Prakash Krishna, J. - (1.) THIS is defendants' appeal. It arises out of suit No. 180 of 1975 filed against the present appellants claiming perpetual injunction against the defendants permanently restraining them not to interfere with the plaintiffs' right to worship as shebait of Dauji Maharaj situate at Mendu Darwaja Hathras.
(2.) TO understand the controversy the following pedigree is relevant: - Ganga Das | _______________________________ | | Shanti Ram Kewal Ram @ Kewal (died in 1949) Das (died issueless) | (Executed a will dt. 7.11.1944 in | favour of the Defendant No. 1) _____________________________________ | | Lala Ram @ Shyam Sunder Mahesh Chandra (Plaintiff) | Munna (Defendant No. 2) The suit was instituted on the allegation that ancestor Ganga Das, the grand father of the plaintiff and great grand father of the defendant No. 2 established temple of Shri Dauji Maharaj at Mendu Darwaja, Qasba Hathras Smt. Chunia and Smt. Champa, the two ladies dedicated their entire properties to the aforesaid Shri Thakurji and Shri Thakurji became the owner of the dedicated properties. The dedication was made by a registered deed dated 26 February 1918. These ladies Smt. Chunia and Smt. Champa were of the family of Ganga Das and they appointed Shri Ganga Das as the successors as trustee and Sarvarakar of Thakurji. Shri Ganga Das during his lifetime served Thakurji by seva and pooja and managed the properties as Sarvarakar and he was assisted in his old age by Shri Shanti Ram, father of the plaintiff and Kewal Dass, the uncle of the plaintiff. Shri Ganga Das for the management of the trust properties executed a will dated 23.11.1937. The relevant directions of the will have been enumerated in para 4 of the will. It provided that Shanti Dass and Kewal Das will manage the properties alternatively every year and will receive the offerings etc. and perform the religious functions in the temple and will have right to appropriate the offerings of the devotees for their use after meeting the temple's expenditure. Shri Ganga Das died in the year 1941 and Shri Shanti Ram died in 1949 and Shri Kewal Das died on 23rd of June, 1974. The further averment is that after the death of Ganga Das the property was managed by his two sons Shanti Ram and Kewal Das as per the arrangement as laid down by Ganga Das. In para 8 of the plaint it has been pleaded that Kewal Das on 7 of November 1944 executed a will in favour of his sister's son, namely Hari Shanker, defendant No. l, bequesting the shebaitship of the temple with right to do seva and pooja of Thakurji and management of the trust property. The defendant No. l armed with the aforesaid will is trying to interfere with the right of the plaintiff to manage the property and as such the necessity to file the suit arose.
(3.) THE suit was contested by the defendant No. l alone. In para 15 of the written statement it has been pleaded that after the death of Ganga Das the Mandir and its property was managed by his two sons as Shebait and after the death of Shanti Ram, Shri Kewal Das became the shebait. The plaintiff though during the life time of Kewal Das managed the temple for some time but he was not legally authorized to do so and as such the plaintiff not being a shebait is not entitled to maintain the suit. It has been further pleaded that the defendant No. 1 was appointed as Mohatsim of the Mandir and the disputed property by means of will dated 7.11.1944 and there is a custom that Mohatsim during his life time may appoint a person as Mohatsim to look after the property after his death. The defendants No. 3 to 8 illegally are realizing the rent from the tenants and the plaintiff being not heir of Kewal Das and as such is not entitled to maintain the suit. It was further pleaded that if Ganga Das could execute the will, Kewal Das could also execute a will. The plea that Kewal Das adopted the defendant No. l (appellant) according to the Hindu Shastra on Kartik Sudi 15 Wednesday, Sambat 1994 was also raised.;