Judgement

Consolidated Appeals (No. 78 of 1937) from a decree of the High Court (July 6, and August 24, 1934) modifying a preliminary decree of the Court of the District Judge of Hooghly (November 6, 1929).

The suit out of which these consolidated appeals arose was instituted under s. 92 of the Code of Civil Procedure by certain persons against Satish Chandra Giri, who was described as the shebait or mahant or trustee of the math or shrine of Sri Taraknath. The plaintiffs claimed (inter alia) a declaration that certain properties specified in a schedule to the plaint were not the nij (personal) properties of the defendant, but were debuttar (endowed) properties of the deity; a declaration that the defendant was not a fit and proper person to continue as mahant or trustee, and for an order for this removal; and they also asked for an account.

The defendant, in a lengthy written statement, denied the allegations of the plaintiffs.

The facts appear fully from the judgment of the Judicial Committee.

The trial judge passed a decree of which (inter alia) the following were the material terms That the defendant mahant was not entitled to have any nij or personal property of his own, and the properties claimed by him to be his nij properties were the properties of the temple; that the defendant was not a fit and proper person to continue as mahant, that he was removed from that office, and was forthwith to make over possession of all properties to the temple, to be vested in the receiver, pending further orders; he was to render accounts of both sets of properties (the alleged nij and the debuttar) from the day he ascended the gadi to the present time.

Against that decree the defendant appealed to the High Court at Calcutta (Manmatha Nath Mukerji and Sarat Kumar Ghose JJ.). The plaintiffs also filed a cross-objection on the ground that, upon the findings arrived at; the Court below ought to have directed accounts to be taken from the defendant on the footing of wilful default. The High Court affirmed the decree of the District Judge, with the variation that the order for accounts against the appellant was set aside.

One of the main questions on the present appeal was whether the Court, in making an order for the removal of the defendant as trustee, had also the power under s. 92 of the Code of Civil Procedure to remove him from the spiritual headship of the math.

1939. July 13, 14, 17. C. S. Rewcastle K.C., J. M. Parikh, and S. C. Chaudhuri for Satish Chandra Giri, appellant in the first appeal, and the first respondent in the second appeal.

A. M. Dunne K.C. and Abdul Majid for the respondents in the first appeal and the appellants in the second appeal.

Nov. 3. The judgment of their Lordships was delivered by MR. M. R. JAYAKAR. These two appeals are against a decree, dated July 6 and August 24, 1934, of the High Court of Judicature at Calcutta, modifying a preliminary decree, dated November 6, 1929, of the Court of the District Judge of Hooghly. The suit in which the decrees were passed was instituted under s. 92 of the Code of Civil Procedure, 1908, by certain persons claiming to be interested in the administration of the shrine of Sri Taraknath, near Calcutta, against one Satish Chandra Giri, the appellant in the main appeal (No. 29 of 1934) (hereinafter called the appellant), who was described as the shebait or mahant of the said shrine.

The shrine of Taraknath, though sometimes referred to in the present proceedings as a math, is in reality a temple containing an idol called Sri Taraknathji. Its origin is lost in antiquity. The High Court of Calcutta has in its judgment traced its history back to A.D. 1747, and there is no doubt that it is a very ancient public, religious and charitable endowment, of which the appellant had been for many years the mahant. It is unnecessary for the purposes of this appeal to enter into the details of its antiquity. It is sufficient to say that the succession to the mahantship descended from one Moh