Shiv Dayal J. 1. This appeal has been preferred by the State Government from the judgment and decree of the Additional District Judge, Morena, declaring the respondent entitled to the management of a temple of Kali Mata situate in Basaiya popularly known as Basaiya Mata temple. 2. It was alleged in the plaint that the temple was consecrated in Samvat year 1905 (1849 A.D) by one Mahant Rajpuri On the death of the founder, his Chela, Mahant Kundanpuri succeeded him. Kundanpuri died in the year 1919 and was succeeded by his Chela Tejpuri (plaintiff). After Kundanpuri's death disputes arose between the Mahant and the Fujaris who started claiming a share of annas six per rupee in the properties and the offerings Because of the harassment and dispute which went on for many yean (from 1920 to 1930), Mahant Tejpuri made an application on July 1, 1930, to the erstwhile Gwalior Government to take over the administration of the temple as in the case of Nagradevta temple. By an order dated December 1, 1932, of the Council of Regency Gwalior State the administration of the temple was temporarily taken over and a managing committee was appointed by the Government. Since then the temple is under State administration. There was litigation between the Mahant (Tejpuri) and the Pujaris (Ramgovind and Ramnath) which went up to the highest judicial tribunal for the time being, called the Nyaya Sabha. Tejpuri won. He then applied to the State Government to restore the administration of the temple to him. But that was denied on the ground that it had been held to be a public temple by the High Court and the Nyaya Sabha so that there was no question of its return to the plaintiff. The plaintiff claimed a declaration of his right to management of the temple and claimed an injunction against the State Government to restrain it from interference with his management and also prayed for rendition of accounts. 3. The then Madhya Bharat Government resisted the suit on the ground that the erstwhile Government had taken over the management of the temple under section 30 of the Gwalior State Places of Worship and Religious Endowments Aid and Administration Act, Samvat 1983 (Parishtishgahon Aur Mazhabi Auqaf Ki Imdad Aur Nigrani Ka Oanoon - hereinafter called the 'Auqaf Act'), after an enquiry was made on the plaintiffs, application dated July 1, 1930. The plaintiff's contention that the temple had been entrusted to the Government on his application was, however, denied. It was averred that the Government was under no obligation to restore the management of the temple to the plaintiff. It was also pleaded that the plaintiff was precluded from bringing this suit because of waiver, as by his own conduct, he held out the temple to be a public temple and prayed for its administration by the Government. Bar of limitation was also pleaded. 4 During the pendency of the suit Mahant Tejpuri died on July 11, 1956, whereupon the respondent, Mahant Kamalpuri, was brought on record by order dated July 13, 1957. 5. The Additional District Judge, Morena, who tried the suit, held plaintiff entitled to management of the endowment and also to the perquisites attached thereto. The State Government was restrained from managing the properties and was directed to restore the management of the temple and its properties to the plaintiff and also to render accounts from 1950 to the date d the preliminary decree (October 18, 1958). The State Government has come up in appeal. 6. It is firstly, urged for the appellant that the Gaddi of the Mahant was not hereditary so that Tejpuri had no right to sue, nor was Kamalpuri entitled to a decree. To deal with this question the distinction between a Math and a temple, between a Mahant and a Shebait, must be borne in mind. 7. In the true sense of the word, a Math is a centre of theological learning, the object being generally the promotion of religious knowledge and imparting of spiritual instruction to the disciples and the followers of the Math. It is monastery presided over almost invariably by a Sanyasi, who becomes the Superior or Head of a Math, and is called Mahant, Mathadhish, Mathadipati or Swami. Temples or Devasthans are religious foundations established for the spiritual benefit and are places of worship. Although temples and Maths are both institutions conducive to spiritual welfare, the former affords opportunities for prayer and worship, the latter facilitates spiritual instruction and acquisition of spiritual knowledge. The manager or custodian of the debutter property, that is, the property dedicated to religious use and belonging to the deity, is the Shebait. 8. It is stated in the Hindu Law of Religious And Charitable Trust by Dr. The manager or custodian of the debutter property, that is, the property dedicated to religious use and belonging to the deity, is the Shebait. 8. It is stated in the Hindu Law of Religious And Charitable Trust by Dr. Mukherjee at page 326 : "The primary distinction between a debutter and a Mutt lies in the fact that unlike debutter where the essential or central part of the institution is a deity or idol, the presiding element in a Mutt is an ascetic or religious teacher who together with his disciples and co-disciples from a sort of spiritual family. Both a Mutt as well as a debutter owe their existence to benefactions or grants of property made by pious benefactors. In one case the grantee is an idol for whose ministration or service the debutter is created; in the other case the result of the benefaction is the creation of an institution for the benefit of a fraternity of religious men at the head of which stands the Superior or Mohunt, who represents the entire institution." In the temple with which we are concerned is installed the idol of Kali Mata. Properties, movable and immovable, belong to the deity. Admittedly this is a place of worship. It is nobody's case that this is an institution of religious instruction or a monastery having the promotion of religious knowledge or the imparting of spiritual instruction as its object. 9. In the case of a temple where property is devoted absolutely to religious purpose, that is, where the dedication is absolute and complete, the possession and management of the property belongs to the manager of the temple. Since it is in an ideal sense that the dedicated property vests in an idol, in the nature of things, the possession and management of it must be; entrusted to some person. The person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager or an infant heir. If this were not so, the estate of the idol might be destroyed or wasted and its worship discontinued for want of necessary funds to preserve and maintain it. If this were not so, the estate of the idol might be destroyed or wasted and its worship discontinued for want of necessary funds to preserve and maintain it. This human ministrant of the deity who is its manager and representative is known by the name of Shebait in Bengal and Northern India (Dr. Mukherjea at page 197). 10. Though the Shebait is a manager and not a trustee in the technical sense, it is not correct to describe Shebaitship as a mere office. The Shebait has not only duties to discharge in connection with the endowment, but he is beneficially entrusted in the debutter property. He enjoys some sort of right or interest in the endowed property, which in a sense partakes the character of a proprietary right. "Thus in the conception of Shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests Shebaitship with the character of proprietary rights and attaches to it the legal incidents of property." There are certain limitations and restrictions attached to and inherent in a Shebaiti which exit irrespective of the fact whether the Shebaitship vests in a male or female heir. The devolution of Shebaiti depends on the terms of the deed or will by which it is created. In the absence of any such provision, the title follows the line of succession and passes to the heirs of the founder. The ordinary rules of succession which are applicable to the estate of a deceased Hindu apply also to the Shebeit. All this is settled law. (See Smt. Angoorbala Vs. Debabrala 1951 SCR 1125 ; Kalipada Chakrabarti Vs. Smt. Palanibala Devi 1953 SCR 503 , and Mahant Motidass Vs. S.P. Sahi AIR 1959 SC 942 . Thus it is seen that in a debutter the recipient of the property is the deity as a juristic person and the Shebaiti is heritable and follows the line of inheritance from the founder. 11. Smt. Palanibala Devi 1953 SCR 503 , and Mahant Motidass Vs. S.P. Sahi AIR 1959 SC 942 . Thus it is seen that in a debutter the recipient of the property is the deity as a juristic person and the Shebaiti is heritable and follows the line of inheritance from the founder. 11. The law may be summed up as follows: (i) A Math fundamentally differs from a temple, Although both are institutions 'conducive to spiritual welfare, the former is a monastery the object of which is generally the promotion of religious knowledge and imparting of spiritual instruction to its disciples and followers; while the latter are established for the spiritual benefit and are places of worship. The presiding element in a Math is an ascetic or religious teacher who together with his disciples and co-disciples form a sort of spiritual family. The Math and the deity installed in a temple are both .juridical persons in whom vest the proprietary rights of the endowment. The superior or head of a Math who is called Mahant, Mathadish, Mathadipati, or Swami is also the manager of the Math math. The management of the temple and debutter vests in the Shebait. (ii) In the concept of Shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together, and one of the elements cannot be detached from the other. (iii) The devolution of Shebaiti depends upon the terms of the deed or will by which it is created, and in the absence of such provision the ordinary rules of succession are applicable, following the line of inheritance from the founder. (iv) It is the founder's unfettered right to appoint another person to manage the trust on his behalf, and to lay down provisions as to the succession of Shebaiti. (v) No other Shebait has the right to alter the mode of devolution or the line of succession. (vi) Although Shebaiti is "property" and it is heritable, yet it is inalienable. It cannot be transferred inter vivos or by will. This is because: (a) in the concept of Shebaiti the property which is blended with the office and duty attached to it are inseparable and (b) the Shebait has no power to alter the mode of devolution or the line of succession. These restrictions and limitation are inherent in Shebaiti. It cannot be transferred inter vivos or by will. This is because: (a) in the concept of Shebaiti the property which is blended with the office and duty attached to it are inseparable and (b) the Shebait has no power to alter the mode of devolution or the line of succession. These restrictions and limitation are inherent in Shebaiti. (vii) Where the style 'Mahant' is attributed to the Sheba it of a temple it must be understood merely as a title of reverence; in the eye of law it is a misnomer. 12. Now, it is not in dispute before us that the temple in question is an old and was consecrated by Baba Rajpuri. In the temple is installed the idol of Kali Mata and this is a place of worship. It is also not in dispute that this is a public temple and the deity installed in it owns immovable properties. The history of this temple is embodied in an old judgment of the Collector, Morena, dated September 23, 1927 (Ex. P-55). There it is said that Baba Rajpuri was a Mahatma of repute. He consecrated this temple in Samvat year 1905. Attached to it is a garden which was laid at the cost of thousands of rupees Right from the life time of Baba Rajpuri the income of this temple by way of offerings was thousands of rupees. Gradually articles and other movabless were purchased for the temple. Rajpuri was succeeded by Kundanpuri in whose time the position of the temple was not only maintained but it was also enhanced. Kundanpuri died in Samvat year 1976 (1902 A.D.), when he was succeeded by Tejpur. The Chelas of Tejpuri were Ragnunathpuri and Kamalpuri who were' then minors (in 1927). The evincive proof of all this is the Government record and the learned Additional Government Advocate is unable to point out to us anything to the contrary. From what we have said above, it must be concluded that Baba Rajpuri the founder was the first Shebait; he was succeeded by his Chela Kundanpuri being who was the second Sheba it, and, on Kundanpuri's death, the Shebaiti devolved on his Chela Tejpuri (Plaintiff) In a case as the present one, shebait must devolve on the Chela. We are supported in this view by the decision in Shri Ram Vs. Chandeshwar Prasad AIR 1952 Pat. 438 . We are supported in this view by the decision in Shri Ram Vs. Chandeshwar Prasad AIR 1952 Pat. 438 . Indeed the appellant is unable to show that after Rajpuri this course of succession, that is, from Guru to Chela was not, in fact, followed. On the defendant's own shoving the erstwhile Government took over the administration of the temple from no other person than Tejpuri himself. The first contention advanced by the appellant must, then, be rejected. 13. It is next contended that Kamalpuri is not the heir of Tejpuri. The contention is without substance. Statements of Deviram (P.W-1), Songiri (P.W-2); Pyarelal (P.W-3), Ramjeet Singh (P.W-4) and Shankar Singh (P.W-5) prove that Kamalpuri was the Chala of Tejpuri and as such the Shebaiti devolved on him. Kamalpuri has been held by the trial Judge as the legal representative of Tejpuri for the purposes of this suit. It may be recalled that the Collector's judgment of 1927 (Ex. P-55) contains a statement that the Chelas of Tejpuri were Raghunathpuri and Kamalpuri, Admittedly, Raghunathpuri died in the life time of Tejpuri. The appellant does not tell us who else is the Chela of Tejpuri. It must, therefore, be held that the present Shebait is Kamalpuri. 14. I shall now turn to the substantial question in this appeal, whether the plaintiff has no right to get back the management from the Government. It is not in dispute that Tejpuri made an application on July 1, 1930 (Ex. P.47) to the erstwhile Gwalior Government disclosing certain disputes between himself and Pujari Ramgovina. That application reveals that Tejpuri was harassed by Ramgovind and he was too weak to face the situation He, therefore, sought protection of the Government and prayed that his temple be administered by the Government in the same manner as the temple of Nagra Devta and requested recovery of the expenses of administration from all the co-sharers. At that time, the position was that there existed some document executed by Tejpuri in favour of Ramgovind declaring the latter entitled to a shale of annas six in a rupee. Litigation started between the Mahant and the Pujaries. 15. Admittedly, the administration of the temple and its properties was taken over by the Gwalior Government in pursuance of the order of the Council of Regency dated December 1, 1932 (Ex. P.48). Litigation started between the Mahant and the Pujaries. 15. Admittedly, the administration of the temple and its properties was taken over by the Gwalior Government in pursuance of the order of the Council of Regency dated December 1, 1932 (Ex. P.48). This order of the Council was passed on the Home Member's report dated October 26, 1932 in which the recommendation was to take over the administration of the temple and to appoint a special committee under section 30 of the Auqaf Act. In the Council order there was a direction that a report by submitted "after two years" showing the effect of such taking over. Since then the temple has remained under the administration of the Government for the time being, and is being managed by a special committee. 16. The Home Member's report contains a brief history of this temple and it is stated that the temple is ancient and of repute; that in 1927 because of immorality of Mahant Tejpuri and of the high-handedness of Pujari Ramgovind, applications had been made to local officers by the minor Chelas of the Mahant, whereupon it was thought expedient to take over the control of the temple under section 30 of the Auqaf Act. But before that matter could be laid before the Durbar, a compromise was arrived at which put an end to that question. In the penultimate paragraph of the report there is "mention of the Law Member's opinion that administration of the temple be introduced under section 30 of the Auqaf Act; there is specific mention of "Shart Awwal (First provision)" which I shall explain presently. In conclusion the Horne Member recommended that the administration be taka over accordingly. The order of the Council of Regency (Ex. P-48) was in these terms (when rendered into English): "As opined by the Horne Member, the administration of the temple be taken over. After two years a report showing the effect of the administration having been taken over be submitted". It is common ground that in pursuance of this order administration was taken over from Tejpuri and a special committee was appointed. 17. The argument is that there is no provision in the Act to return the administration of an endowment, once it is entrusted by the Government to a special committee under section 30 of the Act. It is common ground that in pursuance of this order administration was taken over from Tejpuri and a special committee was appointed. 17. The argument is that there is no provision in the Act to return the administration of an endowment, once it is entrusted by the Government to a special committee under section 30 of the Act. On closely examining the scheme and the provisions of the Act, there is no manner of doubt that this is not a law of acquisition of religious endowments by the State Government. There are no provisions to that effect. The very name of this Act indicates that it is a law which deals with "aid" and "administration" of religious endowments and places of worship. The objects of the Act are expressed in its preamble which read thus (when rendered into English) : "Whereas it is expedient that places of worship which are established or may be established in future in Gwalior State are maintained in a State which fulfils the object of their founders and do not remain without worship and the properties and assets which may have been endowed for the aid, mar agreement and maintained of such places of worship, or which may be so endowed in future may be administered according to the desire of the donors and the properly supervised, the Council of Regency, on behalf of the Ruler, hereby enact as follows ............". Among other provisions sections 13 and 14 provide for the establishment of certain committees to look after these institutions. Section 18 provides for detailed directions how a temple should be dealt with if there is a deity installed in it, but worship has been discontinued or if it needs repairs. In such a case the Pargana and Zila Committees should persuade the founder or members of its family to make repairs and to make it fit for worship. If they do not succeed, they should persuade the public to do the needful by raising subscriptions. If this too does not succeed, they should report to the Central Committee to grant necessary aid. So also in the case of mosques. It is then declared in section 19 that the Durbar has established a fund for granting aids to places or worship. If this too does not succeed, they should report to the Central Committee to grant necessary aid. So also in the case of mosques. It is then declared in section 19 that the Durbar has established a fund for granting aids to places or worship. Section 23 lays down the procedure to be followed in case any community or sect expresses a desire that any public place of worship be taken under the administration of the Committee. In that case if shall be administered by the Committee in accordance with the need of the community or sect. It is unnecessary to recapitulate all the provisions of the Act. Suffice to say, the Gwalior State Auqaf Act (Places of Worship and Religious Endowments Aid and Administration Act Samvat 1938) is not law of acquisition; it was actuated by the Ruler's benevolence and benignity in affording protection and pecuniary aid to religious endowments and places or worship, but was never intended to deprive those entitled in law, of their right of management. 18. Adverting to section 30 of the Act, there it is provided that in the case of a place of worship or a religious endowment, if having regard to its, historical importance or its being ancient or famous, it is thought necessary in the interest of the public or for any special reason, to supervise or administer it, the Government shall have power (1) to appoint a special committee, or (2) order that it be taken under Government management. In the second paragraph of the section it is directed that the provisions of the Act regarding superintendence shall not apply in case a special committee is appointed. There is also a remarkable mandate in this section that the accounts of income and expenditure shall be maintained separately, and the savings shall also be set apart for the benefit of that endowment. I am clearly of the view that the provisions as to the appointment of a special committee are intended to afford, in the hour of need, protection to religion endowments and places of worship and are analogous in their nature to the appointment of Court of wards, or of a guardian to look after the affairs of a disabled person till the disability exists or continues. In the present case, No (1) was resorted to and a special committee was appointed. In the present case, No (1) was resorted to and a special committee was appointed. Neither in the report of the Home Member nor in the Council order is there any indication that the Shebait was to be permanently deprived of his right of management. The direction in the Council order that a report be submitted after two years to show what effect the Government administration produced, strongly indicates temporary nature of the administration. 19. It cannot be doubted that the administration of this endowment was taken over at the initiative of Tejpuri. It is said in paragraph 12 of the written statement that on the plaintiff's application dated 1-7-30 proceedings started and the Government made an inquiry whether it should or should not take over the administration of the temple, and then it decided to take over (per Council order of 1-12-32). Having admitted that much, the defendant ventured to deny the averment that the plaintiff entrusted the administration to the Government on the basis of his application, It seems to me that the denial is only technical and relates to form rather than substance. Tejpuri finding himself in a helpless plight sought protection from the Government. He was the Sheba it of the endowment. He could, therefore, claim restoration of the management when the adverse climate, which had forced him to seek shelter, disappeared. 20. The entire conduct of the parties throughout was inconsistent with the position that the administration was permanently taken over by the Government. The following facts are evincive proof that temporary protection was provided to the endowment in the shape of administration through a special committee which was appointed under section 30 of the Act. The instances are many and are supported by documentary evidence which form part of the Government record, but I am sure that it is unnecessary to encumber this judgment by referring to all of them. I shall content my self with the more prominent ones. (i) In pursuance of the Council order a special committee has been looking after the administration of the endowment. Regulations were framed for conducting the management (See Ex. P-61). (ii) In the budget the following allotments are remarkable: (a) "Rajbhog" for Shri Kali Mai at Re 1 per diem ...........Rs. 36......"to be expended through the Mahant". (b) Anniversary of Baba Kundanpuri.........feeding Brahmim Rs. 30...... "to be expended through the Mahant". Regulations were framed for conducting the management (See Ex. P-61). (ii) In the budget the following allotments are remarkable: (a) "Rajbhog" for Shri Kali Mai at Re 1 per diem ...........Rs. 36......"to be expended through the Mahant". (b) Anniversary of Baba Kundanpuri.........feeding Brahmim Rs. 30...... "to be expended through the Mahant". (c) Pocket expenses for Mahant Saheb and his Chelas.........Rs. 504 (See Ex. P-64). (iii) In an inspection note of the Commissioner Maufi and Auqaf dated 15-12-39 (Ex. P-66) there occurs a passage to the effect that the Mahant and the Chelas should be particular in getting all the holdings cultivated and in full collection of the rent, because unless an revenue is Collected where-from they would be given expenses? It is also observed in it, "Sansthan zer nigrani hone se mutab yeh nahin hai ki Mahant Saheb wa unke chelan se abadi wasul waslat ke muttaliq jo jo farayez hain unse unka talluq nahin raha. Yeh baat yeh saheban pure tour dhyan men rakhkhen. Sannsthan ki shuhrat achchi taur par barhna chahiye wa amdani men izafa hona chahiye." (Taking over administration does not mean that the Mahant and his Chelas are absolved from their duties as to bringing lands under cultivation and as to recovery of rent. They should fully bear this in mind. The reputation of the Sansthan should be enhanced and its income should be increased). (iv) A sum of Rs. 200 was given to Mahant Tejpuri for expenses of litigation (Ex. P-67). (v) A sum of Rs. 300 was granted to the Mahant for going on pilgrimage (Ex. P-73). 21. From all that I have said above it is not possible to hold that debutter had been acquired by the Gwalior Government or that the Shebaiti had been permanently effaced when a special committee was appointed under section 30 of the Act. 22 It is an argument that Tejpuri permanently surrendered his right of management and, consequently, he retained no right of restoration First of all it must be mentioned that this was not the case pleaded in the written statement. Then again there is nothing on the record to that Tejpuri handed over administrative control for all time to come. In his application dated July 1, 1930, (Ex. Then again there is nothing on the record to that Tejpuri handed over administrative control for all time to come. In his application dated July 1, 1930, (Ex. P-37); to the erstwhile Gwalior Government, he stated that Ramgovind had got a document executed by (Tejpuri) in which Ramgovind's share of annas six was recognized: that the Pujaris had started troubling him and also had started collecting rent belonging to the deity from the tenants and that they had turned out some of the tenants. In these circumstances, he prayed to the Government to administer the temple "as in the case of “Nagra Devta temple” and the expresses of administration be recovered from all the co-sharers. Three thing are conspicuous in this application:- (1) He was seeking shelter because he was oppressed and overpowered by the Pujaris,: (2) He desired State administration as in the case of Nagra Devta temple. This is explained in (Ex. D-4), that all offerings are collected in a sealed box and those entitled to a share in the offerings are allowed to watch the cash-box from a distance of a yard and also supervise offerings being made only in the box: all income is deposited in the treasury: at the end of the year after deducting the expenses, the balance is distributed pro rata to the co-sharers. (3) He proposed the recovery of administrative charges from all the sharers. All this is inconsistent with what is called surrender. The learned Additional Government Advocate relies on the decision in Gangaram V. Dooboo A.I.R. 1935 Nag. 223, where it is held that a founder having divested himself of every vestige of interest cannot subsequently file a suit based on his personal right of management of the Devasthan. This decision does not at all apply to the present case. There it was the 'founder', who handed over all the rights and divested himself of every vestige of interest in the debutter. This course is not open to any other Shebait. As observed in Angoorbala's case (supra) and Kalipada Chakraborty's case (supra), there are certain limitations and restrictions attached to and inherent in the Shebaiti right itself which exist irrespective of the fact whether the Shebaitship vests in a male or a female heir. This course is not open to any other Shebait. As observed in Angoorbala's case (supra) and Kalipada Chakraborty's case (supra), there are certain limitations and restrictions attached to and inherent in the Shebaiti right itself which exist irrespective of the fact whether the Shebaitship vests in a male or a female heir. “Although Shebaiti right is heritable like any other property it lacks the other incidents of the proprietary right namely, the capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the Shebait has got is ancillary to and inseparable from his duties as the ministrant of the deity and a manager of its temporalities. As the personal interest cannot be detached from the duties, the transfer of Shebaitship would mean delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the very policy of law." (Mukherji at page 228). It follows that a Shebait cannot surrender Shebaitship to anyone other than the next Shebait in the line of succession. If any Shebait desires to get rid of is duties the only proper thing for him to do is to surrender his office in favour of the person or persons who is or are next to him in the line of succession from the founder. By such a course, it can safely be said, no policy of Hindu law is likely to be affected, nor can such transaction be held to be against the presumed intentions of founder I have, therefore, no hesitation in rejecting the contention that Tejpuri permanently surrendered the management of the endowment to the Government. Nor, indeed, he, could; it was beyond his power. 23. Having said this much, I must now advert to a very important aspect of this case. It is on the record that the Ruler of Gwalior passed an order on August 10, 1939 (Ex. P-49) directing the continuance of Government administration until the happening of certain events. As is patent from Ex. (P-49) itself, the Darbar order was passed on a Guzarish (report) submitted by the Muafi Commissioner. It is on the record that the Ruler of Gwalior passed an order on August 10, 1939 (Ex. P-49) directing the continuance of Government administration until the happening of certain events. As is patent from Ex. (P-49) itself, the Darbar order was passed on a Guzarish (report) submitted by the Muafi Commissioner. In this report it is stated that the temple had been under the administration of the Government in pursuance of the Council order dated 1-12-1932; that a report was to be submitted after two years there from to show the effect of taking over; that on the expiration of the said period of two years the General Mazhabi Auquaf Committee received the application for release of the temple; that the record was summoned and the effect of taking over the administration was scrutinized so as to examine its impact on the litigation and on the behaviour of the Mahant and the Chelas; and that the report about their conduct was still unsatisfactory. Among other things, it is stated in this report that the Mahant and his Chelas had caused great damage to the name and reputation of the temple and that their character was not satisfactory; they had connections with public women and had also intrigues with dacoits. Litigation was still going on between the Mahant and Pujaris in the Court of the District and Sessions Judge Morena, as also before revenue authorities in respect of Zamidari properties. In conclusion, the Mafi Commissioner recommended continuance of the Government administration so long as the Mahant and the Pujaris did not correct their morals and the litigation continued. "Is liye yah devasthan Mahant wa Pujariyan ki halat khatir khwah hone tak wa maqadamant faisala hone tak badastoor auquaf ki nigrani men rahna munasib hoga lihaza peshgan clarbar se hukma hone ke liya gujarish haza pesh hai" This recommendation was accepted by the Ruler of Gwalior so that it became part and parcel of the Darbar order itself and must be read as such. It must at once be pointed out that in the report of the Muafi Commissioner the names of "Mahant Tejpuri and his Chelas Raghunathpuri and Kamalpuri” are mentioned. 24. The argument placed in the fore-front by the learned Additional Government Advocate is that the Dal bar order (Ex. It must at once be pointed out that in the report of the Muafi Commissioner the names of "Mahant Tejpuri and his Chelas Raghunathpuri and Kamalpuri” are mentioned. 24. The argument placed in the fore-front by the learned Additional Government Advocate is that the Dal bar order (Ex. P-49) is a law, having emanated from a sovereign Ruler, so that the administration of the endowment can not be restored to the plaintiff until and unless both the conditions laid down in it were satisfied and the same were pleaded in the plaint. Whatever may have been the right of the Mahant, it was superseded by the Ruler's order. It is conceded that the litigation between the Mahant and the Pujari's referred to in the Darbar order (Ex. P-49) had come to an end; but the contention for the appellant is that the management of the temple could not be restored to the Shebait until his morals were found to be satisfactory. It is a further argument that it required another order of the Ruler to say that both the conditions were satisfied so that it was unnecessary to continue the Government administration To meet this attack, it is urged by Mr. Motilal Gupta that the Government never pleaded in their written statement that this condition precedent had not been fulfilled before the institution of the suit so that Order 6 Rule 6, Civil Procedure Code, was attracted; all the more so, because in the reply to the plaintiff’s notice under section 80, Civil Procedure Code, the Government did not raise this point Sick by side, an argument is advanced by the learned counsel that Tejpuri having died, the question of his morals has come to an end and it is nobody's case that the present Mahant, Kamalpuri, is of an undesirable character. 25 These rival arguments raise important questions of law. Before I deal with them, let me first reject outright the second argument of Mr. Gupta. I am quite unable to accept the argument that because of Tejpuri's death the requirement as to the correction of the Mahant's morals has also perished. Firstly, the word "Mahant" in the operative portion of the Darbar order connotes the Mahant for the time being. That word cannot be read as detached from the context. The intention of the Ruler is manifest in the Darbar order. Firstly, the word "Mahant" in the operative portion of the Darbar order connotes the Mahant for the time being. That word cannot be read as detached from the context. The intention of the Ruler is manifest in the Darbar order. He did not contemplate restoration of the administration to the Shebait (so called Mahant) unless and until his morals were found to be satisfactory. It was contemplated not to return the administration to a Shebait whose morals are not satisfactory. Secondly, so far as Kamalpuri is concerned his name also appears in the Muafi Commissioner's report. There is the Statement that "the Mahant and his Chelas" had caused much damage to the name and reputation of the temple and their character was not satisfactory. The word "Chelas" necessarily refers to Raghunathpuri and Kamalpuri already named. 26. Now it is undoubted that under the said Darbar order the Government was to continue its administration (1) so long as the litigation continued and also (2) so long as the Mahant and Pujaris did not correct their morals. The only possible interpretation of the Darbar order is that the administration of the temple was to continue at the hands of the Government until and unless those two conditions were fulfilled. It is incontestable that the word 'tak' (till) connotes terminusad cuem, so that when it is ordered that a certain state of affairs shall continue till the happening of a certain event or events that state of affairs must cease to continue on the happening of thas event or events. Regarding the first of the two conditions it is a matter or record that Ramgovind and Ramnath Pujari lost in the litigation which had gone up to the highest tribunal, so that no dispute was pending in any Court between the Mahant and the Pujaris on the date of the present suit. As regards the second, the Pujaris had completely gone out of the picture before the present suit was instituted. The only question, which is crucial, is whether the Mahant has corrected his morals. 27. But there is no averment in the plaint that Tejpuri and his Chelas had repaired their morals before the commencement of the suit no has Kamalpuri, on being brought on the record as the plaintiff, averred that he has mended his character: in fact there is no mention at all of the Darbar order (Ex. P-49). 27. But there is no averment in the plaint that Tejpuri and his Chelas had repaired their morals before the commencement of the suit no has Kamalpuri, on being brought on the record as the plaintiff, averred that he has mended his character: in fact there is no mention at all of the Darbar order (Ex. P-49). In may judgment, Order 6 Rules of the Code of Civil Procedure is inapplicable here. That rule renders it unnecessary for a party to plead expressly the performance of a condition precedent, which must be implied in his pleading, and it is for the other party, if he contends that there was a condition precedent and that it has not been duly performed, to raise that ground in his pleading; if he does not, its due performance had to be presumed. But a distinction must be drown between a condition precedent and an essential part of the cause of action. It is settled law that the cause of action is a bundle of facts which the plaintiff must prove in order to en title himself to a decree; in other words it is that bundle which by itself creates in law a right or obligation. A condition precedent is something which prevents such a fight or obligation from springing out, which right or obligation would have otherwise sprung out. It may be said that a condition precedent is a formality attached to the cause of action, until the performance of which the right of action remains in suspense. Thus, it is quite clear that a condition precedent is not the same thing as an allegation which is of the essence of the cause of action. If something which creates and is the foundation of the plaintiff's right is nut pleaded, the plaint is defective and plaintiff cannot take shelter under Order 6 Rule 6, Civil Procedure Code. He cannot be heard to say that the defendant did not plead absence of the fulfillment of a requirement, which requirement is the sine qua non for the right claimed in the suit. Order 6, Rule 6, Civil Procedure Code, is in identical terms with Order 19 Rule 14 of the Rules of the Supreme Court of England. He cannot be heard to say that the defendant did not plead absence of the fulfillment of a requirement, which requirement is the sine qua non for the right claimed in the suit. Order 6, Rule 6, Civil Procedure Code, is in identical terms with Order 19 Rule 14 of the Rules of the Supreme Court of England. The following commentary in the Annual Practice (1959) by Burnand, Diamond and Burnett-Hall is apposite:- "Cases constantly occur in which, although everything has happened which would at common Law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action there is yet something more which must be done, or something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law. But an allegation which is of the essence of the cause of action is not a condition precedent within the meaning of this Rule and must still be pleaded in the statement of claim." In the present case, repairs of the Mahant was one of the requirements laid down in the Darbar order the plaintiff cannot succeed unless he fulfilled that requirement. In Ahmad Hussain Vs. Chambelli ILR 1950 (1) Cal. 606, Sarkar J. (now a Judge of the supreme Court) had to consider a case of a dishonoured cheque. The plaint did not state that any notice of dishonour had been given or that any circumstances existed which had rendered it unnecessary to give such notice. It was contended for the plaintiff that the facts relating to the notice of dishonour were not part of the cause of action but were mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which was to be implied in the plaint under Order 6 Rule 6 Civil Procedure Code. It was contended for the plaintiff that the facts relating to the notice of dishonour were not part of the cause of action but were mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which was to be implied in the plaint under Order 6 Rule 6 Civil Procedure Code. This contention was rejected because the only way in which the liability on the cheque arose was when (1) the cheque was dishonoured and (2) notice of such dishonour had been given or circumstances existed which rendered it unnecessary to give such notice. The learned Judge said: "It is not a case where, if no provision as to the notice of dishonour had been laid down, a right would have arisen in the holder on the dishonour had been laid down, a right would have arisen in the holder on the dishonour of the cheque and where the only effect of this provision is to prevent such right from springing up. The notice of dishonour, as the law as to cheques stands, is a part of the cause of action on a dishonoured cheque." See also Fruhauf Vs. Grosvenor and Co. 61 LJ,QB 717; May vs. Chidley [1894] 1 QB 451 and Roberts Vs. Plant [1895] 1 QB 597. 28. It then, comes to this, that if in the present case, the right of the Shebait to restoration of the administration was superseded by the Darbar order and now his right of restoration Haws from the Darbar order itself, under which the right matures only on the fulfillment of both the requirements the suit will have to be dismissed for want of necessary pleadings; otherwise the plaintiff is entitled to a decree. This problem has to be resolved by application of the law as enunciated by the Supreme Court. The effect of an order issued by a Sovereign was pronounced by their Lordships in Ammerunissa Begum vs. Mahboob Begum AIR 1955 SC 352 , where the effect of a Firman of the Nizam of Hyderabad was considered. By that Firman a decision of a Special Commission in respect of certain claimants was set aside. There was a subsequent Firman which revoked the earlier one but did not restore the decision of the Special Commission. By that Firman a decision of a Special Commission in respect of certain claimants was set aside. There was a subsequent Firman which revoked the earlier one but did not restore the decision of the Special Commission. In that context the Supreme Court said:- "It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive and there was no constitutional limitations upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam any they were binding in the same way as any other law; may, they would override all other laws which were in conflict with them. So long as a particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later 'Firman' at any time that that the Nizam willed." In another case again from Hyderabad, their Lordships reiterated this proposition and held that the Nizam was an absolute sovereign regarding domestic matters at that time and "his work was law." "It does not matters whether this be called legislation or executive act or a judicial determination be cause there is in fact no dear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a Court." See Director of Endowments Vs. Akram Ali AIR 1956 SC 60 . While dealing with Qalambandis issued by rulers of Gwalior in regard to certain hereditary military pensions, the Supreme Court laid down in Madhavrao Phalke Vs. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a Court." See Director of Endowments Vs. Akram Ali AIR 1956 SC 60 . While dealing with Qalambandis issued by rulers of Gwalior in regard to certain hereditary military pensions, the Supreme Court laid down in Madhavrao Phalke Vs. The State of Madhya Bharat 1960 JLJ 1064 = 1961 (1) SCR 957 , that the Qalambandis were existing law within the meaning of Article 372 of the Constitution and in that connection it was said: "No distinction could be made between a legislative order and a legislative command made by an absolute monarch, such as the Rulers of Indian State of Gwalior were, since they have the same force of law, passed in whichever capacity they may be, and govern the rights of the subjects......Consequently, even supposing that the Qalambandis did not amount to a Quanun or law technically so called, they would nevertheless be orders or regulations having the force of law in the State at the material time and would be existing law within the meaning of Article 372 of the Constitution." However, after examining the provisions of the Qalambandis, their Lordships held that their contents and the character of their provisions showed that they could not be mere administrative orders, and if not statutes, were, in any event, rules and regulations having the force of law. In Promod Chandra Deb Vs. The State of Orissa AIR 1962 SC 1288 , the Supreme Court held whether the act of the former Rulers in making the maintenance grants partook of the character of the legislative or executive action, it had the effect of law. 29. If it could be thought that the dictum bound to be deduced from all the above pronouncements was that an order of a Soverlign Ruler of a princely State of India was binding on the Courts and had the force of a Quanun and it superseded all laws irrespective of whether the order was legislative or administrative, that doubt has been resolved very recently in the Maharaja Shri Ummed Mills Limited Vs. Union of India AIR 1963 SC 953 . Their Lordships have clarified the position in these words:- "In our view none of the decisions in Amerunnisa Begum Vs. Mahboob Begum AIR 1955 SC 352 ; Director of Endowments, Government of Hyderabad Vs. Union of India AIR 1963 SC 953 . Their Lordships have clarified the position in these words:- "In our view none of the decisions in Amerunnisa Begum Vs. Mahboob Begum AIR 1955 SC 352 ; Director of Endowments, Government of Hyderabad Vs. Akram Ali AIR 956 SC 60; Madhaorao Phalka Vs. The State of Madhya Bharat 1961 (1) SCR 957 ; Promod Chandra Deb Vs. The State of Orissa AIR 1962 SC 1288 go to the extent of lying down that any and every order of a sovereign ruler who combines in himself all functions must be treated as law irrespective of the nature or character of the order passed. We think that the true nature of the order must be taken into consideration and the order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the sovereign which does not derive its authority from mere consensus of mind of two parties entering into a bargain". Although that was a case of a contract, yet the ratio decidendi is that it is the true nature of the order of a soverlign ruler which must be taken into consideration and an order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the soverlign. 30. In the present case, the initial order of the Council of Regency, dated December 1, 1932, (Ex. P-41), contained an administrative direction for submitting a report after two years. It was by reference to that direction that the Muafi Commissioner submitted a report to the Ruler of Gwalior in 1939. That report essentially deals with the effect of the taking over. The report concluded in a recommendation that the Government administration be allowed to continue until litigation ended and until the Mahant and his Chelas corrected their morals. In my opinion the Durbar order dated August 10, 1939 (Ex. P-49) accepting the Muafi Commissioner's recommendation, was clearly administrative in its nature and character. It being so the plaintiff must succeed Today, under the existing law, Kamalpuri as the Shebait is entitled to management of the endowment irrespective of the quality of his personal character. In my opinion the Durbar order dated August 10, 1939 (Ex. P-49) accepting the Muafi Commissioner's recommendation, was clearly administrative in its nature and character. It being so the plaintiff must succeed Today, under the existing law, Kamalpuri as the Shebait is entitled to management of the endowment irrespective of the quality of his personal character. If Kamalpuri does not possess a desirable character, it will be unfortunate that he will possess uncontrolled management of such a reputed public temple and the endowed properties, but the Shebait's unrestricted legal right of management cannot be taken away, curtailed or controlled except by suitable legislation. 31. The State Government also resisted the suit as barred by time. Reliance was placed on Art. 124 of the Limitation Act and it was submitted that the cause of action arose in the year 1932 when the management of the temple was taken over from Tejpuri. I am clearly of the view that Article 124 is wholly inapplicable because this is not a suit for possession of the office of the Shebait. It is nobody's case that the Government took possession of that office adversely to the plaintiff. If there is any distinction between "office" and "property", Article 124 is not attracted to a suit for the latter. See the observations in Kalipada Chakraborty Vs. Palani Bala Devi 1933 SCR 503 Likewise, there is no weight in Mr. Gupta's argument that the cause of action arose on January 25, 1950, when the litigation between the Mahant and the Pujari came to an end. That argument could be of avail if it were held that the Shebait's right of restoration emanated from or was governed by the supervening law in the form of the Durbar order of 1939 (Ex. P-3). But I have held otherwise. As I look at it, the State Government had all along been treating itself as a trustee. A fasciculus of documents on the record (some of them already mentioned) shows instance after instance that the Government for the time being had been treating its administration as temporary. P-3). But I have held otherwise. As I look at it, the State Government had all along been treating itself as a trustee. A fasciculus of documents on the record (some of them already mentioned) shows instance after instance that the Government for the time being had been treating its administration as temporary. But when the endowment was judicially held to be a public temple, the Government laboured under an impression that in the case of a public temple its management by a private individual was not legally permissible and that the question of restoring its administration to the respondent would not arise as it could arise if it had been a private temple of the so-called Mahant. And this position the Government expressed in its reply to the plaintiff's notice under section 80 Civil Procedure Code. But this was a misconception of the law and that stand was not adhered to in the written statement, nor has it been pleaded before us, and rightly. Thus, the possession of the State become adverse from that point of time when in 1950 it refused to return the management to the plaintiff. Article 144 of the Limitation Act comes into play. The suit is within time. 32. At the hearing, it was not urged for the appellant that the suit ought to have been dismissed according to the proviso to section 42 of the Specific Relief Act, for the plaintiff's failure to seek further relief. In the opening paragraph of the judgment of the trial Court, it is mentioned that a relief for possession of the entire property of the temple and the deity was sought. In the opening paragraph of the judgment of the trial Court, it is mentioned that a relief for possession of the entire property of the temple and the deity was sought. One of the several reliefs, which were granted in the decree of the trial Judge, was: "The plaintiff be restored to the management of the temple and its property." In clause (1) of paragraph 16 of the plaint, a declaration of the plaintiff's right was sought, and in the second clause, consequential relief not only by way of injunction restraining the Government to interfere with the management of the temple was sought, but also it was prayed that the plaintiff be put in charge of the management of the temple." "Aur uska charge muddai ko samhalwa dewe taki muddai ka mandir par intezam wa ahtamam ho jawe aur sarkar usmen dakhal na dewe." An objection on the basis of the proviso to section 42 of the Specific Relief Act was not taken in the written statement. If it had been taken and if it had been found to have merit, the Court would have allowed the plaintiff to amend the plaint. The proviso to section 42 of the Specific Relief Act does not authorise dismissal of the suit where an appropriate further relief ought to be claimed but is not claimed. It only forbids the Court to make the declaration, the prayer for which is not coupled with the prayer for consequential relief. A Court of appeal must not dismiss the suit because it is one praying only for a declaratory suit without any consequential relief, where the defendant had not taken that objection, but must allow the plaint to be amended and, if necessary, to pay additional stamp duty. See Lumba Vs. Rama ILR 13 Bom. 548; Chomu Vs. Umma ILR 14 Mad. 46 and Abdul Kadar Vs. Mohomed ILR 15 Mad. 15. However, as stated above, the question of amendment of the plaint does not arise in the present case. 33. The appeal is dismissed with costs. Per Khan J. - 34. This first appeal arises out of suit No. 1 of 1952, decided by the Additional District Judge, Morena, decreeing the plaintiff's suit. The State has filed this appeal against the decision of the trial Court. 35. 33. The appeal is dismissed with costs. Per Khan J. - 34. This first appeal arises out of suit No. 1 of 1952, decided by the Additional District Judge, Morena, decreeing the plaintiff's suit. The State has filed this appeal against the decision of the trial Court. 35. Shortly stated the facts are that Mahant Tejpuri brought this suit against the State of Madhya Bharat, alleging that the temple in dispute was founded by Mahant Rajpuri in Samvat 1905 (A.D. 1845), that on the death of the founder, his Chela Mahant Kundanpuri succeeded him, that on Kundanpuri's death, his Chela Tejpuri succeeded, and it is this Tejpuri who has brought this suit. During the pendency of the suit, Tejpuri died, and in his place Mahant Kamalpuri was substituted and Kamalpuri is now the respondent before us. 36. It is alleged in the plaint that after Kundanpuri's death, some disputes arose between Mahant Tejpuri, successors of Mahant Kundanpuri and the Pujaries, and, being tired of the disputes, Mahant Tejpuri on the 1st of July 1930 presented an application (Ex. P-47 page 358 of the Paper Book) to the Aukaf Department, Gwalior State to the effect that the temple be taken over and that it be managed in the same way as the Nagra Devta Mandir. From the record it, however, appears that even before the submission of this petition by Mahant Tejpuri, the Gwalior Government had taken notice of the fact that the affairs of the temple in dispute were not being conducted properly, and on 6-12-32, on the Guzarish (submission) of the then Home Member of Gwalior State, the Council of Regency (A sovereign body in place of His late Highness Sir Madhao Rao Scindia) on 6-12-32 directed that the management of the temple be taken over according to section 30 of the Quanoon Aukaf as recommended by the Home Member Disputes between the Mahant on one hand and Pujaries on the other continued in Civil Courts On the termination of the litigation between the Mahant and the Pujaries, in which the Mahant was successful, Mahant Tejpuri applied to the State Government to hand back the management of the temple to him. This the State Government refused on the ground that it was a public temple, and the question of its return did not arise. This the State Government refused on the ground that it was a public temple, and the question of its return did not arise. It is in these circumstances that plaintiff Tejpuri has filed this suit for a declaration that he has the right to manage the affairs of the temple, and, that the State be restrained by an injunction from interfering with his right. He also prayed for the rendition of accounts by the Government since the taking over of the management. 37. The Madhya Bharat State, which was originally the defendant resisted the suit on the ground that the management was taken over under section 30 of the Quanoon Aukaf, known as Riyasat Gwalior-ki-Prishtishgahon Aur Mazhabi Aukaf-ki-Imadad Aur Nigrani-k-a Quanoon of Samvat 1983 (hereinafter referred to as the Aukaf Act) that the Government took over after making its own enquiry in the affairs of the temple. Bar of limitation was also pleaded. 38. The Additional District Judge, Morena, who tried this suit, held the plaintiff was entitled to the management of the temple, restrained the Government from managing it and also directed the Government to render accounts not from inception, but from 1950 only. Against this judgment and decree the State has filed this appeal. 39 The one short ground on which the case ought to have been dismissed is that on the allegation of the plaintiff himself the possession is with the State Government. A declaration of the mere right of the plaintiff is of no avail, till he seeks the further relief of possession, because without possession he can not manage the affairs of the temple. According to proviso to section 42 of the Specific Relief Act, the plaintiff having failed to seek further relief, no declaration, such as he seeks, can be made. This is the most obvious point which has been overlooked and omission to sue for possession disentitles him to any declaration. 40. The one and the real question for consideration in this appeal is whether the plaintiff is entitled to get back the management of the temple which the Gwalior Durbar and taken over section 30 of the Aukar Act of Samvat 1983. 41. The two documents, which show how and why the management was taken over by the Gwalior Government are (1) (Ex. P-47), an application by Mahant Tejpuri, predecessor of the present plaintiff, (2) (Ex. 41. The two documents, which show how and why the management was taken over by the Gwalior Government are (1) (Ex. P-47), an application by Mahant Tejpuri, predecessor of the present plaintiff, (2) (Ex. P-48), a Guzarish by the then Home Member of the Gwalior State. 42. (Ex. P-47) is an application dated 1-7-1930 addressed to Aukaf Department Gwalior Government and was presented by Mahant Tejpur, requesting that the temple be taken over. After giving a short history as to who founded the Mandir, the applicant referred to some disputes between him and the Pujaries, and, requested that the Mandir be taken over and administered in the same way as the Mandir of Nagra Devta. No order appears to have been passed on this application and therefore this application cannot be treated as the basis on which the temple was taken over by the Gwalior Government. 43. But (Ex. P-48), dated 26-10-32, is a Guzarish of the then Home Member of the Gwalior State which shows under what circumstances the management of the temple in dispute was taken over. 44. The Guzarish shows that on 5-4-1932, the Home Member passed some order (which is not before us) and sent it to the President, Central Mazhabi Aukaf Committee, Gwalior. Although the order is not before us, yet from the reply received from the President of the Committee, which has been referred to in the Guzarish it can be inferred that it was some quarry which related to the affairs of this Mandir. 45. The Home Member found himself in complete accord with the view expressed by the President, Central Mazhabi Aukaf Committee; and, after consulting the Law Minister and studying the case in all its aspects, he made a submission to the Council of Regency that according to the recommendation of the President, Central Mazhabi Aukaf Committee, the Mandir must be taken over under the management of the Government under section 30 of the Quanoon Aukaf. 46. The Guzarish also contained a reference to the Durbar order dated 2-8-23, according to which a Committee was appointed for the investigation of the status of old places of worship and that the Committee after an inquiry said that the Mandir in dispute was a famous temple. 46. The Guzarish also contained a reference to the Durbar order dated 2-8-23, according to which a Committee was appointed for the investigation of the status of old places of worship and that the Committee after an inquiry said that the Mandir in dispute was a famous temple. It had also staled in its report that inspite of its Charotri being enormous, the condition of the temple was very bad, and it was suggested that if the State did not take over its management, the condition of the temple would further deteriorate. 47. The Guzarish also said that as far back as 1927, the local officers of the District had expressed that their opinion that because of the bad character of Mahant Tejpuri, the affairs of the Mandir were going from bad to worse, and they had recommended that the management of the temple be taken over under section 30 of the Quanoon Aukaf. Thereafter, the matter was transferred to the Cantral Mazhabi Aukaf Committee, and the Committee resolved on 29-5-28 that because of mutual disputes and in order to save the Mandir from ruin due to its bad management, it should be taken over under section 30 of the Quanoon Aukaf. In the meanwhile, a compromise was entered into, between the contending parties, in consequence which further proceedings were dropped. Two years after this, Mahant Tejpuri again agitated the matter. On a further inquiry being made from the Suba (the Collector of the District), he advised that having regard to the affairs of the Mandir it was advisable that it should be taken over by the Government. 48. This time the matter was again referred to the Central Mazhabi Aukaf Committee and it again recommended that the temple be taken over under section 30 of the Quanoon Aukaf. 49. In the end, the Guzarish said that after considering the matter in all its aspects, the Home Member was of the opinion that in accordance with the opinion of the Central Mazhabi Aukaf Committee, the temple should be taken over under section 30 of the Quanoon Aukaf. 50. This Guzarish was submitted to the Council of Regency on 26-10-30, and, the Council of Regency (which was a sovereign body Curing the minority of the Ruler) approved of the Guzarish of the Home Member and directed that the temple be taken over according to the Home Member's submission. 50. This Guzarish was submitted to the Council of Regency on 26-10-30, and, the Council of Regency (which was a sovereign body Curing the minority of the Ruler) approved of the Guzarish of the Home Member and directed that the temple be taken over according to the Home Member's submission. It further directed that a report be submitted to the Council of Regency after two years to show what improvement had been effected. This order was passed by the Council of Regency on 6-12-32. 51. From a perusal of the (Ex, P-48), it would appear 'that the Mandir in dispute was taken over not because of the petition (Ex. P-47) submitted by Mahant Tejpuri, but it is the Guzarish of the then Home Member, which is responsible for its being taken over by the Government under section 30 of the Quanoon Aukaf. Section 30 runs as follows: “Kisi Parishtishgah aur Mazhabi Wakf ki Nigrani wa Intzam ke liye jo tarikhi halat ke aitwar se ya qadamat ki wajah se mashhoor ho ya jiski nisbat agraz amma ke liye ya kisi khas wajah se zaroori khyal kiya jaye to Government ko ikhtiyar hoga ki aik special committee muqarrar kare ya yah hukm sadir farmaye ki usko sarkari aitmam main liya jay." 52. This section (S. 30) docs not contemplate any return of the place of worship that may have been taken over by the Government under its management. Nor is there any other section in the Aukaf Act for the return of management. 53. The preamble of the Aukaf Act shows that the object of enacting that law was to preserve debutter property and to save it from rack ruin due to dishonest and bad management. The object of this enactment, therefore was to preserve debutter property from being mismanaged or ruined. Just as in Mohammedan Law the Kazi had the power of superintendence ever all dedicated property and the Kazi could remove a person in charge of its management for committing misfeasance or misbehaviour, so does this law (the Aukaf Act of the Gwalior State) aim at the taking over of the management or any Parishtishgah or Wakf by Government under certain circumstances. The reason which compelled the Government to take over the management of the temple are given in the Guzarish of the then Home Member (Ex. The reason which compelled the Government to take over the management of the temple are given in the Guzarish of the then Home Member (Ex. P-43) he acts of misfeasance or misbehaviour are set forth more elaborately in (Ex. P-49), to which I shall refer later on. 54. From time immemorial, religious and charitable institutions in India came under the protection of the sovereign authority. The following passage from the Hindu Law of Religious and Charitable Trust by B.K. Mukherje page 379 is illuminating:- "I have told yon already that from very early times the religious and charitable institutions in this country came under the protection of the ruling authority. There are indeed no clear written texts directly bearing on the subject and the text of Narada, which says that "a king can reduce to slavery a Sanyashin who is guilty of incontinence" suggests only in a vague way that the king had some sort of jurisdiction over religious bodies and institutions. As I have pointed out, however, there was undoubtedly some sort of customary law in India relating to temples and endowments which in the last resort had to be enforced by the king. The Smriti writers make it a duly on the part of the king to uphold the customs and usages of the land unless they are contradictory to revelation and Mitakshara in commenting upon a passage of Vajnavalkya, relating to enforcement of customs, expressly refers to customs in connection with management of temples. The duty of protecting an endowment is one of the primary duties of the king as mentioned in Sukraniti and other treatises, and this is borne out by various historical documents which exist even at the present day. That such jurisdiction existed in ancient times has been asserted in more than one pronouncement of the Judicial Committee as well as of the other High Courts in India. In Raju Muttu Ramlinga Vs. Perianayagum 1 IA page 209 at page 233, it was observed by the Privy Council that there could be little doubt that this superintending authority over temples and religious endowments was exercised by the old rulers. Sir Montaque Smith, in course of his judgment in this case relied upon the opinion expressed by Nelson in his Madura Manual that "the Dharmakartas of the Pagodas had but little communication with one another and regarded no earthly superior except the king himself. Sir Montaque Smith, in course of his judgment in this case relied upon the opinion expressed by Nelson in his Madura Manual that "the Dharmakartas of the Pagodas had but little communication with one another and regarded no earthly superior except the king himself. Each was independent of an control and acted altogether as he pleased. This freedom naturally led to gross abuses and the king was compelled to interfere in the management of some of the churches. Much in the same strain are the observations of West J. in Manohar Ganesh Vs. Lakshmiram ILR 12 Bom 247 at 260 that "under the native system of Government though it was looked upon as a heinous offence to appropriate to secular purposes the estate that had once been dedicated to pious uses, yet the State in its secular executive and judicial capacity habitually intervened to prevent fraud and waste in dealing with religious endowments." The British Indian Government followed the traditions of the former rulers of India and asserted by virtue of its sovereign power the right to look after religious institution and to prevent and redress abuses in their management. The Bengal Regulation No. XIX of 1810, the Madras Regulation No. VII of 1817 and the Bombay Regulation No. XVII of 1827 are instances of the law through which Government exercised its sovereign authority. The Gwalior Quanoon Aukaf follows the same pattern. It preserves and declares the inherent right of the Ruler and it applied equally to Hindu and Mohammedan religions institutions. The effect of taking over the management of the temple (in the instant case) under section 30 of the Aukaf Act is that whatever rights of management the Mahant had they had come to an end. The rights stood forfeited. 55. An attempt was made by the learned counsel for the respondent to point out that extinguishment of the right to manage contravened Art. 19 (1) (f) of the Constitution of India. Suffice it to say that the right of management was extinguished in 1932 and the Constitution has no retrospective operation. 56. It is argued that because even after the management was taken over by the Government, provision was made in the budget of the temple for defraying expenses for Rajbhog, celebrating the anniversary of the founder, some pocket money was ear-marked for the Mahant and Chelas, a sum of Rs. 56. It is argued that because even after the management was taken over by the Government, provision was made in the budget of the temple for defraying expenses for Rajbhog, celebrating the anniversary of the founder, some pocket money was ear-marked for the Mahant and Chelas, a sum of Rs. 300/- was granted to Mahant Tejpuri to go on pilgrimage and some money was advanced for the expenses of litigation all this shows that the Government did not intend to take over the property for all times. But this money was spent within the discretion of the Government and let it be said to the credit of Government that in its management it showed some considerations to the erstwhile Mahant and Chelas. This liberality on the part of Government cannot be construed to mean that it intended to take over management temporarily for the simple reason that there is no provision in the Aukaf Act for taking over management temporarily. 57. The last stand by the learned counsel for the respondent for the return of the property and its management is that on an application by the Mahant and other persons of the locality the late Ruler of Gwalior (Sir Jewaji Rao Scindia) had passed orders on 10-8-39 for the restoration of this temple (known as Basya Mandir) to the Mahant and a reference is invited to (Ex. P-49). Before examining this argument, I must reproduce (Ex. P-49) in its entirety. "Basaya Mandir hi amdni maqual bai. Devasthan ke mahant tatha chela wa Ramgovind wagaira aapas men jhagra kai ke devasthan ki amdani maqadmebazi wa khudgarzi men sarf hona hargiz munasib nahin. Council Aaliya se devasthan mazkur dafa 30 Quanoon Aukaf zer nigrani liye jane babat hukum hote hue thahrao tarikh 1-12-32 hua ki bad do sal report pesh ki jawe kizernigrani lene se natij kya hua. Yeh ki miyad mundarja sardar munkazi hone ke bad chand darkhwast oaguzashtigi mahant wa bashindaganki Central Mazhabi aukaf committee men pesh hui. Nigrani ke salana kagzat talab kiye gayeaur zer nigrani se kya natija muqadmen bazi ka raha, mahant wa chelon ka bartao kaisa raha bagair daryafr ke gayee Us mujib puri waqfiat sabut se dakhil hone se natija ki report pesh kame se majburi rahi. Nigrani ke salana kagzat talab kiye gayeaur zer nigrani se kya natija muqadmen bazi ka raha, mahant wa chelon ka bartao kaisa raha bagair daryafr ke gayee Us mujib puri waqfiat sabut se dakhil hone se natija ki report pesh kame se majburi rahi. Wa Sub a Saheb ne salana report bhejte huye yeh tahrir kiya ki mahant wa unke chelon ki badchalni bahmi jhagre, fisad wa baithanwniya unki taraf se ab bhi baqi hai Salana report men devasthan ke intazam ke mutaalik Nav Durga ke aiyam ka haal darj karte hue yeh tahrir hai ki mahant Tajpuri wa unke chela Raghunathpuri, Kamalpuri amdani chadotri men bawajud rok tok ke dastandazi karte hain. San 1836 men is devasthan ke golak chori gayee. Usmen wajuh apsi ranjish ke tahsil ne bataya Tahsildar saheb se daryaft karnepar unhonne yeh bhi likha hai ki mahant chelon wa Ramgovind jo apne ko puja ka huqdar samajhta hai unke darmiyan is wakht do mukdmen chal rahe hain ek District Sessions Judge Morena men Istaqrar Huq ka wa ek Revenue Department men zamidari ka. Mandir ke mashhoor marufiat ko mahant wa unke chelon ne baa hut dhakka pahunchaya hai. wa chal chalan bhi qabil itminan nahin. Itna hi nahin balki mashquk hai Police zahir karti hai ki inke talukat bednion se hain. Itna he nahin inka raj saj badmashon se bhi hai. In logon ne dokaon ko banduk baghera bechi hai. Uski tayeed bayanaat zamindaran wa record diary Police Superintendent se bhi hoti hai Yeh bhi wazoi hua hai ki charhotri haal hi ke sawan bhadon men kafi hui magar sirf 250 repye jama hue hain. Is tarah par zer nigrani halaat men bhi inke beja bartao ko batlate hue inhain tadaruk ki wa alahdgi ki khwahish Tahsildar Saheb ne ki hai. Saal gushita men wakht daura main ne khud inspection lekar munasib hidayaren din thin aur ab amdani devasthan ka intazam mutabiq qalambandi wa budget manzoor shuda kiye jane babat aur amdani charhotri ki nigrani maqul tariq par rakhe jane babat takidi yehkam diye the wa muqadmat pairwi jabab dehi ka bhiin tazam kar diya hai. Jisse public ki bhawna mandir ke tayin qayam hai. Isliye is devasthan mahant wa pujariyan halat khatir khwah hone tak wa muqadmat faisal hone tak badastur aukaf ki nigrani men rahna munasib hoga. Lihaza peshgah durbar se hukum hone ke liye Guzarish haza pesh hai." Sd. Jisse public ki bhawna mandir ke tayin qayam hai. Isliye is devasthan mahant wa pujariyan halat khatir khwah hone tak wa muqadmat faisal hone tak badastur aukaf ki nigrani men rahna munasib hoga. Lihaza peshgah durbar se hukum hone ke liye Guzarish haza pesh hai." Sd. Commissioner Muafi 10-6-39 "Hukum Durbar Sd. J.M. Scindia Guzarish manzoor 10-8-39 Camp. Bombay" In brief (Ex. P-49) shows that the Commissioner Muafi (who was then Head of the Aukaf Department) put up Guzarish to the Durbar on 10-6-39. After stating that the Basya Mandir was taken over by the order of the Council of Regency (a sovereign body during the minority of the Ruler) under S. 30 of the Aukaf Act, some applications were submitted by the Mahant (Tejpuri) and other local inhabitants for its release. On inquiry from the Suba (Collector) it appeared that the Mahant and his chelas still continued to misbehave, and that on the occasion of Nau Durga ke Utsava Mahant Tejpuri and his Chelas Raghunath Puri and Kamalpuri (the last named is the respondent in this case) interfered with the Charhotri and income of The temple. In 1936 the Golak of this Devasthan was stolen and the Tahsildar was of the opinion that the theft was due to the strained relations between the parties. The Tahsildar also reported that two civil cases were pending between Mahant and Chelas on the one hand, and Ramagovind Pujari on the other. The misbehaviour of the Mahant and his Chelas had besmeared the good name of the temple and their character is not satisfactory. The police also furnished information that they (the Mahant and Chelas) 'were on terms of illicit intimacy with village prostitutes (Bhernees) and that they were also in league with the Badmashas (dacoits). These persons sold arms and ammunition to the dacoits and these allegations were confirmed by the statements of the Zamindars and the diary of the police Superintendent. It was also disclosed that in spite of the fact in the recent months of Srawan and Bhadon, there was sufficient amount of Charbotri but a sum of only Rs. 250/- was credited. Thus, it would appear that inspite of the temple being under Nigrani, their conduct continues to be undesirable. The Commissioner Muafi also said that during his tour he inspected the Devasthan and gave proper instructions for its management. 250/- was credited. Thus, it would appear that inspite of the temple being under Nigrani, their conduct continues to be undesirable. The Commissioner Muafi also said that during his tour he inspected the Devasthan and gave proper instructions for its management. In the end be stated that till the Mahant and Pujaris gave a satisfactory account of themselves and improved their morals, and till the pending cases were decided, the management of the temple by the State should continue. On this Guzarish the Durbar said "Guzarish Manzoor". 58. Exhibit (P-49) shows that on the recommendation of the Muafi Commissioner His late Highness was inclined to agree that the management shall continue till conditions improved. The two conditions which were referred to in the Guzarish were (1) that the morals of the Mahant (who died since) and the Chalas (including the present respondent who was mentioned by name) being bad-they should improve themselves and become good, and (2) that the pending cases should be finished. 59. The learned counsel for the respondents tells us that the litigation between the parties has come to an end, and this fact is conceded by the learned Additional Government Advocate. The plaintiff has filed copies of the judgment showing that the litigation has come to an end. But there is no evidence whatsoever about any improvement in their character and morals. If the plaintiff takes his stand on [Ex. P-49] (the Durbar order on the Guzarish of the Muafi Commissioner) then he should have said in his plaint that the morals of those who claimed the return of the property to them had improved. But Mr. Motilal Gupta, learned counsel for the respondents contends that the Government never pleaded in its written statement that the improvement of morals was a condition precedent and that it had not been fulfilled before the institution of the suit, and that according to O. 6, R. 6 C.P.C. if the defendant does not allege non-performance of condition precedent, performance of the condition would be implied in the pleading. Mr. Gupta also submitted that in reply to the plaintiff's notice under S. 80 C.P.C., the Government did not raise this point; But when the plaintiff did not himself make any mention of the improvement of the morals in his notice it was not necessary to refer to it in the reply to plaintiff's notice. 60. Mr. Gupta also submitted that in reply to the plaintiff's notice under S. 80 C.P.C., the Government did not raise this point; But when the plaintiff did not himself make any mention of the improvement of the morals in his notice it was not necessary to refer to it in the reply to plaintiff's notice. 60. As for the application of O. 6, R. 6 C.P.C., a distinction should be made, between "what is of the essence of the cause of action" and that which is a "condition 'precedent"; A condition precedent is not the same thing as an allegation which is of the essence of the cause of action. If something which is the foundation of the plaintiff's right is not pleaded, the plaintiff cannot take shelter under O. 6, R. 6 C.P.C. and he cannot be heard to say that the defendant did not plead absence of the fulfillment of a requirement which is the foundation of the right he claims in the suit. Order 6 Rule 6 C.P.C. is synonymous with O. 19, R. 14 of the Rules of the Supreme Court of England. The following commentary in the Animal Practice (1959) by Court of Burnand, Diamond and Brenett Hall illustrates the point: "Cases constantly occur in which although everything has happened which would at Common Law prima facie entitle a man to a certain sum of money or vest in him a certain right of action, there is yet something more which must be done or something which must happen, in the particular case before he is entitled to issue either by reason of the provisions of some statute or because the parties have expressly so agreed. This 'something more' is called a condition precedent. It is not of the essence of such a cause of action, which it has been made essential. But an allegation which is of the essence of the cause of action is not a condition precedent within the meaning of this rule and must still be pleaded in the statement of claim." In the instant case the attainment of good morals by the Mahant and his Chelas was one of the requirements laid: down in the Durbar Order and the plaintiff even if a most charitable construction is put on the order of the Durbar, cannot succeed unless he fulfills that requirement. In Ahmad Hussain Vs. Chandeli ILR (1950) 1 Cal. In Ahmad Hussain Vs. Chandeli ILR (1950) 1 Cal. 606, the Judge (now a Judge of the Supreme Court) had to consider a case of a dishonoured cheque. The plaint did not state that any notice of dishonour had been given or that any circumstance existed which rendered it unnecessary to give such notice. It was contended for the plaintiff that the facts relating to the notice of dishonour were not part of the cause of action, but was a condition precedent necessary for the cause of the cheque, the performance of which was to be implied in the plaint under O. 6, R. 6. C.P.C. This contention was repealed by the learned Judge who was of the opinion that notice of dishonour was not a condition precedent but was part of the cause of action of a dishonoured cheque, There are several English authorities on this point as well. See Fruhauf Vs. Grosvenor and Co. 61 LJ QB 717; May Vs. Chidley (1894) 1 QB 451, and Roberts Vs. Plant (1895) 1 QB 597. The order of the Durbar in (Ex P-49) prima facie is provisional in its nature. What I mean is that if the Gwalior State had continued, the Muafi Commissioner would not have by himself released the property from his control, without a further submission to the Durbar, stating that the conditions having been fulfilled, the property may be released from management of the State. And if Durbar had been satisfied as to the moral character of the Mahant and Chelas, he may have passed a final order. And the Darbar may have not passed the final order if it had been brought to his notice that S. 30 of the Quanoon Aukaf does not contain any such provision. 61. For reasons stated above, I would allow the appeal and setting aside the judgment and decree of the trial Court, dismiss the plaintiff's suit. Parties shall bear their own costs throughout. ORDER OF REFERENCE (1-5-1963) A.H. Khan & Shivdayal, JJ. - 62. 61. For reasons stated above, I would allow the appeal and setting aside the judgment and decree of the trial Court, dismiss the plaintiff's suit. Parties shall bear their own costs throughout. ORDER OF REFERENCE (1-5-1963) A.H. Khan & Shivdayal, JJ. - 62. There being a difference of opinion between us as to the construction of section 30 of Riyasat Gwalior ki Parishtishgahan Aur Mazhabi Aukaf-ki-Imdad Aur Nigrani-ka-Quanoon of Samvat 1983 and, also as to interpretation of Durbar order dated 10-8-39, this appeal be laid before my Lord the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter according to Rule 11 of Chapter 1 of M.P. High Court Rules. OPINION (29-464) PANDEY, J. - 63. This case comes before me on a difference of opinion between Khan J. and Shiv Dayal J. on the construction of section 30 of Riyasat Gwalior Ki Paristish gahan Aur Mazhabi Aukaf Ki lmdad Aur Nigrani Ka Quanoon of Samvat 1983 (hereinafter called the Gwalior Act) and the interpretation of the Durbar Order dated 10 August 1939. 64. The facts of the case, briefly stated, are these. There is a temple of Kali Mata at village Basaiya in Morena district which is famous as Basaiya Mata Temple. It was established in the year 1905 by Mahant Rajpuri who, upon his death, was succeeded by his Chela Kundanpuri. On the death of Kundanpuri in 1919, his Chela Tejpuri succeeded him as the Mahant. Since there were disputes between him and the Pujaris of the temple he made on 1 July 1930 an application requesting that, as in the case of the Nagardevta Temple, the administration of the Basaiya Mata Temple be taken over by the Gwalior Government. By an order dated 1 December 1932 (Ex. P-48), the Gwalior Government (which was carried on by a Council of Regency) took over the administration under section 30 of the Gwalior Act, appointed a Special Committee as provided by that section and directed that a report showing the effect of taking over the administration of the temple be submitted after two years. P-48), the Gwalior Government (which was carried on by a Council of Regency) took over the administration under section 30 of the Gwalior Act, appointed a Special Committee as provided by that section and directed that a report showing the effect of taking over the administration of the temple be submitted after two years. After about seven years, on 10 August 1939 to be more precise, the Ruler of Gwalior passed the following operative order: ^^blfy, ;g nsoLFkku egUr iqtkfj;ku dh gkyr [kkfrj [okg gksus rd o eqdnekr QSlyk gksus rd cnIrw izkSdkQ dh fuxjkuh esa jguk equkflc gksxkA fygktk is’kxkg njckj ls gqDe gksus ds fy, xqtkfj’k gktk is’k gSA^^ When the litigation between Tejpuri and Pujaris finally ended in favour of the former, he applied to the Madhya Bharat Government that the temple be restored to him. The Government took the view that the Basaiya Mata Temple was a public temple and there was no question of restoring it to Tejpuri. Thereupon, Tejpuri brought the suit, out of which this appeal arises, claiming inter alia a declaration of his right to manage the temple and also an injunction requiring the State Government to remove the control which had been exercising over the administration of the temple. During the pendency of the suit, Tejpuri died and was succeeded by his Chela Kamalpuri. 65. The Court of first instance decreed the plaintiff's claim. Being aggrieved, the State Government has how come up in appeal. Having regard to the facts of this case, it appears to me that the impact of the Madhya Pradesh Public Trusts Act, 1951, which was ex ended to the Madhya Bharat region, has not been considered. If this is a public trust as defined in section 2 (4) of the Act, section 32 (1) thereof enacts that ,no suit to enforce a right on behalf of a public trust, which has not been registered, shall be heard or decided in any Court. Secondly, the question is whether, in consequence of section 6 (1) of the Madhya Pradesh Extension of Law Act, 1958, the Gwalior Act, being a law corresponding to the Madhya Pradesh Public Trusts Act, 1951 stands repealed. Since these questions have not been referred to me, I would merely state them without expressing any opinion. 66. Secondly, the question is whether, in consequence of section 6 (1) of the Madhya Pradesh Extension of Law Act, 1958, the Gwalior Act, being a law corresponding to the Madhya Pradesh Public Trusts Act, 1951 stands repealed. Since these questions have not been referred to me, I would merely state them without expressing any opinion. 66. Shiv Dayal J. is of the view that the Gwalior Government took over the administration of the temple only temporarily, that it did so at the instance of Tejpuri and that the conduct of the parties contraindicated that Tejpuri had permanently surrendered his right of managing the temple or that the Gwaliar Government had permanently taken over the management. Section 30 of the Gwalior Act is according to Shiv Dayal J, not a law of acquisition of property and it cannot justify the refusal to restore the temple to the person entitled to administer it. In regard to the Durbar Order dated 10 August 1939, Shiv Dayal J. is of opinion that it is only an administrative order and not law. On the other hand, Khan J. thinks that, since there is no provision either in section 30 or any other section of the Gwalior Act, the administration of the temple cannot be restored back to the person entitled and that, if it can be restored at all, that can be done only after the preconditions laid down in the order dated 10 August 1939 are fulfilled. 67. Having heard the counsel, I agree with the opinion expressed by Shiv Dayal J. on the two questions. 67. Having heard the counsel, I agree with the opinion expressed by Shiv Dayal J. on the two questions. The relevant section 30 of the Gwalior Act reads: ace="Kruti Dev 011">^^fdlh ifjLr’kxkg vkSj etgoh oDQ dh fuxjkuh o bartke ds fy, tks rkjh[kh gkykr ds ,rckj ls ;k dnker dh otg ls e’kgwj gks ;k ftldh fuLcr vxjkt vkEek ds fy, ;k fdlh [kkl otg ls t:jh [;ky fd;k tk;s rks xouZesUV dks vf[r;kj gksxk fd ,d Lis’ky desVh eqdjZj djs ;k ;g gqDe lkfnj Qjek, fd mldks ljdkjh ,greku esa fy;k tk;sA^^ It is quite true that neither section 30 nor any other section of the Gwalior Act expressly provides for restoration of any temple and its property the administration of which has been taken over by the State, Even so, I am of opinion that the language employed in the section must be construed in its appropriate setting and, if necessary, limited to the object which the Legislature had in view. So, the meaning of the words of a statute is found not so much in a strictly grammatical construction or etymological property of language, nor even in its popular use, as in the subject or in the occasion in which they are used, and the object to be attained In order, therefore, to come to a decision as to the true meaning of a word used in a statute, one has to enquire as to the subject matter of the enactment and the object which the Legislature had in view; Workmen of Dimakuchi Tea Estate Vs. The Management of Dimakuchi Tea Estate 1958 SCR 1156 and The State of Uttar Pradesh Vs. C. Tobit and others 1958 SCR 1275 . The preamble of a statute has been said to be a good means of finding out its meaning and, as it were, a key to the understanding of it. A Thangal Kunju Musaliar Vs. M. Venkitachalam Potti and another [1955] 2 SCR 1196. Indeed, the preamble may now be regarded, like the title, as part of the statute for the purpose of explaining, restraining or even extending enacting words, but not for the purpose of qualifying or limiting express provisions couched in clear and unambiguous terms: Halsbury's Laws of England, 2nd Edn., Vol. 31, para 558 (p. 461). Indeed, the preamble may now be regarded, like the title, as part of the statute for the purpose of explaining, restraining or even extending enacting words, but not for the purpose of qualifying or limiting express provisions couched in clear and unambiguous terms: Halsbury's Laws of England, 2nd Edn., Vol. 31, para 558 (p. 461). The preamble of the Gwalior Act reads: "Whereas it is expedient that places of worship which are established or may be established in future in Gwalior State are maintained in a state which fulfils the object of their founders and do not remain without worship and the properties and assets which may have been endowed for the aid, management and maintenance of such places of worship, or which may be so endowed in future may be administered according to the desire of the donors and be properly supervised, the Council of Regency, on behalf of the Ruler, hereby enact as follows: ............" In my opinion, having regard to the object of the Gwalior Act as indicated by its preamble, the appointment of a special committee or Ehtamam (management) contemplated by section 30, which does not by clear and unambiguous language show that it was to be undertaken on a permanent footing, is limited to the time required for restoring proper management of a place of worship and its property necessary for fulfilling the objects of the founder. 68. Even apart from the construction of section 30 of the Gwalior Act, the position in law is not different. Being an "existing law", the Gwalior Act will not offend Article 31 of the Constitution but, if section 30 is interpreted as authorising the taking over of management of the temple and its property permanently, it will be inconsistent with Article 26 of the Constitution and will, to the extent of such inconsistency, be void. So, in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shrirur Mutt 1054 SCR 1005 the Supreme Court observed at page 1029 as follows: "It should be notice however, that under Article 26 (d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. Law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26." Again, in Ratilal Panachand Gandhi Vs. The State of Bombay and others 1954 SCR 1055 the Supreme Court observed at pages 1063-64 as under: "In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here against should be remembered that under Article 26 (d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26 (d) of the Constitution." It is thus obvious that the contention that, in the absence of any provision in the Gwalior Act the State Government cannot be compelled to restore the temple and its property is clearly untenable. In order to make the position clear I would like to add that this is not a case where any property had already been acquired and taken over under a pre-constitutional law. The ownership of the temple and its property remained vested, as before in the person in whom they were vested. It was only the administration of the temple and its property that had been taken over under section 30 of the Gwalior Act. In this situation, clause (d) of Article 26 of the Constitution entitles the Mahant for the time being to administer the property of the temple. 69. It was only the administration of the temple and its property that had been taken over under section 30 of the Gwalior Act. In this situation, clause (d) of Article 26 of the Constitution entitles the Mahant for the time being to administer the property of the temple. 69. On the second question, having regard to the nature of the order dated 10 August 1939 as one passed in relation to a matter, which was the subject matter of an earlier order under section 30 of the Gwalior Act, I am of opinion that it is an administrative order. The decision of the Gwalior Government to take over the administration of the Basaiya Mata Temple under section 30 of the Gwalior Act is clearly an administrative or executive order and the one dated 10 August 1939, deciding to continue to retain such control until the position was improved in certain respects is also likewise an executive order and not law. In this connection, I my point out that the Ruler of Gwaliar had, for making laws, adopted a particular form similar to the one found in the case of the Gwaliar Act. So., both the form and the substance show that the order is not law. Maharaja Shree Umaid Mills Ltd. Vs. Union of India and others AIR 1963 SC 953 and The State of Gujrat Vs. Vora Fiddali Badruddin Mithibarwala and others Civil Appeals Nos. 182 to 186 of 1963 dated 30 January 1964. JUDGMENT A.H. Khan & Shivdayal, JJ. 70. On there being a difference of opinion between us as to the construction of section 30 of the Riyasat Gwalior Ki-Parishtishgahan Aur Mazhabi Aukaf-ki-Imdad Aur Nigrani-ka-Quanaon of Samvat 1983 and also as to the interpretation of Durbar Order dated 10-8-39, this case was heard by Pandey J. The appeal is now decided according to the opinion of the majority. 71. In result, the appeal is dismissed with casts. 72. Under section 82 Civil Procedure Code we give two months time to the State Government to satisfy the decree.