GIRDHARLAL HARIVALLABHDAS Vs. NARANLAL NAROTTAMDAS

JUDGEMENT

(1.) This is an appeal from a decree made by the District Judge of Ahmedabad who has dismissed the, plaintiffs suit with costs. The suit purported to be a suit filed under Section 92 of the Civil Procedure Code with the permission of the Collector. The plaint, which is somewhat diffuse in its references to the history of the property, may be summarised as containing averments that the whole of the property referred to is public charitable property of the Vaishnavs ; that the defendants, of whom the second is the wife of the first, were mere pujaris, or as is expressly stated, trustees appointed by the Vaishnavs for the worship of the idol ; that the defendant, that is to say, the real defendant, the husband, although a trustee, did not properly look after and take care of the Mandir; that he refused to show the income of the Mandir to the Vaishnavs interested. Misconducting himself in this and other ways, say the plaintiffs, he datwrrot- discharge his duties as a pujari and trustee, and he has thereby committed and commits breach of trust. The plaint goes on to say that when remonstrated with on this misconduct the defendant refused to acknowledge his responsibility to anybody, but gave a reply to the following effect: I am the independent owner of the Mandir and all the immoveable and moveable property appertaining to the Mandir, and the Vaishnav people have no right whatever, and I have full right to make such use of the Mandir and all the immoveable and moveable property appertaining to the Mandir as I may think proper, inasmuch as the Mandir, and the property appertaining to the Mandir, belong to me by right of independent ownership and the same are not public charitable property." The prayers were that the defendants should be removed from their possession and vahivat of the Mandir; that the said property should be given in trust, and other persons should be appointed as Vahivatdars, that is to say, trustees, and other fit and proper persons should be appointed as pujaris; that an account should be taken from the defendants ; and that a scheme should be framed for the administration of the trust. This in substance is the character of the plaintiffs suit, and the first question which arises is whether it properly falls under Section 92 of the Civil Procedure Code. The learned Judge below was of opinion that it was outside the section and that the plaintiffs proper remedy would have been by an ordinary ejection suit in some form or other in the ordinary Court. The Judge based this opinion upon the ground that the plaintiffs case, as developed in the evidence, was that the principal Vaishnavs of the locality were the owners and managers of the Mandir, and were themselves trustees on behalf of the community, while the defendant was merely their servant, whom they had a right to appoint and dismiss at pleasure. It appears to us that the learned Judge in looking beyond the plaint to the evidence of the witnesses for the ascertainment of the nature of the suit was in error, and that he attached undue importance to the evidence which upon this point was given. The character of the suit is primarily to be ascertained by a reference to the pleadings, and is not dependent upon the plaintiffs success at the trial; moreover the mere use of the English word trustee " by the Gujarati witnesses is not a circumstance of any real importance in deciding the real nature of the suit.

(2.) Section 92 of the Civil Procedure Code provides for a suit in the case of any alleged breach of a public charitable trust or in the case where the direction of the Court is deemed necessary for the administration of any such trust. And we cannot doubt that, properly regarded, this suit falls directly within the purview of the section. As we have shown by reference to the terms of the plaint, the plaintiffs case was that the defendant was a trustee of this Mandir, the Mandir itself being public charitable property ; that the defendant, both by setting up au adverse title of his own and in other ways, had been guilty of breaches of his trust; and that, therefore, the defendant should be removed from his possession and the Court s direction should be given as to the administration of the trust. Such a suit is in our view strictly within the limits of Section 92. And in truth this particular suit is of a very familiar type and follows a very familiar course. The type of the suit is not altered by the circumstances that, as usual in this class of litigation in India, the plaintiffs, like the defendants, have been, guilty of exaggeration. Stripped, however, of this form of decoration, the real controversy in the suit is perfectly plain. It is a controversy between the plaintiffs, interested Vaishnav worshippers, who allege that this temple is public charitable property, and the pujari defendant who claims that the property is his own private property. That is the point upon which, as the pleadings show, the real dispute turned and the decision of the Court was required. It is, in our opinion, a mistake to lead the plaint as if it alleged that other people, in the position of the supervisors, were trustees of the temple and that the defendants were not the trustees. On the contrary, according to the plaint, the defendants were in possession of the trust property, and were in receipt of the income accruing to it; and the plaintiffs clearly expressed case is that in relation to this Mandir the defendant s position was that of a trustee. If that is so, then apart altogether from the question whether supervision had been exercised over him in the past, or whether he had refused to show his accounts, or committed any other act of misconduct, the mere circumstance that he set up in himself a private title adverse to the trust would constitute a breach of trust; see Damodar v. Bhat Bhogilal (1896) I. L. R. 22 Bom. 493 and Chintaman Bajaji Dev v. Dhondo Ganeah Dev (1888) I. L. R. 15 Bom. 612; such a denial of his trust and the consequent need of the Court s directions with regard to the administration of the property amply suffice for the application of Section 92....

(3.) The suit then was properly brought under that section and the question which arises, the only substantial question between the parties, is whether the plaintiffs have succeeded in showing that the property is public charitable property. As we have indicated, it must be conceded that the plaintiffs upon this point have exaggerated the truth in their assertion that in the past pujaris like the defendant have been formally appointed by direction of the Vaishnavs. These formal appointments, as we know, are not the custom in India, but the absence of them by no means indicates that the property involved is other than public property. In the same way the circumstance that the pnjariship has gone down uniformly by inheritance or grant is also a circumstance of singularly little significance in a country where every office tends to become hereditary. It is common knowledge that in India parties on both sides acquiesce in this slipshod state of affairs until some act is done or some claim made which makes it essential to have their rights formally determined.