Judgement

Consolidated Appeals (No. 79 of 1937) from a judgment and decree of the Chief Court (October 23, 1934) reversing a decree of the Subordinate Judge, Mohanlalganj, Lucknow (February 22, 1932), and affirming a decree of the Subordinate Judge, Malihabad, Lucknow (February 28, 1933).

The main question in this consolidated appeal was whether the respondents, as the descendants of one Daryao Gir, were entitled to the property in suit, the Sri Bhaironji temple, in Lucknow, together with land and houses adjacent thereto, as their personal private estate, or whether the property was impressed with a trust of a public religious character.

The nature of the suits out of which the appeals arose, the facts and the decisions of the Subordinate Judges appear from the judgment of the Judicial Committee.

The Chief Court of Oudh (Nanuvutty and Zia-ul-Hasan JJ.) in one judgment covering both appeals, held that the temple property was not impressed with a public trust, but was the private property of the joint Hindu family of which the respondents were members.

1939. July 18, 20. Subba Row for the appellants. T. B. W. Ramsay for the respondents.

Oct. 10. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. On April 14, 1930, the first two appellants (uncle and nephew) filed before the District Judge at Lucknow an application under s. 3 of the Charitable and Religious Trusts Act (XIV. of 1920) for an order directing accounts to be furnished in respect of a certain temple in Lucknow, together with land and houses adjacent thereto and occupied therewith. The principal deity is Bhaironji, and from this idol the temple takes its name, but there are other idols also in different parts of the temple compound, which is now of an area variously stated as about four bighas or sixteen biswas. The respondents to the application were five in number, three men and two women with certain other members of their family they are now respondents before the Board in this consolidated appeal. They claim to be direct descendants of one Daryao Gir, to whom a grant was made in 1781 of the land now in question by the then reigning Nawab of Oudh. It has been found, and it does not appear to be in doubt, that the members of this family are grihastha fakirs, being at once goshains and householders. The family comes from the Bijnore district on the Dhampur "side," and is a joint Hindu family of the usual type. At the time of the application to the District Judge members of the family had been continuously in occupation and control of the temple, and a number of samadhs or tombs had been set up containing the ashes of goshains who had belonged to the family. No interference with the management of the temple or the conduct of its worship, whether on behalf of the public or otherwise, had at any time taken place. It was not alleged in the application that the family had been guilty of any neglect or mismanagement, and the contrary has now been held by the Courts in India. The District Judge gave to the five respondents before him an option to bring a suit for a declaration that the property was not subject to a trust for a public purpose of a charitable or religious nature, but they did not take this course. Accordingly he threw upon them the burden of disproving this allegation, and after hearing nine witnesses for the applicants and two of the respondent goshains, and after considering certain documents, he held that there was a strong prima facie case that the temple formed the subject of a public trust, and that the goshains had failed to establish the opposite. He therefore directed the goshains before him to furnish particulars of the extent of the property, the nature of the buildings, and the income for the past year (October 1, 1930). This order was not complied with, and on September 16, 1931, the first two appellants brought in the Court of the Subordinate Judge, Mohanlalganj, suit No. 108/7 of 1931 against the same five members of the respond