Thakur Krishanjee Maharaj v. Jamuna Prasad — 1983 DIGILAW 337 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiffs' Second Appeal in a suit for a perpetual injunction restraining the defendants from removing the idols of the deities installed in the temple and from removing their pedestal or converting the house into a residential house so that the worship by the Hindu public may continue as in the past. The plaintiffs are four in number : Shri Thakur Jee Krishan Jee Maharaj v. Maharani Radhika Jee va Hanuman Jee Devta Virajman Mandir Ram Sukh Dass vake Bareilly. Mohalla Sahukara, bazariya Rama Nand, putra Bhola Nath; Rama Nand; Jagdish Saran; and Parshottam Saran. 2. The plaintiffs allegations were that more than a hundred years ago one Ram Sukh Das made a waqf of his one-half share in the house in suit and established therein a temple for the benefit of the general public and installed therein the deities of Shri Krishan Jee Maharaj and Maharani Radhika Jee and Shri Hanuman Jee and he appointed Sri Ganga Narain Shastri Brahmin as Pujari and after him Sri Kanhai Lal continued to work as Pujari. The remaining half of the house, belonged to Ram Sukh Dass' brother. Bindraban, who died issueless. His widow, Smt. Guddo, also gave that half share to the temple so that the whole house became a Thakurdwara and waqf for the benefit of general public, and the ancestors of the plaintiffs and other Hindu residents of the Mohalla worshipped in the temple and benefited therefrom. After Kanhai Lal, his son. Ram Swarup, and after him, Pandit Ram Chandra became Pujaris of the temple and, when he too died, Janwna Prasad defendant No. 1, worked as the Pujari. The second defendant lived with his uncle, Jamuna Prasad (the first defendant), and the two of them in league with each other and dishonestly, wanted to remove the idols and place their pedestal at some other place, and had removed Hanuman Jee from the Mandaria where he was installed and kept him at some other place and had demolished the Parikrama and wanted to convert the temple into their residence. 3. The first two defendants filed a joint written statement. They alleged that Shree Thakur Jee Maharaj is not the owner of the house designated by the plaintiffs as a temple, nor was it ever dedicated by Ram Sukh Dass or Guddo to Thakur Jee Maharaj. 3. The first two defendants filed a joint written statement. They alleged that Shree Thakur Jee Maharaj is not the owner of the house designated by the plaintiffs as a temple, nor was it ever dedicated by Ram Sukh Dass or Guddo to Thakur Jee Maharaj. Their second allegation was that the idols of Maharani Radhika Jee and Shri Hanuman Jee were installed for private worship and the public or the plaintiffs never had any access to the idols nor were the plaintiffs ever allowed to worship them. The third allegation was that Ram Sukh Dass never appointed Kanhai Lal, ancestor of the defendants, as Pujari, but on the contrary, gifted his half share to Ganga Narain Shastri by a deed dated 17th Feb. 1850 and Ganga Narain transferred his rights and interest to Kanhai Lal, the defendants' ancestor, in the year 1856. Snit. Guddo sold her one-half share in the remaining house in favour of Kanhai Lal in the year 1867 and thus Kanhai Lal became the sole owner of the house in suit. The next allegation is that due to the rains, the room, where the defendants' predecessors had the images of God installed for private worship, fell down "this year', and that the defendants "for fear that the images of God and Goddess may not be disfigured by further falling of the room removed them in the other room in the house in suit." They alleged that there was no Parikrama and it was never demolished. The defendants Nos. I and 2 claimed to have inherited the property but also claimed that one Munna Lal brother of defendant Chhotey Lal was also a necessary party. He was impleaded thereafter 1 an amendment of the plaint and put up a similar defence. Certain technical pleas were also raised. The material questions on which the parties were at issue, were : "(1) Whether the temple in suit is a public temple". "(8) Whether Ganga Ram and Kanhai Lal were Pujaris or owners of the temple in suit?" 4. Certain technical pleas were also raised. The material questions on which the parties were at issue, were : "(1) Whether the temple in suit is a public temple". "(8) Whether Ganga Ram and Kanhai Lal were Pujaris or owners of the temple in suit?" 4. The trial Court held on the first issue that the temple in question is not a public temple and on issue No. 8 that "there is no iota of evidence on record to show that Ganga Ram and Kanhai Lal were ever appointed as "Pujaris" or that they acted as such in relation to the property", and that ..on the other hand the conclusion deducible from the evidence and circumstances on record points to their ownership and title.......; that the plaintiffs have failed to prove the public character of the temple "and that", therefore, taking all these facts into consideration, the only inference is that it was their private temple. 5. On first appeal, the lower appellate Court observed that the main point that arose for its consideration was whether the premises in suit constituted a public trust and after reading the documents (Ext. A1) dated the 7th Feb., 1850, Ext. A2 dated the 24th May, 1856 and Ext. A3 dated the 24th July, 1867, it came to the conclusion that no endowment was created in favour of the public or in favour of the idols and that the proprietary rights in the building were transferred by Ram Sukh Dass to Ganga Narain Shastri and later on by Ganga Narain Shastri and Smt. Guddo to Kanhai Lal. The lower appellate Court also considered certain other evidence on the record and found that the defendants were living in the house and although it found that there was evidence to show that the defendants were Pujaris and offerings were made by the people to the deities and people residing in the lane came for Darshan of the deities and offered Bhog, that did not establish that the premises in suit were a public endowment. It then proceeded to consider certain authorities and concluded by saying that the plaintiffs altogether failed in proving that the premises in suit constituted a public endowment. 6. At the hearing of this appeal, the defendant-respondents were not represented in spite of due service of notice to engage another counsel after the death of their Advocate, Mr. Gopal Banari I have heard Dr. 6. At the hearing of this appeal, the defendant-respondents were not represented in spite of due service of notice to engage another counsel after the death of their Advocate, Mr. Gopal Banari I have heard Dr. Gyan Prakash in support of the appeal and having perused he three documents. Ext. Al dated the 7th Feb., 1850, Ext. A2 dated 25th May, 1856, and Ext. A3 dated 24th July. 1867, it is, in my opinion, absolutely clear that the house in suit was dedicated for the purposes of a Thakur Dwara, and that the deities were already installed and the endowment was of a public character. By the deed dated 7th Feb., 1850, Ext. Al. the transfer of the proprietary rights in the property to Pandit Ganga Ram Shastri was made to him as a shebait of a Hindu deity for the benefit of the general Hindu public, and not of any beneficial interest therein. The effect of the transfer was that the proprietary right of managing the property as a shebait with all the incidental benefits, vested in Pandit Ganga Ram Shastri. The title vested in the deities and the ultimate beneficiaries were the Hindu public for whose benefit the endowment was created. By the deed dated 25th May. 1856, Pandit Ganga Ram Shastri transferred the proprietary right in the property. which he had as the shebait, to Kanhai Lal and thus constituted the latter as the shebait of the deities in his place. The sale of the remaining half-share in the house by Smt. Guddo by the deed dated 24th July, 1867 was ostensibly a sale, but the transfer was made to Kanhai Lal as a shebait of the endowment for the express purpose of including that remaining half share of the house in the endowment that had already been created by Rangy Sukh Dass. 7. Ext. Al, the deed dated 7th Feb, 1850, executed by Ram Sukh Dass. declares that the Thakur Jee was already installed in the premises, in which he had a half-share, and that he transferred it to Maharaj Pandit Ganga Ram Shastri Sahib so that the said Pandit Ji might, under the instrument, perform Seva and Puja of Thakur Jee. It was thus a declaration of trust. declares that the Thakur Jee was already installed in the premises, in which he had a half-share, and that he transferred it to Maharaj Pandit Ganga Ram Shastri Sahib so that the said Pandit Ji might, under the instrument, perform Seva and Puja of Thakur Jee. It was thus a declaration of trust. Ganga Ram Shastri was appointed trustee for the Seva and Puja of Thakur Jee already installed in the premises, in which Ram Sukh Dass had a half-share and he conveyed and transferred that share to Ganga Ram Shastri for that purpose, obviously in trust and not as a beneficial owner. 8. The deed does not say that Thakur Jee installed in the house was a private deity worshipped only by Ram Sukh Dass or the members of his family nor does it say that the endowment was being created for the benefit of Ganga Ram Shastri or the members of his family alone. It is unusual to find a Hindu endowing property to a deity worshipped by him alone or the members of his family and yet appointing a stranger to the family as a trustee or shebait or a Pujari with proprietary rights in the endowed property and at the same time excluding himself and members of his family from all rights in the property or the endowment or its management. The test for determining whether a Hindu religious endowment is private or public has been laid down by the Supreme Court in Deoki Nandan v. Murlidhar, AIR 1957 SC 133 : in the following words : "The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right to worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers." 9. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers." 9. The reason for the rule as explained by the Supreme Court was "that the true beneficiaries of religious endowments are not the idols but the worshippers and that the purpose of endowment is the maintenance of that worship for the benefit of the worshippers." 10. The deed (Ext. Al) did not say that the Thakur Jee installed in the house was the private family deity of Rani Sukh Dass nor did it impose any restrictions on any member of the Hindu community from worshipping the deity. In the absence of any such restrictions from the side of the founder of the endowment, the shebait or the Pujari, to whom the property was transferred in trust for maintaining the worship by providing for the Seva and Puja of the deity, could not restrain or prevent any Hindu from worshipping the deity. The endowment was thus clearly a public endowment. 11. The deed (Ext. A2) did nothing more than transferring the rights, which Pandit Ganga Ram Shastri had in the property under the deed (Ext. A-1). to Kanhai Lal. At any rate he did not claim adversely to the trust. The installation of the Thakur Jee and the gift in his favour for the purposes of the Seva and Puja of the Thakur Jee by the deed dated 7th Feb. 1850, was expressly recited and obviously, what was transferred, was the shebaiti rights, which Ganga Ram Shastri had. Whether Ganga Rant Shastri could do so or not is not in question in the present case. At any rate, the founder Ram Sukh Dass did not impose any restrictions on the power of Ganga Ram Shastri to lay down the line of shebaiti after hint and by the deed dated the 7th Feb. 1850, Rant Sukh Dass had expressly withdrawn himself and his family from all right, title or interest in the shebaitship. Under the circumstances, one could only proceed on the assumption made for the purposes of the case, that the transfer of shebaiti rights by Ganga Ram Shastri to Kanhai Lal by the instrument (Ext. A-2) dated 25th May, 1856 was valid. Under the circumstances, one could only proceed on the assumption made for the purposes of the case, that the transfer of shebaiti rights by Ganga Ram Shastri to Kanhai Lal by the instrument (Ext. A-2) dated 25th May, 1856 was valid. At any rate, Kanhai Lal and his successors have been in possession of the shebaiti rights as such ever since. 12. The deed (Ext. A-3) dated 24th July, 1667 did no more than to add to the endowment by transferring the remaining half share in the property to Kanhi Lal for purposes of being made part of the Thakurdwara. There could be no doubt that Kanhai Lal came to hold the remaining half- share under the deed (Ext. A-3) in the same right, in which he held the half share transferred by Ram Sukh Dass under the deed (Ext. A-1) to Ganga Ram Shastri and by Ganga Rant Shastri to him under the deed (Ext. A-21. 13. The defendants admitted that the deities existed and that they had removed them into another room for fear that the images of God and Goddess may not be disfigured by further falling of the room" in which they were installed. The deities have continued to exist. The endowment continues to exist so long as the deities continue to exist. The endowment was a public endowment for the benefit of all the members of the Hindu public. The plaintiffs thus clearly had a right to restrain the defendants from destroying the endowment or interfering with their right to freely worship the deities. At any rate, the deities themselves were the first plaintiffs and the right of Rama Nand, who was himself the plaintiff No. 2 also, to sue on the behalf of the deities, was expressly upheld by the finding on issue No. 3, which negatives the objection raised in para 9 of the written statement of Munna Lal, the subsequently added defendant No. 3. The trial Court also held that, although the suit was not barred by S. 92 of the Civil P. C., yet it was bad for want of compliance with the provisions of R. 8 of O. 1 of the Civil P. C. It is clear that none of the reliefs claimed were such as may have been claimable in a suit under S. 92 of the Civil P. C. and the finding that the suit was not barred by S. 92 of the Civil P. C. appears to be correct, but the trial court was, in my opinion, not right in holding that the suit is bad for want of compliance with the provisions of R. 8 of O. 1 of the Civil P. C. It has been noticed above that the first plaintiffs were the deities themselves and surely they were entitled to an injunction to prevent the defendants from removing them or for preventing the members of the general Hindu public from worshipping them. Besides that every worshipper has an individual right to sue for maintaining the worship quite apart from the common interest, which he has as a member of the general Hindu public. Moreover, the suit was not brought in by the plaintiffs Nos. 2. 3 and 4 in a representative capacity, but was brought in their individual right as worshippers of the deity. 14. The suit thus deserved to be decreed and ought to have been decreed. 15. In the result, the appeal succeeds and is allowed. The decree under appeal is set aside. The suit is decreed, and a perpetual injunction is issued restraining the defendants from removing the idols of the plaintiff deities installed in their temple as described in the plaint, and from removing the pedestal or converting the house into a residential house and not to interfere, in any manner, with the continuance of the worship of the deities by the members of the Hindu Public. As the defendants were not represented at the hearing there will be no order as to costs.