L.H. Jenkins, K.C.I.E., C.J.

1. This suit relates to the Atash Behram or fire-temple of the Parsis at the town of Udwada, in the Pardi Taluka of the Surat District. The plaintiffs are three Parsi inhabitants of that town, and they purport to sue on behalf of themselves and all other Parsi inhabitants of Udwada in accordance with the provisions of section 30 of the Civil Procedure Code, which permits one party to sue on behalf of all in the same interest. The defendants are the trustees of an indenture of settlement, dated the 2nd of September, 1896, executed by Bai Motlibai, now deceased, a benefactress of the Atash Behram. The cause of action alleged is, first, that the defendants, claiming to act under a power contained in the indenture of settlement, on or about the 7th November, 1896, erected a wall and thereby blocked up a door-way in the wall of the compound in which the Atash Behram stands; and secondly, that on the 19th October, 1896, the defendants wrongfully and unjustifiably closed and blocked the two doors in the western wall and one door in the northern wall of the Atash Behram, and have continued to do so every day since, thereby causing great inconvenience to the priests and others engaged in and about the Atash Behram. To appreciate the real character of the suit a short narrative of the temple's history is necessary. It is claimed that it is the oldest Parsi temple in India, and undoubtedly its traditional history points to a considerable antiquity. The Subordinate Judge has given a detailed account, which has been accepted as being substantially a correct exposition of tradition, and it is therefore needless now for us to travel over the same ground. It will suffice to say that the building was erected at Sanjan, and in it was located the sacred fire or Iran Shah constructed by the ancestors of the nine priestly families. This fire has ever been regarded by the Parsi community as an object of veneration and reverence and a symbol of the greatest sanctity. Under stress of circumstances the sacred fire was moved from place to place, and ultimately on the 28th October, 1742, it was brought to Udwada. It was first lodged there in a building given for the purpose; then Bhikaji Edalji, a Parsi from Surat, rebuilt the temple; according to some it was later restored by a Parsi named Gazdar, but as to this there is a difference of opinion: it is, however, certain that in 1830 Dadabhoy and Mancherji Pestonji Wadia in restoration of the temple then standing erected the building which was re-built by Bai Motlibai in 1894. In the plaint it is alleged that the Atash Behram or fire-temple of the Parsis is, with its site and diverse buildings and appurtenances from time to time dedicated for use in connection therewith, vested in the Parsi inhabitants of the town of Udwada, and they have from time immemorial managed the same and exercised absolute authority in regard to the maintenance and administration thereof as a place of Zotoastrian religious worship and observances, and further that the nine priestly families of the Parsis of Udwada have, as of right and from time immemorial, been special delegates of the Parsi inhabitants of that town for the purpose of supervising and managing the said Atash Behram, and the plaintiffs are members of some of the said nine families. This, then, is the title on which the plaintiffs claim to sue. The defendants, on the other hand, contend that Dadabhoy Pestonji was in 1830 entrusted with the possession and complete management of the temple in return for his having rebuilt, preserved and enlarged the same, and that "the said right of control and management was entrusted to Bai Motlibai in consideration of having entirely rebuilt the temple and added thereto," and that the defendants as the trustees appointed by her have acquired the same right. At the trial of this suit before the Subordinate Judge the following issues were framed:--

1. Do the plaintiff's prove that the fire-temple (Atash Behram) of Udwada is vested in the Parsi inhabitants of that town, and that they or nine priestly families of Udwada as their delegates have from time immemorial exercised absolute authority in regard to the maintenance and administration thereof

2. Or, as is alleged by the defendants, was one Dadabhai Pestanji of Bombay invested with the management owing to his having rebuilt, preserved and enlarged the fire-temple since so early as 1830, the nine priestly families being simply bound to render services only to the sacred fire Has Dadabhai Pestanji transferred any of his powers of management to the defendants

3. How far will the dissent of Beramji Pestanji Bharda affect the plaintiffs' right of management, if any

4. What rights as to possession and management of Atash Behram came to the lady Bai Motlibai when she reconstructed the Atash Behram and appurtenances at largo cost

5. Was she entitled to confer on trustees (defendants) all the powers including that of making rules and regulations for the duo government of the trust promises under the indenture A How far would the indenture bind all the worshippers at the temple

6. Is the compound wall, the door-way (E, F in the plan annexed to the plaint) in which is now closed, the property of Atash Behram or part of the adjoining Dare Meher Have the defendants the right to close the door-way

7. Can the plaintiffs claim any relief with reference to the wall independently of the trustees of the Dare Meher

8. Are the plaintiffs entitled to have the door-way E, F kept permanently open by reason either of long usage or any right on the score of inconvenience to worshippers

9. Does the daily closing of the doors B, C and D between 8 P.M. and 6 A.M. interfere with or cause inconvenience to any religious rites performed by the plaintiffs or by the Parsi worshippers in general

10. Are the plaintiffs entitled to all or any of the reliefs (a), (b), (c), (d), (e) asked in the plaint

11. Is the suit bad for non-joinder of Motlibai's heirs

12. Is it bad in its inception for want of the Advocate General's permission or owing to its being brought in an inappropriate form

13. Is not the plaint sufficiently valued and stamped for the purposes of the Court-fees

2. On these issues the learned Subordinate Judge found as follows:--

My finding on the first issue is that the Atash Behram or the seared fire called the Iran Shah and the building and other property belonging to it have vested in the Parsi inhabitants of Udwada, and that they, or the nine priestly families of Udwada, as delegates of the Parsi inhabitants of Udwada, have exercised absolute authority in regard to the maintenance and administration thereof from the time when the sacred fire was brought to Udwada.

My finding on the second issue is that Dadabhai Pestonji of Bombay who built the old Atash Behram in 1830 was not invested with the management of the Atash Behram owing to his having built and enlarged the fire-temple; that the nine priestly families were not bound to Dadabhai to render services only to the sacred fire and that the said Dadabhai did not transfer any of his powers of management to the defendants.

My finding on the third issue is that the dissent of defendant Behramji Pestanji Bharda will not affect the plaintiffs' right of management.

My finding on the fourth issue is that when Motlibai constructed the new building she acquired the right of seeing that the fire-temple with the compound and other buildings attached to it, together with the censor and other things placed by her in the fire-temple, were used for the purposes for which they were intended to be used; that the buildings wore duly repaired at her cost; that the rites and ceremonies intended to be performed on her behalf and at her cost were duly performed, and that the things that were not intended for daily use were lodged in a room in the fire-temple under safe and proper custody.

My finding on the fifth issue is that Motlibai was entitled to confer on her trustees the rights or powers mentioned above, and that she was not entitled to confer on her trustees the powers of making rules and regulations for the due government of the trust premises, and that the indenture-made by her (Exhibit 141) is not binding on the worshippers so far as it confers rights or powers ill excess of those possessed by Motlibai herself.

My finding on the sixth issue is that the compound wall in which the door-way E, F is belongs to the Dareh Meher and that the defendants had no right to block up the door-way.

My finding on the seventh issue is in the affirmative, that is, in favour of the plaintiffs,

My finding on the eighth issue is that the plaintiffs are entitled to have door-way E, F permanently kept open, not by reason of long usage, but under the right acquired by them and on the score of inconvenience to the priests and worshippers.

My finding on the ninth issue is in the affirmative, that is, in favour of the plaintiffs.

My finding on the tenth issue is that the plaintiffs are entitled to obtain the reliefs (a), (b), (c), (d) and (e) as shown in the decretal part of this judgment.

My finding on the eleventh issue is that this suit is not bad for non joinder of Motlibai's heirs.

My finding on the twelfth issue is that this suit is not bad in its inception for want of the Advocate General's permission or owing to its being brought in an inappropriate form.

My finding on the thirteenth issue is that the plaint is sufficiently valued and stamped for the purposes of the Court-fees.

3. The suit, however, must be determined by reference to the causes of action alleged in the plaint, and it appears to us that the learned Judge has somewhat gone beyond these limits. As far as we can, we propose to confine ourselves to those matters that arise out of the causes of action alleged. When it is seen what they are, one can readily appreciate the observation of Khan Bahadur Bamanji Behramji (page 122) who says:-- "Most of our Parsi community is displeased at the quarrel brought about for this trilling matter by the closing of this door." We sympathies with this view and we can well understand that the Parsi community should view with regret the bitter and costly litigation which the record discloses. But whether it be, as the Advocate General suggested or not, that the true meaning of this litigation is that it is an endeavour on the part of the 4th defendant (Bharda) to aggrandize his position, using as his tool for that purpose the 1st defendant, Nowroji Wadia, matters not; the parties have declined all suggestion of amicable settlement, and we must endeavour to determine their rights according to law.

4. We propose then to consider, first, whether the defendants in any way acquired rights which entitled them to do the acts complained of, and if not, then, secondly, whether the plaintiffs have any right to sue in respect thereof.

5. The defendants' case is that by the deed-of-settlement of the 2nd of September, 1896, "they are fully and properly clothed with authority to make rules and regulations for the efficient and due management of the Atash Behram and all the buildings appurtenant thereto, and that the said Bai Motlibai had power to invest the defendants with such authority--a power inherent in the very conception of the endowment made by her." (Written statement para. 12).

6. Motlibai, it is argued, by her benefaction became invested with the rights of a founder, and acquired by transmission the rights over the temple and its appurtenances which had previously been in Dadabhai, the restorer who preceded her, and also we presume in all previous restorers of the buildings. In support of this view Doe d. Howard v. Pestonji (1852) Perry O.C. 535 has been cited; but in our opinion that case turned on its own peculiar circumstances and has no application here. According to Dr. Edalji Kharsedji's description of a somewhat excited interview, the defendant, Nowroji Wadia, seems at one time to have advanced even a claim of ownership, for, in the words of this witness, the 4th defendant then began to abuse the Anjuman and said as follows:-- "What right have they to my Atash Behram The offerings that are made there are also mine" and beating his breast (i.e., emphatically) he bawled out "mine, mine." Of the terms of the original foundation we have no evidence: it is even uncertain from whom the site of the first building was obtained; for while some of the witnesses depose to a tradition that the spot was given by the Raja of Mandvee, the defendant Bharda denies it (pages 87, 94, 108, 120, 248 and 275 of the printed appeal book).

7. There is a similar lack of precise information as to the conditions of the subsequent rebuildings, at any rate, until we come to the Wadia restoration of 1830. According to the evidence of Mr. Bamanji Behramji, who appears to have made a special study of Parsi customs and usages, "the man who dedicates the building can look after the building and repair it himself. Any one else can also repair it, as it is thought to be a very pious purpose. If one consecrates the fire himself, he can keep control over the fire also, but this Udwada fire was consecrated by others, and so no one can control it. The person who dedicates a fire temple can see that it is used for the pious purpose for which it is built, and is not used to any other purpose, or is not damaged or injured. Those who built the fire temples at Udwada entrusted them to the Mobeds of the nine families who consecrated the Iran Shah. None of them have kept any rights of ownership over the same after dedicating them to the Iran Shah. This is in reference to the fire temples other than the present one. Motlibai's son Nowroji claims to have some rights over the present fire temple. He can look after the building and repair it, but he cannot do anything else with reference to it. According to our rules of morality, as long as the dedicator wants to repair it he has the preferential right over others. If any one else wants to make any addition to the fire temple with the consent of the Anjuman, he can do so. He cannot control the use of the building by the Mobeds for the religious purposes in any particular way. It is the power of the Mobeds of the nine families, who have kept this secred fire for so many years, to control the use of the building. None of the old donors of the previous fire temples of Udwada controlled the religious ceremonies in reference to the sacred fire. It is the business of the Mobeds who perform the ceremonies there to decide what door is to be closed or kept open and when, and not of the donor of the fire temple. The latter cannot do it." This preferential right of repair thus attributed to a founder corresponds with the usage which, according to Mr. Mandlik, prevails among the Hindus, who allow the same right to the founder and his heirs. But there is no suggestion that Motlibai, or even her immediate predecessor in the line of restorers, Dadabhai, was of the line of the first founder or of the restorers prior to him; indeed it is in evidence that the line of one of them, Edalji, has died out.

8. It is not until we come to Dadabhai's restoration that it can be said there is any evidence of the relations between the rebuilder and the temple. But even here there is no direct record of the terms on which Dadabhai rebuilt; we are invited to infer those terms from the evidence there is on the record of the attitude taken up by Dadabhai in connection with the affairs of the temple.

9. The documents brought to our notice are numerous, and we will deal with the more important of them in the order of their date. (His Lordship referred to and commented on the following Exhibits:--151, 487, 526, 513, 155, 156, 202, 163, 164, 493, 234, 167, 168, 164, 170, 171, 185, 186, 188, 191, 193, 194, 240, 195, 254, 512, 131, 132, 133, 134, 231, 135, 136, 196, 248, 138, 197, 513, 198, 199, 200, 137, 201, 204, 92, 93, 205, 206, 475, 139, 255, 98, 502, 243, 232, 480, 122, 482, 484, 522, 615, 476, 485, 486, 524, 500, 207, 510, 477, 511, 244, 620, 378, 251, 247, 245, 252, 246, 249, 250, 235, 453, 223, 224, 225, 226, 257, 228, 229, 230).

10. From this documentary evidence it is clear that Dadabhai rebuilt the temple, and there is no doubt that, as the defence alleges, he did the repairs, whitewashing and tile-turning, and that he supplied fuel, oil, sandalwood and incense; it also is established that he gave directions as to the manner in which the otla and other parts of the building were to be used and otherwise intervened in the management of the temple.

11. But can we from this draw the inference that he was in consideration thereof entrusted with the possession and complete management of the temple and the premises appertaining thereto, and that he thus acquired rights which, being transmitted to Motlibai, enabled her by virtue thereof, and of rights that came into being as the result of her benefaction, to vest in the defendants as her trustees powers and rights which are a justification for the matters complained of in this suit

12. Now let us see what Dadabhai's position was; he was not the first founder of the establishment; he did not build exclusively on a site belonging to himself; and Exhibit No. 195, dated the 14th October, 1862, suggests the inference that in rebuilding he to some extent utilized portions of the then existing building. That the temple premises were enlarged on that occasion improbable, but what portion of the present site was then acquired it is impossible to tell. The first question we have to ask ourselves is, whether Dadabhai acquired any rights of property then over that which already formed part of the temple premises. We fail to see how he acquired any ownership. It has been argued before us that the original builder in Udwada must be assumed to have retained the ownership of the building furnished by him for the habitation of the sacred fire and of the site on which it stood, and that these rights passed to each successive rebuilder. But we can find no warrant for any such assumption.

13. We know of no such course of transmission or devolution in law, and the circumstances manifestly do not invite the application of those legal principles which operate in favour of one who in mistake is allowed to expend money on the property of another.

14. True money was spent, but "endowments to the sacred fire are looked upon by the Parsis as acts of great piety" is the testimony of Sir Dinshaw Petit (page 240), and "it is very pious," says Mr. Bamanji Beheramji (page 119), "to offer articles to the fire and dedicate buildings also to it." In the piety, therefore, of the act, and the reward that piety was doubtless expected to attract, we have sufficient motive for the expenditure to absolve us from the obligation of speculating what material return Dadabhai Wadia looked for. It may be that the documentary evidence discloses much that is consistent with the recognition of a complete control in Dadabhai over the temple and its appurtenances, but it does not follow from this that Dadabhai was clothed with legal rights entitling him to intervene to the extent he did. It must be borne in mind how matters stood: here was a wealthy benefactor who had done much for the establishment and from whom more might be expected: was it not but natural that every deference should be paid to his wishes, at any rate so long as they did not in the view of the local establishment conflict with the welfare of the temple and its services We certainly think so. Moreover, it is to be noted that the control Dadabhai exercised was until 1863 through the Dastur alone, and that when trustees were appointed the persons selected for that purpose included the Dastur for the time being.

15. No doubt the Dastur Mancherji was deposed from that position, but even then the trustees were chosen from the community of Udwada.

16. Now let us examine the events that led up to and are connected with Motlibai's restoration. Dadabhai was dead and his son's means did not permit of his doing the work; so in the first instance it was determined by the Anjuman to raise the requisite funds by an appeal to the Zoroastrian public. The subscription list circulated is Exhibit 114 (page 482) and it is in these terms:--

As to the largo building of the Dare Meher appertaining to the holy Atash Behram Saheb (Iran Sha) of Udwada in which at present Atash Behram Saheb (i.e., Sacred Fire) has been installed, and the building of the Nahankhana Dare Meher opposite the same which is in use at present as to the both these buildings the same were got rebuilt and given by deceased Wadiaji Saheb Seth Dadabhai and Seth Mancherji Pestonji Wahadiaji, inhabitants of Bombay, at their own expense in the Yezdezardi Shehenshai, year 1199 (A.D. 1829-30). And a large sum for the necessary expenses in connection with the Atash Behram Saheb such as (the expenses of) sandalwood to be used at the time of performing the Boi ceremony in all the five Gehes, of daily firewood and of the salary of the Jadukhush Mobed (working) in the Dare Meher and for other expenses has been regularly received every year since the said Yezdezardi Shehenshai year 1199 (A.D. 1829-30) up to this day from them and after their (death) from Seth Meherwanji Dadabhai Wahadiaji, the son of (one of) them. And in order to make all the said expenses in such manner as is settled and in order to look after the said buildings, fire worthy persons from the Athornan Anjuman (i.e., community of Parsis belonging to the priestly class) of Udwada have been appointed trustees and (the buildings) have been entrusted under their care to the ownership on the Anjuman (i.e., community). The Anjuman (i.e., community) of Udwada are extremely obliged to the said family, generous at heart and staunch in religion, for the same.

2. Before the buildings (mentioned) above wore got built and presented by Wadiaji Saheb, that is to say, at the time when the band of Sanjana Mobeds (i.e., priests) came for the first time to Udwada along with the Atash Behram Saheb, the deceased Behdin (i.e., Parsi layman), Minocher Bahman of Nargol had, at first, got built and presented one small building and thereafter one Zoroastrian of Surat (namely) the deceased Behdin (i.e., Parsi layman), Bhikaji Edalji, had made additions to and got built and presented the same. The help (given) by those generous persons is fresh in the memory of the Zoroastrian Anjuman (i.e., community) of Udwada.

3. A long period of sixty years has elapsed since both the buildings mentioned above were built. During the said (period) it was necessary to repair them once (or) twice, which was also in accordance with the request of the Anjuman (i.e., community) got done by Wahadiaji Saheb at his own expense.

Both the buildings (mentioned) above having now become very old have been reduced to a condition which requires thorough repairs. It is absolutely necessary to do the same. Not only that, but if (the buildings) remain in the present condition for a longer time there is, may God not so will, a very great danger of the result being any day very dreadful and sad. Moreover, the Anjuman (i.e., community) perceive with regret that it is not that the work can now be managed by making small repairs as (was done) previously and it is not likely that the necessary work can be done by one hand (person). Therefore the Anjuman (i.e., community) of Udwada having taken the opinion of their kind well-wishers in connection with the said extremely necessary work, honour (accept) the proper and sound advice received from those gentlemen, and depending upon the same make a Tharav (i.e., resolution) that for making repairs anew to both the said buildings, especially to the big Dare Meher (building) appertaining to the Atash Behram Saheb, and for making changes suitable to the present time, a list of subscription should be set on foot on behalf of the Zoroastrian Anjuman (i.e. community) of Udwada; that the said list should be circulated amongst generous and religious Zoroastrian gentlemen and that money is necessary for making repairs to both the buildings should be collected. Moreover, in the above work the respected family of the kind Wahadiaji Saheb should be joined with the Anjuman (i.e., community) and the grateful connection of the said religious family with the Anjuman (i.e., community ) of Udwada should be continued for ever.

The kind Wahadiaji Saheb Merwanji has with great pleasure supported the Tharav (i.e., resolution ) of the Anjuman (i.e., community) mentioned above and has shown great pleasure at the proper Tharav (i.e., resolution) of the Anjuman to put up any tablet or writing whatever on the said buildings her after just as his deceased patrons (i.e., forefathers) had not deemed it proper to put a tablet or any written token whatever bearing their names at the time they dedicated the said buildings to the Holy Kebla of the Atash Behram Saheb and has accepted with pleasure his association with the Anjuman (i.e., community) in the said extremely useful work of great religious merit. Besides that the Anjuman (i.e., community) of this place had great doubts as to accomplishing this difficult work single-handedly, but on account of the person looking to the said Holy Kebla with a staunch faith, the well-wisher of the Anjuman (i.e., community) of Udwada (namely), the illustrious and generous Setji Saheb Sir Dinshaji Manekji Petit, Baronet Saheb, having, with his usual greatness of heart, promised to give with pleasure every possible succor to the Anjuman (i.e., community) in this work of great religious merit and, moreover, on account of this disinterested and illustrious person (having shown) anxious care on every occasion to make out the very first scheme relating to this work of very great religious merit and to see this work accomplished soon, the Anjuman (i.e., community) had, in the life time of their well-wisher and leading member of the deceased respected Seth Saheb Manekji Kawasji Damanvala, under his leadership and by his Bound advice and in consultation with him, already set on foot this work and after his unfortunate demise the Anjuman (i.e., community) have continued the said work under the leadership of his son Seth Sorabji Manekji Damanvala and are anxious to see the same now carried out.

To those who may have subscribed at Bombay a receipt bearing the signature of Seth Nasarwanji Beheramji Secretary will be given in respect of the moneys subscribed towards the said fund that may have been recovered and the said moneys will be kept as a deposit with the trustees of the illustrious Parsi Panchayat of Bombay. In the same manner a receipt bearing the signature of Bhai Behramji Pestonji Iajdiarji Bharda will be given in respect of the moneys recovered at Udwada and the said moneys will be credited at the firm of the respected Seth Saheb Manekji Kawasji Damanvala, deceased, with Sorabji Manekji Damanvala under his care, and when a sufficient sum has been collected the same will be remitted from that place from time to time for being kept as (mentioned) above with the trustees of the illustrious Parsi Panchayat of Bombay as a deposit, and after a sum sufficient for the said work has been collected the moneys thus de posited will be utilized.

After giving publicity to the above facts for the information of the religious gentlemen belonging to the Zoroastrian community, the Zoroastrian Anjuman (i.e., community) of Udwada through the undersigned persons on their behalf most humbly request the Zoroastrian world (community) and entertain an anxious hope that every religious Zoroastrian will give his sympathetic support towards this useful work of religious merit of the first grade (that is) of repairing the holy building of his ancient Kebla, will extend his generous hand and will acquire great religious merit of having given assistance to (the work of repairing) the buildings appertaining to this most ancient Atash Behram Saheb of India. (Commented on.)

17. Some subscriptions were actually obtained, but ultimately the whole cost of the rebuilding was undertaken by Bai Motlibai. The old building was then pulled down by the Anjuman and sold for Rs. 1,950 (see page 137).

18. Here it is instructive to follow the documents that passed in reference to the rebuilding by Motlibai. (His Lordship referred to Exhibit 257, 31st January 1903, page 635; Exhibit 124, 22nd April 1893, page 501; Exhibit 123, 31st October 1894, page 499; Exhibit 126, 31st October 1394, page 506; Exhibit 105, 31st October 1894, page 461; Exhibit 188, 20th October 1895, page 514; and Exhibit 137, 26th October 1895, page 512.)

19. The circumstances under which Bai Motlibai came to rebuild the temple appear from Exhibits 257 and 124. (His Lordship referred to and commented on these Exhibits, pages 635 and 510.

20. The result was that the rebuilding was earned out by Bai Motlibai, who considerably enlarged the buildings, purchasing for that purpose additional land.

21. By October the work was completed, and on the 31st of that month the opening ceremony took place. Motlibai on account of her advanced age was unable to be present, but she was represented on the occasion by her two sons, the defendants N.M. Wadia and N.J. Wadia. An address in Motlibai's name, Exhibit 123, was read. (His Lordship referred to it, page 499.)

22. We find then (1) it was at the request of the Zoroastrian Anjuman of Udwada that Motlibai undertook the work; (2) the old temple is stated to have been given by the Wadias, (3) the new building is presented; and (4) the motive of the gift is explained. An address was also read, signed by the head of the Zoroastrian community of Udwada. (His Lordship referred to Exhibit 126, page 506).

23. On the temple a tablet was placed bearing a Gujarati inscription, of which following is a translation:--

The Atash Behram Iran Shah of the Shenshahi Zorthosti Anjuman was consecrated at Shri Sanjan by the first band of Zoroastrians who came from. Persia to India in the Yezdezardi year. The Athornan (priestly) class at Udwada attends to the same. The first building for the same was got built at Udwada and presented by Behdin Mancherj Bamanji of Nargol in the Yezdezardi year 1112 (A.D. 1742). The said building was extended and built and presented thereafter by Behdin Bhikaji Edulji, an inhabitant of Surat, in the Yezdezardi year 1121 (A.D. 1751). The same was subsequently extended and rebuilt and presented for the third time by Seths Dadabhai and Mancherji Pestanji Wadia, inhabitants of Bombay, in the Yezdezardi year 1199 (A.D. 1829-30). As the building got old it was this fourth and last time built by Bai Motlibai Manecherji Wadia, an inhabitant of Bombay, daughter of the deceased Seth Jehangir Nasarwanji Wadia, for the benefit of the soul of her deceased husband Seth Maneckji Nowroji Wadia, after purchasing some pieces of land (situate) about the same at a total cost of Rs. ________ and given into the possession of the Anjuman through the trustees of Udwada and the holy Iran Shah Atash Behram was installed in the new building on Meher the 16th day of Ardibehesht, the second month of Shehenshahi Khordad, the third month Kadmi, in Yezdezardi year 1264 (corresponding with the English date the 31st October in the year 1894) and the day of the week.....

Mr. Dinsha Dorabji Mistri, N.S.A., Architect.

24. Here then it is distinctly said that the new building was given into the possession of the Anjuman, or into its charge, if we use the rendering given to similar language in the inscription on Sir Dinshaw Petit's Dare Meher. This language does not point to the retention of any interest or ownership by Motlibai. On the contrary, it is more in harmony with the renunciation essential to the completion of an act of similar piety on the part of a Hindu benefactor.

25. On the 20th October, 1895, certain Parsi priests of Udwada addressed to Bai Motlibai a document, Exhibit 128 (page 514), in which, they speak of the obligation conferred by her on them "by getting a new building built and by presenting (the same to us)." The memorial goes on to complain of the conduct of the Udwada committee in placing padlocks and erecting a tablet without taking the opinion of the Anjuman and that the inscription on the tablet was incorrect. It then states that they had given the old building into the charge of Motlibai without a tablet or inscription, and that they should receive it back in the same manner.

26. To this Motlibai wrote, as a reply) Exhibit 127:--

To Mobed Bhikhaji Diniarji Oonwalla and other Signatories at Udwada.

Written from Bombay by Bai Motlibai, daughter of Jehangirji Nasarwanji Wadiaji, whose blessings be pleased to read. To wit:--As to the memorial written by you Mobeds on Roj the 5th, Maha the 2nd in the Yezdezerdi year 1265 (20th October 1895) I have received the same. In it you have written to the effect that there are some defects in the Atash Behram Saheb premises and the Nahanakhana and (other) premises appertaining to the same at Udwada built by me and you have stated to remove them when they are repaired again. About this I state that I shall do as it pleases me. The Mobeds should not interfere with mo in the matter.

And you write further that the old building was entrusted to your Anjuman (community). That statement of yours is quite false. The old building was entrusted to me, by the owner thereof Wadiaji Merwanji, who was my relation through his trustees. And it was only after a special condition was made to put up inscription slabs and to build as I like that I consented to get these promises built. And just as Wadiaji Merwanji gave the old promises to the Anjuman through his trustees in the same way I shall make arrangement to give the new promises also through trustees of my selection. There is nothing new therein.

Re the Nahanakhana premises you write in the present memorial that they are built too far on the rear. But I have seen them personally. The same have been approved of by all.

The compound wall of these promises remains to be built. I shall consult my engineer in connection with this and other works. The Dasturs and (other) leading persons at Udwada are more desirous than you are to preserve the privacy of the premises. This is my firm conviction.

Some Mobeds of Udwada who are wanting in sense act improperly in connection with my premises which you even praise and with the Mobeds who perform ceremonies Therein. Likewise they wrongly find fault with the service of the saered Kebla (Fire) which is the very essence of their life and hurt the feelings of those who come from up-country. I am sorry to note this.

But it does not become you poor Mobeds to do so. If you work peacefully and harmoniously you will get your livelihood. And the Zoroastrian who come over to your quarter being pleased you will derive benefit.

And I shall (make) and carry on arrangements in connection with my now premises as it pleases me or I shall get the same made. Please note that. At present this is the only representation.

Dated at Bombay the 26th October in the year 1895.

Please to read the wishes of Motlibai.

27. On the 2nd of September; 1896, the trust-deed on which the defendants' trustees rely was executed. The parties to it were Bai Motlibai of the one part and the defendants Nowroji M. Wadia, Nusserwanji Wadia, and the defendants Kawasji Kharsetji Jamsetji (now known as Sir Jamsetji Jijibhai), Jeejeebhoy Merwanji Wadia and Byramji Pestonji Bharda of the other part.

28. Thereby Motlibai conveyed to the trustees the premises described in the first schedule thereto upon trust "at all times to permit the same to be used as a place for public worship by all persons of the Zoroastrian Faith and for the celebration of all rites and ceremonies of the Zoroastrian religion as hitherto observed." It was further declared that the trustees should stand possessed of the securities therein specified, amounting in nominal value to Rs. 61,000, upon the trusts therein declared. And it was thereby further agreed and declared that it should be lawful for the trustees to frame rules and regulations for the due government of the trust premises with power from time to time to rescind or alter the same and the rules for the time being, and, if thought necessary, to substitute new rules and regulations in lieu thereof.

29. It is by virtue of the powers thus expressed to be vested in them by this deed that the defendants justify their action in the matters of which complaint is made in this suit. The words of the deed are no doubt wide, but even if they were wide enough to cover what has been done, was it within Motlibai's authority to vest her trustees with those powers It is, we think, clear that Motlibai's rights could not be increased by any provision contained in that deed; she and her trustees alone wore parties; the Anjuman was neither directly or indirectly a party to it so that so far as it had any rights in the temple it clearly could not be affected. Motlibai's rights, if any, were such as arose from the expenditure incurred by her in connection with the rebuilding of the temple. But what were those rights There can be no question that when one expends money on the land of another, rights even of ownership may thereby arise in his favour; but for this result certain well-defined conditions must be established, which are absent in this case.

30. Motlibai knew that the land on which she built was in part at any rate not hers, nor can we see that the Anjuman of Udwada at any time acted in such a way as to encourage in her the belief that she would acquire such rights as would entitle her or any one claiming under her to do that of which the plaintiffs complain. We would even go further and say that the evidence does not satisfy us that Motlibai ever entertained the belief at the time when she undertook the work that she would acquire the rights that are now set up. It is true that she has spent a very considerable sum of money in connection with the temple, but it appears to us that the reasonable inference to draw under the circumstances is that she incurred that expenditure, not in the belief that she was thereby going to gain any proprietary rights or temporal advantage, but that she looked for her reward in the religious merit of the act performed by her, and that appears to us to be a sufficient explanation of her action. It may be that she expected that she and those claiming under her would become entitled to a preferential right to effect any repairs or any restoration that might become necessary, but that is far short of what is now claimed by the trustees.

31. Now let us for a moment examine somewhat more closely what precisely it is that the defendants have done. In the first place, then, they have built a wall on a part of the temple premises, forming no part of the temple itself. The site of this wall according to the evidence never vested in Motlibai or her trustees, nor is it shown, if that be material, that it ever vested in Dadabhai. This wall obstructs the passage between the temple and the Dare Meher, which had been in existence from a time prior to any expenditure by Motlibai; it was in fact a disturbance of the state of things existing at the time when Motlibai came on the scene. Though the inconvenience caused by this interruption of the means of communication between the two premises may not be of great moment, still it is an interruption, and is the cause of some inconvenience, and we fail to see what right the trustees had thus to build on property not vested in them. In our opinion it affords no sufficient justification for their action to suggest that it was a necessary precaution for the purpose of protecting the Atash Behram from the petty thefts, of which we have been told, or of preventing the acquisition of right of way, a suggestion that probably owes its origin to the ingenuity of those who have been entrusted with the conduct of the defendants' case. Had the object been to secure the Atash Behram against either of these suggested perils, then the end could have been secured by less drastic methods than those actually adopted. Therefore we hold that the trustees were not justified in erecting the wall in respect of which relief is sought.

32. Then how do matters stand in relation to the doors which have been closed by the defendants They are three in number and all afford means of access into the temple. One is in that part of the outer wall of the temple which stands on the site of the old temple wall; the other two are in the wall which stands on property acquired by Motlibai and form no part of the old temple premises. The first of these doors has been throughout referred to as B, the other two as C and D, and we will continue this mode of reference.

33. We will first deal with B it is at night time the only means of access from the temple to the well at the south-west corner of the temple compound, and this has been conceded before us by counsel for the defendants in the course of the argument. In the old temple there was a door similarly placed by means of which those officiating in the temple had access to this well. What right then had the trustees to lock the door B and thus interfere with this established means of access This part of the temple premises was not vested in them, so that they cannot claim to have done it by right of legal ownership. The free and uninterrupted use of this door seems to us to be necessary for the enjoyment of the temple and its premises in the manner in which the temple has been always enjoyed, and we cannot see that the trustees had any right to disturb that enjoyment. Their rights must be measured by what is required to safeguard the interest of Motlibai and her heirs, and what has been done by them in reference to the door is, in our opinion, in excess of that and therefore unjustified.

34. The legal position of the other two doors is somewhat different, for the part of the building in which they are stands on land acquired by Motlibai, and conveyed by her to her trustees. But though they stand outside the limits of the old temple site, they do form an integral part of the temple, the privilege of building which was entrusted by the Anjuman to Motlibai. This lady restored the temple as one entire building without distinction as far as one can see between one part and the rest; these two doors were placed in the temple as rebuilt by Bai Motlibai, and presumably were so placed as being necessary to its full and proper enjoyment. No adequate reason has been placed before us in justification of the obstruction, and it appears to us that the defendants' conduct with regard to these two doors has been wrongful.

35. So it now must be seen whether the plaintiffs are entitled to maintain this suit.

36. The first argument urged on this point for the defence is that the suit is based on ownership, and that a fluctuating body of persons, such as the plaintiffs claim to represent in this suit, is incapable of property. We are not prepared to assent to the proposition that in this country a body such as we have represented before us is incapable of property, for even if we pass by the alleged ownership of property by a caste as not being definitely established, there can be no doubt that the village community is capable of property, and in Yajnavalkya we have a distinct recognition of ownership by a fluctuating body, for in Chapter II, v. 187, it is said: "whoever appropriates what belongs to the community.........shall be made to forfeit his property and be banished the realm." The commentary in the Mitakshara on this verse is, "whoever appropriates what belongs to the community, i.e., anything which is the common property of all the villagers collectively and the like bodies." We take this passage from the Mitakshara Vyavahara Adhyaya translated by Mr. Girish Chandra Tarkalankar. Moreover that property may belong to a village is recognized in the Judgment of the Privy Council in Sivaraman Chetti v. Muthaya Chetti, (1888) 12 Mad. 241. But it really is unnecessary to go into this question because it is a mistake to say that the suit is based on ownership alone; from the plaint-it is clear this is not so. As we have already pointed out, the allegation in the plaint is not only that the Atash Behram is vested in the Parsi inhabitants of Udwada, but that they have from time immemorial managed the same and exercised absolute authority in regard to the maintenance and administration thereof as a place of Zoroastrian religious worship and observances (paragraph 1).

37. It is further alleged that the nine families of the Parsis of Udwada have as of right and from time immemorial been the special delegates of the Parsi inhabitants of that town for the purpose of supervising and managing the Atash Behram and the plaintiffs are members of some of the said families.

38. The point therefore for our determination is whether these allegations do not disclose a sufficient interest to support this suit, and, if so, whether they have been established. In considering the sufficiency of the allegations regard must be had to the character of the suit and to the interests involved and the legal position of those concerned in the litigation.

39. It apparently is opposed to the notions of the Parsi community that the Iran Shah should be regarded as capable of, or the subject of, ownership; but even if there be difficulty or doubt as to its ownership, it is obvious that there must be some one entitled to protect from improper invasion that, which for brevity, we will call the temple property, and it appears to us that those who can predicate of themselves that they have exercised the management, authority and supervision alleged in the plaint are so entitled.

40. The Parsi inhabitants of Udwada are, in accordance with a well known usage which prevails in the community, referred to as the Anjuman of that town. The word Anjuman, according to Wilson's glossary, means among Parsis a constituted council or assembly to which all questions regarding their peculiar customs are referred. Now we have evidence in this case of the existence of an Anjuman as an established institution in connection with this Atash Behram as far back as 1831, for on the 31st of January in that year the two Dasturs "on behalf of the Anjuman on behalf of the Atash Behram Saheb of Udepore purchased a Moglai Huq."

41. On this circumstance the criticism has been passed that it is uncertain what this Anjuman was; whether it consisted of the whole Parsi community, or of the Parsis of Udwada, or of the Mobeds of that town. Be that as it may, it is sufficient for the present purpose that there was as far back as 1831 a distinct recognition of an Anjuman in connection with the Atash Behram at Udwada.

42. Then in 1843 a letter (Exhibit 107) was addressed to the Dasturs and "the whole of the Anjuman" in relation to a gift of utensils to the Dare Meher of the temple.

43. In 1860 a document, Exhibit 613, was passed, which records an explanation demanded of the Dastur by the Udwada Anjuman, and his reply, and an agreement made thereon. Throughout this document the Anjuman is treated as a body capable of action and it is clear that it included both Mobeds and laymen of Udwada.

44. In 1863 the Dasturs and Mobeds and Behedins, the servants of the Atash Behram Saheb of Shri Udepore, having in Samast Anjuman assembled appointed a committee of 16 with a President and vested them with the authorities expressed in Exhibit 92. "The Anjuman is thereby recognized as a Panchayat in connection with the Atash Behram, and this implies the existence of a defined body with rights of supervision (His Lordship referred to the document).

45. By way of comment on this document it has been said that it is concerned with ceremonial rules and regulations and not with property; but conceding that, its importance is that it is a record of an act done by the Anjuman of Udwada in relation to the Atash Behram, and is an instance of action taken by that Anjuman as a recognized body comprising both Mobeds and Behedins. In 1863 Dadabhai addressed a letter, Exhibit 132, to the "Sahebs of the whole Anjuman at Udwada" asking that assistance might be given by that body to the trustees appointed by him.

46. Then in Exhibit 274 we have a khata of the Udwada Anjuman, while Exhibit 460 is an account of the expense of tinning the Panchayat utensils, showing that the Anjuman was regarded as owning them. On the 1st of February, 1883, a letter (Exhibit 230) was written by Manekji Kavasji to certain individuals, including a Behedin as well as Mobeds, whom he addresses as "the headmen of the Zoroastrian Anjuman of Udwada." In the letter the Anjuman is referred to as a distinct body and it is said that it would be laid under a great obligation by the starting of a fund for the expenses of fuel, &c., in connection with the Atash Behram.

47. On the 27th of February, 1888, a document, Exhibit 116, was addressed to Sir Dinshaw Petit, and among the signatories was the fourth defendant. The subject-matter of the letter is Sir Dinshaw's proposal to erect a new building for the performance of religious ceremonial, and in this connection reference is made to the Anjuman as affected by Sir Dinshaw's benefaction. On the 14th of July, 1890, there was issued "an appeal to the gentry and the general public of the Zoroastrian community in connection with the holy Atash Behram Saheb of Udwada" and among the signatories is the fourth defendant. This document (Exhibit 114), in giving a brief history of the case, states that "in order to look after the said buildings five worthy persons from out of the Athornan Anjuman of Udwada have been appointed trustees and (the buildings) have been entrusted under their care to the ownership of the Anjuman. The Anjuman of Udwada are extremely obliged to the said family, generous at heart and staunch in religion, for the same."

48. Exhibit 115, dated the 10th of March, 1890, is the record of the resolution passed by the "Dasturs, Mobeds and Behdins, servants of the Atash Behram Saheb at Udwada in Samast Anjuman that is, Panchayat assembled." In the resolution reference is made both to Behdins and Mobeds and at page 491 we have a distinction drawn between the Athornan Anjuman and the Behdin Anjuman.

49. As being also relevant to the status of the Anjuman at Udwada we have been referred to communications that have passed between Sir Dinshaw Petit and the Anjuman in relation to the Dare Meher (see Exhibit 264, 3rd June, 1891, Exhibit 265, 21st August, 1891, Exhibit 266, 17th August, 1891, Exhibit 267, 1st September, 1803, Exhibit 268, 13th September, 1893, Exhibit 269, 25th April, 1804, Exhibit 270, 9th June, 1894, Exhibit 263, 23rd November, 1894). These documents leave no doubt that Sir Dinshaw Petit, a very influential member of the Parsi community, regarded the Anjuman as a body capable of taking charge of the Dare Meher erected by him, and he acts on that footing.

50. The same idea is to be found in the tablet placed by him in the Dare Meher (Exhibit 471).

51. Then again the existence of the Anjuman as a body concerned with the Atash Behram is recognized in the letter written by Merwanji to Motlibai on the 31st of January, 1891 (Exhibit 123), and by Motlibai herself in the document, Exhibit 123, read on the occasion of the consecration of the buildings erected by her, and the same view is asserted in the documents, Exhibits 124 and 125, written to Motlibai and her sons.

52. The inference then that we draw from these materials and on a careful consideration of the whole evidence in the case is, that the Anjuman was the body that really was vested with the control, management and supervision of the Atash Behram and all that appertained to it.

53. But then it is said that even if that be so we have not that Anjuman before us as plaintiffs; for that body was not made up of the Parsi inhabitants of Udwada; that it consisted either of the whole of the Parsi community in India, or of those inhabitants of Udwada who belonged to the priestly families. But we are clearly of opinion that the first of these contentions cannot be supported; the Anjuman which consists of the whole of the Parsis in India is known by the name of Kulle Anjuman, and we can find nothing in the evidence which leads to the conclusion that the Anjuman vested with the control comprised the whole Parsi community.

54. It only remains to deal with the argument that the Anjuman mentioned in the evidence consists of the members of the nine priestly families of Udwada. There is nothing antecedently improbable in this view; but in fact we find that, whatever may originally have been the case, the priestly families have themselves now recognized the laymen of Udwada as members with them of the managing Anjuman. Even in this suit we find that the plaintiffs, though members of the priestly families, purport to sue on behalf of the laymen as well as of the priests, and we have a complete recognition of the propriety of this view in the unanimous resolution passed by the Parsi inhabitants of Udwada to which we will later refer.

55. Even if the defendants' contention on this bead had been well founded, it would not have helped them, for we think the narrower community for which they argue is completely represented in this suit. We therefore hold that we have before the Court plaintiffs who are competent to sue in respect of the causes of action on which this suit is based.

56. But then it is objected that the suit must fail, for the plaintiffs have not obtained the consent of the Advocate General as required by section 589 of the Civil Procedure Code. But with regard to the wall and door B it seems to us that this argument must clearly fail, for in regard to them it cannot be said that even the legal property is in the defendants. It is urged however that this answer does not apply to doors C and D but assuming this to be so, we think the objection cannot be sustained.

57. The suit in respect even of these doors is not, in our opinion, one which arises out of a breach of trust so as to be within the mischief of the section. It is a suit for the vindication of the right of management which was vested in and actually being exercised by the plaintiffs and those they represent at the date of the obstruction, and it does not appear to us that the suit falls within section 539 merely because those who cause the obstruction happen to have been nominated as trustees by Motlibai.

58. Before coming to the actual relief to be granted there is one more matter to be considered. The second of the grounds of appeal to this Court is "that the Judge of the lower Court erred in refusing to hear or excluding evidence which the defendants proposed to give in support of their case."

59. Having regard to the inordinate volume of the evidence and the length of the trial, we can well understand the reluctance of the Judge to give any further opportunity to the parties of protracting still further this unfortunate litigation. Still if there be evidence that the defendants were entitled to adduce and it was improperly excluded, their objection must prevail. Mr. Inverarity was asked to formulate the points on which he desired to call evidence, and he thereupon mentioned the following:--

1. The acquisition of the site of the Patel's wall by Dadabhai.

2. Parsi usage as to the management of temple.

3. The points (a) to (h) in paragraph 6 of Exhibit 542.*

60. But the ownership of the site of the Patel's wall is immaterial, and we have expressed no positive opinion on it; and further evidence as to the custom at other Atash Behrams was, we think, properly excluded.

61. Of the several points named in Exhibit 542 we think (a) does not arise in this suit; (b) is not the plaintiffs' case; (c) raises a question of law on which no evidence is therefore necessary; (d) no evidence is required on this point, and even if it had been, it has now become unnecessary in consequence of the meeting at Udwada which has been recently held; (e) this is a question for argument: no further facts are necessary; (f) this point is to be determined by inference from the facts proved; (g) this point does not arise; (h) it would not be right to send back the case for further evidence on this point.

62. There is a reference in paragraph 6 to various other minor particulars, but counsel for the defendants, though challenged to do so, was unable to specify any other than those with which we have already dealt. We think, therefore, that the second ground of appeal cannot be sustained.

63. This brings us to the question whether any and what relief should be given to the plaintiffs in this suit; and here it becomes necessary first to refer to a meeting of the Parsi inhabitants of Udwada held under the direction of the Court after the conclusion of the arguments.

64. It was intimated before us that if the result of this suit were adverse to the defendants, steps would probably be taken to set aside the trusts of the Rs. 61,000 on the ground that in disputing the control which the deed of settlement purported to vest in the trustees, there had been an election against the deed. As this possibly involved risks to the community, on which it had not had an opportunity of forming or expressing an opinion, we considered it advisable that the matter should be placed before a duly convened meeting of the Parsi inhabitants of Udwada, and the result has been that unanimous resolutions have been passed substantially in favour of the suit notwithstanding the risk involved.

65. The report of this meeting has been recorded and no exception has been taken to it; and the report shows that there was no objection by any one at the meeting to the participation of the Behedins in the matter.

And now we come to deal with the relief to which the plaintiffs are entitled in this suit. The relief sought in paragraph (a) of the prayer to the plaint appears to us to go beyond what is required by the cause of action alleged and cannot be properly granted in this suit. In paragraph (b) the plaintiffs ask for a declaration that the blocking up of the doorway E, F and the closing at night of the doors B, C and D were wrongful acts and not justified by any right or power vested in the defendants either under the indenture of settlement or otherwise, and to this we think they are entitled. Then it is asked that the defendants be enjoined to remove the wall built by them across the door-way; but we think that relief is inappropriate seeing that in our opinion the defendants as trustees have no rights in respect of that wall or its site: to give this relief would be like granting a mandatory injunction against a trespasser compelling him to come on the land on which he had trespassed to remove an encroachment made thereon by him. We can however enjoin the defendants from closing the doors B, C and D. The relief indicated in paragraph (e) is in our opinion beyond the legitimate scope of the suit. Practically no argument was addressed to us by the Advocate General in support of the relief granted in the lower Court on paragraphs (a) and (e) of the prayer to the plaint and we think the respondents are entitled to their costs of the appeal. The result is that we disallow so much of the decree of the Subordinate Judge as follows directly on the reliefs sought in paragraphs (a) and (e) of the prayer to the plaint and also the injunction granted for the removal of the wall that blocks up the door-way E, F, but in other respects we confirm the decree of the Subordinate Judge with costs as above indicated, so that the respondents will be entitled to their declaration in respect of the blocking up of the door-way E, F and the closing at night of the doors B, C and D, and an injunction against the closing of the doors B, C and D.

* Exhibit 542, paragraph 6, points (a) to (h):

We, the defendants in the above case, beg to state as follows:--

(6) On behalf of the plaintiffs, matters recited herein below in sub-paragraphs have been stated, and along with others they have been considered to be material and witnesses examined on them, and papers presented in respect of them.

(a) The Sacred Fire of Udwada is of the ownership of the nine Sanjan Mobed families of the village, and they have a right to remove it whenever they like.

(b) The building in dispute and much of the costly furniture in it, over which the late Motlibai Saheb has spent lakhs of rupees, as well as the Dareh Meher building of Sir Dinshaji, have been dedicated to the Sacred Fire belonging to them, and therefore those two buildings, together with the furniture therein, have also come into the ownership of those nine families.

(c) The late Motlibai Saheb has given over the new Atash Behram building, together with the costly furniture therein, to the Mobed Anjuman of the village, and, therefore no right of either Motlibai or her Trustees subsists over it, and the trust deed is invalid to that extent.

(d) The Udwada Anjuman has given full authority to the present plaintiffs, and so they have the power to bring this suit.

(e) The door in dispute, which was placed in accordance with the desire of the Anjuman, could not have been closed by persons without authority like as, the defendants.

(f) Great inconvenience is caused to the Mobeds who perform the ceremonies and the persons who come to pay their respects by closing of the door.

(g) Mobeds of the nine families have the right to sell off, whenever they like, articles worth thousands of rupees, placed in the Atash Behram for special use.

(h) The usage is that the Mobeds performing ceremonies in all the Parsi religious buildings in India, have the authority to determine how such buildings are to be used and how are the ceremonies to be performed therein. It does not rest with him who builds the building.

The above and various other minor particulars have been brought in by the plaintiffs in this suit, and they have tried to furnish proofs for the same, but we, defendant, say that these statements of the plaintiffs are entirely wrong, and over and above that some of the Mobeds are thinking of removing the Sacred Fire from the building built by the late Bai Motlibai at the expense of lakhs of rupees. We have got very strong evidence to convince the Court in this behalf, and we, thin king it to be very material, are ready to put it before the Court.