Balram and Others vs Durgalal (Deceased) by L.R. Bhauribai

H.R. Krishnan, J.

This is an appeal by the Plaintiffs suing on the authority the panchas of the Hariyana Gaud Brahmin community of Indore from the judgment of dismissal delivered by the Civil Judge in a suit for the removal of the Defendant, a pujari or shebait, and the framing of a scheme, filed with, the sanction of the Advocate-General u/s 92, CPC The suit was also framed on the alternative-the necessity of which will presently appear- that in the event of the Defendant being found to be not a trustee or shebait but just an appointed pujari-servant for his removal on account of improper conduct and the claiming of the temple as his own property. It was dismissed on different grounds, primarily on that the particulars of the foundation of the temple were not clearly ascertainable, and further the Defendant''s father and brother having openly claimed to be the full owners and not the pujaris as long ago as in 1933, they had prescribed title to themselves and accordingly the suit was barred.

Though the arguments have been very lengthy, the questions for consideration in this appeal are comparatively simple; (1) the house which had been converted into the temple, having been purchased by the panchas in 1914, whether at any time the title was transferred to the pujari of that time, namely, Shrinarayan; (2) how far the broad lines are ascertainable of the process by which in 1914 and 1915 the house was adopted by constructional modifications for the purpose of a temple and an idol of Satyanarayan installed there; (3) the terms and conditions under which Shrinarayan was put in charge and possession of the establishment.

On law, the questions are: (4) whether on the ascertained system according to which the panchas put Shrinarayan in possession and charge there was a vesting of the property in the deity Satyanarayan, and Shrinarayan became the trustee or the shebait; or the temple having vested in the idol the panchas were the trustees and Shrinarayan their servant (pujari); or there was no vesting, and the temple continued to be the property of the panchas and Shrinarayan was the servant of the panchas as owners. In this connection, the claim set up by the Defendant in this case, namely, that at about that time the title itself passed on to Shrinarayan in some manner will also come up for examination; (5) whether the results of the litigation in the late twenties between the panchas on the one side and Shrinarayan and his elder son Bherulal alias Bhairavanand on the other, amount to res judicata and if so, what is the finding that now binds the parties; (6) whether the pujaris of that time, namely, Shrinarayan and Bhairavanand had proclaimed adverse title in proceeding before the municipal authorities; (7) whether on the basis of their being hereditary pujaris it is open to servants while continuing in possession of the property in that capacity to set up a title adversely to the employers; (8) on the basis of their being trustees, whether there can be no limitation, because of Section 10 of the Limitation Act; (9) whether apart from limitation properly so called, trustees inducted on property in a fiduciary capacity and continuing in possession in that capacity, can at all be heard to set up a title of their own against those who created the trust.

A brief account of the history of this establishment is necessary before we can understand the problems involved. About the actual happenings in 1914 or 1915 the details given in the oral evidence of either party are not particularly helpful for the very simple reason that they were deposing from memory (if at all they had remembered anything) after the lapse of nearly half a century. The pancha''s own witnesses are straightforward enough to admit that the accounts of the founding of the establishment have not come down, and for the most part their impressions are general and vague. The Defendant''s witnesses have no better reason to remember the particulars but they have tried to be somewhat more categorical. Either way, these details are not of much significance because the broad lines are clearly ascertainable both on account of the natural probabilities and on account of the relevant documents, two of which are before us; two others of the nature of appointment orders or directions given by the panchas to Shrinarayan have not come, though their existence and contents had generally been admitted by Shrinarayan himself.

Early in 1914 the panchas purchased this building for a consideration of Rs. 500 mentioning in the sale deed itself that it was being acquired for the construction of a temple of Satyanarayan and for arranging for the worship of that idol. This was on 5-3-1914, the panchas taking possession immediately. The original deed has not been produced by either party but a certified copy from the registry has been filed as Ex. P/2-A. Actually the Plaintiffs alleged that while putting the pujari in charge, all the connected papers and presumably the sale deed also, were made over to him. Subscriptions were collected at about that time and the sum of Rs. 500 which was at the first instance paid by one of the members of the community was later on recouped out of the subscriptions. From the same source presumably came the other expenses such as those for the reconditioning of the building from a residence to a temple by the building of platforms, entrances and the like, the acquisition and transport of the idol-it is said-from Jaipur and its installation with the usual ceremonies that must have cost some money. Naturally, after this lapse of time no details either of the total expenses of those on individual items, except of course the purchase of the building, have come to us. The subscriptions too we are not told have been raised exclusively from the Hariyana Brahmin community; we cannot be certain, but it is quite likely that generally they came from the Hindus of the locality Hariyanas and non-Hariyanas alike. This much is certain and it is not in the statements either of the Defendant or his witnesses that any part of the expenses came from Shrinarayan himself. Still there is an alternative defence averment of benami, and a pleading that Shrinarayan made the temple out of his own earnings. He came on the scene at about Baisakh Sudi 3, Samvat 1971, let us say, sometime in April 1914 within a month or so after the purchase of the building, the date according to him of the first direction or orders to him issued by the panchas. Then onward it if quite likely he was associated with the work of reconditioning, bringing the idol and arranging for the installation. In fact one of the witnesses on the Defendant''s side goes SO far as to say that he brought the idol from Jaipur; though as evidence this statement cannot be verified, it is not unlikely that the pujari-designate was sent to Jaipur or whichever other place it was from where the idol was to be brought. It is equally likely that the same pujari assisted in the ceremonies that followed resulting in the final installation. The whole process should have taken sometime; but we note that by the end of that financial year (1914-15) or immediately after this the pujari was named in the municipal record as the person in possession of the temple.

Sometime after the completion of the ceremonies of installation and as the establishment began to run in its routine manner a document was executed jointly by the panchas and by the pujari. This has been produced from the custody of the former and marked as Ex. P/1-A. Some Suggestions have been made by the Defendant that this document may not be genuine and further that it has no effect; we will examine this later on. On the face of it, it is not only genuine but also its existence and contents were admitted by Shrinarayan in a formal written statement in 1925 to which also reference will be made in time. It is to the effect that the panchas were appointing Shrinarayan and Bherulal (his eldest son) as the pujari of this temple with a direction that they might continue to do the work of pujari from generation to generation ("Jaya-Jamata"). They were to collect all the offerings and incur out of this income all the expenses on maintenance of the building and the temple and on such repairs as might become necessary and appropriate the balance. As long as he behaved well and discharged his duties the panchas would not disturb him. If, however, he misbehaved or went against the panchas he would be dealt with. If at any time the income was insufficient to meet the cost of repairs he could approach the panchas who would make good the deficiency of funds. This document is dated Jeth Badi 9 Samvat 1972, let us say, sometime in May 1915.

About a year later on Ashadh Sudi 10 a written direction had been issued to the pujari as stated by him in his written statement in a suit in 1925, this was only a repetition of the directions given in April, 1914. The Defendant has not produced this either just as he has not produced the earlier direction given in April, 1914, This by itself is of no significance because Shrinarayan states that their contents were substantially to the same effect as the document before us Ex. P/1A.

Nothing unusual seems to have happened for about ten years. The locality seems to have become more prosperous and Satyanarayan being the favourite deity of the business community the offerings seem to have been quite generous. The pujari went on maintaining the temple, that it, incurring the expenses incidental to the worship, paying in addition for the repairs as they fell due from time to time. As far as is ascertainable at this distance of time there was no occasion for him to approach the panchas for any additional grant for the repairs on the ground that the income from the offerings was insufficient. By 1925 the '' pujaris 6f that time, namely, Shrinarayan assisted by his elder son Bherulal (who also has called himself Bhairavanand in some papers) had alienated at least a section of the community and some at least of the panchas. It is neither possible nor necessary for us at this stage to ascertain what proportion of the community had been so alienated; but suffice it to-day that in 1925 some of the panchas ostensibly acting as representatives sued for his removal. Nothing came out of this suit because immediately on summons the pujaris took the position that they were the trustees of the religious endowment, and accordingly no suit was possible without the permission of the Advocate General. Now a fresh suit was brought (No. 64 of 1927) by the same Plaintiffs even now without the Advocate-General''s sanction but after applying for the same. The happenings in this suit may have to be noticed at some length because the Defendant has averred that the findings there are res judicata though, they turn out in effect more inconvenient to him than the first alternative position. Any way, the trial Court having held the suit to be premature the appellate Court which at the first instance was a single Bench of the Indore High Court dismissed the appeal holding that the Plaintiffs should have waited and filed the suit after obtaining Advocate-General''s sanction. Even there was an alternative claim that the suit was of a kind which did not need the permission of the Advocate-General. The single Bench rejected it. Now a second appeal as it was then called-was filed before a Divisional Bench of the same High Court where the crucial question was whether the Defendants in that suit were pujaris appointed by the panchas themselves, or whether they were the trustees. On the first alternative the Advocate-General''s sanction or permission would not be necessary; on the second it would be. The Divisional Bench which was the Highest Court in that State at that time decided-

We have to see whether Section 92 applies to this case. The deed on which reliance is placed as creating a trust is unregistered and so inoperative. If it does not create a trust the position of Shrinarayan is DO better than that of a pujari. The Defendant No. 2 Bherulal is his son and so in no better position than his father. If the deed is admitted into evidence as not creating a trust he may be in an equal or worse position then his father according as the deed is interpreted to create a life or hereditary office of pujari in Shrinarayan or his family. Since no decision has been given on the merits by either of the two lower Courts it is not necessary to express our opinion on this point.

The Defendant urges that this is res judicata to the extent it has been held that there was no trust, but not res judicata that Shrinarayan and his son were pujaris either for their life-time or on a hereditary basis. This is odd because this works out a third alternative. One can understand an argument, though we may not agree with it, that the phrase "not necessary to express our opinion on this point" covers all the issues mentioned before it, including the one whether they were trustees or pujaris. If as we are inclined to believe the only point left open is whether there was a hereditary office then the previous finding that there was no trust and these men were pujaris would be resjudicata. The Plaintiffs have framed their suit so as to be compatible with both alternatives the uncertainty being not in regard to facts but the legal effect of the circumstances set out above. We shall come to this point again in course of this judgment.

But as far as that suit was concerned it went back to the trial Court. There the question for investigation was not whether these two were the owners or were trustees or pujaris or whether they were pujaris for life or pujaris on a hereditary basis; it was, whether on the basis of their being hereditary pujaris their removal was desired by the larger part of the community the panchas of which had appointed them. The matter going up again before the High Court after the dismissal of the suit it held,-

The suit was to evict the Respondents who are pujaris of the temple alleged to belong to their community on the ground they were fighting with the panchas, living in grahasthashram and not respecting the authority of the panchas...Instead of going through all the phases of the suit which are mentioned in the judgment of the lower Court it may suffice to say that the trial Court dismissed the suit on the ground that whereas 67 members of the community were against the filing of the suit only 34 were in favour of the Appellants (plaintiffs)...Where there is a positive majority of the dissidents as in the present ease it would be obviously a misnomer to call it a representative suit of the community... Usually in communal cases it is the voice of the majority which prevails or which ought to prevail. In the present case the basis of the title of the Appellants was that the majority of the community permitted them to bring the present suit which was falsified by the evidence on record on their behalf...The present case is not one involving questions of communal property and its funds; questions of that kind which are prima facie for the benefit of the whole community but one of personal choice regarding the retention or otherwise of the incumbent pujaris. This is purely a matter admitting decision by the wish of the majority. The Courts below were right in rejecting the prayer....

By the time this round of litigation ended it was 1931. There was altogether no decision that the temple belonged to Shrinarayan''s family. In fact it was not even his case there. All that and his son had contended was that being pujaris whom the majority of the community wanted, they should not be removed at the instance of the minority. The Court not having removed-ed them they continued as before. However, the success for what it was worth in this litigation gave them some false notions as to their rights. Soon after there was need of some repairs and they approached the authorities concerned. This must have happened before 1925 also though we do not have any past record of hitch of controversy between the pujaris and the panchas. This time the pujaris made the prayer as if the temple was their property. Hearing of it the panchas entered protest and urged that the sanction for repairs should be granted in their name. Now the authorities concerned refused to decide anything which they said was the province of the Courts but permitted the pujaris to do the repairs because they were in any view of the matter in actual physical possession of the temple. This has to be noticed as in the instant suit it is urged that there was an assertion of adverse title as long ago as 1933 by the pujaris of that time, and therefore the present suit in 1952 is time-barred. We will come to that again at the proper place.

Soon after this incident Shrinarayan died, closely followed by Bherulal alias Bhairavanand, and in the manner mentioned in Ex. P/1-A the present Defendant Durgalal-the second son of Shrinarayan became pujari. It may be noted even here that during the pendency he is also dead and is now represented by his widow though there is a suggestion in the record that there is some male relation, whether or not properly adopted, who is discharging these functions; but that was after the commencement of the suit. Till 1949 again nothing particular happened, the pujari for the time, namely Durgalal appropriating the offerings, maintaining the temple and doing the repairs whenever necessary. It is suggested that some time about 1946 repairs or reconstruction on a comparatively large scale were done with the contribution from some worshippers. This by itself is not unlikely. The contributions again came not only from the Hariyana Brahmins but from the body of Hindu worshippers who seem to have fancied this temple and showed generosity in their own manner. It is of course common ground that all Hindus whether or not of the Hariyana community are given free access and rights of worship here.

Friction again started in 1949. How exactly things shaped to the climax is not known; but on one occasion when the panchas wanted to meet in the hall of the temple for discussing suitable arrangements for the education of girls of that community the Defendant turned them out and refused to let them collect. Now for the first time during his office this Defendant obstructed them, not because it was in his view inappropriate to hold the caste meeting in the temple, but that the temple was his private property and he could admit or turn out whomsoever he liked. This was of course a flagrant assertion of adverse, title. At about the same time the pujari had diverted parts of the building from the purpose for which they had been constructed or acquired and had inducted shopkeepers-tenants. The panchas noticed him and on his persisting in the attitude of defiance, brought this suit after obtaining the permission or sanction of the Advocate-General. In view of their past experience in the litigation in the twenties they gave a formal order of appointment to three of their members to take legal action including the filing of the present suit which was accordingly filed on 22-7-1952. Having set out the facts they have mentioned the terms on which they had appointed the pujaris, though in the plaint itself no reference is made by date to the exhibit now filed as P/1-A but its contents are mentioned in paragraph 5:

The Defendant''s father Shrinarayan and after him his son Bhairavanand and after Bhairavanand''s death the Defendant himself had been appointed pujaris for the worship and the management in the temple. They were to meet these expenses from the offerings (chadhotri) coming in the temple.

Upon receipt of summons the Defendant wanted fuller particulars whereupon the Plaintiffs gave all details vide statement under Order 6, Rules 4 and 5 (Ex. D/3 dated 5-12-1952). In this they make express mention of the document dated Jeth Badi 9 Samvat 1972 and also the admission in that connection made by Shrinarayan himself in his written statement in the Suit No. 618 of 1925. Filing his written statement about nine months after the particulars had been supplied the Defendant is completely silent in regard either to the instrument of Jeth Badi 9, Samvat 1972 or the admissions in the written statement referred to. However, the position taken is-

This temple is the private temple of the Defendant and nobody else had any right except with the permission of the Defendant The house in dispute is the self-earned property of the Defendant''s father and he acting on his own founded the temple and was in possession on his own title (malikana swatwa) and after him the Defendant had been in possession without break and in management of the temple in the exercise of his own proprietary right. Further, the Defendant''s right over the said property has become perfect by exercise of adverse possession... Alternatively, without prejudice to the foregoing the Defendant claims that it was a benami purchase by the panchas with the consideration fully paid by the Defendant''s father and the panchas acquired no right simply because the sale deed was in their favour.

we have set this out because in course of the argument on behalf of the Defendant something like a via media was suggested, namely, that the terms on which the pujaris had been appointed made their position, nearly though not fully, the same as that of full owners. This of course will be examined in time.

The Plaintiffs'' basic position was that they had met the possible argument that a trust had been created with the Defendant as the trustee by getting the sanction of the Advocate-General. At the same time they had taken notice of the fact that on an earlier occasion the Defendant''s predecessors had been held to be nothing more than pujaris or servants appointed by the panchas. Accordingly they pleaded-

In the event the Court finds that the Defendant is not a trustee and that he and his father and his brother were only servants appointed by the Plaintiffs, the latter have got the right to remove him from the service and pray that this relief might also be given.

Thus the Court was called upon to consider the suit either as one for the removal of the Defendant working in the capacity of a trustee for the deity Satyanarayan; or, the Defendant not being the trustee but only a servant, that is, the pujari appointed on a hereditary bask subject to the terms contained in a written-instrument, and actually admitted by his predecessor holding the same post. The latter would be irrespective of whether the temple had itself vested in the deity Satyanarayan and the panchas were the trustees appointing the pujaris for conducting the worship, or the temple not having vested in the idol the panchas were the owners and were appointing the pujaris for the purpose aforesaid. This last is a fine distinction which would make no difference to the results of this case.

The trial Court found the following: Firstly, that though the purchase had been made by the panchas and there was a clear recital that it was meant for the installation of Satyanarayan in that temple the actual "founding" of the establishment was by Shrinarayan and that Shrinarayan was in possession from 1914-15 itself. Secondly, it was not prepared to hold that Shrinarayan''s possession was that of a pujari or a trustee, because it did not take seriously the appointment order of arrangement contained in Ex. P/1-A; on the one hand it felt that Shrinarayan''s written statement in the suit of 1925 was not clear enough, and on the other refused to look in the copy of the plaint produced by the Plaintiffs in this suit because it came late. Anyway, it felt that those admissions were not binding on the make and only amounted to evidence which, however, it did not rate very high. It held that the decision in the suit of 1925 was not res judicata. It further held that the pujaris of that time had in 1933 made an open assertion of adverse title against the panchas and the panchas having kept quiet till 1952 their suit had become time-barred. That Court felt that there could be adverse possession over a religious establishment on the basis of a Lahore ruling which had, however, been overruled by the Privy Council. It further did not feel itself called upon to investigate whether a trustee in a fiduciary position or a servant appointed by the owners or the trustees could at all be heard to set up an adverse title. For these reasons the suit was dismissed. Hence the present appeal.

Questions 1 and 2:

The questions regarding the happenings in 1914-15 are ones of fact which have necessarily to be investigated with emphasis on such documentary evidence as is available. Apart from the intrinsic uncertainty of oral evidence there is the further difficulty here, that the persons actively concerned in these happenings are no more, and those who had come after about half a century are bound to have their memory vague, and to be deposing after recollection in the manner suitable to the party calling them. I have already in summarizing the general facts set out the broad picture which is beyond doubt. Certainly the house was purchased by the panchas with the express purpose of installing the deity after making the necessary modifications and going through the usual rituals. This purpose was implemented soon after the purchase and the establishment got going. Whether this by itself amounts to the vesting of the establishment in the deity or whether it was owned fully by the panchas we shall certainly consider; but in the controversy between them and the pujaris this is not of much practical significance. What is of consequence is that there is no clear act by which we are able to find that the panchas who bought the house and started the work transferred the title in the property, that is absolute title to Shrinarayan. The suggestion made in the written statement is that there might have been a benami which probably implies that from the very beginning the panchas were acting on this behalf. There is absolutely no indication of such animus on the part of the panchas. It was in fact quite impossible. Shrinarayan was not one of them; nor was there any active confidence between the two; nor any clear indication whatsoever that the money came from him. No doubt it is alleged by his son that Shrinarayan put "his own earnings" but even his witnesses do not go to that extent. All that is stated is that the consideration of Rs. 500 paid to the owner of the house was advanced by one of the panchas and later on made good by subscriptions from all and the sundry, that is, from the Hariyanas and non-Hariyanas alike because all the Hindus of the locality were told that the temple would be for general worship. This does not at all amount to saying that Shrinarayan produced the money. Further, the other incidental expenses also were, as far as is possible to ascertain now, raised by subscriptions.

All that can be said in favour of Shrinarayan was that he was associated with the work of seeing to the rebuilding or reconditioning of the structure, bringing the idol from Jaipur and taking part in the ceremonies. This he would certainly be doing if it was understood from the very beginning that he was to be the pujari in the establishment to be put in charge of it on terms to be fixed by the panchas. This also would explain why by the end of the financial year 1914-15 he came to be noted as the person in possession of the establishment and certainly the one to whom the municipal authorities should look, at the first instance for such taxes, if any, as would be payable, and at all events as the one they could hold answerable to the maintenance, safety and sanitation of the building. In the arguments here, on behalf of the Defendant, there is the suggestion of a gift, but certainly there is no evidence of a formal gift of the establishment by the panchas to Shrinarayan at that time. It is pointed out that the terms on which he was inducted as the pujari were so favourable that the results were hardly distinguishable from those of a gift outright. We will certainly consider the effect of these directions; but very generous though they are they still leave the ultimate control in the hands of the panchas or the whole Hindu community. Whether or not that control would be exercised on a particular occasion and whether it would be effective is another matter. But between an outright gift of the establishment and an appointment of a pujari on very generous and lenient terms there is a fundamental difference.

Question No. 3: The terms of Shri Narain''s appointment.

A good deal of the confusion in this regard is cleared by the mere perusal of the document Ex. P/1-A and also the admission in regard to its existence and conditions made by Shrinarayan himself in a written statement filed in the suit of 1925. We are surprised at the manner in which the learned trial Court has just brushed these aside. In this Court it is urged that no specific reference to these two papers is made in the present plaint. Certainly it is an omission only partly remedied by the recital in Paragraph 5 of the plaint of the terms contained in these documents but it was fully remedied immediately, and well before the filing of the written statement in the reply given to the Defendant''s own prayer for particulars. The Defendant himself had these particulars clearly before him as he gave the written statement, and strangely enough does not make any reference to them. It is urged in all seriousness that after all a Defendant is not called upon to reply to what is contained in the particulars given by the Plaintiff if they are not found in the plaint-this agreement is not acceptable. After all, these particulars are supplied at the instance of a party to clear what he urges is an uncertainty in the other party''s pleadings; once they are supplied they should be treated as explanatory of the pleadings whatever their value. and if a party files his written statement after the explanations are on record he is expected to meet them and if he fails the appropriate inference can be drawn. All that the Courts have to see is. whether any omission or statement at a late stage has taken one of the parties by surprise or that its failure to meet this new material can be excused. Here certainly there is no surprise. Independently of this, the petition in regard to Ex. P/1-A and its contents are clear in themselves.

Nor are we prepared to consider seriously the suggestion that the document Ex. P/1-A is not genuine and has been got up. It has been in existence all the time as has been admitted by Shrinarayan himself in his written statement filed in the suit of 1925. Accordingly there is no doubt about the genuineness of this written statement. There is only one document ostensibly executed by the then pujaris in favour of the panchas; even if the trial Court felt that there was some uncertainty, it was its duty to send for the plaint concerned and get it cleared up. Far from doing it, the, trial Court has in the instant case refused to look into the plaint filed by the Plaintiffs here, and then insisted on feeling there was some vagueness. This is certainly not the way of doing justice. Anyway, we have the written statement which runs-(Ex.P/6):

We admit the recital in paragraph 2 of the plaint that the structure at the corner of Ditwariya is the temple of Satyadev Bhagwan. The document executed by the Defendant No. 1 was in favour of the entire body of the panchas and not merely in favour of the Plaintiffs in this case. In the same manner the panchas in a body had given the writing dated Baisakh Sudi 3 Samvat 1971 (that is April, 1914) which being lost they gave another on Ashadh Sudi 10 Samvat 1982 (May or June 1925). By all these the body of the panchas put him in charge of the temple on a hereditary basis. As long as any of his heirs are alive the panchas will have no right to interfere in the management ("vahivat") of the temple.

This much is clear that the Defendants Shrinarayan and his son Bherulal speak of three documents all to the same effect, two of which are necessarily with them, which the present Defendant has not produced, and the third of which the Plaintiffs had produced and mentioned in paragraph 2 of the plaint. The context alone would show that this document was not questioned; if the Court had any doubt it need only have looked into the plaint filed by the Plaintiffs in the present suit. Actually it is before us and it runs-

In the town of Indore at the corner of Ditwariya Bazar the Plaintiffs-panchas own a temple for Shri Satyanarayanji. They had appointed the Defendants for conducting the puja for which a document was taken from the Defendant No. 1.

A good deal of argument has been made as to whether the parts of the written statement of 1925 which amount to an admission are really binding on the Defendant. As usual, case-law has been cited. All that we need note here is that there is unanimity of view that any admission made in a separate and earlier litigation by one of the parties will not necessarily bind it in subsequent litigation; but the admission would be a piece of evidence, the value of which would be assessed as evidence always with due regard to the content and the circumstances. The trial Court has cited Nagubai Ammal and Others Vs. B. Shama Rao and Others, in this regard and has referred to some earlier decisions as well. Since there is nothing to be said against this view it is unnecessary to elaborate on this any further. At all events the admission by the Defendant''s predecessor in the earlier suit of the existence of the document now produced as Ex. P/l-A is a very good piece of evidence and is certainly conclusive as showing its genuineness; we need not go on further in using the written statement. It is equally clear that the terms given to Shrinarayan by the authority dated April 1914 were identical with those given in the instrument mentioned in Paragraph 2 of the plaint, which is of course Ex. P/1-A. Thus we have to hold that from the very beginning Shrinarayan was thought of as the possible pujari. He was appointed as a pujari on a hereditary basis; he was to conduct the worship in the temple and after meeting the expenses of maintenance, management and necessary repairs appropriate all the rest of the offerings. The question is not whether these terms were easy and generous-which of course they were,-but whether an appointment as hereditary pujari on these terms is equivalent to a gift by the panchas on the one hand and an acquisition of full title by the pujaris on the other. That certainly it is not. Nor does the fact that actually the panchas had not in the past interfered in the day-to-day management in any manner deprive them of the right to interefere whenever an occasion arose, and enforce their powers of supervision or even removal if the pujaris misbehaved and did anything incompatible with their status and duties. Thus we would hold that nothing had happened in 1914-15 by which the temple became the property of Shrinarayan or his family. He was inducted there as a servant, that is, pujari and as long as he and his successors were in that capacity they cannot be heard to say that they were anything like full owners.

Question No. 4:

Now we can take up legal effects of these happenings. The general question is whether by their conduct the panchas had vested the property, that is the temple itself, in the idol Satyanarayan, or whether they still retained the title. This as will presently appear is an academic question as far as the present controversy is concerned, which is one not between the panchas and the idol, but one between the panchas and the idol on the one side, and the pujari on the other. In fact, several alternative combinations of the interests of four different entities are theoretically possible, all but one of which will decide the suit in favour of the Plaintiffs. That one is what is canvassed by the Defendant;-that either in 1914-15 itself, or twelve years after 1933 by operation of adverse possession, the pujari had become the full owners of the temple entitled to turn out or permit anybody he fancied; nothing short of proving this will defeat the suit of the Plaintiffs. They have framed the suit so as to meet the following alternatives, ones arising out of legal implications, and not on the facts. First, the temple have vested in the idol and the panchas as those who established the foundation continue to be the trustees, and the pujaris, that is, Shrinarayan, Bhairavanand and the Defendant, each in his time, have all been nothing more than servants appointed on the terms and the conditions already set out. The second alternative is that having divested themselves of the property in favour of the idol Satyanarayan they also made Shrinarayan and his successors the hereditary trustees or shebaits of the temple answerable only to the Hindu community at large as trustees and not to the panchas as such as their servants. A third alternative is conceivable but has not been convassed by either of the parties; it is that there has been no vesting of the temple in the idol and it has continued to be the property of the panchas while the pujaris of course are their servants. The Court in 1927 was deciding between the alternatives First and Second namely, the property having vested in the idol, whether Shrinarayan and Bhairvanand were trustees properly so called, or just servants. We shall of course deal with the effect of this decision in time. Whichever of these three alternatives we adopt the Plaintiffs would be entitled to remove the Defendant, because he is admittedly guilty of act quite incompatible either with his duties as a trustee or shebait or those of a servant (pujari) because he has claimed the property completely as his own, and has in addition converted part of it into shopping accommodation from which he is collecting rent.

The facts already set out disprove the Defendant''s first alternative tab his predecessor was the full owner of the establishment from the very beginning and if it was a temple at all it was nothing more than a private temple. He (Shrinarayan) was inducted on the terms contained in Ex. P-A the existence and execution of which he himself had admitted. Whether the Defendant has become owner on the second alternative of adverse possession will be considered under headings 7, 8 and 9. The present discussion takes us to the examination of the other alternatives.

Considering that the panchas had even at the time of the purchase in 1914 intended and expressly stated that the idol was to be installed there for worship by Hindus in general we can have no doubt that the property vested in the idol as soon as that plan was implemented. Cases are conceivable where the intending founders of a religious endownment having proclaimed their intention do nothing towards carrying it out; but that is not the situation here. Not only had they proclaimed it; the deed mentions-

The house sold is bounded thus and I (vendor) am selling it to you for the purpose of your establishing a temple for Shri Satyanarayan Bhagwan....

but also was the work immediately taken up, and very soon an idol was brought, consecrated and established and immediately a pujari was appointed and arrangements made for the worship of the deity. In addition it is unanimous evidence of everybody that has come as witness in this case that all Hindus were allowed to go and worship there without any discrimination, nor is there in the terms of Ex. P/1-A anything to indicate discrimination or exclusion of any section of the Hindu community.

These circumstances would be sufficient to show that the panchas had divested themselves in favour of the idol Satyanarayan Bhagwan. This is clear enough but a passage in the judgment of the Indore High Court in the 1927 litigation seems to suggest that they felt that there should be something like a registered deed to create a trust. This subject has been pronounced upon repeatedly by the Privy Council and the Supreme Court and we need quote only the decision of the latter in Menakurn Dasarathatharami v. Duddukuru Svbba Rao AIR 1957 S C 797:

Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity....

In the earlier Supreme Court decision in Sree Sree Ishwar Sridhar Jew Vs. Sushila Bala Dasi and Others, it was pointed out-

A dedication may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol.

In this case the entire course of events shows fully that the panchas having acquired the property and having made all the necessary changes and installation divested themselves in favour of the idol and arranged for the worship by the pujari of that time.

Whether or not the appointment of Shrinarayan made him the

trustee or shebait or kept him in a status not higher than that of a servant can be answered having regard to the total effect of the wording of Ex. P/I-A:

We the Brahman Sakal Panchas of the Hariyana Gauds have made the pachayati temple at the corner of Ditwariya near the peepal-a building in five chasmas. We have kept (dharpaya) Shrinarayanji and Bherulalji as the pujaris. Now you do the puja in the temple generation to generation (jaya-jamta). If you go against the mukhiya you will come to grief. Whatever income is derived from the temple you collect and then do the repairs of the temple and if there is no income you come to the panchas and they will make appropriate arrangements. We of our own accord (raji se) ask you to do the puja from generatien to generation. You should not create any trouble. If not, you will prove false to the Raja Panchas.

This is signed by the panchas as well as by Shrinarayan. The panchas were putting the pujaris in charge but they were retaining control to be exercised if any occasion arose. The two elements which weigh this case in favour of the theory that the appointees were pujaris, that is, servants and not trustees are, firstly, that there is a threat to visit the panchas'' displeasure in case the pujaris misbehaved; the second element is that in case the income was insufficient for maintenance and repairs the panchas offered on being approached by the pujaris to provide the means for the same. Actually the panchas felt that there was no occasion for interference till 1925, nor was there any short fall in the offerings that obliged the pujaris to come to the panchas for their assistance. But the two conditions were there all the same to be invoked whereever necessary. Thus between the three panchas the idol and the pujaris the position is that the idol is the owner by the dedication, the panchas are the trustees, and the pujaris are the servants of the trustees to do the worship in the prescribed manner.

As already noted we are prepared to consider the effect of the alternative that this instrument made Shrinarayan or Bherulal the hereditary shebaits or trustees which for our purposes would make little difference. The very wide powers given to the pujaris might create that impression; but the two elements we have noticed about are crucial. On the former view the permission of the Advocate-General would be superfluity; on the latter view it would be necessary. But the mere fact that it has been obtained would not lead to the failure of the suit because a superfluity can be ignored. In any case the Plaintiffs themselves have framed the suit on both the alternatives.

While at this the parties have at some length referred to the decisions of the Supreme Court, especially, Deoki Nandan v. Murlidhar 1957 MPLJ 214: A I R 1957 S C 130 which describes who is the real beneficiary of such religious endowments. A distinction is made there between the ideal beneficiary, that is the idol in which the property vests in accordance with the principles of the Hindu law, and the beneficiaries in practice that is, as the case may be, the general community of the worshippers-where the endowment is a public endowment or the section for whose benefit the endowment is created-where it is a private endowment;

Under the Hindu Law, on idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment....The true purpose of a gift of properties to the idol is not a gift of any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. The purpose of the endowment is the maintenance of that worship for the benefit of the worshippers.

Thus while we have the ideal vestee, namely, the deity of the temple we have also the beneficiaries in practice-the worshippers at the temple, in the instant case the Hindu community at large. But all this has no bearing upon the real controversy here, namely, whether the temple belongs to the pujaris as their private property, and whether when the panchas are seeking to remove the present pujari they are removing a trustee or a shebait in the manner provided in Section 92, or just seeking to get rid of a troublesome servant who has exceeded his mandate and is abusing his position as a servant. The sum total of the foregoing discussion is that the appointment of Shrinarayan as the hereditary pujari, is, all things considered, the appointment of a servant to conduct the puja in the manner mentioned in the appointment order, and not the appointment of a trustee.

Question No. 5:

The Defendant has urged that the status of his predecessors-in-interest was concluded as res judicata in the litigation in 1927; one fails to see how it helps him. In the instant suit the Plaintiffs have proceeded-a first alternative on the assumption that the Defendant is a shebait or trustee and taken steps u/s 92, CPC At the same time they have taken the second alternative and asked for the removal of the servant who does not on notice remove himself. The position in the twenties was not much different. The Plaintiffs of that time were uncertain as to the exact status of Shrinarayan and Bhairavanand - whether they were just servants or trustees. The High Court of Indore has pronounced twice on this subject and the relevant passages of both these judgments have already been set out. On the first occasion it was apropos of the question whether the permission of the Advocate-General was really necessary. The Court held it was not because Shrinarayan and Bhairavanand were not trustees and were no better than pujaris. They had come to the conclusion according to the law in Indore at that time and whatever the reasonings that conclusion is res judicata. The Defendant started by urging that it is res judicata; but argues that it is res judicata half-way, that is to say, it is res judicata in so far as the High Court held that no trust had been created, and not res judicata in so far as it held that Shrinarayan and Bhairavanand were no better than the servants of the panchas. This is certainly a strange application of the doctrine of res judicata. As already noted if we consider the first judgment to be only provisional, subject to the fuller investigation by the lower Court, then it is not res judicata, either in regard to the first half of the finding or in regard to the second. But actually the High Court had pronounced on it a second time, which is of course final, in the judgment dated 23-3-1931 (Ex. D/24). There again, the decision is that the pujaris of that time were appointed servants; however, they were not liable to be removed because the Court found on facts that only a minority of the panchas were for removal while a majority were for maintaining them. In other words they were servants of the body of the panchas, and were not removable because a sufficient proportion of the masters had not asked for it. Thus if we should find that the decision of the High Court in these two judgments is res judicata the effect is that the predecessors were hereditary pujaris appointed by the panchas. This in fact is the finding already reached by us on an independent study of the evidence. Thus the argument that the decision in the 1927 suit is res judicata does not add any fresh strength to the Plaintiff''s case. It goes completely against the Defendant''s case that he is the owner of the temple. The effect would be just the same if we held that the property did not vest in the idol, but remained that of the panchas; the Defendant would still be the servant in the temple owned by them as panchas of the Hariyana community, and not the shebaits-trustees of the idol.

Question No. 6: Assertion of adverse title in 1933.

There is no doubt that in 1933 apropos of the application for repairs the pujaris of that time, namely, Shrinarayan and Bherulal did assert before the authorities concerned defying the panchas that they were the full owners. Certainly they were wrong in asserting that the High Court had held to that effect; but wrong as it was, it was an assertion of adverse title for what it was worth. But in concluding from this that the suit was time-barred, the lower Court has ignored the various principles, which will be set out presently, and has been fallacious in its logic. If independently of this that Court was going to hold as in a sense it had done that even from the very beginning the title some how vested in the pujaris, then there was no question at all of adverse possession; if, on the other hand, that Court was going to take the adverse assertion seriously, it has to go on the basis that these assertors of adverse title had no title before hand. If so, it was essential for the Court to find before setting out to investigate the nature and the duration of the adverse title whether they could be heard to make such a claim. If they oould not be heard to do so, any amount of adverse assertion whether or not it might amount to a breach of trust would not lead to adverse possession;-this aspect of the matter, to be considered both on the footing that they were servants and in the alternative they were trustees, has been ingored by the trial Court so that its finding in this regard turns out to be quite unacceptable.

Question No. 7:-Adverse tittle asserted by servant.

Any one getting possession of property whether movable or immovable in a fiduciary capacity whether as a servant or trustee is estopped as long as he continues to be in possession in that capacity from asserting his own title, or which comes to the same thing, questioning the title of the person from whom he got the possession. This is a basic principle of estoppel and is ultimately derived from the fundamental principle of justice that no law Court should put a premium on dishonesty or breach of trust. Our own statute law on this subject is contained in Sections 115, 116 and 117 of the Evidence Act; for our present purposes we need refer only to the latter two sections. Case-law is ample and we shall while examining the problem with reference to trustees or shebaits refer to some of the typical rulings; as the principles are applicable to every person in a 6duciary capacity they are applicable to servants also and need not be set out here separately. The list of different statutes that leads to estoppel, mentioned in these two sections is not exhaustive, and they are given more or less illustratively; others not, expressly set out, but in a position analogous or similar are also estopped. For example, a servant (and an appointed pujari is one) and we have found the Defendant to be so, - is given the properties of his employer only to enable him to discharge his duties in accordance with the terms and conditions of the employment. In a general sense it is also a trust though the word is used in a narrower sense for persons in whom the property may be deemed to vest for some limited purposes. When a servant occupies or comes into possession of imovable property belonging to his employer he is nothing more than a licensee; on the same principles when he handles the movable properties belonging to the employer he could be called either a licensee or a bailee. Very general as those two sections are, something like a general reference if made of these two classes;

No person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a good title to such possession at the time when such licence was given. (S. 116)

Nor shall any bailee or licensee be permitted to deny that his bailor or licensor had at the time when the bailment or licence commenced authority to make such bailment or grant such licence. (S. 117.)

In the instant case the pujaris Shrinarayan and Bherulal were put in charge of the temple in 1914 as servants appointed for the purpose of worship and of maintaining the temple; the appointors were the panchas who were competent to make arrangements for the worship of the deity Satyanarayan. Those two continued in possession, and after their death the present Defendant became the pujari in accordance with the conditions under which the original appointment itself had been made; unless he hands over the temple to the panchas, and acquires the capacity of a third party-of somebody other than a servant he cannot be heard either to question the panchas'' title or to set up his own. When his predecessors were doing something like this in 1933, they were certainly breaking the terms of their appointment and were committing a breach of trust, but they were not doing something that could be rated as an assertion of adverse title for the purposes of prescribing title in themselves. Two or three years after, the present Defendant-son of Shrinarayan and brother of Bherulal-also became the pujari because the appointment itself was that they could do the service as hereditary pujaris. He had not made any adverse assertion in his time till 1949. Even if he had made it and even on the assumption that he is entitled to tag on the benefit of the assertion by his predecessors he cannot be just heard to claim adverse possession.

Question No. 8:

In this connection the Appellant has urged that u/s 10 of the Limitation Act the Defendant cannot plead limitation because the word "trustee" there is used in a wide sense so as to include the mutawalis or shebaits or other persons in charge of a Hindu, Muslim or Budhist religious or charitable endowments. The Respondents have questioned this basing their argument on the legislative history of the section and the fact that the explanation introduced by the amendment of 1929 did not come into force in the Indore State area till after 1950 by which time of course the twelve years period had run, if the adverse assertion in 1933 could be made and, if under the Indore Limitation Act the shebait or pujari could set up a case of adverse possession. We shall deal with this because any answer we give to this question will have no practical consequence. The incompetency of a trustee broadly so called to set up limitation really comes from two principles, actually the same basic doctrine taking two different forms, one of limitation properly so called and the other of estoppel. For limitation properly so called we make the assumption that a person asserting his title can be heard if it is allowable to him to do so: if he does it for the prescribed number of years which in a case like this is twelve years, the other party can no more oust him. Another form taken by this doctrine is estoppel. If a person cannot be heard to set up his own title then, however long he does set it up he can derive no benefit. If he is estopped in this sense, he cannot also plead limitation. Now Section 10 which was originally enacted to cover the cases of express trusts as understood in the English Law, puts its emphasis on the first aspect of the principle; while tne principle of estoppel of persons entering on or taking possession of property in a fiduciary capacity brings out the second aspect.

In view of the peculiar legislative history of the section both in the British Indian Provinces and in the Indore State as it used to be, the Plaintiffs cannot invoke Section 10 of the Limitation Act. Originally there was only a reference to "a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns not being assigns for valuable consideration." In Vidya'', Varuti Thirtha Swamigal v. Baluswami Ayyar (1) the central question was whether this phrase was wide enough to cover the case of a head of a Hindu math and it was held-

It is to be remembered that a "trust" in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, the agent is only the manager and custodian of the idol or the institution. In no case is the property conveyed to or vested in him; nor is he a "trustee" in the English sense of the term, although in view of the obligations and duties resting on him, is answerable as a trustee in the general sense for maladministration.

Accordingly, the section was amended in 1929 by the addition of the explanation which runs thus-

For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be a trustee thereof.

Courts have held that but for this amendment Section 10 in its original wording would not apply to this class of so called trustees. Typical decision to this effect is (1934) 66 MLJ 431 (Privy Council) . This decision was given after the amendment of 1929; but the dispute itself arose before and the amendment not being retrospective it was held-

Mutawalli or Sajjadanashin is merely a manager of the wakf property, the ownership of which vests in God Almighty. Mutawalli or Sajjadanashin is not a trustee as understood in the English system and u/s 10 as it stood before the amendment.

Applying this principle to Hindu religious endowments we need only note that the ownership of the property vests ideally speaking in the idol or the deity and in a practical sense in the Hindu community at large or the section, as the case may be, for whose worship the institution has been founded. This has been followed by the High Courts also, typical of which judgments is the one reported in Shri Silambani Chidambara Vinayar Devasthanam v. V.R.L.S, T.R.M. Chidambaram Chettiar AIR 1943 Mad. 691:

The properly of a temple belongs to the idol and does not vest in the Dharmakarata although he has a wide discretion in the spending of the funds of the institution. The Dharmakarta of a temple therefore is not a trustee of its properties and therefore Section 10 as it stood before the amendment of 1929 does not apply to him.

The assertion was no doubt made in 1933 but even on that date the Limitation Act in the Indore State was the Indore limitation Act which followed the Indian Limitation Act, but did not have an amendment to Section 10 such as had been made in 1929. That amendment came into force in this area after 1960 along with a large body of law that hod been enacted originally for British India. But by the time this happened, the twelve years period after the assertion in 1933 was already complete. Thus one has to agree with the Respondents that Section 10 of the Limitation Act as we now have it has no application to the instant case.

Question 9:

All the same, the non-applicability of Section 10 to the instant case does not in any manner help the Defendant in resisting the suit on the ground of his having made an adverse assertion in 1933. This is because whether he was a servant or a trustee broadly so called, he was estopped from setting up his own title and questioning the title of the panchas. The general aspect of this estoppels and its application to servants properly so called has already been considered. Even if we can call the Defendant and his predecessor''s shebaits or trustees, still they are estopped. In fact this estoppel applies to everybody, getting the property in a fiduciary capacity. Apart from Section 116 our Courts have repeatedly ruled that a person in such a capacity cannot be permitted to make any adverse assertion of title. The case-law is ample and we need only cite a few typical decisions. For example, in Munshi Abul Rahim Khan v. Fakir Mohmmad Shah 1946 N L J 511: A I R 1946 Nag. 401, which was a case about a Muslim wakf it was held-

Where a person is a mutawalli of a public charitable trust, all his acts which are claimed as acts showing adverse possession are referable to his lawful fiduciary position as mutawalli. Adverse possession in such circumstances, is, a notion almost void of content, however flagrant the breaches of duty be on the part of the mutawalli he acts on behalf of the trust and has no right to claim adverse possession. Having entered into possession as trustee he is estopped from setting an adverse title until he obtains a proper discharge from the trust... The more fact that a person is described in the record of rights as the owner or describes himself as the ''''Mutawalli'''' of a private mosque or imambada will not make that property his own if there is evidence on record to prove that the property was wakf. Nor will the mere fact that in certain applications the person uses expressions like "my mosque" or "my imambada" make the mosque his own when to his knowledge the property was held as wakf.

The same judgment sets out the earlier case-law so that it is unnecessary for us to set them out over again.

In the Privy Council ruling reported in AIR 1948 76 (Privy Council) , the same principle is reiterated-

In law a title by adverse possession can be established against wakf property, but it is clear that a trustee for a charity entering into possession of property belonging to the charity cannot, whilst remaining a trustee, change the character of his possession and assert that he is in possession as a beneficial owner.

In two comparatively recent cases the Supreme Court has brought out this principle forcibly. In Sree Sree Ishwar Sridhar Jew Vs. Sushila Bala Dasi and Others, , it was held-

If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose servant he is, and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession against the idol.

Again in 1956 in which case they were dealing with the Mutawalli of a wakf the Supreme Court held [ Mohammad Shah Vs. Fasihuddin Ansari and Others, ]:

A stranger to the trust can encroach on the trust estate and will in course of time acquire a title by adverse possession. But a Mutawalli cannot take up such a position. If the Mutawallis of a mosque choose to build on part of the mosque property in such a way as to integrate the whole into one unit then the Court is bound to regard this as an accretion to the estate of which they are trustees, and they will be estopped from adopting any other attitude because no trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.

The ruling is of interest in the instant case also because here too the Defendant has stated that sometime in the forties he made additions to the temple building on special offerings by some Hindu worshippers. Assuming it this so called addition by the erection of one room upstairs is an inseparable addition to the temple itself and cannot be treated as the separate property of the pujari, whether he was a servant or a trustee. As already noted, the case-law cited under this heading would apply with equal force, to a servant also, in fact, to anybody who has entered on another''s property in a fiduciary capacity.

The result of the whole discussion is that the Plaintiffs are entitled-to remove the Defendant and his legal representatives who are in possession of the temple. The suit is accordingly allowed and a decree is passed for the removal of the present pujaris, and it is further directed that the panchas as the trustees of Satyanarayan Bhagwan should with as short gap as possible appoint new pujaris for the conduct of the worship of the idol in the recognized manner end keep the institution open to all worshippers of the Hindu community. The Defendants shall pay the Plaintiff''s costs of the litigation in both the Courts and pleader''s fees in both the Courts.