AYINAVALLI NARAYANAMURTHI Vs. BULUSU ACHAYYA SASTRULU

JUDGEMENT

(1.) IN the village of Ayinavalli, in a public temple on the bank of Godavari, there is a shrine dedicated to Visveswaraswami. IN the village of Mukteswaram, in another public temple also on the bank of Godavari, there is a shrine dedicated to Mukteswaraswami. Both these shrines would appear to have been, if not constructed and established, at any rate endowed by the Peddapur Samasthanam some time in the last years of the 18 century or the beginning of the 19th. Almost from that time, the members of the same family would seem to have been officiating as Archakas at both these shrines. Against the five persons at present admittedly holding the office of Archakaship in both these shrines two suits have been instituted by the same set of plaintiffs, one in respect of Visveswaraswami temple. Both these suits were instituted under the provisions of Section 92 of the Civil Procedure Code with the sanction of the Advocate-General for, inter alia, a declaration that the defendants are not the legal trustees, the removal of the defendants from the office of trustees if they should be found to be legal trustees, the appointment of new trustees, the taking of inventory of accounts and the framing of a scheme for the management of the temples and their properties. For some reason or another at the hearing of the suits the defendants gave up the claim that they were the Dharmakarthas or the trustees of the temples. We apprehend that this abandonment of their claims as Dharmakarthas or trustees was probably with a view to enable them more successfully to contend that the suit lands were lands belonging to them and not to the deities but to them as Archakas subject to the performance of Nitya Nive-danam or the daily worship. The main question that has been argued before us is that the lower Court was wrong in holding that the lands were grants to the temples or deities themselves and not to the Archakas. For the determination of this question obviously no oral evidence could be of any use and the learned Vakil for the appellants relied for the purpose of contention solely on the documentary evidence in the case. We are, however, constrained to observe in passing that it is to be regretted that suits involving merely the determination of such a simple question should have been pending for three years in the Subordinate Judge's Court and a further period of three years in this Court. It is true that, as contended on behalf of the Archakas, the appellants, they have been in possession and enjoyment of the suit lands performing the Nitya Nivedanam or the daily worship without accounting and without deeming themselves accountable in respect of surplus income, if any, from the lands to any person. If there were no documentary evidence whatever to indicate in whose favour the original grants were, whether in favour of the deities themselves, that is to say, the temples as institutions or to the Archakas subject to or burdened with the performance of the daily worship we should have been disposed to attach considerable weight to such long uninterrupted and unquestioned enjoyment. But the evidence of user and en-joyment however long, uninterrupted and unquestioned, would be evidence of the grant only in the absence of any reliable or cogent evidence with regard to the terms of the grant itself or in case of any ambiguity in the grant. It seems to be clear that almost till very recently the suit lands yielded only just what was sufficient for the Nitya Nivedanam or the daily worship. No doubt in such a state of things not only the persons who established the temples and made the endowments but succeeding generations of worshippers would have allowed the Archakas to cultivate the lands and take the income performing the pooja as it was obviously the most convenient mode of arranging for the worship of the deities and the payment of remuneration for the Archaka service. But when the income accruing from the lands came to be considerable and the Archakas by reason of old habits and following their forefathers claimed the lands and surplus profits therefrom to be their own, it was only natural that the worshippers should take steps to secure the surplus income for the institutions. The learned Vakil for the appellants stated his position thus :-" These were small temples. The daily worship had to be carried on and the Archakas paid for their services and obviously the most convenient method of arranging for both would be to grant to the Archakas sufficient lands, burdened with the obligation of carrying on the daily worship, a simple and single arrangement to achieve both the purposes. The expression Nitya Nivedanam includes in itself the idea of remuneration of Archakas. No doubt there would be much force in this contention in the absence of any satisfactory evidence regarding the person to whom the grant was originally made. The learned Vakil for the appellants drew out attention to the decrees and transactions relating to the suit lands, by and between the members of the family of Archakas, all of them calculated to show that during that entire period, the Archakas dealt with the properties as if they were their own, partitioned them amongst themselves and so forth. He relied strongly, for example, on Ex. XL, which was a decree of the District Munsif's Court of Amalapur in a suit of the year 1830, in which, though the suit was dismissed, the properties were, on admission of the parties, treated by the Court as partible properties. Such decrees and transactions however by or between the members or branches of Archaka family are not of any evidentiary value in the absence of parties or persons interested in setting up the rights of the temples as distinguished from the Archakas. Mr. Lakshmanna at one stage seemed inclined to argue that having regard to the provisions of Clause 2 of Section 62 of Regulation VI of 1816 and the issue of notification thereunder, the judgments of the Courts of Law relating to immoveable properties in these suits may amount to judgments in rent; but he did not press that view and it seems to us that the said provision was one merely intended to evade multiplicity of suits. It seems to us, however, quite clear from the evidence of the public documents adduced in the case that the original grant was really in favour of the temples themselves. The learned Subordinate Judge has in his judgment dealt with all the documentary evidence in detail and come to the conclusion that the grants were to the temples and not to the Archakas. It seems to us that the evidence in this direction is really overwhelming and conclusive. The inam title Ex. N, dated the 6 of December, 1859, is granted to the manager for the time being of the temple and refers to the grant as Devadayam or Pagoda INam. Ex. B, which is an extract from the inam register of the same period, refers to the deities as grantees and the purpose of the grant as support of the deities and liable to be continued as long as the pagodas are kept up. Exs. D to H are all entitled accounts of the grants of lands pertaining to the deities in the village of Ayinavalli. It is clear from all these documents that the original grants were to the temples themselves and not to the Archakas. IN this view we entirely agree with the learned Subordinate judge. This disposes of the main contention on the part of the appellants. The Subordinate Judge has also framed a scheme for the management of the temples, the appointment of trustees, the remuneration of Archakas and other matters. IN ordinary circumstances we should have thought that one trustee for these small temples would have been sufficient, but as both parties have agreed that it would be more desirable to have three and as we are further assured that there will be no practical difficulty in finding suitable persons in the locality to be appointed as trustees we have not thought fit to interfere with the provision in the scheme. It seems to us, however, that the provision in Clause 3 of the scheme for vacancies in the office of trusteeship being filled up by the Court in Clause 6 of the scheme, for the appointment of an auditor every year by the Court and in paragraph 9 for the Court sanctioning the mortgages or leases of the temple properties and in Clause 13 for a general liberty to apply to the Court with regard to any matter arising out of the scheme or the modifications thereof, are objectionable both in principle and in practice. It is far from desirable that Courts should assume to themselves the continued supervision of institutions, for the management of which they are called upon to frame schemes. IN fact, under such schemes the Courts of Law constitute themselves in some manner as temple committees and the whole burden of such functions for all time is thrown upon the Courts. It is very undesirable that the Courts should be burdened with such tasks. Even in the interests of instituti o ns themse lves, it is doubtful if such provisions are calculated to promote their improvements or efficiency. We are also not satisfied that Courts of Law are generally the best fitted to choose proper trustees more especially having regard to the procedurue generally adopted in such cases. Further, we are disposed to consider though in the view we are taking it is unnecessary to decide the point, that such decrees are really ultra vires having regard to the express provisions of Section 92 of the Civil Procedure Code, which makes it imperative that for the purpose of getting certain reliefs in respect of public charities, suits should be instituted by persons interested after getting the sanction of the Advocate-General. Though we are aware that several learned Judges of this Court have themselves framed or sanctioned such schemes still it seems to us that such practice should be discouraged and discontinued. Though, however, we disapprove of the provisions of the same enabling or requiring the Court from time to time to appoint trustees, to carry out the auditing of the temple accounts, sanction acts of management, appoint and remove trustees and so forth, still in view of the fact that the legislature is about or likely to pass into law a comprehensive Act dealing with all religious institutions and endowments, we do not consider it necessary to alter the scheme at present, but only direct that as soon as such enactment should be passed, no time or opportunity should be lost by the Court acting under the powers reserved to itself under the scheme to make the necessary alterations in the scheme so as to place the temples under the supervision of such agencies as may be constituted and to rid the Court of much of the functions and duties assumed under the present scheme. With this intimation the appeals are dismissed. The defendants Archakas of the temples who have been for such a long time in possession and enjoyment of the suit lands have not been found to have acted mala fide and there is no reason to suppose that the defendants in setting up their claims made and believed in by their forefathers before them. IN these circumstances we direct that the direction in the decree of the lower Court for the payment of costs of the plaintiffs by the defendants be deleted. The defendants will bear their own costs both in the Court below and in this Court. The plaintiffs costs here and in the lower Court will be paid as and when the funds permit from such surplus as may remain in the hands of the trustees to be appointed. The memorandum of objections filed by the plaintiffs respondents in this Court are also dismissed, but without any order as to costs.