RAJE BAHADUR RAGHOJIRAO Vs. SITARAM DAJIBA PANDE

JUDGEMENT

(1.) THE plaintiff-respondent Sitaram Dajiba Pande brought the present suit in the Court of the Second Subordinate Judge, Second Class, Nagpur, as wahiwatdar of the Shri Jagriteshwar Deosthan at Nagpur. His claim was for three instalments of the years 1922, 1923 and 1924 of Rs. 23-4-0 each, which he claimed were due him in respect of his services as wahiwatdar of the temple. The present defendants-appellants are admittedly the trustees who formed a committee of the temple. The preliminary objections were raised in the first Court, which need be mentioned here. One of these was that the consent of the Advocate-General under Section 92, Civil P.C., was necessary to the institution of the suit. The Subordinate Judge held that the suit was barrel, such consent having not been obtained, and the lower appellate Court held, on the contrary, that Section 92, Civil P.C., did not apply. This point was not pressed for the defendants-appellants on the present appeal coming on for hearing.

(2.) I am, therefore, solely concerned in the present appeal with the question of whether or not the present suit is maintainable without a certificate from the Collector, having regard to the provisions contained in Sections 5 and 6, Pensions Act, 1871. The Judge of the first Court held that the real plaintiff was, in reality, the deity itself and that, as the deity claims the amount from the trust fund, which has been set apart by the British Government, and placed under the control of the defendant-trustees, vide the indenture, dated 24th October 1866 (D. 1), the payment in essence remained one of the nature which would fall under the Pensions Act quoted above. In those circumstances, he held that the suit was barred for want of a certificate from the Collector.

(3.) THE present case raises the somewhat interesting point of law with regard to the construction to be placed upon the provisions of Act 23 (Pensions Act), 1871. It is perfectly clear that what the plaintiff claims is a part of a sum of Rs. 1,200 which, under the indenture already referred to (D. 1), is annually payable for the support of the said temple. In this connexion, it is apposite to refer to the history of the relations of Government with such religious institutions. Up to 1863, it may be said that Government was in direct charge of such institutions. The preamble of Act 20, 1863, shows the reasons why Government then decided to have itself relieved of this duty. This Act did not apply to the Central Provinces and apparently here another device was adopted for the purpose, arriving at the same end. Government had recourse to the expedient of executive orders in the matter, and apparently it was as a result of such executive orders that the indenture (D. 1) was executed in the year 1866; Under the said indenture, Government promissory-notes of a value of Rs. 29,3,000 two hundred and ninety three thousands were made over to the Bhonsla Raja, and the income to be derived from these promissory-notes was to be devoted to the upkeep of the institutions shown in the schedule to the indenture institutions, of which the present temple admittedly forms one.