P. D. DESAI, J. ( 1 ) THIS appeal arises out of Civil Suit no. 8 of 1969 filed by the Charity commissioner, Bombay (now the Charity commissioner, Gujarat) under Section 50 of the Bombay Public Trusts Act, 1960 (hereinafter referred to as the said Act) in the Court of the District Judge of mehsana for settlement of a scheme for the administration of Shri Bahucharaji mata Sansthan, a temple registered as a public trust under the provisions of the said Act, by superseding or varying "shri bahucharaji Matana Golakh Utpanna vyavastha Niyam, 1943" (Shri bahucharaji Mata Golakh Income administrations Rules, 1943), hereinafter referred to as the Golakh Rules, which were framed by and/or under the authority of the then ruler of ex-Baroda state and for other incidental reliefs, The suit was dismissed by the learned District judge by the judgment and decree passed on February 28, 1962 and the original plaintiff has thereupon brought the matter in appeal to this Court. ( 2 ) THE first respondent (original defendant No. 1) is the State of Bombay (now the State of Gujarat) in whom the management of the temple vests. The second respondent (original defendant no. 2) is the Manager of the temple who looks after its day-to-day management. Respondents Nos. 3 to 7 (original defendants Nos. 3 to 7) were the members of the Advisory Committee of the temple at the time of the institution of the suit. The Advisory Committee was reconstituted during the pendency of the suit and respondents Nos. 3 to 5, 7 and 12 to 14 (original defendants Nos. 12 to 14) are the members of the new Advisory committee. Respondent No. 11 (original defendant No. 11) is the Collector of mehsana who supervises the management of the temple and is the Chairman of the Advisery Committee. Respondent No. 8 (Barot) and respondents Nos. 9 to 10 (Kamalias), original defendants Nos. 8, 9 and 10 are persons who are entitled a share in the residue of the Golakh income of the temple (income in the shape of offerings in cash or kind up to a specified limit made at five different places in the temple) in proportion of ten annas and six annas in a rupee respectively. These three respondents are the real contesting parties in this ligigation. These three respondents are the real contesting parties in this ligigation. ( 3 ) BEFORE dealing with the merits of the dispute between the contesting parties, it would be appropriate to set out the historical background of the temple, particulars regarding the properties and sources of income and management of the temple and genesis of the association of the contesting respondents with the temple and their right to a share in the residue of the golakh income of the temple. ( 4 ) THE temple of Bahucharaji is situated at village Bechar or Becharaji, Takula chanasma, District Mehsana. The temple is also known as Bala Trupura Sundari or Shakti Pith or Maha Pith. It is an ancient temple to which Hindus of all sects and castes flock for worship and is looked upon with great veneration by the people of western India in general and Pavayyas (eunuchs) in particular. This would be evident from the fact that about two lacs devotees or pilgrims visit the temple every year. The origin of the temple is lost in antiquity and no authentic version regarding its initial establishment is available. However, there are two interesting and attractive accounts of its origin, parts of which may be history and parts may be folklore, which are prevalent for centuries and implicitly believed by succeeding generations of devotees. These accounts are found recorded in the gazetteer of the Bombay Presidency, Vol. VII, Baroda, (1883 Edition), at page 611. The relevant extract from the Gazetteer is on record of the ease at Ex. 248. The material portion of the Gazetteer reads as under:"forbes gives an account of the origin of the temple: some Charan women, says the tradition, were travelling from sankhalpur to a neighbouring village when the Kolis attacked and plundered them. One of the women, whose name was Bahuchra, snatched a sword from a boy, who attended her, and with it cut off both her breasts. She immediately perished. Her sisters, But and Bulal, also committed suicide, and they as well as bahuchra, became Devis. Shri Bechraji is worshipped in the Chunval; But Mata at Urnej, near Kot; and Bulal Devi at bakalku about fifteen miles south of sihor. She immediately perished. Her sisters, But and Bulal, also committed suicide, and they as well as bahuchra, became Devis. Shri Bechraji is worshipped in the Chunval; But Mata at Urnej, near Kot; and Bulal Devi at bakalku about fifteen miles south of sihor. ( 5 ) ANOTHER account is that some children of the cowherds of Kalri, a village about three miles to the east of that temple, while one day grazing their cattle took to playing, and made a niche for the Devi, after which," having obtained rice from their homes, they cooked it on the spot and offered it to the supposed goddess. Still in their make-believe worship they selected a fat buffalo from the herd, took it to the goddess and smote its neck with a branch of the Varkharia tree of which mention has been made. Off fell the head, the goddess had accepted the offering. Meanwhile a king was passing by that way at the head of his troops; he heard of the strange event, and begged of the deity to display, the truth of her appearance by so filling with rice a small pot he held in his hand that his whole army might be fed. At once the contents of the pot became endless. Ever after, many strange deeds of power were done at the temple of Bechraji. " ( 6 ) THERE are in all five places of worship in the temple. They are: (i) Adya Sthan, (ii) Madhya Sthan, (iii) Mukhya Sthan, (iv) Narsing Vir and (v) Chachar. Adyasthan is the original temple. The history of the construction as well as the description of the first three of these five places of worship is given in the following words in the Gazetteer at page 610:"there are three temples of the goddess of which two are termed Adya Sthan, the original place, and the middle temple or Madhya Sthan. The first of these encloses the Varkharia tree whence the goddess first issued. The tiny temple, 15 feet by 19, was built in Samvat 1208 (A. D. 1152) by Sankhal Raj, after whom the neighbouring village is named. The second or middle temple was built by a Maratha Fadnis, of whom and whose date no record exists and is 12 feet by 10. The tiny temple, 15 feet by 19, was built in Samvat 1208 (A. D. 1152) by Sankhal Raj, after whom the neighbouring village is named. The second or middle temple was built by a Maratha Fadnis, of whom and whose date no record exists and is 12 feet by 10. The largest temple, the principal place of worship, was built by H. H. Manajirav gaikwar in Samvat 1835 (A. D. 1779), but as several years were spent in constructing the edifice, the final installation of the goddess did not take place till Shravan Shud 9th (July-August) samvat 1847 (A. D. 1791 ). It is a large stone building of 50 feet by 30, having two domes and one spire to cover the roof. It is divided into three different parts, the last of which is a walled room 99" by 99". It is here that the worship is performed. "this account is substantially in accord with the evidence on record. ( 7 ) THERE is also a story which is current amongst the devotees which speaks of a miraculous event leading to the building of the temple by Manajirav Gaikwar. At page 614 of the Gazetteer, this story is reproduced as under:"in about A. D. 1781 Manajirav gaikwar, suffering from some malady heard of the great fame of the goddess bechraji and visited the shrine. He made a vow to spend a lakh and a quarter on the temple if he were cured. Cured he was without delay and joyfully built a stone temple and dharmshalas worth more than he had contracted for. There is an inscription on one of the halls, recording the occurrences, from which it would appear that the inaugural ceremony in connection with the outer halls took place in Samvat 1839 (A. D. 1783 ). "a copy of this inscription is on record of the case at Ex. 112. ( 8 ) CHACHAR, which is one of the other two places of worship, is a place where cattle were offered in sacrifice to the Deity until about 50 years ago. It appears that offering of Chana, Puri and Khichadi is now made at Chachar at the time of havan. Narsing Vir is a place where people of the scheduled castes offer their prayers and fulfil the vows (Bad ha) taken by them. It appears that offering of Chana, Puri and Khichadi is now made at Chachar at the time of havan. Narsing Vir is a place where people of the scheduled castes offer their prayers and fulfil the vows (Bad ha) taken by them. Animals are still offered before narsing Vir as objects of sacrifice but they are no longer slain there. At Chachar, there is a stone pillar or pyramid whereas at Narsing Vir, there is a metal image. In the three main temples, the object of worship is the Bala Yantra. ( 9 ) IT appears that besides these five places of worship, there are also other temples situated in the walled enclosure surrounding the main temple; there is a temple of Ganesh and there are two temples of Hanuman and four temples of Mahadev. ( 10 ) THE peculiarity of this temple is that it maintains some institutions designed for the convenience of pilgrims and local residents. These institutions are under the management of the temple and they include a dispensary, a library, a school, a rest-house, five Dharmashalas and other buildings used for residential purposes. There is also an office building and about 62 shops just outside the temple compound which are leased out. It appears that these institutions intended for providing amenities to the pilgrims and others have been in existence for a long time because even in the Gazetteer of 1883 A. D. , it is found mentioned that "wells, tanks, dharmashalas, public gardens, a charitable dispensary, a gujarati school, a police thana, a government treasury, an office of the temple and so forth, all crowded within a narrow area of 167,011 square yards" were in existence then. The total estimated value of the immovable properties owned by the temple, according to the appellant, is Rs. 3,19,944-6-0. The total estimated value of the movable properties owned by the temple, which include securities, ornaments, clothes, dead-stock and cash, according to the appellant is rs. 2,61,057. 76. ( 11 ) THE temple has a large annual income. The said income is divided into two parts, namely, Golakh income and sansthan income. Broadly speaking, the golakh income consists of offerings in cash up to Rs. 2,61,057. 76. ( 11 ) THE temple has a large annual income. The said income is divided into two parts, namely, Golakh income and sansthan income. Broadly speaking, the golakh income consists of offerings in cash up to Rs. 99/- and of articles of the value of not more than rupees two and a half made at the five places of worship mentioned above by devotees either in fulfilment of a vow or for any other reason. There are five sources from which the Sansthan income is derived and they are: (i) rental income, (ii) interest on investments, (iii) annual cash allowance of Rs. 10,050/- given by the state, (iv) railway surcharge and (v) cash offerings in excess of Rs. 99/- and offerings in kind valued at more than rupees two and a half made at any of the aforementioned five places in the temple. The average gross annual income (on the basis of the income for the years 1954-55 to 1956-57) was Rs. 42,870/- under the head Golakh income and rs. 21,002/- under the head Sansthan income. ( 12 ) IT would be proper to briefly indicate the circumstances in which the annual cash allowance and the railway surcharge became sources of income of the temple. It appears that Manajirav Gaikwar, besides constructing the main temple, made a grant of three villages to the temples, namely, Sankhalpur, Bechar and dodiwada. These three villages are situated within a range of three miles of the temple and the revenue of the said three villages amounting to approximately rs. 10,000/- to 11,000/- per annum was made over to the temple. By an order passed on or about January 24, 1933 (Ex. 239), the ex-Baroda Slate resumed the villages and directed that in lieu of the grant, an annual cash allowance in the sum of Rs. 10,050/- should be paid to the temple. The temple has been receiving the said allowance ever since. The railway surcharge was levied in 1921 A. D. with the concurrence of the Government of india on railway passengers on their outward journey from Bechraji at the rate of 6 ps. per full ticket and 3 ps. for half ticket. The income derived from this levy is a}so made over to the temple ever since. ( 13 ) THREE classes of persons have been connected with the temple probably since its inception. per full ticket and 3 ps. for half ticket. The income derived from this levy is a}so made over to the temple ever since. ( 13 ) THREE classes of persons have been connected with the temple probably since its inception. They are: (i) Kamalias of village Chunval, (ii) Solanki Rajputs of village Kalri and (iii) Pavayyas (eunuchs ). The Gazetteer gives the following account of the origin and association of Kamalias and Rajputs with the temple"some notice, then, should be taken of these classes who are connected with the temple, the Kamalias, the Solanki rajputs of Kalri, and the Pavayyas or eunuchs. The Kamalias say of themselves that when the giant Bhundasur, who lived in the forest where the temple now stands, became powerful, he harassed the brahmans and saints whose abodes were on the banks of the Saraswati. The latter prayed the Devi to assist these good folk and the goddess to do so created the kamalias. The Solanki Rajputs of Kalri claim their descent from the royal families of the Rajput princess of Anhilpur (Pattan ). A legend relates that the chavada king of Pattan and Solanki king of Kalri resolved on forming a royal alliance. But, by evil chance, both kings had daughters, neither had a son. Thereupon the Kalri Raja fraudulently passed off his girl as a boy and a marriage was duly celebrated. Difficulties ensued, and the girl-husband found herself constrained to flee from Pattan. In the forest of the Devi she rested a while. Her dog plunged into a pool and to the wonder of the princess changed her sex on the spot; her mare jumped and came forth a stallion; the princess herself then tried the magic of the water and, lo! she too changed into a man. From that time the Solanki Rajputs followed the Devi. But some say that the Kamalias are musalmans; once soldiers of the bloody ala-ud-din were convinced of the power of the goddess by a meal they made of the cocks in the temple, for the birds, after they had been consumed, still screamed "bechar Bechar". Valabh, a mevad Brahmin, has Celebrated the miracle in verse. Ala-ud-din worried by these pestilent fowls called the Solanki rajputs to pray to the Devi. Valabh, a mevad Brahmin, has Celebrated the miracle in verse. Ala-ud-din worried by these pestilent fowls called the Solanki rajputs to pray to the Devi. Thus they did most successfully oh condition that the individual who had caught and killed the cocks was left at the temple as a menial servant. This man, Kamal, married a Musalman woman of Ahmedabad and was the ancestor of the Kamalias. The solanki Rajputs affirm that the Kamalias to this day observe many Musalman customs and bury their dead. " ( 14 ) THERE is another document on record of the case from the contents of which it appears that Kamalias on their own admission made at one point of time were Muslims. The document is Ex. 127 which is a memorandum dated May 1, 1877 emanating from the office of the divan of Baroda. The memorandum was submitted to the Divan for passing fresh orders with regard to the division of the golakh income of the temple between the rajputs and Kamalias. The Divan passed an order below the said memorandum on May 6, 1877. We shall presently refer to this, document in some detail in a different context. It would be sufficient for the present purpose to cite from the said memorandum the following extract which goes to show that in 1877 Kamalias admitted that they were Muslims and were treated as such:"the Kamalias assert that they were first Hindus, that they were converted by force to Mahomedanism in the days of Allauddin, that the temple originally belonged to them and that, therefore they alone have the right to the income of the offerings. The Rajputs assert that the kamalias are Mahomedans, that the Devi was established by Rajputs, that the worship belongs to them (Rajputs), that the Kamalias are their servants and that they (Kamalias) were first taken into employment in connection with the temple for killing such animals as were offered in sacrifice to the Goddess by kolis and other such pilgrims. On the one hand, there is nothing improbable in the account of Kamalias give of themselves; many of their names still appear like the names of Hindus. they worship Becharaji and hear about her trident. The emoluments of the brahmin worshippers of Becharaji are still paid by them. They may have been originally Kolis of Chunwal forcibly converted to Mahomedanism in the day of Mahomedan supremacy. they worship Becharaji and hear about her trident. The emoluments of the brahmin worshippers of Becharaji are still paid by them. They may have been originally Kolis of Chunwal forcibly converted to Mahomedanism in the day of Mahomedan supremacy. On the other hand there is no doubt that Bechraji is a Hindu Goddess that the Rajputs are Hindus and the Kamalias mahomedans. " ( 15 ) THERE is oral evidence on record of the case which also has some bearing on this question. Dhanjee Ratnajee, Ex. 233, one of the Kamalias who was examined as a witness in this case, has deposed that Kamalias are Hindus. He has deposed that though Kamalias bury their dead, in other respects they follow the customs of Hindus, that they believe in the Mataji and that they did not follow the tenents of Islam. He emphatically denied a suggestion put to him in cross-examination that he was following muslim religion and that till 1941 Kamalias were Musalmans. He produced and relied upon a letter dated January 18, 1941 addressed to him by the Assistant Census commissioner, Baroda State (Ex. 234) in which the Assistant Census commissioner had informed him that the census department was unable at the relevant time to enter into an investigation of the origin of various castes and that census enumerators were instructed that such of the Kamalias who were following hindu religion should be enlisted as hindus in case they desired to be s enlisted. Ravishanker Narmadashanker joshi, Ex. 128, Chief Bhatji of the bahuchariji temple, had deposed that he had occasions to perform marriage ceremonies between the Kamalias and that he used to perform the ceremonies according to Hindu rites. Bhagvatiprasad harilal Vyas, Ex. 159, who claimed that since generations his family was living in Bahucharaji, has deposed that though kamalias followed certain Muslim customs, they were in fact Hindus and believed in the Mataji. The evidence on record also discloses that a Bhatji, who attends on Narsing Vir Mandir, is a kamalia by caste and that he acts as a priest for the people belonging to the scheduled castes who come to worship at the said temple. ( 16 ) FROM the evidence on record it would appear that though at one point of time Kamalias were admittedly muslims, they now seem to follow Muslim customs in some respects and Hindu customs in other respects. ( 16 ) FROM the evidence on record it would appear that though at one point of time Kamalias were admittedly muslims, they now seem to follow Muslim customs in some respects and Hindu customs in other respects. They are devotees of Bahucharaji and are treated as Hindus by some persons. ( 17 ) THE third class of persons which is closely associated with the temple consists of Pavayyas (eunuchs ). These persons are often naturally impotent. They dress themselves as women and roam about the country asking for alms in the name of Bahucharaji. ( 18 ) IT appears that the temple, at some time in the remote past, might have been in the management of the Rajputs of village Kalri. This is evident from a few of the orders passed by the ruling gaikwars from time to time, a summary of which is contained in the memorandum, Ex. 127, to which we have just referred. It further appears that the worship in the temple was also in the hands of the Rajputs and Kamalias upto a certain point of time. However, some time in the middle of the nineteenth century, H. H. the Gaikwar appears to have taken over the management of the temple and appointed Pujaris and servants whose salaries were paid from the temple funds. This is what is found stated in the Gazetteer in this connection :"the temple servants are of several castes though some are Brahmans, but all are nominees of H. H. the Gaikwar, and receive salaries from the temple fund. . . . In the former times flesh and liquor were acceptable to the Devi, and, as long as the worship remained with the Rajputs, kamalias and similar non-Brahmanical classes, were among the daily offerings. These were the only officiating worshipers, it is said, till Samvat 1915 (A. D. 1859) when one Narayanrav madhava, a Dakshani Brahman, was appointed manager of the temple by the gaikwar, and substituted Brahman priests for Rajputs. "after the merger of Baroda State with the Union of India and consequential integration of its territory with the State of Bombay, the management of the temple vested in the Bombay State. After bifurcation of the State of Bombay, the management vested in the State of gujarat. During the times of Gaikwar, members of the public were not associated with the management of the temple. After bifurcation of the State of Bombay, the management vested in the State of gujarat. During the times of Gaikwar, members of the public were not associated with the management of the temple. The management was then carried on by a karbhari (Manager) under the supervision of the Suba of Mehsana Prant (Devasthan Shakha ). The management of the temple is now entrusted to the collector of Mehsana who acts in consultation with an Advisory Committee over which he presides. ( 19 ) WHATEVER might have been the origin of Kamalias and Rajputs and the nature of their connection with the temple, the rights of Rajputs and Kamalias in two respects have been recognised in relation to this temple since a long timer first, the Naivedya (offering of food) made before the deity is taken away for six days by Kamalias and ten days by Rajputs in turns and secondly, the Rajputs and kamalias take away the residue of the golakh income of the temple in the proportion of ten annas and six annas in a rupee respectively. The following reference is made about the rights of rajputs and Kamalias in this respect in the Gazetteer :"strangely enough six days the offering is taken by Kamalias and during ten days by Rajputs. In the evening again there is worship and there are offerings which, according to their term, the Rajputs and kamalias appropriate. . . . . . . Whatever their origin, Solankis and kamalias claim an undivided right to the offerings made to the goddess and the disputes thus engendered have lasted to this day. His Highness Sayajirav, finding no evidence to go on, resorted to the ordeal of carrying a red hot iron ball five paces in front of the temple. The Kamalias stood the test which the Rajputs avoided. Clear was the triumph of the former, yet in Samvat 1907 (1851) the dissatisfied rajputs fell in a body on the Kamalias while they were in the temple, and killed ten of them. His Highness Khanderav, thereupon, made a fresh settlement; the rajputs were to have 10 annas, the kamalias 6 annas, in the rupee of all offerings. This settlement, interrupted by his Highness Mahharrav for a time, now holds good, but the Kamalias complain and agitate. His Highness Khanderav, thereupon, made a fresh settlement; the rajputs were to have 10 annas, the kamalias 6 annas, in the rupee of all offerings. This settlement, interrupted by his Highness Mahharrav for a time, now holds good, but the Kamalias complain and agitate. " ( 20 ) BESIDE what is found stated in the gazetteer, there is a more authentic and reliable piece of evidence on record of the case which traces the genesis of the right of Rajputs and Kamalias to a share in the offerings made in the temple. The history of the origin of this right is set out in the memorandum dated May 1, 1877 (Ex. 127) to which a reference has already been made. From the contents of the said memorandum it appears that the ruling Gaikwars from time to time passed orders (earliest of such orders being the order passed in Samvat Year 1823) directing that the offerings made in the temple should be made over either exclusively to Kamalias or should be divided in specified shares between these two classes of persons after meeting with certain expenditure which was required to be incurred on designated items. The last of such orders was passed below the said memorandum on May 6, 1877 by the then Divan of Baroda and in substance he directed that the residue of the offerings made in the temple should be divided in the proportion of 10 annas and 6 annas in a rupee respectively between rajputs and Kamalias. The only solitary exception is to be found in the order made by the then ruling Gaikwar some time in 1854 by which it was directed that the residue of the offerings made in the temple should be made over to the Pavayyas. It would thus appear that bearing one solitary exception the residue of the temple offerings have been taken away either by the Kamalias or by the kamalias and Rajputs together in specified shares for over two centuries. . ( 21 ) WE might at this stage take notice of an event which occurred sometime in the first decade of the twentieth century by which the right to receive ten annas share in the residue of the offerings stood transferred from the Rajputs to a Barot (predecessor-in-title of the eighth respondent ). . ( 21 ) WE might at this stage take notice of an event which occurred sometime in the first decade of the twentieth century by which the right to receive ten annas share in the residue of the offerings stood transferred from the Rajputs to a Barot (predecessor-in-title of the eighth respondent ). It appears that some of the rajputs, who were then entitled to a share in the offerings, took a loan of Rs. 15,001/- from one Barot Trikamsing Bahadursing, on Magsar Vad 9 of Sanavat year 1921 (1865 A. D. ). By an agreement of the even date entered into between the parties, the right of the Rajputs to a share in the residue of the Golakh income was assigned to the Barot. The Rajputs having failed to pay the balance of the amount due as stipulated, Barot Amarsing trikamsing Bahadursing, filed Civil Suit no. 6 of 1890-91 in the Civil Court of kadi Prant, Baroda State on March 2, 1891 for the recovery of a sum of Rs. 9,999/- from the defendants personally or from their properties or from the residue of the Golakh income of the temple of Bahucharji. A copy of the plaint filed in the said suit is at Ex. 240. It appears that this suit was decreed and the plaintiff took out execution proceedings. In the course of the said proceedings, the right of the Rajputs to a share in the residue of the Golakh income was attached and sold at a court auction and purchased by the decree-holder. The auction-purchaser thereafter tried to recover his share in the Golakh income but the Karbhari of the Bahucharaji Mata temple refused to hand over the amount to him under the instructions of the Survey and Settlement commissioner of the Baroda State. It appears that thereafter the auction-purchaser approached the Joint sar Suba who also refused to recognise the right of the auction-purchaser to recover a share in the Golakh income of the temple in the absence of a specific order of the Huzur. The decree-holder, thereupon, filed an application dated august 28, 1907 in the Civil Court of kadi Prant praying for the removal of the said obstruction. This application is at Ex. 134. The decree-holder, thereupon, filed an application dated august 28, 1907 in the Civil Court of kadi Prant praying for the removal of the said obstruction. This application is at Ex. 134. By the order dated September 27, 1908 passed below the said application, the Civil Court of Kadi Prant directed that the obstruction should be removed and the share of the Rajputs in the Golakh income should be handed over to the auction-purchaser. It appears that the matter was carried by the Joint Sar Suba to the Varishth Court which confirmed the decision of the Civil Court. ( 22 ) IT appears that in spite of these decisions of the Civil Courts, the settlement Officer recommended to the joint Sar Suba that the share of the rajputs in the Golakh income should be held under attachment and two-thirds of the income should be given to the Rajputs and one-third to the auction-purchaser. The Joint Sar Suba, however, directed that the share of the Rajputs in the Golakh income should be forfeited to the government since the temple was under the management of the Government. It appears that thereupon the auction-purchaser took the matter in appeal to the Huzur Court. The Huzur court, by its order dated May 12, 1911, reversed the order of the Sar Suba and directed that the auction-purchaser should be "maintained in possession and enjoyment of the Hak in accordance with the orders of the Civil Court. " A copy of this order is on record of the case at Ex. 133. This decision of the Huzur court finally settled all the controversies between the Baroda State and the auction-purchaser and accordingly the auction-purchaser received a share in the golakh income during his life-time and after his death the eighth respondent, who is the son of the auction-purchaser, continues to receive the same. ( 23 ) NEXT in point of time come the "shri bahucharaji Matana Golakh Utpanna vyavastha Niyam, 1943" (Shri bahucharaji Mata Golakh Income administration Rules, 1943) which were framed by and/or under the authority of the ruler of the ex-Baroda State. These rules, are on record of the case at Ex. 113. In order to appreciate the circumstances under which these rules came to be framed, it would be necessary to refer briefly to the history of the management of the Golakh. The history is found in the introduction to the Golakh rules. These rules, are on record of the case at Ex. 113. In order to appreciate the circumstances under which these rules came to be framed, it would be necessary to refer briefly to the history of the management of the Golakh. The history is found in the introduction to the Golakh rules. It appears that the management of the Golakh in the early times was in the hands of the sharers. However, in samvat Year 1928, when Malharrav gaikwar passed an order awarding the income of the offerings exclusively to the kamalias, he placed the management of the Golakh in the hands of his daughter shrimant Kamabai Saheb. The management remained in the hands of kamabai Saheb until Samvat Year 1933. Thereafter, until Samvat Year 1936, the management remained in the hands of the Vahivatdar of Kadi and Patan Mahals. This was discontinued in 1936 and the practice of giving an Ijara (contract) for the collection of the Golakh income subject to supervision of the Manager of the temple was thereafter introduced. The sarsuba, Devasthan Branch, thereupon issued an order on October 30, 1936 directing that, draft rules for the management of Golakh should be prepared. The draft rules were accordingly prepared by the Devasthan branch, Mehsana Prant and submitted for sanction to the Shrimant Sarkar along with a memorandum (Tippan) dated June 29, 1942. These rules were sanctioned on August 19, 1942 and the sanction was accorded under the signature of the additional Chief Secretary by the order of Shrimant Sarkar. The order granting the sanction is at Ex. 216. The management of the Golakh and Sadavrat is governed by these rules which have continued to remain in force up-to-date, ( 24 ) THE Golakh Rules make detailed provisions about the management of the golakh income. They inter alia define golakh income, lay down in separate schedules the particulars and extent of expenditure to be incurred on various items and require that the Golakh income should be first applied for meeting the said expenditure, provide for a machinery for the working of the Sadavrat and make a provision that the residue of the Golakh income, after meeting the specified expenditure, should be divided between the Barot and Kamalias, whose names appear in the Government record, in the proportion of ten annas and six annas in a rupee respectively. ( 25 ) THE State of Baroda merged with the Union of India on August 1, 1949. The territories comprised in the Baroda state were integrated into the State of bombay and, as stated above, the management of the temple thereafter vested in the State of Bombay. The bombay Public Trusts Act, 1950 was enacted and came into force on January 21, 1952. On May 24, 1952 the Manager of the temple made an application for the registration of the temple as a public trust under Section 18 of the said Act. The application is at Ex. 137. This application was accompanied, inter alia by a copy of the Golakh Rules, a statement containing the list of the immovable properties owned by the temple and their approximate value a. nd a statement of the gross average annual income received and average annual expenditure incurred during the period of three years immediately preceding the date on which the application was made. The average income and expenditure relatable to golakh was included in this statement. The Deputy Charity Commissioner, who held an inquiry into the matter under section 19 of the Act, recorded his decision on March 10, 1953 and held that the temple was a public trust within the meaning of the said Act. The order of the Deputy Charity Commissioner is Ex. 136. On the same day, a certificate of registration, Exh. 132, was issued and the temple was registered under the name "bahucharji Mata Sansthan, bahucharaji" at No. A-1878/mehsana. The trust has been annually giving contribution to the public trust administration fund on the basis of its entire income (including Golakh income) since 1955. ( 26 ) IT appears that in 1954 complaints were made to the State Government about the administration of the temple and the working of the Ijara system. As a result thereof, the Ijara system was abolished in 1954-55 and since then the collection of the Golakh is made under the supervision of the Manager of the temple. ( 27 ) IN or about 1957, complaints were again made to the State of Bombay about the administration of the temple and one of the grievances which was made was that the apportionment of the residue of the Golakh income between the contesting respondents was not in the interest of the temple and devotees (vide: ex. 163 ). ( 27 ) IN or about 1957, complaints were again made to the State of Bombay about the administration of the temple and one of the grievances which was made was that the apportionment of the residue of the Golakh income between the contesting respondents was not in the interest of the temple and devotees (vide: ex. 163 ). The matter was referred to the appellant (Charity Commissioner) and inquiries were, therefore, set afoot by the appellant. After receiving the report of his subordinate officers, the appellant held an on-the-spot inquiry and came to a tentative conclusion that having regard to the needs of the temple and with a view to providing additional facilities to the pilgrims, it was necessary to divert at least a part of the residue of the Golakh income for the said objects. He made certain proposals in this behalf to the contesting respondents. The respondents, however, were not agreeable to any substantial diversion of the residue of the golakh income for the purposes suggested by the appellant. The negotiations having broken down, the appellant filed the present suit on December 21, 1959. ( 28 ) THE case of the appellant as set out in the plaint is that on the basis of the disbursements made during the years 1954-55- to 1956-57 on an average amount which was paid to the Barot and Kamalias out of the residue of the Golakh income amounted to Rs. 23,830/- per annum. According to the appellant, whatever might have been the origin of the right of the Barot and Kamalias and whatever might have been the services, if any, rendered by them in the past, the services rendered by them in the present times were practically nil. The Barot and kamalias rendered no service except issuing authorisation slips to the grocers for supplying articles required for sadavrat and religious worship as provided in the Golakh rules and for that purpose they had engaged three clerks on a total salary of about Rs. 70/- per month. The exercise of the right of a share in the residue of the Golakh income had resulted in mal-practices in the past and was a constant drain on the income of the trust and its continuance was against the interest of the trust and of its beneficiaries. 70/- per month. The exercise of the right of a share in the residue of the Golakh income had resulted in mal-practices in the past and was a constant drain on the income of the trust and its continuance was against the interest of the trust and of its beneficiaries. The right, if any, to share the residue claimed by the three respondents, according to the appellant, was not a vested right. According to the case of the appellant, the Golakh Rules framed by the State of Baroda were non-statutory in character and were rules of management analogous to an instrument of trust or a scheme, which could be varied or altered by the Court. The said rules were not in the interest of the public trust and were required to be altered and varied substantially and for the proper and efficient administration of the trust it was desirable to give proper and suitable direction may be given by the Courts inter alia regarding the duties to be performed by the respondents Nos. 8 to 10, the remuneration payable to them, expenditure to be made out of the Golakh income and the utilisation of its surplus. According to the case of the appellant as set out in the plaint, there was no valid ground for limiting the expenditure to be incurred out of the Golakh income to the items mentioned in Schedules 1 to 4 appended to the Rules and that directions were required to be given that a portion of the, Golakh income should also be used and made available for the ordinary and heavy repairs of the temple and its properties, for making provision for reasonable convenience and comfort of pilgrims visiting the temple, for contribution to the expenditure incurred on charitable objects like running of the school and providing medical relief to the pilgrims. All the needs of the temple should be first met from the income of the temple, including the Golakh income which was the principal source of its income, and there was no valid ground for appropriation of the entire surplus between respondents Nos. 8 to 10. All the needs of the temple should be first met from the income of the temple, including the Golakh income which was the principal source of its income, and there was no valid ground for appropriation of the entire surplus between respondents Nos. 8 to 10. The appellant, therefore, prayed that the Court should settle a scheme for the administration of the suit trust, superseding or varying the Golakh Rules and authorising in particular the expenditure of the whole or a major portion of the Golakh income of the temple on the objects indicated in the plaint, declaring the duties to be performed by the Barot and Kamalias and fixing a reasonable remuneration to be paid to them for performing the same and for other incidental reliefs. ( 29 ) THE State of Bombay (first respondent-first defendant) filed its written statement which is at Ex. 35 substantially admitting the averments made in the plaint. According to the said respondent, a scheme was required to be settled for the management of the temple and authorising the expenditure out of the Golakh income as suggested in the plaint. ( 30 ) RESPONDENTS Nos. 3 and 5 (original defendants Nos. 3 and 5), two of the members of the Advisory Committee of the temple, also filed a written statement which is at Ex. 31. They substantially admitted the averments made in the plaint and submitted that a scheme for the administration of the temple was required to be framed. Some of the other respondents also filed written statements substantially supporting the appellant. ( 31 ) RESPONDENTS Nos. 8, 9, and 10 filed two joint written statements, Ex. 32 and ex. 93. The stand taken up by the said respondents substantially, was that golakh income was not the property or income of the temple, that they were the owners thereof and that the right to receive the residue of the Golakh income was their personal proprietory right. It was their case that in the past they as well as their predecessors-in-title had sold or assigned the right to receive the said income on numerous occasions which would show that it was a proprietary right. It was their case that in the past they as well as their predecessors-in-title had sold or assigned the right to receive the said income on numerous occasions which would show that it was a proprietary right. As regards the various orders passed from time to time by the ruling Gaikwars, their case was that the disputes inter se between the sharers with regard to the disposal of the residue of the Golakh income were settled by such orders; however, the Gaikwars intervened in the dispute only at the instance of the parties and with their consent and even under the said orders, either one or the other or both of the parties were treated as owners of the residue of the Golakh income. The Golakh Rules of 1943, which were framed with their consent, also recognised this position. The fact that the golakh income and Sansthan income were treated as separate incomes from very early times, according to the respondents, showed that the Golakh income was not treated as income of the temple. The right to receive the residue of the Golakh income was not the incident of an office nor was it a return for services, if any, which they were required to render to the institution. At any rate, whatever services their predecessors-in-title and they were rendering from the early times were rendered by them even at present. The respondents further contended that golakh Rules were not in the nature of an instrument of trust or a scheme but were law and could not be modified, altered, varied or substituted by a court of law and as such a suit under Section 50 of the Act was not maintainable. In the alternative, it was contended that there was no need or occasion to frame a new scheme or to alter or modify the existing scheme, that the income accruing under the head Sansthan income was more than sufficient to meet the expenses which were required to be incurred on the objects of the trust and for the benefit of the pilgrims, that there was no mismanagement or maladministration of the trust warranting settlement of a scheme and, lastly, that Section 50 of the Bombay Public Trusts Act was ultra vires Articles 25, 26 and 30 of the constitution of India. ( 32 ) THE learned District Judge, before whom the suit came on for trial, framed as many as 19 issues arising out of these pleadings. It is unnecessary to refer to the findings recorded by the learned Trial judge on issues about which there is no controversy at the present stage. We shall briefly refer only to those findings recorded by the learned Trial Judge which have been challenged before us. The learned Trial Judge found in the first instance that the Golakh income was not registered as a part of the income of the public trust under the relevant provisions of the Bombay Public Trusts Act and that the amount received as Golakh income was in fact not the property of the public trust. In the alternative he found that since a notice regarding the proceedings for registration of the trust under the said Act was not issued to respondents Nos. 8, 9 and 10, an order registering such income as the income of the said trust was not binding on the said respondents and that they were not bound to get the order set aside by prefering an appeal. The learned Trial judge further found that the Golakh Rules were not in the nature of an instrument of trust or a scheme framed by the ex-Baroda State but were in the nature of a law framed by the sovereign. Since these rules were law, unless they were mended or repealed by a competent legislature they continued to remain in force even after the merger of the State of Baroda and the enactment of the constitution of India and could not be changed by a Court of law. According to the learned Trial Judge, the Rules could not at any rate be modified without the consent of the Barot and Kamalias. As regards the nature and character of the golakh income and the right of the contesting respondents to the residue thereof, the learned Trial Judge held as under:"in my opinion, whatever may have been the position in 1877, one thing is certain that Bahucharaji Mata temple is a public trust property and offerings are made to the Deity and defendants 8, 9 and 10 are only the beneficiaries. By no stretch of imagination, they can be described as the exclusive owners either of the temple or of the income of the temple or otherwise. By no stretch of imagination, they can be described as the exclusive owners either of the temple or of the income of the temple or otherwise. It is true that they are entitled to the exclusive enjoyment of the temple offerings. There is nothing surprising in the beneficiaries having the exclusive enjoyment of the income of the temple offerings". (Vide :paragraph 56)THE learned Trial Judge next found that on the evidence on record it was proved that the contesting respondents were the beneficiaries of the Golakh income from times immemorial and that they had a vested right or interest in the residue of the Golakh income. In paragraphs 82 and 83, the learned Trial Judge recorded his further conclusion on this aspect in the following words:"in my opinion, defendants 8, 9 and 10 have proved that they are receiving the income as owners, and not in lieu of services, as originally they were the owners of this private temple, before it came to be dedicated to the public at large. Necessarily they were rendering some services. They continue to render these services, even now. In lieu of these services they have been given a right to receive Golakh income, even though, the temple itself became public charitable trust property. I find that there is nothing inconsistent between dedication of the temple to the public charitable trust and the definite right of defendants 8, 9 and 10 to receive Golakh income as owners. It is true that the pilgrims put money before Mataji because of their faith in mataji. Every pilgrim knows that Mataji in person does not receive this money, necessarily money is received some times by the Pujari and some times for the seva Puja of Mataji. In the present case, there is clean-cut well marked and well defined distinction between Golakh income and Sansthan income. Golakh income is private property governed by the Golakh Administration Rules which provide and regulate money to be credited to the Sansthan income. The defendants nos. 8, 9 and 10 claim no hereditary right in the income of the trust property. They do claim hereditary right in Golakh income of which they are the exclusive owners. The defendants 8, 9 and 10 also issue Sadavrat Chithis as they used to give Sadavrat in the past. Hence it is not true to say that at present they have curtailed their service. They do claim hereditary right in Golakh income of which they are the exclusive owners. The defendants 8, 9 and 10 also issue Sadavrat Chithis as they used to give Sadavrat in the past. Hence it is not true to say that at present they have curtailed their service. The only service which has fallen in disuse is animal sacrifice at Chachar. I do not see how defendants 8, 9 and 10 are responsible for this state of affairs. The public opinion is fully educated and it will not stand animal sacrifice. Hence it is not right to use this argument against defendants 8, 9 and 10 as this service is stopped for reasons beyond the control of defendants 8, 9 and 10. . . . . . . The income received by defendants 8, 9 and 10 is in lieu of services which they rendered in the past and the services which they continue to render at present in terms of the Golakh Administration rules and they are beneficial owners of this income. It is quite right to say that this income is not the income of the public trust and it is their private income and they are the exclusive owners of this income. The very fact that this income is governed by the Golakh Administration rules, proves their contention, that it is their private income. "it would appear that the further conclusions recorded by the learned Trial judge in Paras 82 and 83 of the judgment are to some extent in conflict with the findings recorded earlier in Paragraph 56 of the judgment. It is difficult to appreciate as to how, once having held that respondents Nos. 8, 9 and 10 could not be described as exclusive owners of the temple or the offerings made in the temple but were mere beneficiaries having exclusive enjoyment of the offerings made in the temple, the learned Trial Judge could have still reached the conclusion that Golakh income was the private income of the said respondents and that they were owners thereof. ( 33 ) THE learned Trial Judge next considered the question whether, even on an assumption that the Golakh income was the income of the temple and the golakh Rules were in the nature of an instrument of trust or a scheme, there was any need to frame a scheme in supersession or modification of the said rules. ( 33 ) THE learned Trial Judge next considered the question whether, even on an assumption that the Golakh income was the income of the temple and the golakh Rules were in the nature of an instrument of trust or a scheme, there was any need to frame a scheme in supersession or modification of the said rules. On this aspect of the case, the learned Trial Judge found that there was no need to frame a scheme in supersession or modification of the Golakh Rules because there was no maladministration of the temple, the payment of the residue of the Golakh income to the respondents was not detrimental to the interest of the trust or to the trust property and its beneficiaries and at any rate the Golakh rules could not be changed without the consent of respondents Nos. 8, 9 and 10. In the opinion of the learned Trial Judge, the appellant had failed to prove the desirability or necessity to frame a scheme. ( 34 ) IN view of these findings, the learned trial Judge dismissed the suit and directed that the costs of the appellant, respondent No. 1, respondents Nos. 8, 9 and 10 and respondent No. 11 should be paid out of the estate, that is, the golakh income. No order as to costs was made with regard to the rest of the defendants. It is this decision which is challenged in this appeal. ( 35 ) AT the hearing of this appeal, Mr. J. R. Nanavati, learned Assistant government Pleader, appearing on behalf of the appellant, raised before us the following three principal contentions:i. The Golakh Rules are in the nature of a scheme framed by and under the authority of an executive order passed by the then ruler of ex-Baroda State for administration of the Golakh income and allied matters; the rules are not a legislative enactment and are not statutory in character and a Court of competent jurisdiction has the power, authority and jurisdiction to alter, amend or supersede the said rules in a suit filed under Section 50 of the Bombay Public trusts Act, 1950. II. The Golakh income is and has been treated as the income of the temple, which is public trust registered under the provisions of the Bombay Public Trusts act, 1950 since it constitutes an offering made in the temple, respondents Nos. II. The Golakh income is and has been treated as the income of the temple, which is public trust registered under the provisions of the Bombay Public Trusts act, 1950 since it constitutes an offering made in the temple, respondents Nos. 8, 9 and 10 are not the owners thereof nor do they have any vested or invariable private or proprietory right to the residue of the Golakh income which cannot be affected by the Court without their consent by altering, amending or modifying the existing rules. III. A scheme for the administration of the temple, in supersession or modification of the Golakh Rules, is required to be settled having regard to the lapse of time, change of circumstances and interest of charity; there are substantial grounds for altering, amending and/or superseding the Golakh rules and for settlement of a new scheme authorising in particular the expenditure of the whole or a major portion of the golakh income of the temple for the ordinary and heavy repairs of the temple and its properties, for making provision for reasonable convenience and comfort of pilgrims visiting the temple and for contribution to the expenditure on charitable objects of the trust such as running of the school and the dispensary for medical relief. ( 36 ) MR. G. T. Nanavati, learned assistant Government Pleader appearing on behalf of respondents Nos. 1 and 11 (the State of Gujarat and the Collector of Mehsana), Supported Mr. J. R. Nanavati and submitted that a scheme as suggested by the appellant was required to be framed in the interest of the trust. Mr. N. R. Oza, learned Advocate appearing on behalf of respondent No. 8 find Mr. R. N. Shah, learned Advocate appearing on behalf of respondent No. 9, on the other hand supported the decision of the learned Trial Judge on all the points. Mr. N. R. Oza, learned Advocate appearing on behalf of respondent No. 8 find Mr. R. N. Shah, learned Advocate appearing on behalf of respondent No. 9, on the other hand supported the decision of the learned Trial Judge on all the points. The principal points urged by them were that the Golakh Rules were in the nature of a legislative enactment and since they have continued to remain in force even after the merger of the State of Baroda with the Union of India, a scheme in modification or supersession of the said Rules cannot be framed by a Civil Court in exercise of its powers and jurisdiction under Section 50 of the bombay Public Trusts Act, 1950, that the golakh income is not the income of the temple but private income of respondents nos. 8, 9 and 10 which they received subject to the obligation relating to the expenditure to be incurred as laid down in the Golakh Rules, that the said income was received by respondents Nos. 8, 9 and 10 since they were holding an office analogous to a Mahant or Shebait and that a scheme which in any manner affected the right to receive such income cannot be framed by a Civil Court. not at least without their consent and that there was, in any case, no need or necessity to frame a scheme as suggested by the appellant and no substantial grounds were made out for settlement of a scheme in modification or supersession of the Golakh Rules. ( 37 ) BEFORE dealing with the arguments urged in support of these rival contentions, it would be useful to refer to certain facts about which there is no dispute. It is not disputed that the Golakh rules have been framed by and/or under the authority of the then ruler of the ex-Baroda State and that whatever may be their nature and character, they have continued to remain in force after the merger of the State of Baroda with the union of India and that the management of the Golakh income of the temple is being carried on up to this date in accordance with the said rules. It is also not in dispute that these rules are not statutory rules framed in exercise of authority conferred by any law then in force in the State of Barods and the submission on behalf of the contesting respondents has only been that the legislative character of the rules is to be inferred inter alia from the circumstance that they were framed by and/or under the authority of the then ruler who was the fountain-head of all powers including legislative powers. ( 38 ) WE shall now take up for consideration the first point urged on behalf of the appellant. However, before dealing with the question whether the golakh Rules constitute a legislative enactment or not, it may be useful to refer very briefly to the constitutional position of the rule of the ex Baroda State at the material time. It is not in dispute before us that until 1940 all powers legislative, executive and judicial vested in the ruler. It appears that on february 1, 1940, the Government of baroda Act No. VI of 1940 was passed. From the proclamation issued by the then ruler, which runs as a preamble to the said Act, it is apparent that the Act was promulgated with the object of taking a further step in the direction of associating the people of the State with the administration. The Act consisted of five parts. Part I is introductory; Part II deals with the executive; Part III deals with the legislature; Part IV deals with the judiciary and Part V with miscellaneous matters. ( 39 ) IT is not necessary for the purpose of this case to examine the scheme of this Act in detail. We shall refer only to the relevant sections. Section 8 provided that the legislature of the State was to consist of the ruler and the chamber to be known as the dharasabha, section 17 enumerated "reserved subjects" on which the Dharasabha had no authority to legislate. Section 18 referred to measures which could be passed by the Dharasabha only with the previous sanction of the ruler and Section 27 provided for the legislative procedure. Broadly speaking, the effect of the combined operation of these various provisions was to confer upon the dharasabha plenary power and jurisdiction to legislate in respect of only such matters which did not fall either under Section 17 or under Section 18. Broadly speaking, the effect of the combined operation of these various provisions was to confer upon the dharasabha plenary power and jurisdiction to legislate in respect of only such matters which did not fall either under Section 17 or under Section 18. Even as regards laws which the dharasabha could have passed in exercise of such powers, power was reserved to the Divan to ask the Dharasabha to reconsider its measure. The power conferred on the Divan was so large that if a bill recommended by him was rejected by the Dharasabha it was open to the divan to certify the bill as an emergency measure and to obtain the sanction of the ruler. If the ruler sanctioned such an emergent measure, it would be enacted as an emergent measure and would have the force of law. As regards bills passed by the Dharasabha which were not returned to it by the Divan for reconsideration, provision was made that they were to be submitted to the ruler for his assent and power was reserved to the ruler either to declare that he assented to the bill or that he withheld his assent thereto. Power was also expressly conferred on the ruler to veto a bill which might have been duly passed by the Dharasabha. Only such bills which were passed by the Dharasabha and assented to by the ruler came into force as law after they were published in the agna Patrika (Official Gazette) as from the date of such publication. These provisions emphasise the fact that though an important step was taken in associating the people of Baroda with the administration of the State, the change brought about by the Act fell far short of full responsible government. ( 40 ) THE most material provisions which have a great bearing on the question under consideration, however, are Sections 3 and 4. Under Section 3 it was enacted that all rights, authority and jurisdiction appertaining or incidental to the government of the State were exercisable by the ruler except in so far as may be otherwise provided by or under the Act or as may be otherwise directed by the ruler. Section 4 preserved the inherent powers of the ruler and may be fully reproduced:"4. Section 4 preserved the inherent powers of the ruler and may be fully reproduced:"4. Notwithstanding anything contained in this or any other Act, all powers legislative, executive and judicial in relation, to the State and its Government are hereby declared to be and to have always been inherent in and possessed and retained by His highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority. "looking at Sections 3 and 4 together, it is apparent that Section 4 contains an overriding provision and keeps alive the rulers inherent powers as a sovereign ruler of the State. These powers would include legislative, executive and judicial powers. It may be mentioned that a similar view has been taken by a Division Bench of the Bombay High Court in buddhisagar Bhaijibhai v. Lakha 55 b. L. R. p. 866 in relation to the powers of the ruler of Baroda after examining the scheme and relevant provisions of the government of Baroda Act, 1940. It would thus be seen that though the ruler of baroda was gradually taking steps to associate the public with the Government of the State and with that object he was establishing institutions consistent with the democratic form of rule, he had maintained all his powers as a sovereign with himself and despite the creation of these institutions the ruler continued to be an absolute monarch in whom were vested the supreme power of the legislature, the executive and the judiciary. . ( 41 ) ONCE this conclusion is reached, it must inevitably follow that at the material time when the Golakh Rules were enacted, the ruler of Baroda, who was the absolute severeign having uncontrolled powers in all domestic matters, could have expressed his sovereign will in any form. It could have been expressed by him either in the form of a legislative, enactment or an executive order or a judicial determination and his word, howsoever expressed, would have been binding on all citizens. He was the source or fountain-head of all powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it was legislative, executive or judicial. He was the source or fountain-head of all powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it was legislative, executive or judicial. But this does not mean that the basic difference in the character of these various powers, which were vested in the same individual, was altogether obliterated. The jurisprudential distinction between legislative, executive and judicial powers still remained though for practical purposes an examination of the character of the orders passed by the rulers might have served no useful purpose in those days. In cases like the present one, however, the question assumes its own importance and it becomes necessary to determine on application of the relevant legal principles whether the expression of the will of the absolute monarch was in exercise of his legislative, executive or judicial powers. We would, therefore, have to enter upon a careful examination of the Golakh Rules and ascertain the true nature of the said rules and the source of power in the exercise of which they were framed on application of the basic principles of jurisprudence which distinguish between the three categories of powers, namely, legislative, executive and judicial. ( 42 ) THE question whether an order passed by an absolute monarch partakes of the character of a legislative enactment, an executive order or judicial determination has arisen before the courts in several cases. In a catena of decisions, the Supreme Court has considered this question in the context of the order or rules before it on application of the relevant legal principles and these decisions provide sufficient guideline for determining the true nature and character of the Golakh Rules. It is necessary to refer to all these decisions because we find that in Narsing Pratap deo v. State of Orissa A. I. R. 1964 S. C. 1793, the Supreme Court has succinctly summarised the true legal position after examining its earlier decisions. In that case, Gajendragadkar, C. J. speaking for the Court, made the following observations in Para 8 of the judgment:"in dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a law from an executive order. In that case, Gajendragadkar, C. J. speaking for the Court, made the following observations in Para 8 of the judgment:"in dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a law from an executive order. A theoretical or academic discussion of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order. Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with it or not. "again, in paragraph 15 of the judgment, we find the following pertinent observations:"the true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of Clause 4 (b) of the Order, all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined. . . . "we must, therefore, proceed to examine the Golakh Rules in the light of these legal principles and determine whether they were framed in exercise of legislative or executive powers. . . . "we must, therefore, proceed to examine the Golakh Rules in the light of these legal principles and determine whether they were framed in exercise of legislative or executive powers. The question whether the rules amounted to a judicial determination of the rights of the parties in exercise of the judicial powers of the severeign has not been raised for our consideration by any of the parties appearing before us and we are, therefore, not called upon to examine them in that light. ( 43 ) BEFORE we enter upon an examination of the rules, it may be proper to refer to the general setting of the rules and the method adopted by the ruler in promulgating them. A printed copy of the rules, which is published by the office of the Suba of Mehsana Prant, is at Ex. 113. The rules are in Gujarati language and, as stated above, are entitled "shri bahucharaji Mata Golakh Utpanna vyavastha Niyam". The rules have a preamble and they are divided into eight chapters. Each chapter has its own title and the rules are consecutively numbered each having a marginal note. There are four schedules appended to the rules and they form part of the rules. The rules also incorporate three sample forms which are prescribed under three different rules. The rules are signed at the bottom by the "mapani Akar Adhikari, dev-Shakha" (Survey Settlement Officer, devasthan Branch) as well as by adhyavekshak (supervisor) and bear the date 25-6-1942. There is an index at the end of the printed edition of the rules which gives alphabetical reference of the terms used in the various provisions of the Rules. ( 44 ) IT appears that the draft rules were prepared by the Devasthan Shakha in consultation with the Manager of the temple, the Vahivatdar of Chanasma and the Barot and Kamalias and the said draft rules were in the first instance submitted for approval to the office of the Legal remembrancer. The draft rules having received the approval of the said office were then submitted for sanction to shrimant Sarkar Hukam dated 13th august 1942 by which sanction was accorded to the Golakh Rules. The said order is at Ex. 216 and it was published in an official publication entitled "shrimant Sarkar Maharaja Gaikwar, hazur Madhyavarti Kacheri, Sarkar hukum Juth" in August 1942. The said order is at Ex. 216 and it was published in an official publication entitled "shrimant Sarkar Maharaja Gaikwar, hazur Madhyavarti Kacheri, Sarkar hukum Juth" in August 1942. The Golakh rules were, however, not published either in the Official Gazette or in any other official publication. ( 45 ) THE preamble to the Rules recites that the said rules were enacted pursuant to the Hazur order since it was found expedient to frame rules for the collection and management of the Golakh income of Shri Bahucharaji Mata Sansthan. Chapter I is entitled "preliminary Rules" and consists of four rules. Rule 1 provides that the rules may be called "shri bahucharaji Mata Golakh Utpanna vyavastha Niyam". Rule 2 provides that the rules shall come into force with effect from 1st August 1943. Rule 3 provides for the repeal and lays down that any previous order, rule, notification, ordinance, etc. shall stand repealed to the extent that they may be inconsistent with the Golakh Rules with effect from the date of the coming into force of the Golakh rules. Rule 4 defines the various expressions used in the Rules. Sub-Rule (1) thereof defines "golakh income" to mean "bhet" (offerings) in cash up to rupees ninety-nine and any article up to the value of rupees two and a half offered, taken, received from outstation or deposited in the Golakh box at any of the five places in the Bahucharaji Mata temple, namely, Mukhya Sthan, Adi sthan, Madhya Sthan, Narsing Vir and chachar by pilgrims-sevaks - in fulfilment either of "badha" or "manata" or for any other reason whatsoever. There is an explanation to this sub-rule which provides that offerings in cash exceeding rupees ninety-nine and offering in kind exceeding the value of rupees two and half shall not be treated as "golakh income" since such offerings are required to be credited to the account of Sansthan shri Bahucharaji Mata. Sub-Rule (2) defines "golakh expenditure" to mean sadavrat expenses, Nimnuki expenses (fixed expenses), Golakh Establishment expenses and miscellaneous expenses. Sub-Rules (3) and (4) define "nimnuki expense" and "sadavrat". Sub-Rule (5) defines "barot" as the person whose name stands or may stand from time to time in the Government records as the person entitled to receive ten annas share in the Golakh income. Sub-Rules (3) and (4) define "nimnuki expense" and "sadavrat". Sub-Rule (5) defines "barot" as the person whose name stands or may stand from time to time in the Government records as the person entitled to receive ten annas share in the Golakh income. Sub-Rule (6) defines "kamalias" as two persons belonging to the Kamalia community of villages Sankhalpur and Bechar, which community is known as the Pujaris of mata, whose names stand or may stand from time to time in the Government records as persons entitled to receive six annas share in the Golakh income. Sub-Rule (7) defines "karbhari" as an officer appointed by Shrimant Sarkar to administer Shri Bahucharaji Devasthan or any other officer in whom the powers of such officer may be conferred. ( 46 ) CHAPTER II bears the heading " (Provisions) relating to Expenditure" and consist of seven rules. Rules 5 to 8 provide that Nimnuki expenses, sadavrat expenses and Golakh establishment expenses shall be incurred out of the Golakh income in accordance with the provisions made in Schedules i to III respectively. Rule 8 provides that expenditure on items other than those covered by Rules 5 to 7 shall be incurred out of the Golakh income in accordance with the provisions of Schedule IV. Rule 9 is important for the purpose of the present case and may be fully set out:"9 Provision for modification in the expenditure after obtaining consent of the sharers if any modification is to be made in the (amount of) expenditure specified in rules 5 to 8 having regard to exigencies of time, Shrimant Sarkar or the principal officer of the Devasthan Department shall be entitled to make such modification with the consent of the Barot and Kamaila. "rule 10 makes provision for approval of budget and provides that the consent of the Barot and Kamalia should be obtained prior to the submission of the estimates in relation to the expenditure to be incurred in accordance with the rules. In the event of a difference of opinion between the Barot and Kamalia in respect of any item of expenditure, the decision of the principal officer of the Devasthan Department is made final. Rule 11 provides that a cash balance of rs. 900/- should be maintained out of the Golakh income and during month of july and August, expenses on items mentioned in Schedules I to IV should be incurred therefrom. Rule 11 provides that a cash balance of rs. 900/- should be maintained out of the Golakh income and during month of july and August, expenses on items mentioned in Schedules I to IV should be incurred therefrom. It further provides that if any amount in excess of the said cash balance is required (for the purpose of incurring expenditure) before the golakh box is opened on or about the fifth day of October, the deficit amount should be recovered from the Barot and kamalia after giving them eight days notice in advance. After the Golakh box is opened, the sum of Rs. 900/- should be first set apart as cash balance and out of the balance of the Golakh income, the amount, if any, recovered from the barot and Kamalia, should be paid to them as early as possible. CHAPTER III is entitled "provisions relating to Expenditure" and consists of five rules. Rule 12 provides that the Barot and Kamalia should either personally or through duly authorised persons engaged by them supervise the income of Golakh and make expenses therefrom. Rule 13 authorises the Barot to appoint one person and Kamalias to appoint two persons to supervise over the collection of the Golakh income and expenditure to be incurred therefrom as provided in rule 12. Rule 14 is material for the purpuses of this case and may be fully set out:"14 Basis for distribution of the residue amongst the sharers the residue of the Golakh income, which remains after meeting with the expenditure detailed in Schedules I to IV, should be paid according to their shares to the Barot and Kamalia whose names stand in Government records as persons entitled to ten annas share and six annas share respectively. "rule 15 provides that the persons appointed by the Barot and Kamalia under rule 13 shall be entitled to receive monthly remuneration at the rate at which it was paid to them at the time of the enactment of the rules or such other remuneration as may be determined by barot and Kamalia from time to time. Rule 16 provides that the remuneration payable under Rule 15 shall be paid by the Karbhari on or before the 5th day of each month after debiting the said amount to the Golakh Income. Rule 16 provides that the remuneration payable under Rule 15 shall be paid by the Karbhari on or before the 5th day of each month after debiting the said amount to the Golakh Income. The rule further provides that the remuneration thus paid to the appointees of Barot and kamalia shall be recovered from the residue of the Golakh income payable to them at the end of the year. Chapter IV is entitled "provisions relating to Chitthis" and consists of only two rules. These two rules provide the machinery for issuance of slips by the barot and Kamalia or their duly authorised appointees. The grocer of the temple is required to supply articles for sadavrat and religious worship (Nimnuki) on presentation of such slips. The slips are required to be issued in the prescribed form No. I. CHAPTER V bears the heading "provisions relating to the Expenditure for Sadavrat and Nimnuki"and contains eight rules. These rules make detailed provision regarding the issuance of chitthis for religious worship and sadavrat. The rules provide that under certain circumstances and on certain occasions Chitthis for supply of articles for religious worship shall not be issued and further provide that certain categories of persons shall not be qualified to receive sadavrat. CHAPTER VI is entitled "the Mode of supplying Articles". Rule 27 inter alia prescribes the category and quality of articles to be supplied by the grocer. Rule 28 provides that the Barot and Kamalia and/or their duly authorised appointees as well as the Manager of the temple should personally supervise and ensure that the articles supplied by the grocer are of good quality and in accordance with the quantity prescribed in the schedule. Rule 29 provides that if the articles supplied by the grocer are found to be not of the requisite quality or short supplied, the Manager of the temple shall be entitled to compel the grocer to supply articles of good quality and as prescribed in the Chitthis. Rule 30 is important and may be set out in extenso:"30. Rule 29 provides that if the articles supplied by the grocer are found to be not of the requisite quality or short supplied, the Manager of the temple shall be entitled to compel the grocer to supply articles of good quality and as prescribed in the Chitthis. Rule 30 is important and may be set out in extenso:"30. Authority to impose penalty in the event of default if any complaint is received from the barot or Kamalia or from the persons to whom Chitthis are issued to the effect that the articles supplied by the grocer against the Chitthis are not of the category prescribed in Rule 27 and if the Karbhari on making personal inquiry is satisfied (about such lapse), the grocer shall, for every such default, be liable to be fined to the extent of Rs. 10/- and the Karbhari or his superior officers shall be entitled to impose such fine. The fine so imposed shall be deducted from the amount payable to the grocer. "chapter VII is entitled "duties and responsibilities of Barot-Kamalia" and consists of two rules. Rule 31 provides that the Barot and Kamalia should incur expenditure as prescribed in Schedules i to IV in a reasonable and thrifty manner with the view in end that the expenses do not exceed the Golakh income and that there are savings out of the said income. The rule further provides that in the event of there being no savings on account of non-compliance with the directions contained in the said rules, the barot and Kamalia shall be responsible for the excess expenses. Rule 32 is in some respects important and requires to be fully set out:"32 Deficit amount to be paid by barot-Kamalia in proportion if at any time the income falls short of the expenditure, the Barot and Kamalia shall make good the deficit in proportion of their share in terms of annas (in the golakh income) and if the said amount cannot be recovered (in ordinary manner), the Vahivatdar shall recover the same forthwith by taking (appropriate) steps under the Land revenue Code and Rules. "chapter VIII bears the heading "provision for maintaining Accounts" and lays down the procedure and method of maintaining accounts. It consists of three rules. "chapter VIII bears the heading "provision for maintaining Accounts" and lays down the procedure and method of maintaining accounts. It consists of three rules. Rule 35 provides that after deducting the expenditure incurred up to the end of the month of July on items specified in the rules from the Golakh income received during a given year, the karbhari should, in the beginning of august, take steps to pay the residue of the Golakh income to the Barot and kamalia according to their specified shares. These are the relevant provisions contained in the body of the rules. Schedule I relates to "nimnuki Kharch" (expenditure to be incurred on religious worship) and is relatable to Rule 6. Broadly speaking, it prescribes the various articles and the quantities thereof which are to be supplied for religious worship as well as for feeding cocks and dogs and to various persons connected with the temple. Schedule II deals with the expenditure to be incurred on sadavrat and is relatable to Rule 6. Broadly speaking, it prescribes as to whom Sadavrat should be given and the particulars and quantity of articles to be supplied. Schedule III prescribes the expenditure to be incurred on the Golakh establishment and is relatable to Rule 7. The said schedule prescribes the salary and allowances payable to the clerk concerned with the Golakh establishment and the Pujari of Adyasthan. Schedule iv deals with expenditure on other items which is required to be made out of the golakh income and is relatable to Rule 8. This Schedule prescribes the expenditure to be incurred inter alia on scholarship and library, printing and stationery and administration charges payable to the Government at the rate of 2% for supervision and inspection. These are the various provisions contained in the different Schedules. ( 47 ) IT would be convenient at this stage to set out fully The Shrimant Sarkar hukam dated 13th August 1942, Ex. 216, by which sanction was accorded to these rules. The original order is in Gujarati language and has been officially translated. It reads, as under:"shri shrimant Gaikwar Sarkar, Baroda dev. l Shrimant Sarkar Order No. (R) 1/1 13-8-1942 1. Key-word: Bechraji Golakh Rules order made ready on 19-8-1942 (Sanctioned)2. No. date and subject of proposal: 1. Department No. Date devasthan 6 29-6-1942 (Mehsana Prant)2. The original order is in Gujarati language and has been officially translated. It reads, as under:"shri shrimant Gaikwar Sarkar, Baroda dev. l Shrimant Sarkar Order No. (R) 1/1 13-8-1942 1. Key-word: Bechraji Golakh Rules order made ready on 19-8-1942 (Sanctioned)2. No. date and subject of proposal: 1. Department No. Date devasthan 6 29-6-1942 (Mehsana Prant)2. Subject: Regarding sanction of the draft Rules pertaining to the management of the Golakh income of Shri Bahucharaji mata3. Purpose of proposal: schedule 1, 3-4: In order that the work relating to that part of the offerings before shri Bahucharaji Mata which is realised by giving an Ijara (contract) may be carried out systematically and having considered as to how the residue of the said income, after meeting with expenses, should be given to the claimants, the draft rules were prepared with the consent of bachraji Karbhari (Manager), Chanasma vahivatdar (Administrator) and claimants kamaliya and Barot. Thereafter further action was taken for sanction and the draft rules which are approved by the offices of the Legal Remembrancer have been submitted for sanction. This draft is made only in respect of the management of the produce of Golakh; the same requires to be sanctioned. Schedule 5-7: There is difference of opinion in respect of certain matters. It is, however, not necessary to make any special provision for the same. Government orders in that behalf are therefore not solicited. As these Rules are only for one institution, the same are not required to be published in government Gazette. 100 copies of the rules will be got printed so the purpose will be served. Therefore, Mehsana Prant personal Deputy Suba, recommends to sanction the draft of the Rule prepared. 4. Issues: (Schedule 2) issue Opinion 1. Whether the Rule in Yes regard to management of the income of Golakh requires to be sanctioned or not?1. The opinion of mehsana Prant Suba tallies with the date 29-6-1942. 2. The opinion of the Survey Assessment officer (Devasthan Branch) tallies with proposal No. 1 dated 9-7-1942. 5. Order: sanctioned. By order of Shrimant Sarkar g. R. Raddi chief Additional Secretary. " ( 48 ) WE now proceed to consider whether the Rules are legislative or executive in character. Mr. 2. The opinion of the Survey Assessment officer (Devasthan Branch) tallies with proposal No. 1 dated 9-7-1942. 5. Order: sanctioned. By order of Shrimant Sarkar g. R. Raddi chief Additional Secretary. " ( 48 ) WE now proceed to consider whether the Rules are legislative or executive in character. Mr. J. R. Nanavati, learned Assistant Government Pleader appearing on behalf of the appellant, relied upon the following facts and circumstances in support of his submission that the rules were not legislative in character and that they were in the nature of a scheme framed under executive instructions: (I) The rules were not framed in the exercise of powers conferred by any statute governing the administration of public temples and/or public trust; (II) The rules were not of general application but were intended to regulate the management of the Golakh income of only one institution the management of which vested in the State; (III) The customary form and established methods for the enactment of laws were not followed in making the rules since the draft rules were prepared by the Devasthan Department, Mehsana prant and not by the legal department of the former Baroda State, they were not sanctioned by the ruler under his own seal and signature but were sanctioned by the Additional Chief Secretary by the order of Shrimant Sarkar and they were not published in the Official Gazette. (IV) The rules were framed after taking the consent of the Barot and Kamalia who were the sharers in the Golakh income; (V) The power to amend Schedules 1 to 4 by varying the amount of expenditure was exercisable only with the consent of the Barot and Kamalias; (VI) The power to amend the Schedules as stated above was exercisable not only by the Shrimant Sarkar but also by the principal officer of the Devasthan department; (VII) The rules did not confer or recognise any new rights; they merely incorporated the already existing and predetermined rights of two classes of persons; (VIII) The rules did not lay down any binding rule of conduct determining legal rights and legal obligations of the subjects of the State which could be recognised or enforced by Courts; they merely laid down the mode of administration of the golakh income. ( 49 ) MR. N. R. Oza and Mr. R. N. Shah, learned Advocates appearing on behalf of respondents Nos. ( 49 ) MR. N. R. Oza and Mr. R. N. Shah, learned Advocates appearing on behalf of respondents Nos. 8, 9 and 10 on the other hand relied upon the following features in support of their submission that the rules were a legislative enactment: (I) The nomenclature, general setting of the rules and the form of its enactment; (II) The provisions made in Rule 30 for imposition of penalty in shape of fine on the grocer of the temple and authority conferred on the Manager of the temple or his superior officers to impose the penalty; (III) The provision made in Rule 32 for recovery of the deficit amount in case the Golakh income falls short of the estimated expenditure and the power conferred on the Manager to recover the said amount by having resort to the provisions contained in the Land Revenue code and Rules. ( 50 ) NOW the nomenclature, general setting of the rules and the form of its enactment create a prima facie impression that the rules may be legislative in character. It is well-settled, however, that the form in which the sovereign will is expressed or the manner in which the order passed by the sovereign is described is not decisive and can really afford no material assistance in determining the character of the orders passed by the sovereign. In Madhaorao v. State of Madhya Bharat A. I. R. 1961 s. C. 288, Gajendragadkar J. , as he then was, speaking for the Supreme Court observed (at page 302 of the report):"it would not be possible to accept the argument urged by the learned Advocate general that because the Kalambandi is not described as a quanun or was not published in the government gazette therefore it should be treated as an executive order. The words used in describing the several orders issued by the Ruler can afford no material assistance in determining their character. "in State of Gujarat v. Vora Fiddali, a. I. R. 1964 S. C. 1048, Shah J. observed (at page 1086 of the report):"the form of the order is of course not decisive. The words used in describing the several orders issued by the Ruler can afford no material assistance in determining their character. "in State of Gujarat v. Vora Fiddali, a. I. R. 1964 S. C. 1048, Shah J. observed (at page 1086 of the report):"the form of the order is of course not decisive. "in Union of India v. Anglo Afghan agencies, A. I. R. 1968 S. C. 718, Shah, J. speaking for the Supreme Court observed (at page 723 of the report):"it is not the form of the order, the method of its publication or the source of its authority, but its substance, which determines its true character. "in Pramodsinhji v. State VII G. L. R. 1, a Division Bench of this Court consisting of Shelat C. J. and Sarela J. observed (at page 17 of the report):"when, therefore, a question arises whether an act in question is legislative or executive, one has not merely to examine the form or the description of it or the manner of its emanation, for these would not by themselves be conclusive as held in Madhaorao Phalkes case (supra), but must look to its true nature and substance. "the mere fact, therefore, that the rules are called "niyam" and the form of its enactment bears some resemblance to a legislative enactment, would not by itself be decisive and may not render material assistance in determining their character. ( 51 ) IT is true that the rules are not framed in the exercise of powers conferred by any statute governing the administration of public temples or public trusts. However, that would not necessarily lead to the conclusion that the rules are not legislative in character. We have already found above that the ruler of Baroda was an absolute monarch in whom were vested the supreme legislative, executive and the judicial powers and there were no constitutional limitations on his authority to act in any of these capacities. The rule could, therefore, have been enacted by him or under his authority in the exercise of his inherent legislative powers. In order that the rules may partake the character of legislation, it was not necessary that they should have been enacted in the exercise of powers conferred by any statute. The rule could, therefore, have been enacted by him or under his authority in the exercise of his inherent legislative powers. In order that the rules may partake the character of legislation, it was not necessary that they should have been enacted in the exercise of powers conferred by any statute. ( 52 ) IT is also true that the rules in question are not of general application but are intended to regulate the management of the Golakh income of an institution, the management of which vested in the former State of Baroda. This factor, to some extent, is relevant though not decisive. The temple of Bahucharaji mala appears to have been treated as a public temple even during the regime of the Gaikwars and if the ruler thought that it was essential in the interest of the temple to make provision for the management of its Golakh income by taking adequate legislative action in that behalf, there was nothing to prevent him from doing so. There were no constitutional limitations on his power and he could have enacted a law governing only one temple if he found that there were some special circumstances or reasons which warranted the passing of such a law. At the same time, however, it cannot be overlooked that the rules were made merely for the purpose of regulating the management of the Golakh income of a temple the overall management of which vested in the State. It was, therefore, not necessary or incumbent upon the ruler to pass a legislation and enact a binding rule of conduct; it would have been sufficient for him to attain that objective by issuing executive instructions as well. In determining the true character of the rules read as a whole, this factor, therefore, will have to be borne in mind. ( 53 ) IT cannot be gainsaid that the law must follow the customary form of law-making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws and the laws, when enacted, have also a distinct form. It is not every indication of the will of the ruler, however expressed, which amounts to a law. The question, however, whether there was any customary form of law-making or whether any particular formality was required to be observed in enacting a law is essentially a question of fact. It is not every indication of the will of the ruler, however expressed, which amounts to a law. The question, however, whether there was any customary form of law-making or whether any particular formality was required to be observed in enacting a law is essentially a question of fact. In the case of some native states, there were rules which prescribed particular form which the laws had to take or generally took or where laws distinguishable from executive orders were issued bearing a defined nomenclature. In the case of Baroda State, with which we are concerned, however, no rule or royal command was pointed out to us on behalf of the appellant requiring that any particular formality or process had to be observed in the promulgation of laws or that the laws had to take or took any particular form or that they invariably went by any particular nomenclature to distinguish them from executive or administrative orders. Reliance was, however, placed on section 4 of the Baroda General Clauses act which required that every Act or statutory rule or statutory order should be published in the official Gazette or in such other manner as the ruler may be pleased to direct and further that unless an Act, Rule or Order was so published, it would not come into force as law. The argument on behalf of the appellant was that since the Golakh Rules were not published in the Official Gazette, they could not have been enforced as law and would not partake the character of law. The argument, in our opinion, overlooks the fact that Section 4 provides that an act, rule or statutory order may also be published in such other manner as the ruler directs. In the present case, we find, in a reference to Ex. 216 (The Shrimant sarkar Hukam by which sanction was accorded to the Golakh Rules), that while granting sanction to the rules, the ruler had approved of the proposal that the rules were not required to be published in the Official Gazette since they were enacted only for one institution. The ruler has further approved of the proposal to get one hundred copies of the rules printed in lieu of publication in the Official gazette. The ruler has further approved of the proposal to get one hundred copies of the rules printed in lieu of publication in the Official gazette. It would thus appear that a special mode of publication was devised so far as the rules in question are concerned and, according to the direction given by the ruler, one hundred copies of the rules were got printed in lieu of their being published in the Official gazette. This would satisfy the requirements of Section 4 of the Baroda general Clauses Act. That apart, as pointed out by Shah J. in Anglo Afghan agencies case (supra), the method of publication cannot determine the true character of an order passed by a ruler. The question whether a particular order is legislative or executive in character must be decided with reference to its substance. ( 54 ) THE argument that the established mode for the enactment of laws was not follwed in enacting the rules in question was sought to be supported also on two other grounds. The first ground was that the draft rules were prepared by the devasthan Department, Mehsana Prant and not by the Legal Department, mehsana Prant and not by the Legal department of the former Baroda State. According to the appellant, law would have generally originated in the form of a draft bill from the legal department of the State and not from the office of one of its executive officers. Now, there is no material on record of this case which would support the submission made on behalf of the appellant. Our attention has not been invited to any law or Huzur order passed by the ruler of Baroda which required that all laws must originate in the form of a draft bill from the legal department. In the second place, a perusal of Ex. 216 shows that the draft rules were approved by the office of the Legal remenbrancer. This contention, therefore, has no merit. The second ground was that the rules were not sanctioned by the ruler under his own seal and signature but were sanctioned by the Additional Chief Secretary. Here again the appellant is faced with the same difficulty. There is no evidence on the record of the case to show that the ruler of Baroda sanctioned laws under his own seal and signature. Here again the appellant is faced with the same difficulty. There is no evidence on the record of the case to show that the ruler of Baroda sanctioned laws under his own seal and signature. It is not established that that was the method or mode of enactment of laws followed in Baroda. That apart, a mere look at Ex. 216 shows that the order according sanction to the rules was signed by the Additional Chief secretary by the order of Shrimant Sarkar and Shrimant Sarkar apparently refers to the ruler. It cannot, therefore, be gainsaid that the rules were sanctioned by the ruler and the order Ex. 216 according sanction was signed by the additional Chief Secretary at the behest of the ruler and amounted to a signification of the rulers sanction to the rules. ( 55 ) WE do not attach much importance to the fact that by virtue of the provisions contained in Rule 9, the power to make any modification in the amount of expenditure specified in Rules 5 to 8 read with the schedules is vested in the principal officer of the Devasthan department. The ruler of Baroda, as pointed out above, was an absolute monarch in whom were vested unlimited legislative powers. There was no constitutional limitation on his power and he could have delegated to any of his subordinate officers the power to amend a legislation or a part of a legislation. We are unable to appreciate how this circumstance standing by itself can be called in aid in support of the contention that the Golakh Rules are not law. ( 56 ) THE most important feature which has a direct bearing on the question under consideration, however, is that the rules were made with the consent of the Barot and Kamalias who were the sharers in the Golakh income as well as with the consent of the Manager of the Bahucharaji temple and the Vahivatdar of Chanasma. Besides, it is also provided in Rule 9 that if any modification was required to be made in the amount of expenditure specified in Rules 5 to 8, such modification was to be made with the consent of the barot and Kamalias. Besides, it is also provided in Rule 9 that if any modification was required to be made in the amount of expenditure specified in Rules 5 to 8, such modification was to be made with the consent of the barot and Kamalias. The question is whether the rules which derive their authority from a consensus of mind and which depend for their future modification on consent of parties likely to be affected by such modification could be treated as law. As pointed out by the supreme Court in Narsing Pratap Deos case (supra), a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. Law, in the case of an absolute monarch, is a command which has to be obeyed by the citizens whether they agree with it or not. In Umaid Mills ltd. v. Union of India, A. I. R. 1963 S. C. 953, this essential characteristic of law has been succinctly brought out in the following words (at page 958 of the report):"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 will of the sovereign, which does not derive its authority from, mere consensus of mind of two parties entering into a bargain. It is not necessary for this purpose to go into theories of legal philosophy or to define law. However law may be defined, be it the command of the supreme legislature as some jurists have put it or be it a "body of rules laid down for the determination of legal rights and duties which courts recognise", there is an appreciable distinction between an agreement which is based solely on consent of parties and a law which derives its sanction from the will of the sovereign. A contract is essentially a compact between two or more parties; a law is not an agreement between parties but is a binding rule of conduct deriving its sanction from the sovereign authority. A contract is essentially a compact between two or more parties; a law is not an agreement between parties but is a binding rule of conduct deriving its sanction from the sovereign authority. "in Pramodsinhjis case (supra), the following observations, which have a direct bearing on the point under consideration, are made by this Court (at page 17 of the report):"the Court must, in construing such an act, ask itself, does the act amount to a command or a rule of conduct to be obeyed by the subjects of the State, and is the act attributable to the exercise of the legislative authority of the ruler in the sense that it lays down a body of rules determining the rights and liabilities not deriving its authority from a consensus of minds but from the expression of severeign will?"it would appear therefore that the most important characteristic of law is that it is a binding rule of conduct which derives its authority from the expression of the will of the sovereign and not from a consensus of minds of parties likely to be affected thereby. Law does not originate in consent of parties but derives its sanction from the will of the sovereign. In our opinion, this most important characteristic of law is absent in the present case. The rules in question are not founded on the expression of the sovereign will of an absolute monarch which had to be obeyed by the persons affected thereby whether they agreed with the rules or not. The rules were made with the consent inter alia of Barot and kamalias; they are based on consent of parties likely to be affected by them and originated from consensus of minds. But that is not all. The rules contenplate that any modification in certain material provisions of the rules could also be made only with the consent of the Barot and kamalias. In other words, amendment of certain material provisions in the rules also is made dependant upon concensus of minds. It is difficult to envisage how, in these circumstances, the rules could be said to be legislative in character. In other words, amendment of certain material provisions in the rules also is made dependant upon concensus of minds. It is difficult to envisage how, in these circumstances, the rules could be said to be legislative in character. ( 57 ) THE next important circumstance which again points in the direction of the rules being executive in character is that the rules did not confer to recognise any new rights on any subject of the ruler; they merely incorporated the already existing and pre-determined rights of the Barot and Kamalias. In other words, the rules did not bring about a change in the existing conditions and prescribe a binding rule of conduct for observance in future thereby affecting legal rights and obligations of persons subject to the power of the ruler. In this connection it would be pertinent to cite certain observations from the decision of a Division Bench of this Court in Kadi municipality v. New Chhotalal Mills A. I. R. 1965 Gujarat 293 (at page 299 of the report) which read as under :- the test, therefore, is whether the Act in question embodies the command of the sovereign prescribing a binding rule of conduct determining, legal rights and obligations. Law is the emanation of the will of the sovereign which prescribes a future and affecting legal rights and obligations or persons subject to his power. This test for determining a legislative Act is admirably set out in the following passage from the opinion of holmes, J. in Prentis v. Atlantic Coast line Co. Ltd. , (1908) 211 U. S. 210 at pages 226-227 where the learned Judge distinguishing between a judicial act and a legislative Act observed : ,"a judicial inquiry investigates, declares, and enforces liabilities as they stand in present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other, hand looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of an Act legislative not judicial in kind. . . . ""x x x x x x""that question dependents not upon the character of the body, but upon the character of the proceedings. The establishment of a rate is the making of an Act legislative not judicial in kind. . . . ""x x x x x x""that question dependents not upon the character of the body, but upon the character of the proceedings. "a similar statement in regard to what is an essential and distinguishing characteristic of a legislative Act is also to be found in Australian Boot Trade employees Federation v. Whybrow and Co. (1910) 10 G. L. R. 266 at page 518, where issacs J. , thus laid down the test for determining what is a legislative Act as distinguished from a judicial Act :"if the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it. . . . "it would thus be seen that for the purpose of determining whether a particular Act of an absolute Ruler is a legislative Act or not, what we must consider is whether the Act "looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to" his power and determines "what shall in the future be the mutual rights and responsibilities of the parties" by prescribing a binding rule of conduct creating new rights and obligations. "the last part of these observations is cited with approval in Pramodsinghjis case (supra ). "the last part of these observations is cited with approval in Pramodsinghjis case (supra ). It would thus appear that for the purpose of determining whether the rules in question are legislative in character or not it would be pertinent to inquire whether the rules look to the future and change existing conditions by enacting a new rule to be applied thereafter to all persons or to a class of persons subject to the power of the ruler. The question, in other words, must be: Do the Rules determine as to what shall in future be the mutual rights and responsibilities of the parties by prescribing a binding rule of conduct which creates new rights and obligations ? this test, in our opinion, is not satisfied in the present case. The evidence on record does not bear out that the rules were enacted to change existing conditions by prescribing, a binding rule of conduct creating new rights and obligations. The rules were enacted merely to prescribe the mode in which the Golakh income of the temple was to be applied and appropriated and in so doing, the authors of rules have merely fallen back on the existing custom and practice and taken notice of rights of barot and Kamalias as determined by the ruling Gaikwars from time to time. The rules in question, therefore, do not look to the future and chance the existing conditions by enacting a binding rule of conduct creating new rights and obligations. ( 58 ) STRONG reliance was, however, placed on behalf of respondents Nos. 8, 9 and 10 on the provisions contained in rules 30 and 32 which, according to them, clearly indicated that the rules were legislative in character. Rule 30, which has already been cited above, empowers the Manager of the temple or any of his superior officers to impose a fine not exceeding Rs. 10/- on the grocer attached to the temple in case of default. The argument was that this provision authorised the imposition of penalty upon a subject, that such a provision cannot appropriately find place in an executive order issued by the ruler and that the power to impose penalty could only have been conferred by a legislative Act of the ruler. The argument was that this provision authorised the imposition of penalty upon a subject, that such a provision cannot appropriately find place in an executive order issued by the ruler and that the power to impose penalty could only have been conferred by a legislative Act of the ruler. The argument, in our opinion, is misconceived, since Rule 30 cannot be characterised as a general provision authorising imposition of penalty upon a subject or a class of subjects. In the first place, it must be remembered that the articles required for performing religious ceremonies and giving Sadavrat are to be supplied by the grocer. Chapter VI of the Rules read with Schedule II lays down the nature and quality of articles which the grocer is required to supply. Rules 28 and 29 are enacted with a view to securing the supply of articles of prescribed variety and standard quality under the direct supervision of the Barot and Kamalias. Rule 30 authorises imposition of fine on the grocer in the event of a default on his part. It would not be unreasonable to assume that any person, who agrees to function as a grocer, would be acquainted with and/or informed about these provisions prior to his being appointed as a grocer and that he would agree to work as a grocer only if he was willing to abide by the conditions laid down in Chapter VI read with schedule II including the provision relating to the imposition of fine. The said provisions would consequently become a part of the contract between the grocer and the temple authorities. The imposition of fine, if any, in case of a default would, therefore, be as a result of a term of the contract and not pursuant to the royal command. Secondly, having regard to the nature of services to be rendered by the grocer, it is apparent that though he is not a person borne on the regular staff of the temple, he is intimately connected with the temple. He is as much a part of the machinery of the temple as any person regularly employed by the temple authorities. The power to impose fine on such a person in case of a default would, therefore, be merely a power ancillary or incidental to the power of management of the temple. He is as much a part of the machinery of the temple as any person regularly employed by the temple authorities. The power to impose fine on such a person in case of a default would, therefore, be merely a power ancillary or incidental to the power of management of the temple. Such a power would inhere in the temple authorities as an integral part of their power of supervision and control over the persons employed by and connected with the temple and it cannot be described as a general power conferred by the ruler authorsing imposition of penalty on one of his subjects. Thirdly, it would not be wholly correct to say that power to impose penalty in the nature of fine on persons who might hold an office in or might be connected with an institution managed by a legislative enactment. Such or similar provisions find place even in schemes which are framed by Courts (see, for example, clause (b) in the scheme in Raje anandrao v. Shamrao A. I. R. 1961 S. C. 1206) which authorised the trustee of a public temple to impose fine or otherwise punish the Pujaris of the temple who held hereditary office from misconduct. In the present case, the temple was under the management of the state and the ruler, while issuing directions in respect of the management of the Sadavrat, could as well have authorised the imposition of fine on the grocer in case of default by an executive order. Lastly, in determining whether the rules in question are executive or legislative in character, the rules are required to be considered as a whole. Even if it were possible to hold that Rule 30 standing by itself could have been enacted only in the exercise of the legislative power of the ruler, the provisions of that rule taken by themselves and read in isolation cannot determine the nature and character of the rules as a whole. All the rules will have to be read together and the overall effect which emerges from a combined reading of all the rules will have to be taken into consideration in determining the true nature and character of the rules. There is no doubt that the rules read as a whole are not legislative in character since they lack in the most essential elements of law adverted to earlier. There is no doubt that the rules read as a whole are not legislative in character since they lack in the most essential elements of law adverted to earlier. ( 59 ) RULE 32, which inter alia provides for recovery of amount from the Barot and Kamalias in certain eventualities by taking appropriate steps under the Land revenue Code and the Rules, was also relied upon on behalf of respondents Nos. 8, 9 and 10 it was urged that the power to recover any dues as arrears of land revenue could not have been granted by an executive. The argument, in our opinion, is devoid of merit. As found above, the rules were enacted with the consent of Barot and Kamalias and if they agreed that any amount due from them may be recovered by the mode prescribed in the Land Revenue Code or rules, the recovery of the amount due by the said mode would be as a result of an agreement between the parties and not on account of the enactment of a binding rule of conduct by a sovereign. ( 60 ) IN our opinion, therefore, considering the Golakh Rules as a whole, it is not possible to hold that they were enacted in the exercise of the legislative power of the ruler. The rules were framed for the purpose of administering and regulating the Golakh income of a temple, the management of which vested in the state. The rules derived their authority from consensus of mind of the various persons interested in the management of the temple and appropriation or application of its Golakh income. The rules did not lay down a binding rule of conduct deriving its sanction from the sovereign authority. Besides, the rules did not change existing conditions by laying down a new rule of conduct creating new rights and obligations. The rules merely reiterated the mode of disposal of Golakh income according to pre- determined and existing arrangement. The learned Trial judge, with respect to him, was in error in taking the contrary view. It must follow as a necessary consequence, therefore, that a Court of competent jurisdiction would have power, authority and jurisdiction to alter, amend or supersede the said rules in a suit instituted under section 50 of the Bombay Public Trusts act, 1950, if other conditions laid down in the said section are satisfied. . It must follow as a necessary consequence, therefore, that a Court of competent jurisdiction would have power, authority and jurisdiction to alter, amend or supersede the said rules in a suit instituted under section 50 of the Bombay Public Trusts act, 1950, if other conditions laid down in the said section are satisfied. . ( 61 ) WE shall now turn to the consideration of the second point urged on behalf of the appellant. The first question which falls for consideration is whether Golakh income is the income of the temple or private income of respondents Nos. 8 to 10. As pointed out above, the learned Trial Judge has recorded a somewhat conflicting finding on this question and both sides have, therefore, addressed lengthy arguments on this point. On the one hand the appellant has contended that Golakh income is the income of the trust and that scheme can be settled by the Court superseding the Golakh Rules. It has been conteded on behalf of respondents Nos. 8 to 10 on the other hand that Golakh income is the private income of the said respondents which they received subject to the obligation of incurring specified expenditure as laid down in the Schedules to the Golakh Rules and the Court has no jurisdiction to settle a scheme so as to affect the private rights and personal income of the said respondents. We have to decide which of these two rival contentions has merit. ( 62 ) THE first submission made on behalf of the appellant was that the question whether Golakh income is the income of the Bahucharajimata temple is already concluded as a result of the decision of the Deputy Charity Commissioner in proceedings for the registration of the temple as a public trust and that in the present suit it was not open to the concerned respondents to reagitale that question nor is it within the jurisdiction of a Civil Court to decide it. The argument was that the question whether Golakh income is the income of the temple or not was one of the matters which were required to be decided in the course of the inquiry for the registration of the temple as a public trust under Section 19 of the Bombay Public Trusts Act, 1950 and by Section 80 of the said Act, the jurisdiction of a Civil Court was barred in respect of question required to be decided by the Assistant or the Deputy charity Commissioner in the course of the said inquiry. We shall first examine this question. ( 63 ) CHAPTER IV of the said Act makes provision for registration of public trusts and Sections 18 to 20 are comprised in the said Chapter. Section 18 casts upon the trustee the obligation to apply for the registration of the public trust of which he is a trustee. Sub-Sec. (5) of Section 18 provides that such an application shall inter alia contain the particulars set out therein and, so far as it is relevant for the purpose of this case, the following are amongst the particulars required to be set out :- (I) A list of the movable and immovable properties and such descriptions and particulars as may be sufficient for the identification thereof; (II) The approximate value of the movable and immovable properties; (III) The gross average annual income of the trust properties estimated on the income of three years immediately preceding the data on which the application is made or of the period which has elapsed since the creation of the trust, whichever period is shorter; (IV) The amount of the average annual expenditure in, connection with such public trust estimated on the expenditure incurring within the period to which the particulars under item (iii) above relate; and (V) Such other particular which may be prescribed. There is a proviso to sub-Sec. (5) which does not apply in the present case. It would be noticed from the provisions of sub-Sec. (5) set out above that in addition to the particulars specified in the said sub-section, the application must be prescribed. Rule 6 of the Bombay Public trusts Rules, 1951 provides that the application for registration of a public trust, in addition to the particulars specified in sub-Sec. (5) of Section 18, shall contain inter alia particulars relating to "sources of income of the trust". Rule 6 of the Bombay Public trusts Rules, 1951 provides that the application for registration of a public trust, in addition to the particulars specified in sub-Sec. (5) of Section 18, shall contain inter alia particulars relating to "sources of income of the trust". Under Section 19, the Deputy or the Assistant Charity Commissioner has to make an inquiry in the prescribed manner for the purpose of ascertaining inter alia whether any property, is the property of a public trust, the amount of gross average annual income and expenditure of such trust and any other particulars as may be prescribed under sub-Sec. (5) of Section 18. Under Section 20, it is the duty of the Deputy or Assistant charity Commissioner to record his finding with the reasons therefor as to the matters mentioned in Section 19. On a combined reading of these three sections: and Rules 6, it is apparent that one of the matters in relation to which the Deputy or Assistant Charity commissioner is required to make an inquiry and record his finding is as to what are the sources of income of a public trust. ( 64 ) IT may be useful at this stage to refer to Section 80. The said Section creates a bar of jurisdiction and provides that save as expressly in the Act, no Civil court shall have jurisdiction to decide to deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act, or in respect of which the decision or order of such officer or authority has been made final or conclusive. This section bars the jurisdiction of a Civil Court in respect of two categories of questions, namely, questions which by or under the Act are to be decided by any officer or authority under the Act and question in respect of which the decision or order of such officer or authority has been made final and conclusive under the Act. It is clear, therefore, that the question as to what are the sources of income of a public trust cannot be decided or dealt with by a Civil Court since it is one of the questions which under Section 19 of the act is required to be decided by the assistant or Deputy Charily commissioner. It is clear, therefore, that the question as to what are the sources of income of a public trust cannot be decided or dealt with by a Civil Court since it is one of the questions which under Section 19 of the act is required to be decided by the assistant or Deputy Charily commissioner. We may state that it has not been urged before us that there is any express provision in the Act which might have the effect of lifting this bar or that a Court in which a suit under section 50 of the Act is filed for the purposes of settlement of a scheme is not a Civil Court within the meaning of section 80. ( 65 ) AGAINST the background of this legal provision, let us examine the facts of the present case. On May 24, 1952 the manager of the temple made an application for the registration of the temple as a public trust under Section 18 of the Act. The application, which is at Ex. 137, is in the prescribed form. Column 8 of the said application pertains to the sources of income of the trust. The following particulars are set out in the said columns:-"this institution gels cash allowance. Besides, (the other sources consist of ) the income received in the temple, gifts, etc. and rental income. "it would appear that four sources of income were mentioned in the application, namely, (i) cash allowance, (ii) offerings received in the temple, (iii) gifts etc. and (iv) rental income. Since golakh income indisputably consists of offerings made in cash or kind at five different places in the temple, it is apparent that the particulars set out in column 8 of the application by necessary implication showed income from the said source as income of the trust. The matter does not, however, rest there. Jayantilal keshavlal Doriwala, the Accountant in the office of the Charity Commissioner. , whose deposition is at Ex. 148, has deposed that there were three accompaniments to Ex. 137, the application for registration. They were : a copy of the Golakh Rules (Ex. 150) and a statement setting out particulars of the movable and immovable properties and the average annual income and expenditure of the public trust (Ex. 151 ). Paragraph 7 of the report of the Manager (Ex. 137, the application for registration. They were : a copy of the Golakh Rules (Ex. 150) and a statement setting out particulars of the movable and immovable properties and the average annual income and expenditure of the public trust (Ex. 151 ). Paragraph 7 of the report of the Manager (Ex. 150) dealt specifically with Golakh income and when translated into English reads as under:"the income received at five places in shri Bahucharajimata Sansthan, namely, mukhyasthan, Adyasthan, Madhyasthan, narsing Vir and Chachar, is called Golakh income. Out of the said income, expenditure is incurred in the first instance as laid down in shri bahucharajimatana Golakh Utpanna vyavastha Niyam sanctioned by the government and the residue is distributed among the co-sharers. The particulars of the average income and expenditure under this head are set out in column 8 and 9 of the statement annexed hereto. A copy of the rules is also annexed hereto. The income of this Sansthan is thus divided into two categories: Sansthan income and Golakh income. This is for your Honours information and the same may be forwarded further. "the statement, which is referred to in the extract cited above, is the statement, ex. 151. Column 8 of the said statement shows that the annual average Golakh income was Rs. 26,795/- and average annual expenditure out of the Golakh income was Rs. 14,171-15-5. Column 10 of this statement is headed as remarks and in that column the following endorsement is found:"the figures shown in column 8 and 9 relate to Golakh, Expenditure under the said head is made in accordance with the Rules annexed hereto and the balance is made over to the co-sharers as per the Rules. " ( 66 ) IT would appear from the foregoing narration of facts that at the time of the registration of the temple as a public trust, the Manager of the temple had in unmistakable terms indicated in the application for registration and its accompaniments that Golakh income was one of the sources of the income of the trust. He also annexed a copy of the golakh Rules which described the Golakh income as offerings in cash or kind up to a specified limit made at five named places in the temple or received from out station. He also annexed a copy of the golakh Rules which described the Golakh income as offerings in cash or kind up to a specified limit made at five named places in the temple or received from out station. The application and its accompaniments must be read together and as read, it clearly emerges that while furnishing particulars as required by section 18 of the Act, Golakh income was shown as income of the trust and the fact that the co-sharers had a right to receive the residue of the said income after meeting with the expenditure prescribed in the Rules was also brought to the notice of the concerned authorities. ( 67 ) THE Deputy Charity Commissioner, who held an inquiry pursuant to the application, recorded his findings on the various matters mentioned in Section 19 in his order dated March 10, 1953 made under Section 20 of the Act; The order is at Ex. 136. A persual of the said order shows" that in paragraph 2 of the said order, points for determination are set out and one of the points raised for. determination (point No. 10) was as under:"what are the sources of the income of the trust?"in paragraph 5 of the order, the Deputy charity Commissioner recorded findings on the points raised for determination and the finding recorded against point no. 10 is:"as stated. "the expression "as stated" apparently means as stated in the application and its accompaniments. In paragraph 6 of the order, the Deputy Charity commissioner recorded the reasons for his findings in the following words :-ON reading the deposition of vahivatdar and on the admissions contained in the form Ex. I, and on considering the opinion of assessors, I give my finding as above. "it is manifest, therefore, that according to the findings recorded in the order of the Deputy Charity Commissioner, golakh income constituted one of the sources of income of the trust. In other words, Golakh income is found to be the income of the trust. Having regard to the provisions of Section 80, the effect of which has been considered above, this question being a question required to be dealt with and decided under the Act by the Assistant or Deputy Charity commissioner in course of the inquiry under Section 19, Civil Court would not have the jurisdiction to deal with or decide the same. Having regard to the provisions of Section 80, the effect of which has been considered above, this question being a question required to be dealt with and decided under the Act by the Assistant or Deputy Charity commissioner in course of the inquiry under Section 19, Civil Court would not have the jurisdiction to deal with or decide the same. In our opinion, therefore, it was not open to respondent Nos. 8 to 10 to raise this question before a Civil court in a suit under Section 50 of the act, and even if such a question is raised, civil Court will have no jurisdiction to deal with and decide the same. In the present proceedings, we must proceed on the basis that there is a finding recorded by a competent authority having jurisdiction in the matter, which finding has become final since it has not been challenged in an appeal preferred under the provisions of the Act, that Golakh income is the income of the trust. ( 68 ) MR. N. R. Oza and Mr. R. N. Shah, learned Advocates appearing on behalf of respondents Nos. 8 to 10 urged, however, that the decision recorded by the Deputy Charity Commissioner on this point in the course of inquiry, under section 19 of the Act is void and that, as such, it cannot be set up against the said respondents in the present proceeding. The argument was that inquiry for registration of a public trust is an judicial inquiry and no order prejudicially effecting the rights of a third party can be validly made in such an inquiry unless a reasonable opportunity is afforded to such party to put forward its case. In the proceedings for registration of Shri Bahucharaji Mata temple as a public trust, proceeded the argument, no such opporunity was afforded to respondents Nos. 8 to 10 before recording a finding that Golakh income was one of the sources income of the trust and such a decision, therefore, would be void as against respondents Nos. 8 to 10. The responatents were not bound to challenge the said decision by preferring an appeal under the: relevant provisions of the Bombay Public Trust act and it was open to them to set up its voidness in a collateral proceeding like the present one and to urge that the decision must be ignored. 8 to 10. The responatents were not bound to challenge the said decision by preferring an appeal under the: relevant provisions of the Bombay Public Trust act and it was open to them to set up its voidness in a collateral proceeding like the present one and to urge that the decision must be ignored. The further argument was that there was, therefore, no decision of a competent authority that golakh income is the income of the temple and since in a suit under Section 50 of the Act, the Court, would have power to issue directions for the administration of only such properties which belonged to a public trust, a scheme affecting the rights of respondents Nos. 8 to 10 to the residue of the said income cannot be settled in the present suit. In the alternative, it was also urged that Golakh income was in fact not the income of the temple but private income of respondents Nos. 8 to 10 which they received subject to the obligation to incur expenditure as specified in the Golakh rules and that a scheme which in any manner affected such private right cannot be framed in a suit under Section 50. ( 69 ) THE first question which falls for consideration on this submission is as to what is the nature of the proceedings under Section 19 and whether principles of natural justice apply to such an inquiry. It appears dear to us that an inquiry held by the Deputy or Assistant Charity commissioner under Section 19 is not an administrative or executive inquiry. The rules framed under the Act provide an elaborate procedure. Rule 7 provides that except as expressly provided in the rules, inquiries under the Act shall be held as far as possible in the Greater bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts act, 1882, and elsewhere under the provincial Small Cause Courts Act, 1887. It also contemplates the appearance of a party in person or by his recognised agent or by a pleader duly appointed to act on his behalf. Rule 9 provides for the mode of serving summons for the attendance of any person, whether a party, a witness or an assessor at ah inquiry under the Act. Rule 11 provides for the manner of recording evidence of witnesses. Rule 9 provides for the mode of serving summons for the attendance of any person, whether a party, a witness or an assessor at ah inquiry under the Act. Rule 11 provides for the manner of recording evidence of witnesses. It is apparent from the provisions made in these rules that the inquiry takes the colour of a judicial inquiry; the Deputy Charity commissioner and Assistant Charity commissioner have been conferred powers of a Civil Court including the power to issue summons and compelling attendance of witnesses. It is also clear that the inquiry is not only for the purpose of registration of a public trust but involves adjudication of questions such as whether any property is the property of a public trust or whether the particular income is one of the sources of income of the public trust. Section 21 of the Act provides that the Deputy or Assistant charity Commissioner shall make entires in the register kept under Section 17 in accrodance with the findings recorded by him under Section 20 or, if appeals or applications are made as provided by the act, in accordance with the final decision of the competent authority provided by the Act. The entities so made are made final and conclusive subject to the provisions of the Act. It would thus appear that the findings recorded by the Deputy or Assistant Charity Commissioner in the. course of an inquiry under Section 19 would have a far peaching effect and may affect important civil rights of third parties. In these circumstances, in our opinion, it cannot be gainsaid that the duty to act judicially in the course of such proceedings is implicit in the exercise of powers conferred under the act on the Deputy or Assistant Charity commissioner. The principles of natural justice would undoubtedly apply to an inquiry of that nature and if an order prejudicially affecting a person is made in the course of such an inquiry without affording to such person reasonable opportunity of putting forward his case or correcting or controverting the case of the other party, the finding recorded by the concerned authority would be a nullity. Such a decision would be void as against the person whom it affects adversely and it would be open to such a person to set up its voidness in a collateral proceeding even though he might not have resorted to the machinery set up under the Act for challenging decision. ( 70 ) THE question then is whether the decision of the Deputy Charity commissioner in the present case treating the Golakh income as income of the temple is a nullity on the ground that it prejudicially affected respondents Nos. 8 to 9 and it was recorded without affording to the said respondents reasonable opportunity of putting forward their case. There are two aspects of this question: first, whether any decision prejudicially affecting the rights of the said respondents was in fact arrived at for the first time by the Deputy Charity commissioner in the course of the said inquiry and, secondly, if such a decision was in fact arrived at whether the said decision was void on account of the breach of principles of natural justice. A few facts which are not in dispute may be recapitulated. Respondents Nos. 8 to 10 were not parties to the proceedings for registration of the temple as a public trust. They were even otherwise not served with a notice nor was a public notice issued in respect of the said proceedings. It is obvious, therefore, that the said respondents did not have any direct opportunity of putting forward their viewpoint before the Charity commissioner in the course of the said inquiry. We are of the opinion, however, that having regard to the special facts and circumstances of this case, the decision of the Deputy Charity commissioner holding that Golakh income is the income of the trust is still not a nullity. In the first place, though respondents Nos. 8 to 10 have now chosen to set up an absolute proprietary right to the Golakh income, in the past they had never claimed any such interest in the whole of the Golakh income. As the previous history of the institution discloses, their claim has been confined to and recognised only to a limited extent, namely, to appropriate the balance of the golakh income after, it was applied in the first instance to meet expenditure on specified items. As the previous history of the institution discloses, their claim has been confined to and recognised only to a limited extent, namely, to appropriate the balance of the golakh income after, it was applied in the first instance to meet expenditure on specified items. Secondly, the question relating to the right of the said respondents to the residue of the Golakh incomes has been the subject-matter of numerous decisions given by the ruling gaikwars from time to time. These decisions were given by absolute monarchs who were possessed of all the powers including judicial power and it was the very essence of the sovereignty which vested in them that they could supervise and control the administration of public charity. Some of these decisions appear to have been given after affording an opportunity of being heard to the parties affected thereby and even witnesses appear to have been examined before reaching some of these decisions. The last order dated May 6, 1877 was in fact passed in consequence of a petition filed by the Rajputs who were the predecessors-in- title of respondent No. 8. These decisions recorded from time to time by the rulers of Baroda have all throughout treated Golakh income as the income of the temple and recognised the right of the Rajputs of Kamalias or both to receive a share only in the residue of the Golakh income. The predecessors-in-title of respondents Nos. 8 to 10 have accepted these decisions, assented to or acquisced in them, and founding their right upon them claimed a share only in the residue of the Golakh income. Furthermore, the Golakh Rules which came to be framed with the concurrence of the Barot and Kamalias, also make it abundantly clear that the golakh income was the income of the temple. The title of the rules and the definition of the term "golakh income" contained therein conclusively establish this fact. The various revisionss made in the Rules also point in the direction that the Golakh income was the income of the temple which was first to be applied for meeting certain specified expenses and respondents Nos. 8 to 10 were entitled merely to the residue of the Golakh income in specified shares. The various revisionss made in the Rules also point in the direction that the Golakh income was the income of the temple which was first to be applied for meeting certain specified expenses and respondents Nos. 8 to 10 were entitled merely to the residue of the Golakh income in specified shares. These Rules were assented to by the said respondent or their predecessors-in-title and the Said respondents stand even today by the said rules and their claim to the residue of the Golakh income is founded on those very rules. In recording the finding that golakh income constituted a source of income of the trust in question, all that the Deputy Charity Commissioner did, therefore, was to Act upon and give effect to the decisions given by the ruling gaikwars from time to time to some of which decisions the predecessors-in-title of the respondents were parties and to the provisions contained in the Golakh Rules which-were enacted with the consent of respondents nos. 8 to 10. In our opinion, the Deputy charity Commissioner could not in these circumstances be said to have arrived at a new decision which of its own force prejudicially affected respondents Nos. 8 to 10. We are further of the opinion that in the present case, a copy of the Golakh rules was placed before the Deputy charity Commissioner in the course of the inquiry under Section 19 and it is not unreasonable to assume that the rules must have been taken into consideration by the Deputy Charity Commissioner. The said rules, which were framed with the consent of the respondents, clearly recognised that Golakh income was the income of the trust. In these circumstances, in our opinion, the finding recorded by the Deputy Charity commissioner in the course of inquiry under Section 19 of the Act to the effect that the Golakh income is the income of the temple cannot be said to be a nullity and it cannot be ignored in these proceedings. ( 71 ) WE would not, however, like to rest our decision only on this legal aspect. We would also briefly examine on merits the validity of the contention urged on behalf of respondents Nos. 8 to 10 that golakh income is their private income and that they have an absolute proprietary right to all offerings made before bahucharaji Mata subject to certain obligations. We would also briefly examine on merits the validity of the contention urged on behalf of respondents Nos. 8 to 10 that golakh income is their private income and that they have an absolute proprietary right to all offerings made before bahucharaji Mata subject to certain obligations. As stated above, it is significant that the said respondents have set up such a claim for the first time in this proceeding and that in the long course of the management of the temple, the said respondents do not appear to have claimed any proprietary interest in the said income. The claim is not borne out by the previous decisions recorded by the ruling Gaikwars from time to time. The history of the institution shows that the Golakh income was always first applied to meet expenditure on specified items and only residue has been made over to the Rajput and Kamalias. The decisions given bygaikwars, which would. be referred to in detail presently, treated the Golakh income as income of the trust and recognised the right of the predecessors-in-title of the respondents only to the residue of the Golakh income. The claim is also in direct conflict with the provisions of the Golakh Rules which were enacted: with the consent of the said respondents. The nomenclature of the rules, the definition of the Golakh income contained therein and its various provisions clearly indicate that Golakh income has been treated as the income of the temple. The claim is also in conflict with the well-recognised practice and precepts of the Hindu religion which do not recognise the claim of absolute proprietary rights of any individual to anything which has been offered or dedicated to or before the Idol. The offerings in cash or kind which constitute golakh income have in point of fact also been treated as the income of the temples. The amount received in cash has been credited and the residue which is paid to the respondents is debited to their names in the books of account of the temple. In our opinion, therefore, the claim of the respondents that Golakh income is their private income and that they have absolute proprietary rights therein is a clear after-thought and is not at all sustainable. In our opinion, therefore, the claim of the respondents that Golakh income is their private income and that they have absolute proprietary rights therein is a clear after-thought and is not at all sustainable. ( 72 ) THE conclusion is, therefore, inevitable that Golakh income is the income of the temple and a scheme in supersession or modification of the golakh Rules can be framed by a Civil court in a suit, filed under Section 50 of the Act. The Court would have power and jurisdiction in Such a suit to settle a scheme in supersession or modification of the provisions made in the Golakh rules and provide for application of the golakh income in the best interest of the trust. ( 73 ) IT has, however, been urged on behalf of respondents Nos. 8 to 10 that they have a vested or invariable proprietary right to the residue of the golakh income in fixed proportion which cannot be affected by the Court without their consent while settling a scheme. According to the eaid respondents, they have as of right taken the residue of the Golakh income for a period of over two centuries and Court would have no jurisdiction to settle a scheme which might adversely affect their aforesaid private rights. The submission made on behalf of the respondents raises for our consideration the question about the nature and character of the right of the respondents to collect the residue of the golakh income in fixed proportion. The origin of this right is set out in the memorandum dated May 1, 1877 (Ex. 127) to which a reference has already been made. After referring to the prevalent belief about the origin of the temple and tracing the history of the association of Rajputs and Kamalias with the temple and referring to the standing disputes between them in relation to the alleged right to the offerings made in the temple, the memorandum proceeds to state that neither party could succeed in claiming exclusive enjoyment of the offerings made in the temple. It further states: "the facts establish that for a century and more, the income of the offerings has been practically divided between the Kamalias and Rajputs. It further states: "the facts establish that for a century and more, the income of the offerings has been practically divided between the Kamalias and Rajputs. " The memorandum then sets out the substance of the various orders passed by the ruling gaikwars from time to time in order to resolve the dispute interest between rajputs and Kamalias in this respect. From the summary of the various orders as set out in the said memorandum, the following facts emerge: (I) Damajirao Gaikwar, by an order dated Ashadh Vad 6, 1823, addressed to the worshippers of the Mata, namely, kamalias Soona Manji, Mala and Salee, divided the offerings made in the temple between the Kamalias and the "mata", that is, the temple. The order specified the portion of the said income which the kamalias were to appropriate and further directed that the protion of the offerings which fell to the share of the temple belonged to the Sarkar and that it was to be utilised for meeting the expenditure of the "mata". This order made no mention about the rights of the Rajputs to take a share in the offerings of the temple. (II) Damajirao Gaikwar issued another order three years later in Samval 1826 in which he described the Rajputs of village Kalri as "girrassias of Bechraji mata". The order was addressed to the rajputs and directed that they should allow the Kamalias to enjoy the rights which he had granted to them and further directed the Rajputs to emply the kamalias to work at Chachar. This would show that Rajputs had a hand in the management of the temple in Samvat year 1826 and they enjoyed certain rights in the temple. (III) Between Samvat year 1826 and samvat year 1856 various orders appear to have been passed from time to time by the ruling Gaikwars in relation to the division of a portion of offerings made in the temple between the Rajputs and kamalias. Some of these orders were in favour of Kamalias exclusively and others in favour of Rajputs exclusively. The orders passed in Samvat years 1834, 1843, 1847 and 1854 were all in favour of kamalias whereas the orders passed in samvat year 1832 and 1852 were in favour of Rajputs. Some of these orders were in favour of Kamalias exclusively and others in favour of Rajputs exclusively. The orders passed in Samvat years 1834, 1843, 1847 and 1854 were all in favour of kamalias whereas the orders passed in samvat year 1832 and 1852 were in favour of Rajputs. The order passed in Samvat year 1832 informed the Rajputs of Kalri that the attachment over the income of the temple, which then existed, had been removed and that they were to enjoy the same as before and render faithful service to the Goddess. The order passed in samvat year 1834 on the other hand stated that the worship of the Goddess belonged from old times to the. Kamalias alone and that they were not to be, interfered with in performing the same. The order of samvat year 1852, which was addressed to certain Koli aggressors, stated that the worship belonged from old times to bhoodsing Raghasing of Kalri, that the income of the temple was, again attached, that the Kolis were not to be on inimical terms with the Rajputs and that if they opposed the Rajputs, they would be punished. (IV) An, order passed by the ruling gaikwar in Samvat Year, 1854, however, called Bhoodsing of Kalri as obstructor of public worship, authorised the pavayyas of the temple to take the residue of the temple offerings and run the Sadavrat. This order would show that at one point of time both the Rajputs and Kamalias were deprived of a share in the temple offerings and the right to take the residue of the temple offerings was conferred upon a third class of devotees, namely, Pavayyas. (V) Govindrao Gaikwar issued an order in S. Y. 1856 to Kamavisdar of Pattan directing that the usual dasturies (rights) of Kamalias should be paid to them as in the time of Damajirao, Fatehsinhrao and others and that the management of the temple should be allowed to remain with Bhoodsing of Kalri and that the sadavrat should be allowed to be run by those who were running it. This order would indicate that though the management of the temple was with the rajputs, the Kamalias were to have certain desturies (presumably the right to a share in the temple offerings) as specified by Damajirao Gaikwar in his order passed in Samvat year 1823. This order would indicate that though the management of the temple was with the rajputs, the Kamalias were to have certain desturies (presumably the right to a share in the temple offerings) as specified by Damajirao Gaikwar in his order passed in Samvat year 1823. (VI) Sayajirao Gaikwar passed an order in Samvat year 1877 stating that damajirao Gaikwar had acknowledged that the management of the temple was with the Rajputs and at the same time had determined the rights of Kamalias. He directed that the lights of the Kamalias should be honoured and in return usual services should be obtained from them. (VII) Sayajirao Gaikwar passed another order in Samvat year 1886 setting aside his earlier order and made an award exclusively in favour of the Kamalias. The order was passed since the Kamalias had successfully undergone an ordeal which he had prescribed, namely, they had walked five paces with a red hot iron ball held upon five People leaves in palms of both the hands joined together. Soon after the order, the Kamalias were placed in the exclusive management of the temple. A reference to this event and the subsequently killing of ten or eleven kamalias at the hands of the Rajputas in the temple has been alluded to in the gazetteer in the extract cited above. (VIII) Khanderao Gaikwar reopened the question of distribution of the temple offerings between Rajputs and Kamalias in Samvat year 1912 and, having punished some of the Rajputs, he passed an order in Samvat year 1918 awarding one moiety of the residue of the income of the temple to the Kamalias and the other to the rajputs. This decision was confirmed by him again in Samvat year 1923. (IX) Khanderao Gaikwar, however, modified his earlier decision in Samvat year 1926 and awarded ten annas share to the Rajputs and six annas share to the Kamalias in the residue of the offerings of the temple. (X) Malharrao Gaikwar passed an order in Samvat year 1928 reversing the last decision of Khanderao Gaikwar and restoring the decision of Sayajirao gaikwar awarding the residue of the temple offerings exclusively to Kamalias. The Gaikwar, however, placed the management of the Sadavral and the villages granted to the temple in the hands of his daughter Ramabayee Saheba. IT appears that this arrangement continued till Samvat year 1933 (1877 A. D. ). The Gaikwar, however, placed the management of the Sadavral and the villages granted to the temple in the hands of his daughter Ramabayee Saheba. IT appears that this arrangement continued till Samvat year 1933 (1877 A. D. ). The Rajputas were, however, obviously dissatisfied and aggrieved by the last order passed by Malharrao gaikwar and appealed to the then Ruler to reopen the case and pass fresh orders. The memorandum, Ex. 127, came to be submitted to the Divan in the context of that appeal. The recommendation made in the memorandum was that an order should be passed restoring the decision of Khanderao Gaikwar passed in Samvat year 1918 and confirmed in Samvat year 1923 and that it should be accordingly directed that "the net income of the offerings should be divided half and half between the Kamalias and Rajputs". ( 74 ) SHRI P. Madhavrao, then Divan of baroda, passed the following order at the foot of the memorandum on 6th May 1877:"it is clear that Matharraos action in the case was unjustifiable. This decision therefore is declared altogether set aside. This will revive the last decision of maharaja Khanderao IInd. That decision should be carried out and declared final. I have every reason to suppose that majaraja Khanderao arrived at that decision after careful enquiry and consideration. There must be finality and khanderaos is last decision, as stated, must be declared final. Action should be taken firmly on this basis. Details should be settled in reference to the management as to what occurred while the last decision of khanderao was in force. Where this management fails, the previous management must be accepted as a guide to action. Both parties to the dispute should be distinctly informed in writing accordingly and they should be emphatically warned that if they cause needless trouble or cause mischief of any kind they will not only be severely punished but may in all probability forfeit the share awarded to them by khanderaos decision. The local authorities will require security for good conduct from any party who manifests any disposition to mischief. The local authorities will require security for good conduct from any party who manifests any disposition to mischief. " ( 75 ) FROM the foreging narration, it would be clear that the temple offerings were always treated as having been made to the deity, that even from the earliest times the expenditure required to be incurred on the worship of the deity came out of such offerings and the income from that source was first applied for that purpose, that since very early times there were disputes between the Kamalias and rajputs regarding appropriation of the residue of the temple offerings, that those disputes were resolved from time to time by the ruling Gaikwars who, as absolute monarchs had the power of supervision and control over the administration of public charity, that according to the series of desions given by ruling Gaikwars which determined the rights of the Kamalias and/or Rajputs, the offerings made in the temple were divided in specified shares between the two contesting parties after meeting with specified expenditure or were awarded exclusively to one of them, that the Rajputs and/or Kamalias were given a share in the said offerings because they were either managing the temple or rendering some service in return, that the residue to which they were thus entitled was an uncertain amount and that it did not confer upon them a right to receive a specific or determinate sum of money out of the offerings made in the temple, that neither party had any invariable right to receive the said share, that at least on one occasion, namely, in Samvat year 1854, both the Rajputs and Kamalias were deprived of a share in the temple offerings and the right to appropriate the same was given to the pavayyas, that the dispute was ultimately resolved in 1877 A. D. by the order of the Divan cited above and, lastly, that in the said order it was clearly mentioned that in case either Rajputs or Kamalias caused any needless trouble or mischief, they might in all probability "forfeit the share" in the net offerings of the temple. The Golakh Rules enacted in 1943 did not effect any change in this position and merely adopted the latest decision as its basis. The Golakh Rules enacted in 1943 did not effect any change in this position and merely adopted the latest decision as its basis. ( 76 ) IN our opinion, the historical account of the origin of the rights of Rajputs /barot and Kamalias to the residue of the Golakh income of the temple does not justify the claim that the said right is an invariable proprietary right which could not be affected by a Court while settling a scheme for the administration of the temple in question. The right appears to have been conferred or recognised because the Rajputas and/or Kamalias were up to a certain point of time managing the temple and rendering some service in return. It would thus appear that the right to receive a share in the residue of the Golakh income was essentially linked up with the obligation of rendering some services to the temple in return and since no services are how rendered by the recipients, they cannot legitimately claim that they have a right to a share in the residue of the offerings. It further appears that the right to the residue of the Golakh income was not always and invariably enjoyed by the rajputs and/or Kamalias; at one point of time at least the said right was conferred on the Pavayyas and they were also authorised to run the Sadavrat. Besides, it also transpires that the balance of the Golakh income was, on many occasions in the past, awarded exclusively to to one or the other of the two classes of claimants. It is also clear that the proportion in which the residue of the golakh income was divided between the co-sharers was also changed from time to time and has not remained fixed. It would thus appear, having regard to the history of the institution, that there is no substance in the contention raised on behalf of respondents Nos. 8 to 10 that the right to receive the residue of the golakh income in fixed proportion is a private proprietary right which cannot be affected by the Court while settling a scheme for the management of the temple in question. 8 to 10 that the right to receive the residue of the golakh income in fixed proportion is a private proprietary right which cannot be affected by the Court while settling a scheme for the management of the temple in question. The question whether, while settling a scheme for the administration of the temple and making provision for application of the Golakh income, due consideration should be given to the established practice of the institution is another matter to which we shall turn our attention a little later. ( 77 ) IT was, however urged on behalf of respondents Nos. 8 to 10 that they were holding a position similar to that of a Shabait of a temple and that they had a hereditary right to receive the residue of the Golakh income as emoluments attached to the said office. The argument was that the said respondents were at one point of lime in management of the temple and that they were in all probability holding hereditary office of a priest and rendering religious services in the temple. Even of a present, one of the Bhaljis working at the temple of Narsing Vir is a Kamalia by caste. The respondents have now ceased to perform the duties attached to the hereditary office of worshippers or pujaris of the temple and the said duties are at present being performed by employing qualified substitutes, namely, the Pujaris. There is no express prohibition in the Hindu religion against the performance of the duties of the pujaris office by the appointment of substitutes and where such an office has developed into a hereditary right to which are attached emoluments, no scheme could be settled which would affect the office. The argument, in our opinion, is not well-founded. In the first place, there is no pleading that respondents Nos. 8 to 10 held any hereditary office similar to that of a Shabait and that their right to receive the residue of the Golakh income in fixed proportion is an emolument attached to that office. On the contrary, in paragraph 22 of their written statement, Ex. 32, the said respondents have in unmistakable terms asserted that their right to the residue of the Golakh income was not in return for any services which they were required to perform. On the contrary, in paragraph 22 of their written statement, Ex. 32, the said respondents have in unmistakable terms asserted that their right to the residue of the Golakh income was not in return for any services which they were required to perform. It can, therefore, hardly lie in the mouth of the said respondents to urge this contention at the hearing of the appeal. In the next place, there is no evidence which would justify the claim that respondents Nos. 8 to 10 held an office similar to that of a Shabait of a temple. A Shabait by virtue of his office is a person entitled to administer the property attached to the temple of which he is a Shabait. In the case of a Shabait, the element of office and of property, all duties and personal interest, are blended together and neither can be detached from the other (vide: Shri govindlalji v. State of Rajasthan, A. I. R. 1963 S. C. 1638 at page 1656-57 ). As stated earlier in the course of this judgment, it appears that though the temple and its properties might have been in the management of the respondents in the remote past, at some point of time in the middle of the nineteeth century, the then Gaikwar of Baroda appears to have taken over the management of the temple and its properties and appointed pujaris and servants for the administration of the temple and for carrying out religious worship. It is, therefore, difficult to accept the claim of the respondents that they are holding an hereditary office analogous to that of a shabait or are official worshippers of the temple discharging their duties by employing qualified substitutes. ( 78 ) IN our opinion, therefore, Civil Court would have power and jurisdiction in the present suit to settle a scheme for the administration of the public temple in question superseding or varying the golakh Rules and authorising the application of the Golakh income for carrying out the objects of the trust and providing for its utilisation in the best interest of the trust. Such a scheme, even if it affects the rights conferred upon respondents Nos. Such a scheme, even if it affects the rights conferred upon respondents Nos. 8 to 10 under Rule 14 to appropriate to themselves the residue of the Golakh income according to their shares, would not be outside the scope of the suit nor would it be beyond the jurisdiction of the Court. ( 79 ) WE must now take up for consideration the third point urged on behalf of the appellant. It was urged on behalf of the appellant that the scheme for the administration of the temple in supersession or modification of the golakh Rules was required to be settled having regard to the lapse of time, change of circumstances and interest of charity and that there were substantial grounds for altering, amending and/or superseding the Golakh Rules and authorising the application of the whole or a major portion of the Golakh income for the objects and benefits of the trust. Our attention was invited to the evidence on record which, according to the appellant, established that large funds were necessary for the ordinary and heavy repairs of the temple and its properties, for making provision for reasonable convenience and comfort of the pilgrims and for contribution to the expenditure on charitable objects of the trust such as running of the school as well as of the dispensary for medical relief. The appellant submitted that respondents Nos. 8 to 10 were not rendering any service to the temple and still, during the period 1954-1955 A. D. to 1956-1957 A. D. , the amount which was paid to them out of the residue of the Golakh income amounted on an average to Rs. 23,830/- p. a. It was urged that having regard to the more pressing needs of the temple, interest of the general body of the public who were devotees of the Bahucharaji Mata and changed conditions, it would be in the best interest of the trust to settle a scheme for the administration of the temple and providing for the matters referred to earlier. As against this, the submission on behalf of respondents Nos. 8 to 10 was that it was not necessary to settle a scheme as suggested by the appellant and that no substantial grounds were made out for settlement of a scheme in modification or superession of the Golakh rules. As against this, the submission on behalf of respondents Nos. 8 to 10 was that it was not necessary to settle a scheme as suggested by the appellant and that no substantial grounds were made out for settlement of a scheme in modification or superession of the Golakh rules. ( 80 ) NOW there is no dispute, there can indeed be no dispute, that the temple of bahucharaji Mata is a public temple. It has been treated as a public temple for more than two centuries and is now registered as such under the provisions of the Bombay Public Trust Act. It is an ancient temple which has a large number of devotees. About two lacs pilgrims visit the temple every year. The peculiarity of the temple is that it runs and maintains institutions designed for the convenience of pilgrims and local residents. These institutions, which are under the direct management of the temple, include a dispensary, a library, a school and Dharmashalas. The temple also owns other immovable properties including shops. The temple has a large annual income derived from two sources, namely, Golakh income and Sans than income. The average gross annual income (on the basis of the income for the years 1954-1955 to 1956-1957) was Rs. 42,870/- under the head Golakh income and Rs. 21,002/- under the head Sansthan income. Ordinarily, a scheme for the administration of a public institution of this nature ought to have been settled many years ago providing for the proper administration of the temple and application of its funds for the object of the trust. It appears, however, that since the temple was under the direct management of the ruler of Baroda until merger and thereafter successively under the management of the State of Bombay and the State of Gujarat, no occasion arose for approaching a Court of competent jurisdiction to settle a scheme presiding for the administration of the temple and proper application of its funds. The rulers of Baroda, who were seized of the management of the temple, issued appropriate directions from time to time with a view to securing proper management of the temple and application of its income. The Golakh Rules framed in 1943, though in the nature of executive instructions, laid down certain guiding principles in relation to the management of the Golakh income of the temple. The Golakh Rules framed in 1943, though in the nature of executive instructions, laid down certain guiding principles in relation to the management of the Golakh income of the temple. Those rules, however, are not in the nature of a scheme framed by a court and the instant case, therefore, is not a case for alteration of a scheme settled by a Court. . ( 81 ) THE question then is as to whether a scheme is now required to be framed for the administration of the temple and providing for the application of its income in supersession or modification of the golakh Rules. Now, it is well-settled that once the Court finds that there exists a trust for public purposes, it is its duty to consider as to how best the interests of the public as well as of the trust would be served. In the case of a permanent charitable trust, it would be the duty of a Court to arrange for the proper administration of the trust and for the application of its funds in the best interest of the trust. If there is in existence any rule, custom or practice in accordance with which the trust is being administered and its funds applied and the Court finds that such rule, custom or practice is required to be altered on account of lapse of time or charge of circumstances or in the interest of charity, it would be the duty of the Court to settle a scheme providing for the same. As observed by the Privy Council in Sripati Prasadji v. Laxmidas A. I. R. 1929 P. C. 27 :"the institutional trust must be respected : but the sect and body of worshippers for whose benefit it was set up have the protection of the Court against their property being the subject of abuse, speculation and waste. "in settling a scheme, the Court is entitled to take into consideration not merely the wishes of the founder so far as that can be ascertained but also the past history of the institution and the way in which the management has been carried on heretofore, in conduction with other existing conditions that may have grown up since the foundation of the trust. The Court has, while settling the scheme, the power of giving any directions and laying down any rules which might facilitate the work of management, (vide: Mahomed Ismail ariff and Others v. Ahmed Moolla dawood and Another, A. I. R. 1916 P. C. 132 ). It is in the light of this legal and factual position that the question whether a scheme is required to be settled in respect of the trust in question will require consideration. ( 82 ) THE appellant-plaintiff has led credible evidence which establishes the following facts : (I) The immovable properties of the temple, including some part of the temple, dharmashalas, shops and servants quarters are in bad state of repairs. (II) Additional facilities such as provision for a canteen, quilts, mattresses, utensils, etc. and lighting arrangements are required to be provided for the large number of pilgrims visiting the temple. (III) Increased grants are also required to be made for the library, school and dispensary run by the temple. (IV) There is no reserve fund, sinking fund or depreciation fund although the temple owns large immovable properties. (V) The Sansthan income has remained more or less stationary whereas the golakh income has increased in the recent years. (VI) In view of the provisions made in the Golakh Rules, a very small protion of Golakh income is utilised for the benefit of the pilgrims or objects of the trust and a substantial portion thereof is diverted towards making payments to respondents Nos. 8 to 10. During the period 1954-1955 A. D. to 1956-1957 A. D. , on an average the said respondents were paid Rs. 23,830/- per annuam as their share in the residue of the Golakh income. (VII) Respondents Nos. 8 to 10 render no service whatsoever to the temple either in secular and non-secular matters except that they issue authorisation slips to the grocer of the temple for supplying articles required for Sadavrat and religious worship and for that purpose they have engaged three clerks at very meagre salary. (VIII) Respondent No. 8 does not even reside in village Bechar and visits the temple hardly twice in a year. ( 83 ) IN our opinion, the facts and circumstances summarised above must of necessity lead to the conclusion that a scheme for the administration of the temple and for the proper application of its funds is required to be settled. ( 83 ) IN our opinion, the facts and circumstances summarised above must of necessity lead to the conclusion that a scheme for the administration of the temple and for the proper application of its funds is required to be settled. The administration of a public temple of such antiquity, having a large number of worshippers and owing extensive immovable properties and deriving considerable income from various sources including offerings in the temple, should be carried out in accordance with a scheme properly settled by the Court. Golakh Rules framed in 1943 operate in a limited field and do not cover the entire compass of administration. That apart, by lapse of time and change of circumstances, the Golakh Rules have become out-dated. When the said rules were framed, the authorities framing the rules wanted to attain a limited objective and the rules were founded on existing practice and custom. The Rules incorporated a provision for making over the residue of the Golakh income to respondents Nos. 8 to 10 because that was the award made in favour of those respondents under the orders passed by the Divan of Baroda in 1877 A. D. For a period extending over several years, the revenues of the temple from Golakh income have largely increased and a large part of the benefit of that increase has been enjoyed by respondents Nos. 8 to 10 at the cost of the temple, its properties and the beneficiaries. The law which protects a religious foundation against external violence also requires that it should be guarded internally against mal-administration and its augmented funds should be regulated conformably to the objects of the institution and in its best interest. It is to achieve that purpose that power has been given to the Court to settle a scheme under Section 50 of the Bombay Public Trust Act. The application of the residue of the Golakh income in the manner provided in the golakh Rules is a relic of the past which has now become an anchronism; it is not only an intolerable burden on the resources of the institution but also detrimental to the interest of the trust. Respondents Nos. The application of the residue of the Golakh income in the manner provided in the golakh Rules is a relic of the past which has now become an anchronism; it is not only an intolerable burden on the resources of the institution but also detrimental to the interest of the trust. Respondents Nos. 8 to 10, who take away a large slice out of the income derived from that source, render no service worth the name to the institution and cannot be allowed to prosper at the cost of the public trust which starves for want of funds and is unable to carry out effectively and extensively its objects as well as many of its laudable activities. The income of a religious foundation derived out of the funds dedicated by the devout to pious uses cannot be allowed to be frittered away or wasted in that manner and manifold needs of the institution cannot be allowed to remain unsatisfied. In our opinion, therefore, the decision of the district Court must be reversed and the suit remanded to that Court with a direction that a scheme for the proper administration of the trust and application of its funds for the objects of the trust and in its best interest may be settled. ( 84 ) BEFORE we part with this point, we would like to observe that since we have held that the Golakh income is the income of the public trust and that the right of respondents Nos. 8 to 10 to the residue of the Golakh income is not inviolable, it would be open to the District Court, while drawing up a scheme for the future administration of the temple, to consider whether the said respondents should be allowed to have any share in the residue of the Golakh income. In arriving at its decision on this question, the District court should not miss the real point in issue in the case, namely, to settle a scheme to provide for the best method for fully and effectively carrying out the purposes for which the trust exists and the proper application of its funds to attain that objective. The scheme settled by the district Court should provide for the application of the funds of the temple in a manner consistent with the objects of the foundation and in the best interest of the trust. The scheme settled by the district Court should provide for the application of the funds of the temple in a manner consistent with the objects of the foundation and in the best interest of the trust. At the same time, in framing the scheme, the Court will also bear in mind the past history of the institution, the way in which the management has been carried on heretofore and will give due consideration to the established practice of the institution and consider whether in the context of the existing conditions the same requires to be rescinded or modified and, if so, to what extent. The District Court would settle the scheme in the light of the observations made above. ( 85 ) IN the result, the appeal succeeds and is allowed. The decree passed by the district Court is set aside and the suit is remanded to that Court with a direction that it should settle a scheme for the administration of the temple and application of its funds in the light of the observations made in this judgment and in conformity with the provisions of chapter VII-A of the Bombay Public trust Act, 1950. The suit out of which the appeal arises is fairly old and it is desirable that it should be disposed of as early as possible. The District Court would, therefore, take up the suit for early hearing and hear it from day-to-day and dispose it of as far as practicable within three months from the date of the receipt of the writ and record from this Court. As regards the costs of the appeal, the costs of the appellant would come out of the Golakh funds. The respondents will bear their own costs of the appeal. Appeal allowed. .