Judgment

VARADARAJAN, J.:- This appeal by special leave is by the defendant-respondent in Second Appeal No. 626 of 1976 on the file of the Allahabad High Court and directed against judgment of the learned Single Judge of that High Court in so far as it relates to the appointment of the second respondent/second plaintiff Man Mohan as the Mohatmim/Shebait of the first respondent Shri Thakur Ladli Radhachandra Madan Gopalji Maharaj (for short "Gopalji") and the properties belonging to that idol.

2. The second appeal was filed by the respondents Gopalji and Man Mohan, plaintiffs 1 and 2 respectively. The second respondent who is the son of one Shyam Sundar claimed to have been adopted by Asharfi Devi, widow of one Purushottam Lal by the document A24 dated 20-11-1956. The High Court has not gone into the question of this Adoption in its judgment. Therefore, it is not necessary to refer to the case of the parties and the judgment of the courts below in detail in regard to the question of the adoption. The suit was filed by both the respondents for recovery of possession of the idol and temple of Gopalji described in the plaint and the money lying in deposit with the Punjab National Bank at Vrindavan, the zamindari abolition compensation and. the rehabilitation grant bonds specified in the plaint. The trial court decreed the suit except as regards items 1 to 25 and 37 to 41 of list I of Schedule "Ba" and the sum of Rs. 1004.97. The appellant filed an appeal in the District Court and the respondents filed a crossobjection in that appeal in regard to the money claim disallowed by the trial court. The learned Second Additional District Judge, Mathura allowed the appeal and dismissed the cross objection and the suit. Therefore, both the respondents filed the second appeal.

3. The respondents case was that the idol of Gopalji was installed by Purushottam Lal in his house at Vrindavan which later, became the temple of the deity. Purushottam Lal, who had no issue, performed seva puja of the deity so long as he was alive and it was performed thereafter by his wife Asharfi Devi. By his will Ex. A-2 dated 14-4-1944 he dedicated his entire property to the deity and made his wife the Mohatmim/Shebait without any power to transfer any property. In accordance with the directions of her husband, Asharfi Devi, adopted the second respondent by a registered deed dated 21-11-1956 by performing the necessary religious ceremonies. After the death of Asharfi Devi the appellant worked as Pujari in the temple of Gopalji with the consent of the second respondents guardian and natural father Shyam Sunder. Later, he denied the rights of the second respondent contending that Asharfi Devi executed her last will Ex. A-6 dated 21-12-1957 bequeathing her bank deposits, government bonds, household articles, utensils etc. to the appellant Shambhu Charan and all her jewellery including those kept by her in the custody of Shyam Sunder to the second respondent and declaring that so long as the second respondent was a minor the appellant shall act as Mohatmim of Gopalji and be responsible for the sewa puja and raj bhog of the deity and the management of the deitys properties. The will further declares that the appellant shall continue to live in the house at Bengal Bindala, Vrindavan and act as the guardian of the second respondent in view of his natural father Shyam Sunders refusal to do so and that on the second respondent attaining majority the appellant shall hand over the sewa puja and raj bhog. and he shall have all the rights of Mohatmim which Asharfi Devi held, without any right to alienate any of the properties. But this will was not duly executed by Asharfi Devi and she had no right to execute such a will and it does not confer any right on the appellant.

4. Besides denying the adopting of the second respondent the appellant contended in his written statement that Asharfi Devi validly executed the will dated 21-12-1957 inter alia bequeathing items 1 to 25 and 31 t