LAWS(BOM)-1955-9-56

MALLAPPA VIRBHADRAPPA Vs. VASUDEORAO KESHAVRAO

Decided On September 28, 1955
MALLAPPA VIRBHADRAPPA Appellant
V/S
VASUDEORAO KESHAVRAO Respondents

JUDGEMENT

(1.) BY deed Ex. 112 dated 18-5-1916 executed by one Lingappa Mudkappa Deshpande in favour of Shrimant Dhondopant Raste certain Inam land which now has Revision Survey No. 7 of the village of Kubihal in Kundgol Mahal was granted for the benefit of the Idol Vishnu. The relevant provisions of the deed Ex. 112 are as follows:

(2.) THE suit was resisted by the defendants. The learned trial Judge held that the land was given for 'limited purposes' by Lingappa Mukdappa Deshpande, and that the defendants had committed a breach of the covenants of the grant, and the plaintiff was therefore entitled to obtain possession of the land in dispute. He further held that the suit filed by the plaintiff was within limitation. The learned trial Judge accordingly passed a decree in favour of the plaintiff for possession and directed mesne profits to be ascertained under Order 20, Rule 12 (c), C. P. C. In appeal to the District Court at Dharwar the learned District Judge modified the decree passed by the trial Court. The learned District Judge held that the grant made by Lingappa Mudkappa Deshpande was not an absolute grant" to Dhondopant Raste, but it was a grant made subject to a condition, viz. , that the income from the suit property should be utilized for defraying the expenses of the Naivedya and Nanda-deep of the Idol Shree Vishnu at Wai which had been consecrated by Dhondopant Raste. He further held that the grant was resumable and that the plaintiff was not entitled to obtain possession. The learned District Judge also took the view that even though there was no express prayer made by the plaintiff for effective restoration of the property for the benefit of the deity, the case was one in which a mandatory injunction that the defendants should perform services of Naivedya and Nanda-deep in the temple of Shree Vishnu, should be issued, and 'in the event of the services not being performed to the satisfaction of the court the court should be authorized to appoint a receiver'. To that course the advocate appearing for the defendants raised no objection, and he invited the court to pass a decree accordingly. Against the decree passed by the District Court the plaintiff has come to this court in second appeal.

(3.) EVIDENTLY on the terms of Ex. 112 even though formal title appears to have been conveyed to Dhondopant Raste the property was given for the benefit of Shree Vishnu Idol for, performance of Naivedya and the lighting of Nanda-deep and allied ceremonies. The idol of Shree Vishnu was the sole beneficiary of the property, and Dhondopant Raste was made a trustee for holding the property for the benefit of the deity. The settlor Lingo Mudkappa Deshpande having parted with all title to the property, I agree with the view of the learned District Judge that the plaintiff had no right to be restored to possession of the property relying upon the deed of settlement Ex. 112. But that does not mean that the plaintiff, who is the descendant of Lingo Mudkappa Deshpande has no interest in seeing that the property should be utilized for the purposes for which it was granted to Dhondopant Raste and that it should not be diverted to the personal use of his descendants. The claim made by the plaintiff therefore for possession of the property cannot be sustained. But even if the plaintiff's claim for possession cannot be sustained, and the court has jurisdiction, (and it appears that the defendants in the courts below conceded that the courts had jurisdiction) to direct that arrangement to be made for carrying out the purposes for which the land was granted in Inam by the settlor Lingo Mudkappa. Even though the defendants appear to have made a claim at one stage to the pioperty as if it was their own, I do not think that at this stage it will be necessary to remove the defendants from the management of the property and the mandatory injunction which has been issued by the learned District Judge directing the defendants to carry out the service of Naivedya and Nanda-deep should be confirmed. The learned Judge had directed that in default of the performance of service by the defendants, the Court may appoint a receiver for carrying out the duties of the defendants. An order of appointment of a receiver may not be a proper order to make especially when religious services are to be performed. Even though therefore I maintain in substance the decree passed by the District Court, I propose to make certain alterations in the decree as set out in para. 42 of the learned District Judge's judgment.