1. A large number of persons, who for brevitys sake may becalled the Haldars of Kalighat, are the shebaits of the famous deity Sri SriIswar Kalimata of Kalighat (hereafter called the deity). Most of those personsare members of the Haldar family but others are cognates of the members of thesaid family, who have succeeded to the shebaiti right by inheritance. OneHarendra Nath Haldar, a member of the said Haldar family, who at the time was aprospective shebait of the deity instituted the suit, in which this appealarises, as next friend of the deity. The suit was brought against thirteenpersons, who were some of the shebaits of the deity and were the members of the"shebait committee"-a committee set up some years back by consent ofthe shebaits for looking after the seva and puja of the deity. As the shebaitswere very large in number the plaintiff made the said thirteen personsdefendants in their individual capacities and also as representing theremaining shebaits of the deity. He obtained the requisite permission to suethem in their representative character under the provision of O. 1, R. 8, CivilP.C., and the necessary advertisement was published in an issue of a Bengaleedaily newspaper, the Ananda Bazar Patrika. In pursuance of that advertisementseventy-one other shebaits of the deity appeared and were added as defendantsat their request.

2. The allegations made in Para. 1 of the plaint are thatthere are four Shiva temples, the temple of Sri Sri Sham Rai, the Natmandir,Dolemancha and about 15 or 20 bhog-ghars near about the temple of the deity andwithin its compound, and the temple of Sri Sri Nakuleswar Shiva and of manyother Gods and Goddesses outside the compound were adjuncts of and wereconnected with the temple of the deity, Sri Sri Kalimata. Three temples outsidethe said compound not specifically mentioned in para. 1, but mentioned inschedule Ka annexed to the plaint are the temples of Sri Sri Bhubaneswari, ofGanesh and of Kal Bhairab. In that schedule are also included a shop which isin between the temples of Bhubaneswari and of Ganesh and a tank called the KaliKundu. The plaintiff claims all that is mentioned in that schedule to be thedebuttar properties of the deity. Schedule Kha describes the movables which arealso claimed to be the debuttar properties of the deity. In para. 2 of theplaint the plaintiff states that if it transpired that the deity had propertiesother than those described in schedule Ka he craves for leave to include themin the plaint, and for the preparation of an inventory of all movables andimmovable debuttar properties and of valuable ornaments and other articlesbelonging to the deity. The compound of the temple of the deity is enclosedwithin walls and covers an area of 1 bigha 16 cottas odd land.

3. Some time after the institution of the suit the plaintiffmade an application for the appointment of a receiver. In that application hestated that the deity had an area of 595 bighas odd land in mouza Kalighat, andto support his prayer for receiver alleged that the shebaits hadmisappropriated those lands, save and except the area of 1 bigha 16 cottaswhich was in the compound of the temple of the deity. In spite of thatstatement, the area of 595 bighas odd save and except what had been mentionedin schedule Ka of the plaint, was not included in the plaint. In fact not evenan application for amendment of the plaint was made for that purpose.

4. The plaint proceeded on to allege various acts ofmismanagement of the affairs of the temple by the shebaits, their acts ofoppression on the pilgrims, acts of misappropriation of the deitys property,and the income of the temple etc. On the basis of those allegations, theplaintiff prayed for the framing of a scheme for management, for accountsagainst the defendants and a personal decree against these defendants who maybe found to have appropriated the income of the debuttar properties or anymovable or immovable property belonging to the deity, and for a decreedirecting the preparation of an inventory of all the movable and immovabledebuttar properties. A prayer for injunction was made in the plaint asoriginally filed but by an amendment that prayer was given up. The plaint issilent on the point as to whether the debuttar is a public or a private one.

5. A number of written statements were filed. Onlydefendants 81 to 85 supported the plaintiff. None of the other defendantsadmitted in their written statements the title of the deity to the propertiesdescribed in schedule Ka of the plaint. They admitted one of the bhog-ghars tothe ejmali bhog-ghar. Defendants 1 to 4 and 6 to 13, who were the members ofthe shebait committee stated that they were not aware as to whether the fourShiva temples, the other bhog-ghars, the temples of Bhubaneswari, Kal Bhairaband the shop adjoining Bhubaneswaris temple were the debuttar properties ofdeity or not, or whether they were being possessed by particular shebaits ofthe deity as their personal properties. Defendant 5 Upendra Nath Mukherjee, inhis written statement claimed the Bhubaneswaris temple and the shop adjoiningit to be his personal property. He did not lay any claim to the other templesand bhog-ghars referred to in the plaint but stated they were the personalproperties of some of the other defendants. Some of the other defendantsclaimed the other temples, e.g. the temples of Shiva and of Kal Bhairab and thelands adjacent thereto and the other bhog-ghars, save and except the onementioned above, to be their personal properties. They made a common cause thatthese terms were not the debuttar properties of the deity Kalimata. In view ofwhat transpired in this Court we need not specify the details of theirrespective claims in this respect. All those defendants denied the allegation ofmismanagement, misuse and misappropriation etc., made in the plaint and set upa case of long established usage in support of what would prima facie appear tobe misappropriation of the deitys moveable properties or the income of thetemple. The learned Subordinate Judge went into those matters and recordedfindings. Before him the plaintiff contended that the temple and the debuttarproperties constituted a public religious endowment but the defendantscontended that it was a private one. On this point evidence was led by thecontending parties and on a review of the same the learned Subordinate Judgecame to the finding that the institution was a public one. He further held thatthough the religious endowment was a public one S.92, Civil P.C., was inapplicable,and so the plaintiff was entitled in law to get a decree in respect of all theprayers made in the plaint which remained after its amendment. After enteringinto the merits of the charges levelled by the plaintiff against the shebaitshe passed a decree in the following terms: (1) he declared the items mentionedin the schedule to the plaint together with the aforesaid 595 odd bighas ofmouza. Kalighat to be the absolute debuttar properties of the deity; (2) hedirected the shebaits of the deity to make inventory of all the debuttarproperties, moveable and immoveable which were with them within a month; (3) hedirected defendants 1 to 13 to render accounts of the deitys property undertheir management from after 14th July 1936; (4) he directed the defendant 5 torender account of the temple of Bhubaneswari and the shop adjoining thereto;(5) he gave similar directions to the some of the other defendants in regard toSiva temples, Kal Bhairabs temple, the bhog-ghars and Dali shops on theirledges; and (6) he directed the framing of a scheme for the proper managementof the institution in consultation with the parties

after the ascertainment of the entire debuttar properties byinventories and by taking the accounts as directed above.

He dismissed the prayer for removal of the shebaits or anyone of them, and postponed the passing of personal decree against suchdefendants as may be found to be personally liable for misappropriations etc.,to the final stage of the suit. He further directed the next friend of thedeity to take legal advice in the matter of recovery for the deity of thebalance of the said area of 595 odd bighas.

6. Most of the defendants, not all, have preferred thisappeal. The learned Advocate General argued the points common to all. Mr. Maityappeared for the legal representatives of defendant 5 and argued in support oftheir claims to the temple of Bhubaneswari and the shop adjoining it.

7. The Advocate General also urged the claims of his clientsin respect of the temple of Kal Bhairab and of some bhog-ghars. Mr. Maity, whoalso appeared for defendants 37 to 46 urged the claims of his clients to theJora Shiva temple and Naubatkhana, which is within the compound of the maintemple.

8. The common points urged on behalf of the appellants are:(1) That the said 595 odd bighas of mouza Kalighat, save and except the area of1 bigha 16 cottas, which is the enclosure of the temple of the deity, are notdebuttar properties of the deity, but are the personal properties of theshebaits. (2) That in any event the learned Subordinate Judge was not right inpassing a decree declaring the title of the deity to the same. (3) That thetemple and its endowment is not a public one. It is the private debuttar of theHaldar family. (4) That if the institution is a public religious institution S.92, Civil P.C., prevents Court from making a decree for a scheme and fromgranting any relief which is incidental to the framing of scheme; and that nodecree for account or for money for this alleged individual misappropriationcan be passed, and so the reservation made by the learned Subordinate Judge inthis respect in his decree cannot stand.

9. The point as to whether the plaintiff could maintain thesuit either in his capacity of next friend or of a prospective shebait of thedeity was raised by the learned Advocate General in his opening but was in theend abandoned by him.

10. Besides the aforesaid points the three sets ofappellants urged three other points, which we have already indicated. They are(5): Whether the temple of Bhubaneswari and the shop adjoining it belong to thedeity Sri Sri Kalimata or are the personal properties of the legalrepresentatives of defendant 5, Upendra Nath Mukherjee. (6) Whether the templeof Kal Bhairab including its compound and the bhog-ghars are the personalproperties of some of the shebaits. (7) Whether the jora Shiva Mandir andNahabatkhana are the personal properties of defendants 37 to 46. No other pointwas pressed before us by the appellants. We will take up points Nos. 1, 2, 5, 6and 7 together.

11. The facts relating to the said 595 odd bighas odd ofmouza Kalighat which is in pargana Khaspore, are as follows:

12. On 12th Jaistha 1204 B.S. corresponding to 26th May1797, Guru Prosad Haldar, Kunja Behari Haldar and others, who were then theshebaits of the deity, filed a claim of revenue free grant in respect of anarea of land in mouza Kalighat pergana Khaspore in pursuance of the provisionsof Regulations 19 of 1793. The certified copy of the Taidad could not beproduced in the lower Court but was produced in this Court by theplaintiff-respondent with an application to take it in as an additionalevidence. By consent of parties we received it in evidence and marked it asexhibit 49(a). With the consent of the parties we had the original TaidadRegister brought up from the Collectorate and after its inspection by us and bythe learned Advocates it was returned. The parties did not wish to keep a copyof the relevant entry on the record as the entry in the Taidad Register gave nofurther details than what appears in the certified copy of the Taidad itself.The relevant entries in both are the same. In the year 1859 the Governmentstarted proceedings to assess revenue on an area of 595 bighas 9 cottas odd of landin mouza Kalighat in pargana Khaspore under Regulation II of 1819. A DeputyCollector, Mr. Heysham, prepared a chitta of the said area, which was measuredin 393 plots in Division 6, sub-divisions E, F, M, P and Q of Panchannagram.The details of possession of the several holdings are mentioned by him in hischitta Ex. 6(a). The resumption proceedings started related to the lands shownin this document. One Deputy Collector, Babu Gobinda Prosad Pandit, recommendedrelease on the ground that the lands were the debuttar properties of Sri SriKalimata. Mr. Heysham, however, was of the opinion that the lands were liableto be assessed to revenue. The Revenue Collector, Mr. Bright, agreed with Mr.Heysham, and issued notices on the shebaits of the deity in terms of S. 20 ofthat Regulation. The persons whose names appear in the proceeding started inpursuance of S. 21 of that Regulation appeared before the Revenue Commissionerand claimed the lands to be revenue-free as being included in an ancient grantsaid to have been made to the deity. The Taidad which was not before the DeputyCollectors or the Collector was filed by the claimants. The RevenueCommissioner released the lands stating in support of his orders that they werenot included in Pargana Panchannagram, but were in Perguna Khaspore and thatthe said lands had

from a very long time been given away as debutter land andits income has been spent without interruption for sheba and puja etc. and forreligions and charitable purposes and it is well known to one and allthroughout India that Kalighat is the public Divine Peethasthan, one of the 51places where the limbs of Sati foll.

This Robakari was made on 31st May 1861. It has been markedas Ex. 6.

13. Two questions were raised by the learned AdvocateGeneral in his opening namely (1) that the Taidad on its correct constructionwould show that the property was the personal property of the shebaits of thedeity. At most it would lead to the conclusions that the property was secularproperty but charged with Debsheba, and (2) the final Robakary is admissible inevidence for the purpose of showing that the land is revenue-free but thereason given for holding it to be revenue-free is not admissible in evidence.If we could have supported the decree made by the learned Subordinate Judge bywhich he declared the deitys title to this area of 595 bighas odd it wouldhave been necessary to consider these contentions and other documents on therecord which are material to the question as to whether fee property is thedeitys or not. But for reasons hereafter appearing we do not feel thenecessity of going into the question of title to this large area of land.Normally it would have been necessary to go into this question, even if thedeclaratory decree made by the Court below in respect of the whole of the saidarea of 595 bighas odd were held to be a wrong decree for the purpose ofdeciding the question of title to the temples and other lands which are outsidethe enclosed compound of the deity, namely, the temples of Bhubaneswari, KalBhairab, Ganesh, Nakuleswar Shiva, the Kali Kundu and the shop site adjoiningBhubaneswaris temple and other properties mentioned in schedule Ka of theplaint. But it is not absolutely necessary to go into that larger question asall the parties to this suit, save and except the legal representative ofdefendant 5. Upendra Nath Mukherjee, have filed petitions before us admittingin unqualified terms the title of the deity (Sri Sri Kalimata) in all theproperties mentioned in that schedule and have moreover admitted that theincome derived from those properties belong to the deity. We have directedthese petitions to be kept on the record. Admissions so made do not, however,affect the legal representatives of defendant 5; in fact they are notadmissible in evidence as against them, either in respect of the items ofproperty in schedule Ka which they claim to be their personal properties or inrespect of the other properties mentioned therein. All the parties except thelegal representatives of defendant 5 ask us in these circumstances not to gointo the general question as to whether the whole of the said 595 odd bighas isdeitys property, when he indicated in the course of the argument that it wasdifficult to sustain the declaratory decree as made by the learned SubordinateJudge in respect of the whole of that area of 595 bighas. We have thought itfit to accede to that request, as there are important admissions made byUpendra Nath Mukherjee to the effect that items Nos. (1), (2), (3) and (5) ofSch. Ka are the debuttar properties of the deity. There is or was nocontroversy regarding the deitys title to items Nos. 4 and 6. They areadmittedly debuttar properties having been bought under the directions of Mr.Chotzner, the District Judge of 24-Parganas for the deity out of thecompensation money for some acquired land belonging to the deity, (Ex. 17).After Mr. Chotzners order Upendra Nath Mukherjee issued a pamphlet exhortingthe shebaits to mend their ways, which they had been following in the past, andappealed to them to be pious (Ex. 17). In unambiguous terms he admitted thereinthat the whole of the said 595 bighas was the deitys property. He made thesame statement in his "History of Kalighat" Ex. 29. He made a franticeffort to get rid of these important admissions by making in his deposition anincredible story that those parts of Exs. 17 and 29 had not been written by himbut by another person without his knowledge. His deposition shows to whatextent he can be mendacious when his self-interest is concerned. The sites ofitems Nos. 1, 2, 3 and 5 are mentioned in Heyshams list of Debuttar properties(Ex. 6a). As the whole of that document has not been printed we mention therelevant items of that document. Item No. 1-the compound of the maintemple-that is, of Sree Sree Kalimata wherein the other temples and bhoggharsare situate, is holding No. 96 of division 6, sub-division F of Sheyshamslist. Its area was then 1 bigha 11 cottas odd. The area of compound as atpresent is 1 bigha 16 cottas, the increase being due to lands added when theCorporation of Calcutta made improvements by making broad roads on the sides ofthe temple compound. Item No. 2-Kali Kundu is division 6 sub-division F,holding No. 92. Item No. 2-Temple of Kal Bhairab and adjoining lands isdivision 6, sub-division F, holding No. 91. Item No. 3-Temple of Bhubaneswarietc., division 6, sub-division F, holding Nos. 110 and 111.

14. The evidence is that the temple was built afterHeyshams measurement. Present holding No. is 132. Item 5 is division 6,sub-division E holding No. 123.

15. Defendant 5s legal representatives claim the temple ofBhubaneswari and the adjoining shop on the basis of three documents Exs. Z24,Z25 and Z26. The first document is a mokarari mourashi patta taken by defendant5 from Biswamayee Devi (mother of Pran Krishna Haldar) on 20th July 1894. Thatdocument relates to Bhubaneswari temple. There is a misprint, "DivisionB" is a slip for division 6. The document recites that a Sanyasi named DevGiri had made the temple and that at his death the said Sanyasi had made a giftto the grantor. The other document is a similar lease given by that lady on thesame date to one Chandra Kanta Bhattacharjya. It relates to the shop adjoiningthe temple. In this document there is also a misprint. The number of thesub-division is printed as 7. It should be F. Defendant 5 purchased theinterest of Chandra Kanta by Ex. Z26 dated 19th July 1899. In our opinion ashebait of a deity and who had accepted the shebaitship cannot acquire title tothe deitys property by prescriptions. The case of Surendra Krishna Roy v.Ishwar Bhubaneswari, : 60 Cal. 54 [LQ/CalHC/1932/123] : (AIR 1933 Cal. 295 [LQ/CalHC/1932/123] )affirmed on this point in Iswari Bhubaneshwari v. Brojo Nath, : 64 I.A. 203 : (AIR 1937 P.C. 185), is distinguishable, as in that case aperson who would in law be a shebait had not accepted the office or trust. Butapart from this question defendant 5 made it clear in his book, "TheHistory of Kalighat temple" ("Kalighat Itibritta," Ex. 29) thathe as a pious shebait of the deity had redeemed a lost property for the deity.The relevant passage in his history, Ex. 29, has to be read with the pioussentiments and exhortations which he made in his pamphlet Ex. 17, which he hadpublished nine years before he wrote his history of Kalighat. We accordinglyhold the properties described in items 1, 2, 3 and 5 to be the properties ofthe Deity Sree Sree Kalimata so far as the defendants other than the legalrepresentatives of defendant 5 are concerned on their admissions made in thepetitions filed before us and so far as the legal representatives of defendant5 are concerned on our finding based on the materials discussed above. Weaccordingly make a decree declaring that those items are the properties of theDeity Sri Sri Kalimata Thakurani of Kalighat and the Goddess is entitled to allthe profits accruing therefrom including the profits from the offerings,pranamis etc., made to the deities installed in those temples; the Shivas,Bhubaneswari, Kal Bhairab etc. As the deitys rights in respect of the templesof Nakuleswar Shiva and of Ganesh and to the lands appertaining to or adjoiningthe same were not challenged before us and her title to the other terms of Sch.Ka and to the items described in Sch. Kha were not challenged before a decreedeclaring her title to the same is made.

16. We have already stated that we cannot support the decreeof the learned Subordinate Judge declaring the deitys title to the whole ofthe 595 bighas 9 cottas odd, land in mouza Kalighat which were released fromassessment of revenue in. the resumption proceedings started in 1859 (Case No.1 of 1859 under Regulation II [2] 1819). We will now shortly state our reasons.We would not have set aside that part of the decree simply because that areawas not included in Sch. Ka of the plaint by an amendment. The parties had ledevidence bearing upon the question of title to that area. That defect couldhave been removed even now by allowing the plaint to be amended at this stage.But the plaintiff cannot have the declaration because all persons who wouldhave been affected by the declaration are not before the Court, not being madeparties at all. It is the common case of the parties that most part of thatarea has been sold to outsiders. Those transferees are not parties to the suit,and defendants 1 to 13 cannot represent in the suit those outsiders, foraccording to the plaintiff they were sued on the footing that they were torepresent only the shebaits of the deity and none else. It is of fundamentalimportance that a Court should not make a declaratory decree which would beuseless. We accordingly discharge that part of the decree by which he declaredthe title of the Deity Sri Sri Kalimata to the whole of the said area of 595bighas 9 cottas odd of land.

17. The next important point is whether the temple and thedebuttar is a public one.

17a. We have already said that the plaint is silentregarding the character of the institution. At the time of opening the case,and before evidence was led the plaintiffs senior Advocate stated that hiscase was that the temple of the deity is a public one and so the religiousendowment was a public one. As the defendants contested that case the SubordinateJudge framed a specific issue and then the parties led evidence. The pointdepends upon the effect of the documentary evidence led by the parties. Inaddition to the documentary evidence some authoritative books are relevant. Theparties admitted in their written statements that the place is a Peetasthan, asthe toe of sati who committed suicide at the Joggya of his father Raja Daksha,fell there and the temple is so famous and is regarded so sacred that personsfrom all parts of India and even places outside India flock to the place forpilgrimage. It is one of the fifty-one Peetasthans in India. These admissionsare well supported by authoritative books. We will refer to some of them. Inthe Pitamala of Nigama Kalpa the following passage occurs with regard toKalighat and the temple of the deity Sri Kalimata:

That site is the most sacred and rarest place of pilgrimageeven for the other Gods and Goddess. Kalikshetra is equal in all respects toKashikshetra (Banares), as Maheswara presides at both places. Even insects getsalvation by death at this place, not to speak of mankind and other highercreatures. That place is the seat of eight Saktis, Bhairabi (Bagala, VidyaKali) Matangi, Kamala, Brahmi, Maheswari and Chhandi.

Two of the many passages in the Sabdakakalpdrum are worthquoting. They are as follows. In answer to Iswar (God) the Debi said:

O Child, Kind and affectionate to persons devoted todeities. I am going to tell you; hear I am telling you about the Peets withoutthe help of which success through repetition of mantras, concentration for therealisations of the Divine and pious acts cannot be obtained. I am telling youabout the fifty one Peets and the Bhairabs (Shivas) and deities presiding overeach of them Deb, those Peets came into existence in consequence of the fall ofthe limb of my other body which was cut into pieces by Bishnu Chakra. Thesethings are said for the welfare of mankind.... Kalipeet came into existence bythe fall of the right toes. Nakuleswar is the Bhairab there and Kalika(Kalimata) Devi who grants success of all sorts is the deity presiding there.

18. The nest passage runs thus:

To Janmajoy Vyas (the ancient saint said:

O King, at present I am narrating all about Devi Peets onthe very hearing of which man is freed from all sins. I am narrating thosePeets with connotation thereof in which she (Debi) is worshipped by those whodesire to attain success and is the subject of meditation of those who desireto have spiritual amelioration of the soul.... Whoever thinks over or hears thenames of one hundred and one Peets, he being liberated from all sins, goes upto Debiloka which is spiritually higher place. One should visit these Peets inaccordance with the directions laid down in connection with pilgrimage... Allthose reside at that place even Chandals (depressed classes) being differentmanifestations of the deity are fit to be adored.

It is not necessary to refer to other books e.g., Viswakosh(see pages 38, 39 and 466) and other books of authority. They all dilate uponthe theme of great spiritual merit that can be acquired by pilgrims visitingthose places, and thereby hold out inducements to all to visit those places. Atest of Devi Bhagabat quoted in the Kali Kshetra Dipika (Exhibit 33-this partnot printed) is significant. The sloka is as follows:

The limb when it touched earth became at once converted intostone for the welfare of the public in general.

19. Such being the concept of a Peetasthan the tenets ofHindu religion require a temple built on the site of Peetasthan to be open toall Hindus and so very strong evidence would be required to make such a templea private temple of an individual or of a particular family and the deity thefamily deity of any body. The weight of evidence on the record is in favour ofthe temple and the endowment being a public one. There were in the past fourmain entrances to the compound. In recent times a fifth gate has been opened.It is admitted that the public have a free entrance into the compound and canhave darshan of the deity without let or hindrance from the Natmandir and fromthe passage in between the temple and the Natmandir. Only an entry fee or dardakhina, as it is called, is levied on the steps of the staircase leading tothe western door of the temple or for entering the sanctum of the temple, butthat practice cannot in our opinion be cogent evidence in support of the casethat the temple is a private one. If the weight of evidence establishes thetemple to be a public one the levy of such gate-money would be hard to justify,and any usage to support it that may be set up to support such a levy would bean illegal one, being inconsistent with the right of free access which theHindu public has to a public Hindu temple. Admissions to the sanctum and otherparts of the temple may be controlled or regulated for the purpose ofpreventing overcrowding or for the facility of worship or for purposes of likenature, but to refuse a person entrance to any portion of the temple to whichaccess is reasonable and not forbidden by Shastras unless he pays a fee isquite unjustifiable and so we affirm the finding of the learned SubordinateJudge in this respect. None of the shebaits can do on the plea of usage a thingwhich brings money but which at the same time is inherently had as being eitherrevolting to the sentiments of a pious Hindu or which may be considered by himto be an act of sacrilege. Such an usage has also been set up in this case. Theusage pleaded that a shebait can take away the tongue, the arms, the Mundamala,the Mundu and the Khara in certain contingencies is an abhorant one. Thisobservation is necessary for the purpose of totally repelling the claim of theshebaits, though of a limited nature, to the moveables mentioned in scheduleKha of the plaint. These things cannot be taken to be ornaments simply becausethey are made of precious metals. They are not of the nature of ornaments butare essential parts of the body of the deity. In our opinion rapacity of theshebaits cannot make a temple a private one, if it is otherwise established tobe a public one.

20. The next thing to be noticed is that there is a long andwell-established reputation that the temple is a public temple of greatsanctity and of India wide reputation. The Taidad of 1797 mentions the grant oflands for the upkeep of the worship by an ancient Khatriya King and Mr.Lushingtons Robakary of 1861 (Ex. 6) states that "Kalighat is a publicDivine Peetasthan". The existing temple of the deity has been constructedat the expenses of the public and the bhog-ghars and all the other importantappendages to the temple have been constructed at the expenses of the membersof the public (Ex. 8).

21. A complaint book is maintained for entering complaintsmade by members of the public (Ex. M). Responsible persons like Mr. RamaprosadMookerjee (now Mookerjee J.) and responsible public bodies like the BritishIndian Associations have in the past made complaints about the mismanagement ofthe affairs of the temple (Ex. 29 etc.). The last mentioned Associationintervened on the footing that it is a public one (Ex. 2). The Secretary to theShebait Sabha, who himself was a shebait of the deity, in answer to therepresentation of the said Association said that the only feasible way ofpreventing acts of oppression to the public and for removing mismanagementwould be to take the aid of the Court under S. 92, Civil P.C. and to have ascheme framed. This is an admission on his part that the institution is apublic one (Ex. 34). As late as 15th May 1936 - a few months before theinstitution of this suit - the shebait committee adopted a resolution on thesame lines (Ex. G. 1.). The case cited by the learned Advocate General, namelyPujari Lakskmana Goudan v. Subramania Ayyar, 29 Cal. W.N. 112 : (AIR 1924 PC44), is of no help to him. That was a case where a temple had been establishedin comparatively recent times by a private person. The question was whether itwas a private or a public temple. It was held that a representation by thefounder to the Hindu public that it was a public temple in which they mayworship would be cogent evidence of the temple being a public one. But the factof such representation being made cannot, in our opinion, be the sole test togo upon. The fact that the Government had not taken possession of the templemay be a good reason for holding a temple in Madras to be a private one butthat fact would be of slight importance in respect of a temple situate inBengal or in Upper India for, it is well known that the Government did notexercise such control over the public religious endowments in these parts ofIndia as it did in Madras, may be because large public religious endowmentswere many in Madras and comparatively few in Bengal or other parts of India.The other two cases cited by the learned Advocate-General, namely MundacheriKoman v. Achuthan Nair, : 61 I.A. 405 : AIR 1934 P.C. 230 andBabu Bhagwan Din v. Gir Har Saroop, : 67 I.A. 1 : (AIR 1940P.C. 7), lay down the proposition that if the other evidence on the recordestablish a temple to be a private one, the mere fact that the public arefreely admitted would not convert it into a public temple. In the case beforeus, access of the public is not the only item of evidence on which the case ofthe temple Sri Sri Kalimata being a public temple is sought to be supported.Where other elements are present, as in the case before us which wouldreasonably lead to the inference that the temple at its origin was not or couldnot have been a private one, the fact that the public have had free access fromtime immemorial would be almost a settler. In conclusion the learnedAdvocate-General relied strongly upon the fact that the division of worship bythe shebaits by palas would be absolutely inconsistent with the temple being apublic one. The fact that the shebaits of Sri Sri Kalimata have palas has beenproved conclusively and the Pala Punji (Ex. 38 extract only printed) givedetails of the palas from 1925 to 1945. For supporting his argument he hadrelied upon a passage in the judgment of the Judicial Committee of the PrivyCouncil Sethuramaswamiar v. Meruswamiar, 45 I.A. 1 at p. 7 : (AIR 1917 P.C.190), in which it was stated that

their Lordships attention was not drawn to any case in whichthese decisions about management (in turn) have been applied to lands whichconstitute the endowment of such a character (public endowment).

Their Lordships were considering a different question. Theydid not lay down the proposition that worship of the deity by turns and managementof the endowed properties by turns are so inconsistent with the religious orcharitable endowment being of a public character, that its presence wouldtotally outweigh all the other evidence, however weighty, which would supportthe case of the endowment being a public one. In fact the temple in the case ofRamanathan Chetti v. Murugappa Chetti, 33 I.A. 139 : (29 Mad. 283 P.C.), towhich reference was made in Sethuramaswamiars case : (45 I.A. 1 : AIR 1917P.C. 190) where the shebaits exercised their functions by turns was a case of apublic temple. The judgment of the Board begins by saying the temple was

dedicated to the public worship of the deity in whose honourit was founded, and endowed with the income of three villages,

and that the office of the manager (shebait) was hereditaryand confined to the family of one Mayandi Chetti and on his death themanagement by his descendants was conducted in turns. We have examined thebroad features, without going into minute details. The evidence on the recordvery much preponderates in favour of the view that the religious institution isa public one, that is to say, the temple of Sri Kalimata with its adjuncts, theother temples, bhog ghars and all which we have found to be the property of thedeity Sri Sri Kalimata, is a public one.

22. This religious institution being a public one, we do notsee how the provisions of S. 92(2) , Civil P.C., could be got round in respectof the reliefs which fall within sub-s. (1) of that section. The prayer forframing a scheme of management must go out, in as much as the suit has not beeninstituted in terms of S. 92 read with S. 93 of the Code. Prayer Kha does notfall within sub-s. (1) of S. 92 and so is admissible, but prayer Ga is not.Prayer Gha has been removed by an amendment of the plaint. Prayers Gha and Unaneed not be considered as they relate to the appointment of a Receives pendentelite and to costs. Prayer Ja is incidental to the framing of a scheme and itwas so taken by the learned Subordinate Judge. That prayer must be disallowed.Prayer Chha would have been admissible only in aid of the scheme of themanagement, and that must be refused. If the prayer be regarded as a prayer bythe Goddess for recovery of her properties wrongly appropriated by her shebaitsand for account the prayer cannot be granted for weighty reasons. In the firstplace the suit is brought against some only of the shebaits in their personaland in their representative character as well. Secondly, no specific shebait orset of shebaits have been charged in the plaint. Thirdly no details of what hadbeen misappropriated are given. Fourthly even if none of these defects had beenpresent the suit would have been bad for misjoinder of parties and causes ofaction for one shebait would not have been concerned in a particular item ofproperty misappropriated by another or for its account; lastly a roving enquiryabout the acts of misappropriation cannot be permitted.

23. We accordingly allow the appeal in part. The plaintiffgoddess, Sri Sri Kalimata Thakurani will have a declaration that the religiousendowment is a public one and a further declaration that the items described inschedules Ka and Kha of the plaint are her properties. The decree for cost asmade by the second Subordinate Judge will stand. The rest of his decree isvacated. The appellants must pay the costs of this appeal to the respondent. Inaccordance with the orders of this Court, the shebait Sabha has financed theplaintiff in defending the appeal. [Any part of that amount so sanctioned ifunspent by the plaintiff is to be refunded to the shebait sabha and would beheld by it in trust of the deity.] The costs of this appeal as decreed by us,if recovered would also be made over to the said Sabha to be also held in trustfor the Deity.

24. In conclusion we may say that the affairs of the temple,though somewhat improved after the formation of the shebait Sabha are still ina deplorable state, and it is highly desirable that either all the shebaitsshould agree and frame a proper scheme for management in the interest of thedeity or if that is not possible, a scheme should be put through in a properlyframed suit under S. 92, Civil P.C. The matter from the public point of viewseems to us to be of great urgency.

25. The cross-objection is not pressed. It is dismissed butwithout costs.

26. The 18th January 1949.-Substitute for what has beenshown within square brackets in the original judgment the following:

If, after paying out the sanctioned amount of fees to theDeputy Registrars Advocate and meeting other costs, any money is left out ofthe amount deposited, the same will be refunded to the shebait Sabha to be heldin trust by it for the deity.

And add at the end of the judgment the following:

The costs of the appeal including the hearing fee which weassess at Rs. 1,020 are to be paid jointly and severally by the appellants intheir personal capacity to the respondent deity.

.

Anath Nath Banerjee and Ors. vs. Sree Iswar Kali Mata andOrs. (22.12.1948 - CALHC)