Judgment

HIDAYATULLAH, J. : This appeal with a certificate of the High Court of Judicature, Bombay, has been filed against the judgment and decree of that Court dated April 22, 1949, in First Appeal No. 403 of 1945, confirming the judgment and decree of the Civil Judge, Senior Division, Nasik in Special Suit No. 5 of 1943 decided on August 14, 1945. The High Court made a slight modification in the matter of costs, to which shall refer later.

2. The plaintiff, who is the appellant here, is the descendant of one Ganpati Maharaj, who was a devotee of "Shri Venkatesh Balaji". Ganpati Maharaj died in 1701 at the ripe age of 98. When Ganpati Maharaj was 72 years old, it was vouchsafed to him in a dream that an image of Venkatesh Balaji would be found by him in river Tambraparni in Tirunelveli District. He found the image, brought it to his house in Junnar (Poona District) and installed it. The worship of Shri Venkatesh Balaji was carried on by him, and when he died, he left behind him three sons and a daughter. His eldest son, Timmayya, at the time of his death was 12 years old. Timmayya succceeded Ganpati Maharaj and lived till 1768, when he died at the ripe age of 79. During his lifetime, Timmayya obtained several properties as presents and gifts. The present suit concerns these properties which are described in the schedules attached to the plaint. The appellant is the direct descendant of Ganpati in the eldest male line, and respondents 1 to 4 are the descendants from Ganpati s daughter, Nagubai.

3. On April 23, 1942, the first four respondents made an application to the District Court under S. 3 of the Charitable and Religious Trusts Act, 1920 (No. 14 of 1920), hereinafter called the Act, against the appellant and two others asking that the appellant be directed to furnish full particulars of the properties and their application and for accounts of the income as also of the properties during the three preceding years. The appellant in reply denied that there was a trust, much less a public trust, and claimed the idol and the properties as private. He undertook to bring a suit under S. 5(3) of the Act, and the suit out of which the present appeal arises, was filed on March 21, 1943. He claimed in the suit three declarations, which were as follows:

" 1. It may be declared that Shri Vyankatesh Balaji Deity and Shri Vyankatesh Balaji Sansthan are not legal trust as alleged by the Defendants and their nature also is not such as alleged by the Defendants.

2. If the court holds that a trust in the matter of Shri Vyankatesh Balaji Diety and Shri Vyankatesh Balaji Sansthan exists, then it may be declared that the said trust is not a public one, that the same has not come into existence for the religious and charitable purposes and that the Religious and Charitable Trusts Act (sic) (No. 14 of 1920) is not applicable to the same.

3. It may be declared that the Defendants for themselves or as the representatives of the entire Hindu Community have no right and authority whatever over Shri Vyankatesh Balaji Devta and Shri Vyankatesh Balaji Sansthan and that they or the entire Hindu Community has no right and authority whatever in any capacity whatever to interfere in the matter of Devta (Deity) and Sansthan or to ask for the Yadi (list) of the properties or accounts in respect of the income thereof and to ask for reliefs mentioned in prayer clauses of the miscellaneous application No. 19 of 1942."

3a. The trial Judge framed eight issues. The first two involved the declarations sought. Three others concerned the position of defendants 1 to 4, 6 and 7 in respect of maintenance, share in the right of customary worship and management. One issue raised the question whether the suit was bad because the deity was not joined and the remaining two were consequential.

4. The trial Judge decided all the issues against the appellant. He held that the suit properties were not the personal or private properties of the appellant, that the plainti