AMARDAS MANGALDAS SADHU Vs. HARMANBHAI JETHABHAI PATEL

JUDGEMENT

(1.) THIS is an appeal by some of the defendants, three out of four, against the preliminary decree in a suit filed by the respondents and others as relaters under Section 92 of the Civil Procedure Code in respect of a temple at Boriavi in the Kaira district and properties alleged to appertain thereto.

(2.) THE principal allegations in the plaint, which it is necessary to set out rather fully, are as follows. THE temple known as the temple of Shri Gopalji Maharaj (Gopalji I may say is one of the names of Krishna) in the village of Boriavi, taluka Anand, was built by the village people for the spiritual benefit of the Hindu community. It is about 200 or 300 years old. THE idol of Shri Gopalji has been consecrated and is the owner of the properties attached to the temple. Every Hindu has a legal right to take part in the worship. Gifts have been made to the temple in the shape of lands, corn, money, etc., and the income derived there from has been devoted to the worship of the deity and the maintenance of the temple. THE worship of the deity is entrusted to a person called a sadhu who resides in the temple and carries on the worship. THE last sadhu was Baldevdasji who was the pujari till about the year 1932. (He died in fact in February, 1933). Baldevdas made a will in which he said that the properties belong to the deity and had been acquired out of the income. By his will he appointed six persons trustees, three of whom are dead ; plaintiffs Nos. 1 to 3 are the remaining trustees. Baldevdas made defendants Nos. 1 and 2 his chelas, but they had deserted him and accordingly directions were given in the will that if they were willing to worship they were to be allowed to do it, but the trustees were to see that the properties were not wasted and that the worship was properly done. In case of default the trustees were directed to remove the chelas and appoint another. After the death of Baldevdas defendant No.1 undertook to perform the seva puja of the deity and so was allowed to remain, but he got the properties of the deity transferred to his name and led an immoral life. Baberbhai the natural brother of Baldevdas was murdered and in April, 1934, defendant No.1 was arrested for the murder. Defendant No.2 was then allowed to perform the worship and he also did not behave properly. Defendant No.1 was acquitted in September, 1934, and after that both he and defendant No.2 asserted a hostile title. It is alleged in the plaint that both of them are unfit to remain as pujaris, having neglected the seva puja. It is also alleged that some of the temple properties had been alienated to defendants Nos. 3 and4. For all these reasons it is alleged that it is not in the interest of the institution that these defendants should be allowed to remain in the temple any longer. Plaintiffs being residents of Boriavi and worshippers of the idol and having obtained the consent of the Collector of Kaira instituted the suit claiming the following reliefs: a declaration that the properties described in the schedules to the plaint are public charitable and religious trust properties of Shri Gopalji Maharaj, accounts to be taken from defendants Nos. 1 and 2, an injunction to defendant No.3 not to assert any right in pursuance of a mortgage deed in his favour, possession of properties comprised in a sale-deed in favour of defendant No.4, lastly, a direction for the framing of a scheme for the worship of the deity and the effectual management of the affairs of the temple.

(3.) ON behalf of the defendants-appellants a preliminary objection was taken that the suit is not competent. The Collector's certificate under Section 93 of the Code is exhibit 193. It is addressed to Mr. Becharbhai Samalbhai (i.e. plaintiff No.1) "and others of Boriavi" and gave permission for the institution of a suit against the defendants for the reliefs enumerated in Section 92. It was held in Gopal Dei v. Kanno Dei (1903) I. L. R. 26 All. 162 that the permission required by Section 92 must be given to two or more named persons. It is not sufficient for the Advocate General or the Collector to nominate one person and give him a blank cheque to join any other person or persons he chooses as co-plaintiffs. That no doubt is the law, but if certain persons apply to the proper officer for permission to sue and he grants the application, the omission to set out the names of all the applicants in the permission order does not render it invalid. That was decided in Jafarkhan v. Daudshah (1910) 13 Bom. L.R.49. The application made by the plaintiffs here to the Collector has not been put on record, probably because this particular objection to the suit has never been raised before. It was alleged in the plaint that all the plaintiffs obtained the Collector's consent and there is no specific denial of this in the written statement. Plaintiff No.4 has sworn to the fact and he has not been cross-examined as to that. We see no reason to doubt but that the Collector gave permission to the particular persons, viz. the plaintiffs, who applied to him for it. That being so there is nothing in this point.