- (1.) THESE three appeals arise out of a suit by Chothmal for the framing of a scheme of management of the temple of Shri Baspujiji Maharaj, situated in Khaniyan, Purana Ghat, Jaipur.
(2.) IT is the admitted case of the parties that the temple was founded by Shri Murli-dhar, and the relationship of the parties will be apparent from the following pedigree- Murlidhar Isar Lal Jagannath Johrilal Gokalchand Chauthmal (Plaintiff) Chhotilal (Dfdt. No. 1) Ladhooram (Died issueless ). Bhuramal Prabhu Dayal (Dfdt. No. 2) Gopal Chand (Dfdt. No. 3) (Dfdt. No. 1) Mst. Champa Devi (Dfdt. No. 4 ). The case of the plaintiff is that the temple was managed by Isar Lal till his death, and thereafter by the various members of the family till Svt. 1986, when Johri Lal died. It was alleged that after the death of Johri Lal, the plaintiff did not get sufficient time to look after the temp!e affairs, and it came to be managed by Chhoti Lal defendant. The plaintiff's allegations were that the other members of the family were not taken into confidence by the said defendant, and the management of the temple was unsatisfactory. It was alleged that the defendant was not producing the accounts for the inspection of the plaintiff and that it was necessary to frame a scheme for the goad management and preservation of the temple property and for the assurance of the rights and privileges of the parties in the management of the temple affairs. Defendant Chhoti Lal by his written statement admitted that the temple had been built and dedicated by Murlidhar, the ancestor of the parties. He denied all the allegations of mis-management, and shows his ever-readiness and willingness to produce the accounts. He stated the plaintiff's indifference as the cause of his taking any part in the management of the temple. He agreed that the right of management of the temple was with all the descendants of Murlidhar. An issue was framed on the allegations as to Mal-administration by the defendant, but before the evidence could be recorded, the parties agreed to settle their differences, and a scheme for the batter management of the temple was submitted by the plaintiff and virtually agreed by the defendant At that stage, Mst, Champa Devi applied to be made a party, and for being given a hand in the management of the temple by virtue of her being the only descendant in the line of the second son of Murlidhar. The defendant Chhoti Lal objected to Champa Devi being included among the trustees on the ground that there was a custom among the Saraogis of Jaipur and elsewhere by which a daughter was excluded from the management of the temple founded by an ancestor of the family. Evidence was recorded. The learned Civil Judge found the issue against the defendant and held Champa Devi entitled to a right in the management of the temple A preliminary decree was passed by the Civil Judge on the 17th of August, 1948, in the following terms - " (1) Chhoti Lal defendant has not got the sole right to manage the property i. e. the temple and Nisiyan situated in purana Ghat and built by Murlidhar himself, but the plaintiffs together with all the other descendants (of Murlidhar) are entitled to a joint management of the temple property. (2) A copy of the scheme already on the file be given to each party and an order thereon will be passed when objections to the some will be presented. (3) A commissioner to examine accounts will be appointed on an application by the plaintiff. (4) A permanent injunction against defendant No. 2 will be issued at the time of passing the final decree. (5) Costs of plaintiff and Champa Devi will be paid by defendant No. 1. " The defendant, Chhoti Lai, filed an appeal aggrieved by the inclusion of Champa Devi among the trustees, as also for being saddled with the costs of the plaintiff. He also objected to the observation of the Civil Judge that an injunction would be issued at the time of the passing the final decree. It may be mentioned that during the course of the proceeding in the trial court all the account-books were placed by the defendant before the court for examination by the plaintiff, and after examination certain object tions were filed in the court. The learned District Judge was of the view that the burden of proof lay on Mst. Champa Devi to prove that there was a custom by which a daughter while succeeding as an heir to the estate of the deceased was entitled to take part in the management of the temple and its property dedicated by an ancestor of the family and in respect whereof the deceased was vested with the right of management as a member of the founder's family. He held that a daughter on marriage ceased to be a member of the founder's family, and was deprived of all rights and obligations that devolved on such family, and, therefore, her claim to be one of the managers of the temple was unsustainable. He also held that the defendant had ever been ready and willing to show accounts, and had welcome the plaintiff to take part in the management of the temple and that the plaintiff had without any just cause dragged the defendant to court. He accordingly held that Champa Devi had no right in the management of the temple property, and that Chhotilal should get the costs of the appeal from the plaintiff, but that the costs of the trial court should be left to be borne by the parties themselves. The plaintiff has filed appeal No. 328 of 1950 against the decree of the District Judge in respect of costs. He claimed that he should be allowed costs against Chhoti Lal defendant in the courts. Champa Devi has come in appeal (Appeal No. 315 of 1950) against that part of the decree of the learned District Judge by which she has been held not to be entitled to take part in the management of the temple. Chhoti Lal, now represented by his sons Kapoorchand and others, filed appeal No. 21 of 195l and claimed that the suit be dismissed He has particularly taken an exception to the order of the trial court that an injunction would be issued latter on. Exception was also taken that the decree of the trial court did not mention the date from which the accounts were to be investigated. He also claimed costs of the trial court against the plaintiff. We may take Champa Devi's appeal first. Under the Hindu Law property can be dedicated to an idol, and while in an ideal sense the dedicated property vests in an idol, the possession and management of it must be entrusted to some person Such person is known by the name of Shebait or manager. In the case of temple property, the Shebait is in the position of a trustee as regards the management of the property. But as regards the duties that appertain to the service of the deity, he is in the position of the holder of an office or dignity. A 'pujari' is different from a Shebait. He is a servant of the Shebait. As long ago as 1889 it was held by their Lordships of the Privy Council in Gossamee Sree Gree-dhareejee vs. Rumanlolljee Gossamee (1) that - "when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has been disposed of it otherwise, or that there has been some usage, course of dealing, or circumstances to show a different mode of devolution. " The conception of Shebait involves both the elements of office and property, as has been recently observed by their Lordships of the Supreme Court in Angurbala vs. Debabrata (2 ). It has been held in Kalipada Chakrabarti vs. Smt. Palani Bala Devi (3) that the Shebait interest is heritable and follows the line of inheritance from the founder. In a more recent case of Mst Raj Kali Kuer vs. Ram Rattan Pandey (Civil Appeal No. 136 of 1953), decided by the Supreme Court on 7th April, 1955, it has been held that a female is not disentitled to succeed to a priestly office, and that the usage of a female succeeding to a priestly office and getting the same performed through a competent deputy is one that has been fairly well recognised. The burden of proof, therefore, lay on the contesting defendant to show that there was a custom in the family or the community to which the parties belonged, by which a female heir was not entitled to take part in the management of a temple, although she was entitled to inheritance in the property of the deceased who was a Shebait of the temple. Learned counsel for the respondent has taken us through the entire evidence, and we have no hesitation in holding that the said defendant has failed to prove the custom set up by him. The custom set up by the defendant in this case was that a female has no right to take part in the management of the temple property, if there were other collaterals in the family. But this custom is only alleged by one witness. D. W. 12, Kanhaiyalal The other witnesses, D. W. 2, Kesar Lal, D W. 3 Ganesh Lal, D. W. 5, Todar Mal, D. W. 6, Jhoomar Lal, D. W. 7, Madan Lal, D. W. 8, Ramchander, D. W. 9, Phoolchand and D. W. 10, Gaindilal expressed their opinion that a female could not act as manager of the property. Phoolchand, D. W. 9. admitted that if it was a case of private temple, it could be managed by a female D. W. 11, Inder Lal purported to say that there was no custom which permitted a female to act as manager. The custom as stated earlier, which was to be proved, was that females were excluded from the management of a temple No other witness was relied upon by the respondent in proof of the above custom. The trial court very rightly observed that the Hindu Law applied to Jains except in those cases where there was a custom contrary to the ordinary rule of Hindu law. The Hindu law applicable to Shebaitship has already been mentioned above, and all that has been produced in support of the custom was the opinion of some witnesses that a female had no right to manage a temple. No specific instances were cited to show exclusion, and in the present state of evidence we agree with the decision of the trial court that it had not been proved that a daughter was not entitled to take part in the management of the temple, while she had inherited the property of her father, who was one of the persons entitled to manage the temple. The appeal of Champa Devi is, therefore, allowed, and she will be one of the Shebaits in any scheme that may be framed by the court. The judgment of the District Judge on this aspect of the case is set aside. It may be mentioned that the learned District Judge not only allowed the appeal of Chhoti Lal on this point, but even directed that the name of Champa Devi should be struck off from the array of the parties. This of course he was not entitled to order in any case, for he could not purport to debar the aggrieved party even to a right of appeal. That order was erroneous, and is set aside. She will get costs of the three courts from Chhoti Lal now represented by his sons Kapoor Chand and others. Next we take the appeal of Chothmal, Appeal No 328 of 1950. Chothmal's claim to costs is untenable. In the plaint he had clearly admitted that the temple was formerly managed by all the members of the family, but thereafter the plaintiff became busy with his trade, and could not look to the temple affairs. In the circumstances the defendant was not at all to blame, if he carried on the management of the temple. It has not been proved that the defendant had at any time prevented the plaintiff from taking part in the management, if he liked to do so. The notices, which were exchanged between the parties, showed that when the plaintiff claimed to look into the accounts, the defendant ex-pressed his readiness to show them, and the only hitch was as to where they should be shown to the plaintiff. The defendant expressed his willingness to show the accounts at his shop, while the plaintiff wanted that they should be shown to him at some natural place. The account-books were produced by the defendant as soon as he was called upon to do so by the court. The plaintiff had made allegations as to the mis-management, but thereafter was quite willing to compromise all his differences with the defendant, and, but for the arrival of Champa Devi on the scene, the parties were quite willing to make out a suitable scheme for the management of the temple to the satisfaction of both parties. In the circumstances, the plaintiff was not entitled to get any costs from the defendant.
(3.) IN respect of the costs directed to be paid by him also, the same considerations will apply. Whatever the differences were between the parties before they came to court, the parties agreed to settle them up. and it was agreed that some sort of scheme should be settled for the management of the temple. The plaintiff's evidence in respect of the allegations as to mis-management was cut short, and it cannot be said whether he would or would not have been able to prove them if the parties had not thought fit to come to an amicable settlement after they had come to court. IN the circumstances, the plaintiff appellant could not be said to be responsible for the litigation, and the lower court's order that he should pay the costs of the defendant is not justified. The appeal of Chothmal is therefore, allowed and the decree of the lower court directing the plaintiff to pay the costs of the defendant is set aside. We make no order as to costs of this appeal. Now we take up the appeal of Chhoti Lal, Appeal No. 21 of 1951, represented by Kapoorchand and others. His grievance is that a date should have been fixed by the court from which he was to render accounts is correct. The plaintiff has stated in his plaint that all the members of the family took part in the management uptil Svt. 1986, and that thereafter the defendant came to manage the property. The accounts will be rendered from Svt. 1986 onwards. The second objection is as to the observation of the trial court that injunction will be issued at the time of the passing of the final decree. That observation was certainly improper, as, it the parties agreed to a settlement, as they seem to have done, barring of course the adjudication of the rights of Champa Devi, no occasion for issuing any injunction could possibly arise. At any rate, the learned trial court could have reserved an expression of opinion until be stage came for passing a final decree. The portion of the preliminary decree that "at the time of final decree permanent injunction will be issued against Chhotilal and his son Prabhu Dayal" is set aside. The third point raised by learned counsel for the defendant appellant in his appeal is that he should have been allowed costs of the trial court, because he was ever ready and willing to permit the plaintiff to take part in the management, and had never denied to him the right to inspect the account-books, and no mis management had been proved. There is no doubt that the plaintiff was never refused any right to take part in the management, and the defendant had also agreed to show the account books, but there was still disagreement as to where the account-books were to be shown, and in what manner the plaintiff could enforce his claim for a right to manage the property. Although the right to manage the property vested in all the descendants of Murlidhar, it virtually came to be exercised by the defendant alone, because the other descendants were probably indifferent to the management. No serious allegations were also proved by the plaintiff, but as stated while dealing with the appeal of Chothmal, the parties agreed to settle their differences by mutual agreement, and in the opinion of this Court this was the right course for the maintenance of the harmony in the family as also for the proper management of the trust property, and, therefore, the defendant could not claim that the plaintiff had entirely misconceived in coming to the court. It could not be expected that in the disagreement that had existed anything could dome out without having any scheme settled by the court. In the circumstances the defendant is also, in our opinion, not entitled to any costs. The appeal of the defendant is dismissed except with respect to the modification in the decree as stated earlier. We make no order as to costs. . ;