially the idol was placed inside the house of Bapaji Buva at Juniar, and it was later removed from that location in accordance with instructions that the deity itself allegedly gave to Bapaji Buva’s successor. After its removal, the idol was installed at Nasik, where a large temple subsequently developed. The Court observed that certain parts of the temple complex were occupied by members of the priestly family without any objection from other persons. However, the size and extent of the building made it implausible to regard those residences as being within the temple proper, nor could the Thakurbari be considered part of a private dwelling. The Gazetteer description, which the appellant himself had introduced, clearly distinguished the temple from any residential quarters. Regarding the claim that the idol was installed on the first floor, the Court pointed out that a staircase led directly from the ground level to the sanctum, thereby providing direct access. Dr. Kurtkote acknowledged that the deity at the Bindu Madhav temple in Benares was also installed on an upper storey, although he explained that a solid stone pedestal extended from the ground to the first floor beneath that idol. No question was put to him about whether the idols in that temple were firmly fixed or movable. He further admitted that the text of the Prathista Mayukha did not prohibit installing an idol on an upper floor. In the Court’s opinion, the absence of any textual prohibition against placing a deity on an upper storey prevented drawing any inference that the temple was private.

The principal basis for the appellant’s assertion that the deity was a family deity rested on the claim that the idol could be moved from one place to another, and that it indeed had been moved. Evidence was presented to show that, in the early history of the Nasik temple, the priestly family (Pujadhikaris) took the deity on visits to various ruling chiefs. Documentary material was filed to demonstrate how arrangements were made for the deity’s journeys and how instructions were issued to all concerned parties to provide the necessary facilities. This evidence supported the contention that the deity had been, and could be, taken out of the temple for temporary purposes, reinforcing the appellant’s argument that the idol’s mobility indicated a family or private character.

All facilities for the deity were provided, and the record showed, and was expressly admitted, that whenever the deity was invited to private residences on festive occasions, a substitute idol was left at the main temple for the public to worship. The Court noted that each removal of the original deity was only for a limited time; after the festive event the deity was returned and re-installed in its regular abode. A similar practice was observed at the Jaganath temple in Puri, where the deity is periodically shifted for processions and subsequently brought back to its designated place. Dr. Kurtkote testified that an idol may be installed either in a movable form, termed “chala,” or in a stationary form, termed “sthira,” and that the Prathista Mayukha records this distinction. He further acknowledged that the mere ability of an idol to be moved from one location to another does not imply that the idol was never installed. No other authority was cited before the Court at the hearing to address whether an idol, once installed, could ever be moved, even when it has been installed in the movable form “chala.” The Court observed that while this question has arisen before the judiciary, there are precedents that provide guidance.

The Court referred to the decision in Ram Soondur Thakoor v. Taruck Chunder Turkoruttun (1), where the temple had been destroyed by river erosion at the site where the idol stood. The plaintiffs filed a suit seeking a declaration of their right to remove the idol to their own house and keep it there for the period of their turn of worship, and the trial court granted that declaration. On appeal, Justices Dwarknath Mitter and Ainslie intervened only to the extent that the lower court should have specified the exact period during which the plaintiffs were entitled to worship the idol before issuing the declaratory order, which they had done in favour of the plaintiffs. The appellate judges further directed that if the lower appellate court found that both plaintiffs and defendants were jointly entitled to worship the idol for any portion of the period claimed by the plaintiffs, then the lower appellate court should not permit the plaintiffs to remove the idol to their house at Khatra for that portion of time. The judgment indicated that although the plaintiffs were allowed to move the idol to their residence, they were required to return it, at their own expense, to the location where it stood at the time the suit was instituted. The learned judges qualified this judgment by noting that the case had not been contested on the ground that Hindu Shastras prohibited the removal of the idol. The Court also examined the decision in Hari Raghunath v. Anantji Bhikaji (2), wherein the temple involved was a public one. The High Court held that, under Hindu law, the manager of a public temple does not possess the right to permanently remove the image from the old temple and install it in a new building, especially when such removal is opposed by the majority of the worshippers. The Court found this observation noteworthy in assessing the broader question of the mobility of idols.

In this matter, Dr P. V. Kane was present and, during his oral submissions, he explained that the ancient treatise Pratishtha-Mayukha of Nilkantha together with other traditional works specifies that an image may be removed permanently only when absolutely unavoidable, for example when a river’s current carries the image away. He emphasized that in the present case the image itself remains whole; only the temple structure is in a dilapidated condition. Consequently, the image does not have to be taken away for repair work, and even if removal were required it would be only for a temporary period. He further asserted that, under Hindu law, a temple manager lacks authority to implement permanent removal of an image when a substantial number of worshippers object. While the appellant cited instances in which worshippers had consented to removal, Dr Kane maintained that permanent removal without an unavoidable necessity contravenes Hindu sentiment. (italics supplied) Subsequently, Justice Shah, with Justice Crump concurring, remarked that it was not contested that the current building was ruinous and that temporary removal of the image might be necessary to carry out essential repairs. Nonetheless, he questioned whether the defendant, in his capacity as manager, possessed the right to relocate the image to another building situated near the existing one. Even adopting the most generous interpretation of a manager’s powers, Justice Shah expressed doubt that a public-temple manager could lawfully execute the act he claimed—namely, shifting the image from its established position to a new structure. He observed that the image had been consecrated at its present site for many years and that the existing temple continues to stand. Removing the image and reinstalling it elsewhere would effectively create a new temple in place of the old. Although Hindu law may allow the installation of a new image as a substitute under certain circumstances, Justice Shah noted that the defendant had not demonstrated that the building’s ruinous state justified permanently moving the image to a new location. The Court clarified that the present suit did not address the issue of temporary removal required for repairs. The decision thus serves as authority for the principle that an idol cannot be permanently relocated to another site because such action would amount to establishing a new temple, whereas a temporary removal, if approved by the public for a legitimate purpose, is permissible. Finally, the Court referred to the case of Pramatha Nath Mullick v Pradyumna Kumar Mullick, wherein the deed of trust expressly prohibited the removal of the deity. The deed provides that the manager may only move the deity after providing and dedicating another suitable shrine of equal or greater value, and until such a replacement is effected the deity must not be removed from its premises.

The deed of trust created by Jadulal Mullick placed the deity known as Thakur Radha Shamsunderji in perpetual possession of Jadulal Mullick, his heirs, executors, administrators and representatives, solely for the purpose of locating and worshipping the deity within the specified premises and for no other purpose whatsoever. The deed further stipulated that if, at any future time, it should become expedient for Jadulal Mullick or his successors to relocate the deity, such relocation would be permissible only on the condition that they first provide and dedicate another suitable Thakur Bari of equal or greater value than the premises originally devoted to the deity. The provision expressly declared that, unless and until such a replacement Thakur Bari was offered and dedicated, the deity could not be removed from the premises for any reason. Moreover, the deed stipulated that if a suitable replacement Thakur Bari were provided and dedicated, the deity could be moved to that new location, but thereafter the deity could not be removed from the new location under any circumstances. This clause, as interpreted by the Privy Council, rendered the idol immovable except upon the fulfilment of the condition that an alternative Thakur Bari of comparable or higher value be made available for the deity’s worship.

The Privy Council, in analysing the trust provision, emphasised that the deities’ own will concerning its location must be respected, stating that when the proper and unquestionable administration of worship by the Shebait deems it appropriate for a family idol to change its location, the wish of the deity, expressed through its guardian, must be given effect. Accordingly, the Lords ordered the appointment of an impartial next friend who was to communicate directly with the deity and determine the appropriate course of action. The instructions subsequently received from the deity through this representative were then implemented. In the present case, the family deity was subject to a provision that allowed its removal to a more suitable Thakur Bari if deemed necessary, and the deity’s wishes were duly consulted. However, the judgment did not definitively resolve whether the idol may be removed in all circumstances. The most recent authority on this point, Venkatachala v. Sambasiva, held that when all worshippers who manage a temple collectively decide to construct a new temple because the existing structure is dilapidated and the site has become unsanitary and inconvenient, and there is no explicit prohibition against demolition, the court may not prevent the community from moving the temple and its image to a new site.

The learned judge examined the Agama and noted references to Prathista Mayukha made by Nilakanta, as well as to Purva Karana Agamam and Nirnaya Sindhu. Nevertheless, the judge placed reliance on certain passages taken from Purva Thanthiram authored by Brighu, on the Kamika Agama, on the Siddhanta Sekhara and on the Hayasirsha Pancharatra, and from those sources reached the conclusion previously stated. The operative result of that decision, the court observed, is that if the entire body of worshippers acts with a united mind, they may lawfully relocate an idol permanently to another dwelling place. In the facts of the present case, however, the idol was not permanently shifted except for a single occasion when it was taken from Junnar and installed at Nasik. As earlier pointed out in the citation (1) A I.R. 1927 Mad. 465; 52 M.L.J. 288, that movement occurred at the express request of the deity itself. Subsequent to that episode, the deity, which is kept in a removable form known as “chala,” has been taken out temporarily on numerous occasions for purposes such as processions, invitations to meals and visits to various parts of India, thereby enabling worshippers to express their devotion. This practice has continued for more than two hundred and fifty years and has never been challenged or objected to. A large crowd of devotees has invariably accompanied the deity each time it has been taken out temporarily, allowing the faithful to worship the deity at close range. The court described this as a custom that has attained recognition from antiquity and from the consent of the worshipping public. It was further noted that after each temporary journey the deity is returned to its original site, and that during any period of the deity’s absence a substitute idol is installed so that the temple is never without a divine presence. Considering these circumstances, the earlier authorities cited, and the additional observation that no textual authority was presented to oppose this conduct with the approval of the worshippers, the court found no basis to declare the temple a private sanctuary or to treat the deity as a mere family idol. The appellant, however, advanced a special argument concerning certain properties that he claimed were private. He relied on observations made by the learned judges of the High Court, who indicated an inclination to deem those properties private but refrained from issuing a declaration because the deity had not been joined as a party. The properties in question comprise jat inams, recently constructed entities identified as the Balaji temple and the “Shree Theatre,” together with an allowance paid in the name of Kulkarni, amounting to Rs. 24 per year. The court acknowledged that the appellant’s difficulty was real; he had chosen not to join the deity, either as a necessary party or at least as an appropriate party to the suit. The court remarked that had the appellant included the deity, and had the deity been represented by an impartial guardian, the guardian could have raised necessary pleas against the appellant’s contentions and likely would have produced evidence. Instead, the appellant attempted to mask his omission by asserting that the suit was one

According to section 1, rule 8 of the Code of Civil Procedure, it was necessary for the suit to include every party whose interests could be affected, so that any declaration issued would be both effective and binding. The Court observed that a declaration rendered against the interests of the deity could not bind the deity, even though the Hindu community as a whole might be bound by such a declaration. The appellant could have avoided unnecessary procedural manoeuvring if he had accepted the reasonable request of the respondents to formally bring the deity onto the record as a party. Instead, the appellant staunchly opposed that step and, only at a very late stage before this Court, filed an application seeking to join the deity. The Court considered that it was now 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 that the trial Judge had previously issued to him in his order. Moreover, the Court noted another impediment to reopening the case: the appellant had not distinguished between the various properties with respect to his claim of ownership, asserting that each piece of property was acquired and owned in the same manner as the others.

The discussion then turned to the specific property of the Balaji Mandir, which is situated on survey numbers 1353 and 1354. The land had been granted to one of the appellant’s ancestors by the Peshwa, as shown in Exhibit 571, and at that time three bighas of land were conveyed to Bapaji Buva, son of Timayya, because he was a “worthy and respectable” Brahman, for the explicit purpose of constructing a temple. The name of the Vahiwatdar appears in Exhibits 878 and 153, and the latter is a sanad issued by the Governor of Bombay confirming that the grant was free from land revenue. The original grant was clearly intended not for the Brahman personally but for the specific purpose of building a temple on the land. The Court reiterated its earlier finding that the public has a right in the deity and that the temple is publicly owned; consequently, the grant must be regarded as part of the deity’s property. It was significant that after the temple was erected, a sum of not less than one lakh rupees was paid to the Peshwas and other rulers to satisfy them. Because the declaration sought in the suit concerned a property that belongs to the deity, the learned Judges of the High Court could not have rendered a valid declaration in the deity’s absence. In view of the pleadings, the Court concluded that the declaration should have been refused without any adverse comment on the deity. A court, the judgment emphasized, should not decide matters that are beyond its jurisdiction or that pertain to issues better addressed in another suit between different parties. Accordingly, the Court held that no declaration could now be granted in respect of the Balaji Mandir property.

The Court observed that a board cannot be called upon to resolve questions that do not arise within its jurisdiction, even though such questions might be relevant in a different proceeding involving other parties. Consequently, the Court made it clear that it could not now grant any declaration concerning the particular property that had been before it. The next item placed before the Court for consideration was the “Shree Theatre,” in which the appellant asserted that he owned a one-third share. The appellant had filed extracts from the land-records register and had specifically drawn the Court’s attention to Exhibit 290, which was a deed of purchase, and to Exhibit 691, which was a municipal permission to construct a building on the land. The appellant was required to demonstrate that the theatre had been constructed with money that came from a private source and not from the income of the Devasthan. The appellant failed to produce satisfactory proof of this claim. In his explanation of the source of the funds, he referred to the sale of a certain property, stating that the proceeds from that sale had been used to finance the theatre. However, the case record indicated that the money obtained from that sale had been employed to purchase Balaji Vihar, and that the present suit was premised on the contention that the proceeds from the sale of Balaji Vihar were the monies used for the theatre’s construction. If that were the factual situation, the appellant should have produced evidence linking the theatre to the sale proceeds of Balaji Vihar and should have pleaded accordingly. The Court could not accept a mere argument in place of a proper plea supported by evidence, and it concluded that the appellant had neglected to present the necessary proof to enable a finding on this issue. The Court further noted that this matter suffered from the same deficiencies as earlier points, namely the failure to join the deity as a party to the suit and the failure to distinguish between different categories of property. Accordingly, the High Court should not have expressed any adverse opinion about the deity when the deity was not a party to the proceedings. The same observation applied to items three through ten listed in the first part of Schedule A annexed to the plaint, which related to three survey numbers in Belatgavan, Deolali, and other jat-inams. The Court found that examining the detailed evidence concerning those properties would serve no useful purpose in the absence of the deity as a party. It was also pointed out that the appellant had not kept separate accounts for those properties and had not distinguished them from the other properties previously mentioned. A trustee, the Court explained, must not intermingle private assets with trust assets, because doing so imposes a heavy evidentiary burden on the trustee to prove that any particular asset belongs to him personally rather than to the trust, as explained in Lewin on Trusts, 16th edition, page 225, and reflected in the observations of Srinivasa Chariar v. Evalappa Mudaliar. As a result, the declaration that the appellant sought—asserting that the temple, the deity, and the plaint-property were all privately owned—was correctly refused by the lower courts. The trial judge had previously issued a declaration that defendants 1 to 4 were entitled to customary rights, a finding that the Court affirmed as appropriate under the circumstances.

The Court observed that the question of worship and maintenance of the deity could not have been decided by a detailed finding, because such a determination was unnecessary in a suit of this nature and because issues relating to the personal rights of individuals should not have been examined in a proceeding instituted under section 5(3) of the Act. The Court noted that the appellant bore partial responsibility for the controversy, having framed his case on the premise of private ownership with all rights purportedly vested in himself. Consequently, defendants 1 to 4 not only contended that the appellant was merely a manager of the property but also asserted their own rights in the same property. The Court expressed the view that the lower courts could have avoided addressing the defendants’ individual rights, since the essential question for them was only whether the property constituted a trust of a public character. However, the Court declined to give any further direction on that issue, because the plaintiff’s suit had been dismissed in its entirety and any additional observations might provoke further litigation, which would not serve the interests of the deity. The Court cited the authority in Srinivasa Chariar v. Evalappa Mudaliar (1922) L.R. 49 I.A. 237 in support of its reasoning. Respondents 6 and 7 then raised the matter of costs before this Court, alleging that the trial judge had originally ordered two separate sets of costs, an order which the High Court subsequently altered to a single set. The Court held that those respondents should have raised an objection to the High Court’s alteration at the time, and in the absence of such a cross-objection, no relief could be granted to them. For the same reason, the Court refused to grant any relief to respondent 7, noting that the finding that he possessed no right to perform the seva or to receive the emoluments attached to that right, a finding that remained unaltered for respondents 1 to 4, had not been set aside as it had been for respondent 6. Since the Court considered these cost issues to be unrelated to the original suit, it chose not to entertain them further. Accordingly, the appeal was dismissed. The appellant was ordered to personally pay the costs of respondent 1, while the remaining respondents were each directed to bear their own costs. The appeal was thereby dismissed.