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Judgment
Hobhouse, J. 1. In this suit the plaintiff, who is appellant in the first appeal, claims to be the rightful shebait of a consecrated picture or idol, to which peculiar sanctity is attached by the Bullav Acharji sector community of Vishnuvites; and, as incident thereto, he claims the things which have been offered to the idol, and the possession of a temple in Calcutta in which the idol has for some years been located. His claim is disputed by Purushottam, the principal defendant, whose son and representative is the appellant in the cross-appeal. The controversy, as usual in such cases, has ranged over a wide field, and has given occasion to a great amount of difference in judicial opinion. But their Lordships think that the matters of fact on which the decision should be rested are either undisputed or proved beyond reasonable doubt; and that when they have been ascertained the legal conclusions are plain enough. 2. The plaintiff is the representative by primogeniture of the founder of the Bullav Acharji community. Purushottam is a cadet of the same family. All the male members of the family are in their life-time esteemed by their community as partaking of the Divine essence, and as entitled to veneration and worship; but the head of the family has the precedence, and is styled the tekail. The plaintiff is the present tekait. His principal seat, apparently the principal seat of the community, was Sri Nath Dwar in Oodeypore, but in the year 1876 he was expelled from thence, for some cause not now appearing in evidence. 3. The plaintiff''s grandfather was named Daoji, who was tekait in his day. In the year 1825 he paid a visit to Calcutta and presented to his disciples there a consecrated portrait of himself, which has ever since been worshipped, and which is now the subject of contention. It is known as the Thakur Daoji, is one of the very numerous presentments of Krishna, and is shown by the evidence to attract many worshippers. Daoji the mortal died in the year 1826, and he is worshipped in many places through other consecrated portraits, or images of some kind. But thenceforward for many years the connection of the tekait, or of any of the chiefs of his family, with the worship of the Thakur in Calcutta, is very obscure. 4. We learn from the evidence that for some time prior to 1860 one Tickumji was mukhia or ordinary officiating priest. On his death, apparently in 1860 or 1861, his brother Govindram entered on the duties of that post, which he held till his death in 1877. Then, after a short interregnum, Sewlol the son of Govindram was appointed, and he apparently holds the post still. By whom these two persons were appointed, and whose servants they were, are matters of controversy. 5. In the year 1865 Purushottam, who is described as an inhabitant of Mothoora, and whose principal place of worship was at Patna, came to Calcutta, with which place he had no previous connection. He appears to have been invited there by Govindram, who in Patna had been his disciple. He then took a prominent part in the worship of the Thakur Daoji, as indeed by his family and spiritual position he was entitled to do. 6. In the next year arrangements were made for the worship of the Thakur, either on a grander scale or in a more decorous fashion. Before that time he was placed in a house in Shama Bhye''s Lane, which had then fallen into disrepair. An old and devout lady, named Munni Bibi, was then moved to provide a better habitation for him. She was a disciple of Purushottam, and to him she addressed a deed of gift conveying a new house to Daoji and to her family Thakur Behariji, who is another presentment of Krishna. 7. The deed bears date the 30th August 1866, and the material passages are as follows:
To the auspicious lotus feet of the most worshipful Sriloo Srijut Puru-sbottamii Moharaj, inhabitant of Mothoora. 8. She then described a house in Hanspokar Lane, and continued: I by this orpunnamah make debutter and give to Sri Sri Ishwar Behariji and Sri Sri Ishwar Daoji, Thakurs; the aforesaid Sri Sri Ishwar Behariji and Sri Sri Ishwar Daoji, Thakurs, shall be located in the said house; you and your heirs, whoever shall be here, shall absolutely have charge of the property, the subject of this gift, and perform all necessary sheva or worship, etc., of the Sri Sri Ishwar Jios, without having any concern with me or my heirs; you shall engage Srijut Govind mukhia, as long as he shall live, pujari to carry on the sheva of the Sri Sri Ishwar Jios; upon the death of the said Govind, mukhia, you shall have absolute power to appoint any one pujari during the existence of this orpunnamah granted by me. " Should I or my heirs, or any other Gossami of the Bullav family, set up any claim to the said house or land or to the said sheva or worship of the Sri Sri Ishwar Jios, the same shall be void and inadmissible. By this orpunnamah, I merely give the said house and land and sheva (interview) to you and your heirs; you or any of your heirs shall have no power at any future time to sell this house and land. It simply remains for the location of the Sri Sri Ishwar Jios. 9. The Thakurs Daoji and Behariji were removed to the house so granted and in the course of a few years Daoji''s worshippers desired still further to exalt his worship by building a new temple on the site of the house. A large sum of money, about Rs. 16,000, was collected for that purpose; the temple was built, other accommodation being got for the Thakurs in the meantime; and in the year 1878 they were brought back and installed in the temple. There they remained up to the final decree of the High Court in this suit. There are also some other Thakurs, all presentments of Krishna, in the temple, but it is clear from the evidence that the principle object of worship is Daoji. 10. In the month of February 1881 the plaintiff for the first time visited Calcutta. He was received with great ceremony by a large number of Vishnuvite worshippers, and was taken to the temple on the following day, when he performed the solemn, apparently the most solemn, ceremony of arutty. Sewlol, who was mukhia, paid him great veneration, and for the next three months regularly brought to him part of the proshad or offerings made to Daoji. On the 24th April the plaintiff went to the temple and inspected the valuables belonging to Daoji, which were produced to him by Sewlol. The plaintiff ordered that a list of the articles should be made, and he caused some of them, and also the money in hand, to be locked up, and the keys to be given to Sukloll, who describes himself as having been the plaintiff''s jemadar for eight years in Udaipur, and for 16 years in Calcutta. 11. The plaintiff then demanded of Sewlol an account of the money received by him while in charge. It is not very clear what was said or done upon this demand, except that no accounts were rendered, and that soon afterwards quarrels broke out, which culminated on the 19th May in a riot. The plaintiff''s people were then forcibly turned out of the temple. On the 16th September the plaintiff brought this suit. 12. The case was heard in the first instance before Mr. Justice Cunningham, then on appeal by a Division Court consisting of Mr. Justice Wilson and Chief Justice Gabth, and on further appeal by a Full Bench consisting of Mr. Justice Pigot, Mr. Justice Mitter, and Mr. Justice Norbis. The two last-named learned Judges agreed in the opinion that the plaintiff is entitled to succeed in his claim to the portrait and the valuables, but must fail in his claim to the temple. To that effect, therefore, is the decree of the High Court, from which both parties appeal. 13. Their Lordships will first address themselves to the plaintiff''s claim to the portrait. The principal points taken in the elaborate argument of Mr. Mayne, who is counsel for Purushottam and his heir, may be briefly summarized as follows: Neither by general law nor by special custom is it shown that the shebaitship descends to the heirs of the founder; there is no document or trustworthy evidence to show that, between the mortal Daoji''s visit in 1825 and the plaintiff''s in 1881, such heirs, ever intervened in the affairs of the Thakur Daoji. The reception given to the plaintiff in 1881 was no more than was due to his great position and sacred character, which all admit. It is true that Purushottam did not appoint Govindram or Sewlol; but the Thakur Daoji was given by the mortal Daoji to the community of worshippers; it was their business to tend the Thakur and to appoint mulchias; and the evidence shows that a committee of them did appoint Sewlol. Finally, the suit is not a suit on behalf of Daoji, the Thakur, but a personal claim by the plaintiff to moveable chattels, and is barred under Article 49* of the Limitation Act of 1877. 14. According to Hindu law, when the worship of a Thakur has been founded, the shebaitship is held to he vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution. This principle is illustrated by the decision in the case of Peet Koonwur v. Chutter Dharee Singh 13 W.R. 396, and in the present case some of the learned Judges of the High Court have affirmed it, while none has expressed dissent from it. One learned Judge thought that the principle does not apply to this case, because Daoji was not the founder of the Calcutta worship. But their Lordships adopt the view of the other Judges, and the holding that the'' mortal Daoji was the founder, they must also hold that the plaintiff'' is, by eneral law, the sbebait of that worship. 15. There is no proof of any usage or course of procedure at variance with this presumption in favour of the plaintiff. The only circumstance bearing against him on this point is the non-appearance of intervention on the part of his family. So far as the oral evidence goes, it is to the effect that the custom of the Bullav Acharji community is in accordance with the general rule, and is quite sufficient to satisfy the requirements of the case. 16. With respect to intervention by the plaintiff, there is no evidence that the plaintiff appointed Govindram as he alleges, and though it is clear that Purushottam did not appoint that mukhia, it cannot be assumed that the plaintiff did so. But, to begin with the later part of the history, their Lordships consider the reception given to the plaintiff by the congregation of worshippers in February 1881, and the obedience which Sewlol at first paid to his directions, show that, in their opinion, he occupied a position of the highest authority perfectly well known to them; that those events are inconsistent with the theory that his family had never intervened since the year 1825; and that they are not sufficiently accounted for by the family or spiritual character of the plaintiff. 17. Going a little further back, we have evidence that Sewlol accepted appointment from the plaintiff in the year 1878, through the agency of his jemadar Sukloll. (Exhibit B is express to that effect.) Some of the learned Judges have rejected that document, because it is not mentioned in this plaint, and because its custody is not clearly accounted for. But its execution in the presence of several people is positively deposed to by four witnesses, all rigorously cross-examined, and so entirely unshaken that Mr. Mayne did not think it worth while to refer to those cross-examinations. The person who could contradict them with effect is Sewlol, who is a defendant, is a partisan of the principal defendant Purushottam, and was in Court when the evidence against him was given. He did not come forward to say a word about it. Their Lordships think it is carrying mere suspicion too far when it is allowed to get rid of a document so proved, and so allowed to pass by the person most nearly concerned in it. It may be that Sewlol consulted his security by taking appointments from Purushottam and from the committee. But his taking one from the plaintiff shows that the plaintiff was then intervening, and that his position was recognized. 18. Again, travelling back to an earlier time, evidence is offered of the conduct of Govindram. Whether his mere declarations should be received as something against his interest is a question of some difficulty, which their Lordships would have investigated further if it had been necessary to decide it. But it was shown by Hirji Meghji that, when Govindram made the monthly collections, he pressed for them on the plaintiff''s account; and by Suddasuk that he urged that offerings should be made at his mundir because it was the tekait''s. Such conduct is clearly admissible, and is good evidence, to show that in Govindram''s time the plaintiff''s position was acknowledged. 19. With respect to the bar by lapse of time, their Lordships do not consider this suit to he one in which the plaintiff is seeking merely personal relief. Even apart from the sixth and seventh paragraphs of the plaint, which expressly put forth his spiritual character as the foundation of his claim, the nature of the suit is for the proper conduct of the Thakur''s worship. It rests quite as much on the right of the Thakur to have the conduct of his worship and his own custody placed in the right hands, as upon the personal right of the plaintiff to property. The suit would rather fall under Article 124 or Article 144 than Article 49. But under whichever of the three articles it falls, the starting point of time is unlawful possession or adverse possession. And the evidence leads their Lordships to the conclusion that until the affray of May 1881 there has been no possession of the Thakur or of his possessions either unlawful or adverse to the plaintiff''. 20. The result is that on this part of the case their Lordships agree with the High Court, and on very nearly the same grounds as taken by the majority whose opinion has prevailed there. 21. As regards the temple, the High Court thought the suit is barred by time. In that their Lordships cannot agree. The ground is dedicated to the Thakurs Behariji and Daoji; and, except during the building time, it has been occupied by them ever since. If the fact was that the Thakur Daoji had been in the custody of, and his worship been regulated by, another shebait than the plaintiff for a sufficient time, the plaintiff might be barred: but the reasoning on the former part of the case disposes of that suggestion. There has been no possession of the temple adverse to the Thakur Daoji, and no possession of the Thakur adverse to the plaintiff till May 1881. 22. Their Lordships are of opinion that this part of the case must be governed entirely by the terms of Munni Bibi''s dedication. She gave the house and land to the two Thakurs, but with the condition attached that Purushottam should be shebait. The Thakur Daoji, or those who speak for him on earth, need not take advantage of this gift. Munni Bibi could not, of her own authority, alter the shebaitship of the Thakur. But if the gift is taken and the condition insisted on, it must be observed. It has now been insisted on, and Daoji must elect whether to change his habitation or to change his shebait. 23. It is true that money was raised to build the temple, and was raised mainly from the worshippers and in the name of the Thakur Daoji. But the facts of this case are not such as to raise an equity of the kind suggested at the Bar, and favoured by one of the judgments delivered in the Division Court. There is no reason to suppose that the Subscribers did not know of Munni Bibi''s deed; and there is no evidence that the subscriptions, though given to the Thakur Daoji, were given with any reference to the question who should be his shebait. 24. The decree of the High Court must be affirmed and both appeals dismissed, but there will be no order as to costs. Their Lordships will humbly advise Her Majesty to this effect.