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HIGH COURT OF MADHYA PRADESH
K.L. Pandey, J., A.H. Khan & Shivdayal, JJ.
State of M.P.
Vs.
Kamalpuri (Mahant)
F.A. No. 1 of 1959 (G);
Decided On : 24-7-64
Per Shivdayal, J. - In the true sense of the word, a Math is a centre of theological learning, the object being generally the promotion of religious knowledge and imparting of spiritual instructions to the disciples and the followers of the Math. It is monastery presided over almost invariably by a Sanyasi, who becomes the Superior or Head of a Math, and is called Mahant, Mathadhish, Mathadipati or Swami.
Temples or Devasthans are religious foundations established for the spiritual benefit and are places of worship. Although temples and Maths are both institutions conducive to spiritual welfare, the former affords opportunities for prayer and worship, the latter facilitates, spiritual instruction and acquisition of spiritual knowledge. The manager or custodian of the debutter property, that is, the property dedicated to religious use and belonging to the deity, is the Shebait. [Para 7
Though the Shebait is a manager and not a trustee in the technical sense, it is not correct to describe Shebaitship as a mere office. The Shebait has not only duties to discharge in connection with the endowment, but he is beneficially entrusted in the debutter property. He enjoys some sort of right or interest in the endowed property, which in a sense partakes the character of a proprietary right. Thus in the conception of Shebaiti both the elements of office and property, of duties and personal interest are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests Shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. There are certain limitations and restrictions attached to and inherent in a Shebaiti which exist irrespective of the fact whether the Shebaitship vests in a male or female heir. The devolution of Shebaiti depends on the terms of the deed or will by which it is created. In the absence of any such provision, the title follows the line of succession and passes to the heirs of the founder. The ordinary rules of succession which are applicable to the estate of a deceased Hindu apply also to the Shebait. [Para 10
Where the style "Mahant" is attributed to the Shebait of a temple it must be understood merely as a title of reverence; in the eye of law it is a misnomer. [Para 11
(2) parishtishgahon Aur Mazhabi Auqaf Ki Imdad Aur Nigrani Ka Qanoon (Gwalior State) - S. 30 - management of a temple - was not taken over permanently - if the intention was otherwise the section would be ultra vires - Constitution of India - Art. 22 & 31.
Per Pandey J. - Having regard to the object of the Gwalior Act as indicated by its preamble, the appointment of a special committee or Ehtamam (management) contemplated by section 30, which does not by clear and unambiguous language show that it was to be undertaken on a permanent footing, is limited to the time required for restoring proper management of a place of worship and its property necessary for fulfilling the objects of the founder. [Para 67
Even apart from the construction of section 30 of the Gwalior Act, the position in law is not different. Being an "existing law", the Gwalior Act will not offend Article 31 of the Constitution but, if section 30 is interpreted as authorising the taking over of management of the temple and its property permanently, it will be inconsistent with Article 26 of the Constitution and will, to the extent of such inconsistency, be void. [Para 68
Per Shivdayal, J. - On closely examining the scheme and the provisions of the Act, there is no manner of doubt that this is not a law of acquisition of religious endowments by the State Government. There are no provisions to that effect. The very name of this Act indicates that it is a law which deals with "aid" and "administration" of religious endowments and places of worship. [Para 17
Per Khan J. (Contra) - Section 30 does not contemplate any return of the place of worship that may have been taken over by the Government under its management. Nor is there any other section in the Aukaf Act for the return of management. [Para 52
(3) Hindu Law - religious endowment - surrender by Shebait of his office - when effective.
Per Shivdayal, J. - A Shebait cannot surrender Shehaitship to any one other than the next shebait in the line of succession. If any shebait desires to get rid of his duties the only proper thing for him to do is to surrender his office in favour of the person or persons who is or are next to him in the line of succession from the founder. [Para 22
(4) Words & Phrases - word' Tak' - meaning of - import of the use of the word.
It is incontestable that the word "Tak" (till) connotes terminus ad quem, so that when it is ordered that a certain state of affairs shall continue till the happening of a certain event or events that state of affairs must cease to continue on the happening of that event or events. [Para 26
(5) Civil P.C., 1908 - O. 6, R. 6 - pleading of condition precedent - distinction between condition precedent and an allegation which is essense of the cause of action - later to be pleaded by the plaintiff.
Rule 6 of Order 6, C.P.C. renders it unnecessary for a party to plead expressly the performance of a condition precedent, which must be implied in his pleading, and it is for the other party, if he contends that there was a condition precedent and that it has not been duly performed, to raise that ground in his pleading; if he does not, its due performance had to be presumed.
A condition precedent is not the same thing as an allegation which is of the essence of the cause of action. If something which creates and is the foundation of the plaintiff's right is not pleaded, the plaint is defective and plaintiff cannot take shelter under Order 6, Rule 6, Civil Procedure Code. He cannot be heard to say that the defendant did not plead absence of the fulfillment of a requirement, which requirement is the sine qua non for the right claimed in the suit. [Paras 27 & 60
(6) Constitutional law - order of Rulers of the erstwhile Gwalior State - not expressed in the form of law - is an executive order and not law,
It is the true nature of the order of a sovereign ruler which must be taken into consideration and an order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the sovereign. [Para 2]
The Ruler of Gwalior had, for making laws, adopted a particular form similar to the one found in the case of the Gwalior Act. So, both the form and the substance show that the order is not law. [Para 69
(7) Specific Relief Act, 1877 - S. 42, proviso - scope of - objection not taken in the trial Court - appellate Court not to dismiss the suit.
The proviso to section 42 of the Specific Relief Act does not authorise dismissal of the suit where an appropriate further relief ought to be claimed but is not claimed. It only forbids the Court to make the declaration, the prayer for which is not coupled with the prayer for consequential relief. A Court of appeal must not dismiss the suit because it is one praying only for a declaratory suit without any consequential relief, where the defendant had not taken that objection but must allow the plaint to be amended and, if necessary, to pay additional stamp duty. [Para 32
OPINIONS (1-5-1963)
1. This appeal has been preferred by the State Government from the judgment and decree of the Additional District Judge, Morena, declaring the respondent entitled to the management of a temple of Kali Mata situate in Basaiya popularly known as Basaiya Mata temple.
2. It was alleged in the plaint that the temple was consecrated in Samvat year 1905 (1849 A.D) by one Mahant Rajpuri On the death of the founder, his Chela, Mahant Kundanpuri succeeded him. Kundanpuri died in the year 1919 and was succeeded by his Chela Tejpuri (plaintiff). After Kundanpuri's death disputes arose between the Mahant and the Fujaris who started claiming a share of annas six per rupee in the properties and the offerings Because of the harassment and dispute which went on for many yean (from 1920 to 1930), Mahant Tejpuri made an application on July 1, 1930, to the erstwhile Gwalior Government to take over the administration of the temple as in the case of Nagradevta temple. By an order dated December 1, 1932, of the Council of Regency Gwalior State the administration of the temple was temporarily taken over and a managing committee was appointed by the Government. Since then the temple is under State administration. There was litigation between the Mahant (Tejpuri) and the Pujaris (Ramgovind and Ramnath) which went up to the highest judicial tribunal for the time being, called the Nyaya Sabha. Tejpuri won. He then applied to the State Government to restore the administration of the temple to him. But that was denied on the ground that it had been held to be a public temple by the High Court and the Nyaya Sabha so that there was no question of its return to the plaintiff. The plaintiff claimed a declaration of his right to management of the temple and claimed an injunction against the State Government to restrain it from interference with his management and also prayed for rendition of accounts.
3. The then Madhya Bharat Government resisted the suit on the ground that the erstwhile Government had taken over the management of the temple under section 30 of the Gwalior State Places of Worship and Religious Endowments Aid and Administration Act, Samvat 1983 (Parishtishgahon Aur Mazhabi Auqaf Ki Imdad Aur Nigrani Ka Oanoon - hereinafter called the 'Auqaf Act'), after an enquiry was made on the plaintiffs, application dated July 1, 1930. The plaintiff's contention that the temple had been entrusted to the Government on his application was, however, denied. It was averred that the Government was under no obligation to restore the management of the temple to the plaintiff. It was also pleaded that the plaintiff was precluded from bringing this suit because of waiver, as by his own conduct, he held out the temple to be a public temple and prayed for its administration by the Government. Bar of limitation was also pleaded.
4 During the pendency of the suit Mahant Tejpuri died on July 11, 1956, whereupon the respondent, Mahant Kamalpuri, was brought on record by order dated July 13, 1957.
5. The Additional District Judge, Morena, who tried the suit, held plaintiff entitled to management of the endowment and also to the perquisites attached thereto. The State Government was restrained from managing the properties and was directed to restore the management of the temple and its properties to the plaintiff and also to render accounts from 1950 to the date d the preliminary decree (October 18, 1958). The State Government has come up in appeal.
6. It is firstly, urged for the appellant that the Gaddi of the Mahant was not hereditary so that Tejpuri had no right to sue, nor was Kamalpuri entitled to a decree. To deal with this question the distinction between a Math and a temple, between a Mahant and a Shebait, must be borne in mind.
7. In the true sense of the word, a Math is a centre of theological learning, the object being generally the promotion of religious knowledge and imparting of spiritual instruction to the disciples and the followers of the Math. It is
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