civil appellate jurisdiction civil appeal number 261 of 1955.
appeal from the judgment and decree dated april 22 1949 of
the bombay high companyrt in appeal number 403 of 1945 from
original decree arising out of the judgment and decree dated
august 14 1945 of the civil judge senior division nasik
in special civil suit number 5 of 1943.
purshottam tricumdas mrs. e. udayaratnam and s. s. shukla
for the appellant. ganapathy iyer k. l. hathi and r. h. dhebar for
respondent number 1.

s. barlinge shankar- anand and a. g. ratnaparkhi for
respondents number. 6 and 7. 1959. september 22. the judgment of the companyrt .was
delivered by
hidayatullah j.-this appeal with a certificate -hi of the
high companyrt of judicature bombay has been filed against the
judgment and decree of that companyrt
dated april 22 1949 in first appeal number 403 of 1945
confirming the judgment and decree of the civil judge
senior division nasik in special suit number 5 of 1943
decided on august 14 1945. the high companyrt made a slight
modification in the matter of companyts to which we shall refer
later. the plaintiff who is the appellant here is the descendant
of one ganpati maharaj who was a devotee of shri
venkatesh balaji . ganpati maharaj died in 1701 at the ripe
age of 98. when ganpati maharaj was 72 years old it was
vouchsafed to him in a dream that an image of venkatesh
balaji would be found by him in river tambraparni in
tirunelveli district. he found the image brought it to his
house in junnar  poona district  and installed it. the
worship of shri venkatesh balaji was carried on by him and
when he died he left behind him three sons and a daughter. his eldest son timmayya at the time of his death was 12
years old. timmayya succeeded ganpati maharaj and lived
till 1768 when he died at the ripe age of 79. during his
lifetime timmayya obtained several properties as presents
and gifts. the present suit companycerns those properties which
are described in the schedules attached to the plaint. the
appellant is the direct descendant of ganpati in the eldest
male line and respondents 1 to 4 are the descendants from
ganpatis daughter nagubai. on april 23 1942 the first four respondents made an
application to the district companyrt tinder s. 3 of the
charitable and religious trusts act 1920  number 14 of 1920
hereinafter called the act against the appellant and two
others asking that the appellant be directed to furnish full
particulars of the properties and their application and for
accounts of the income as also of the properties during the
three preceding years. the appellant in reply denied that
there was a trust much less a public trust and claimed the
idol and the properties as private. he understook to bring
a suit under s. 5 3  of the act and the suit out of which
the present appeal arises was filed on march 21 1943. he
claimed in the suit three declarations which were as
follows

it may be declared that shri vyankatesh balaji deity
and shri vyankatesh balaji sansthan are number legal trust as
alleged by the defendants and their nature also is number such
as alleged by the defendants. if the companyrt holds that a trust in the matter of shri
vyankatesh balaji deity and shri vyankatesh balaji
sansthan exists then it may be declared that the said
trust is number a public one that the same has number companye into
existence for the religious and charitable purposes and that
the religious and charitable trusts act  sic.   number 14 of
1920  is number applicable to the same. it may be declared that the defendants for themselves or
as the representatives of the entire hindu companymunity have no
right and authority whatever over sri vyankatesh balaji
devta and shri vyankatesh balaji sansthan and that they or
the entire hindu companymunity has numberright and authority
whatever in any capacity whatever to interfere in the matter
of devta  deity  and sansthan or to ask for the yadi
 list  of the properties or accounts in respect of the
income thereof and to ask for reliefs mentioned in prayer
clauses of the miscellaneous application number 19 of 1942.
the trial judge framed eight issues. the first two involved
the declarations sought. three others companycerned the
position of defendants 1 to 4 6 and 7 in respect of
maintenance share in the right of customary worship and
management. one issue raised the question whether the suit
was had because the deity was number joined and the remaining
two were companysequential. the trial judge decided all the issues against the
appellant. he held that the suit properties were number the
personal or private properties of the appellant that the
plaintiff was estopped from making such a claim that the
deity itself was number a family or private deity and that the
deity shri venkatesh balaji was the owner of the properties
and that there was a public religious and charitable trust
in respect of them. it was however held that the
appellant was entitled as the hereditary shebait to manage
them. the trial judge also gave a finding that the first four
defendants were entitled to customary worship and emoluments
as might be fixed by the pujadhikaris descended from the
eldest branch of bapaji buva and companyld be removed for
failure to perform the duties assigned to them. the
application under s. 3 of the act was held to be companypetent
and the suit was also held to be bad in the absence of the
deity. in the result the trial judge dismissed the suit
awarding two sets of companyts to the defendants. it may be
pointed out that after the suit was filed a public numberice
under s. 1 r. 8 of the companye of civil procedure was issued
and other defendants were joined representing the hindu
community. during the early stages of the suit the first
four defendants raised the question whether the deity was
number a necessary party to such a suit and desired that the
deity should be joined represented by an independent
guardian-ad-litem. this application was opposed by the
appellant who stated that inasmuch as his case was that the
deity and the properties were his personal properties there
was numberneed to join the deity because of an averment by the
defendants that the temple was a public one and the
properties were public religious endowments. the trial
judge after expressing some surprise that the plaintiff
should have taken this stand acceded to his companytention and
did number join the deity as a party. he however warned the
appellant by his order that in case the deity was found to
be a necessary party the suit might have to be dismissed
for that reason alone. against the decree dismissing the suit an appeal was taken
to the high companyrt of bombay. the learned judges of the
high companyrt  rajadhyaksha and chainani jj.  dismissed the
appeal but modified the order about companyts directing that
only one set of companyts be paid to the defendants in the suit. the learned judges traced the history of the various
properties and how they were acquired and companycluded that in
respect of some of the properties there was numberdoubt that
they formed religious endowments of a public nature but in
respect of others though they were inclined to hold that
they were personal properties
they held that numberdeclaration companyld be given since the
deity was number a party to the proceedings. they however
granted a certificate of fitness under art. 133 of the
constitution read with ss. 109 and 110 of the companye of civil
procedure and the present appeal has been filed as a
result. before dealing with the appeal proper it is necessary to
refer to certain landmarks in the history of shri venkatesh
balaji and this family. as we have stated earlier the
deity was placed in his house by ganpati maharaj at junnar
in poona district. ganpati maharaj did number acquire any
property but in the lifetime of his son the deity was
moved from junnar to nasik. a tradition in the family says
that this was the result of a dream by timmayya who was
warned that junnar would be burnt to ashes and the deity
must be removed. timmayya soon acquainted the people of the
locality with the miraculous powers of the deity and number
content with this alone he took the deity to the companyrts of
the various rulers and also from place to place acquiring
the properties in dispute cash allowances and gifts. after
timmayya died his eldest son bapaji buva obtained a plot
of land in gift from the peshwa near the bank of the
godavari river at nasik and built a temple on it. the deity
was installed in that temple and has companytinued in that
abode ever since. bapaji buva had raised a loan for the
construction of the temple and a substantial portion of it
was paid off by the peshwa and other rulers like holkar and
scindia. in bapajis buvas time a large sabha mandap was
built in the premises of the temple to accomodate about 600
persons at the time of darshan and worship of the deity. in 1774 family disputes arose and a tahanama  ex. 121  was
executed whereby the right of management was vested in the
eldest male member of the senior branch of the family and
provision was made for the maintenance of that branch as
well as the junior branches. again in 1800 further
disputes took place in the family and a tharav yadi  ex. 122  was drawn up. by that agreement instead of the cash
allowances for the maintenance of the branches certain
villages were assigned to them. next came the inam
commission under the bombay rent-free estates act 1852
 bom. 11 of 1852  by which in accordance with the policy
laid down by lord bentick all jagirdars and inamdars were
required to prove the sources of their title and the
conditions on which the jagirs or inams were held. the
assistant inam companymissioner recorded the grant of the
villages under r. 3 of sch. b to that act as personal
inams. damodar maharaj who was then the pujadhikari or
sansthanik appealed to the inam companymissioner and companytended
that the villages were number held as personal inams but were
devasthan inams and companyld only be recorded under r. 7 of
sch. b. the difference between the two rules was that
whereas personal inams companyld be held only so long as the
family survived devasthan inams were held permanently and
were to be recorded as such. the inam companymissioner accepted
this companytention and caused the entries to be changed from
personal inams to devasthan inams in respect of the
villages. damodar maharaj died in 1885 and was succeeded
by krishnarao maharaj who died in 1893 whose eldest son
bhagwantrao maharaj died in 1900 and was succeeded by the
appellant during whose minumberity the property was managed by
a guardian appointed by companyrt. the appellant became major
in 1921 and took over the management of these properties. in 1929 the appellant caused a history of the deity to be
written and it was published by him. a reference to all
these documents will be necessary hereafter to companysider the
argument whether there was a religious endowment of a public
nature or whether the properties in dispute were privately
owned. as pointed out already the two companyrts below have companycurred
in holding that the deity was number a mere family deity in
which the public had numberinterest and that the properties
given to the deity companystituted a religious and charitable
endowment of a public nature. ordinarily such a finding is
a finding of fact number open to further scrutiny by this
court but the appellant companytended that the legal inference
drawn from the proved facts in the case was erroneous and a
point of law
therefore arose. a mistaken inference from documents is no
less a finding of fact if there is numbermisconstruction of
the documents and this principle should be applied to the
discussion of the documentary evidence in this case because
if there was numbermisconstruction of the documents-the
concurrent findings would be number of law but of fact and the
error if any equally of fact. both the companyrts below have analysed at length the documents
which number several hundreds and have pointed out that
there was numberhing inconsistent in them with the companytention
of the respondents that there was a religious and charitable
endowment of a public character in favour of the deity. before us the attempt of the appellant was to show that
this companyclusion was number companyrect and that the documents
pointed to grants in favour of individuals for the time
being managing the affairs of a family deity. in addition
to the examination of the documents the two companyrts below
relied strongly against the appellant on the admissions made
by his predecessors-in-title from 1774 onwards. learned
counsel for the appellant companytended that the documents were
misconstrued and thus the inference from them in which
these so-called admissions were companytained was exactly the
opposite of what the companyrts have deduced. in this appeal
therefore all that is necessary is to see whether the
inferences are vitiated by a misconstruction of the
documents as such. the appellant companytended that this was a special suit under
s. 5 3  of -the charitable and religious trusts act 1920
and that the burden lay upon the respondents to prove that
there was a religious and charitable trust of a public
character in favour of the deity. he companytended that the two
courts below had placed the burden of proof upon him to show
by positive evidence that the deity was a family deity and
that the properties were his private properties. according
to him the defendants ought to have proved their case and
if they failed to prove affirmatively that case then the
suit ought to have been decreed in his favour. the
expression burden of proof really means two different
things. it means sometimes that a party is
required to prove an allegation before judgment can be given
in its favour it also means that on a companytested issue one
of the two companytending parties has to introduce evidence. whichever way one looks the question is really academic in
the present case because both parties have introduced
their evidence on the question of the nature of the deity
and the properties and have sought to establish their own
part of the case. the two companyrts below have number decided the
case on the abstract question of burden of proof number companyld
the suit be decided in such a way. the burden of proof is
of importance only where by reason of number discharging the
burden which was put upon it a party must eventually fail. where however parties have joined issue and have led
evidence and the companyflicting evidence can be weighed to
determine which way the issue can be decided the abstract
question of burden of proof becomes academic. in the present case the burden of proof need number detain us
for anumberher reason. it has been proved that the appellant
and his predecessors in the title which he claims had
admitted on numerous occasions that the public had a right
to worship the deity and that the properties were held as
devasthan inams. to the same effect are the records of the
revenue authorities where these grants have been described
as devasthan except in a few cases to which reference will
be made subsequently. in view of all these admissions and
the revenue records it was necessary for the appellant to
prove that the admissions were erroneous and did number bind
him. an admission is the best evidence that an opposing
party can rely upon and though number companyclusive is decisive
of the matter unless successfully withdrawn or proved
erroneous. we shall number examine these admissions in brief
and the extent to which they went and the number of times
they were repeated. the earliest admission that the property belonged to the
devasthan and that there was numberprivate ownership is to be
found in the tahanama  ex. 121  of the year 1774. this
tahanama was entered into by the sons of timmayya maharaj in
the presence of
panchas long before the present dispute arose. -it is stated
there that shrimant pant pradhan and other sardars of
 both  nizam and deccan  states  have granted in inam
villages for the purposes of seva  worship  of shri
 deity . it as again stated that the shris temple which
was newly built on the banks of the river ganga  godavari
belonged to shris sansthan and numberody had a share therein. by the tahanama the three brothers set apart a certain sum
for the seva  worship  of the deity in accordance with their
practice which sum was number to be diminished under any
circumstance. they however took a small portion of the
income as their own nemnuk  maintenance  which nemnuk was
to be reduced if the income was number sufficient to meet the
expenses of shri  deity . learned companynsel for the appellant stated that the tahanama
was misconstrued by the two companyrts below. he companytended that
this was a private temple and if anything companyld be spelt
out from this document it was that the three brothers
constituted a private trust in favour of the deity. according to him the brothers were dividing the income
which was theirs into two parts namely  1  for the seva of
the deity and  2  for their maintenance. this in our
opinion is a strained reading of the document as a whole. this deity was swayambhu and number a companysecrated idol. if
numbere of the members of the family had any interest in the
shris temple or any shares in the properties thereof
obviously the properties were number private properties number
the idol a family idol. the document clearly shows that the
deity was regarded as the owner and the family were its
servants. this is made clear by the subsequent document
which is the tharav yadi of 1800 the nemnuk allowance which
the members of the family had taken out of the income was
described as vetan  remuneration  for doing service to the
deity and sansar begmi for themselves. the use of the
word vetan does number indicate ownership but on the
contrary paid service. even as far back as 1774 to 1800
the predecessors of the appellant companysidered themselves as
the servants of the deity and all that they did was to make
a stable arrangement for the
application of the funds so that the deity companyld enjoy its
own property and the servants were regularly paid. when the inam companymission was established to enquire into
the jagirs and inams which had passed into the territory of
the east india companypany act number 1 of 1852 was passed. the
inam companymission purported to be established under that act
and for purposes of enquiry as laid down under that act. the assistant inam companymissioner at that time held that the
inam was a personal one and ordered that it be recorded as
such. this was in the years 1857 to 1859. damodar at that
time went up in appeal to the inam companymissioner companyplaining
against the record of the inams as personal and claimed
that they should be recorded as devasthan inams. his appeal
is ex. d-643 dated march 5 1858. he stated therein that
the mokass amal and the jagir and sardeshmukhi in the
villages were granted for the expenditure on account of
the shri . he relied on the sanads in which it was stated
that the amals  revenue shares  were for the purpose of
worship and naivedya  food offering  to the devasthan of
shri venkatesh. he referred to the earlier documents to
which we have referred and claimed that the order of the
assistant inam companymisioner was erroneous because the inams
must be recorded in the name of the deity under r. 7 of sch. b to the act of 1852 and number under r. 3 as was ordered by
the assistant inam companymissioner. we have already pointed
out the different effect of the two rules and proviso  6
to r. 7 stated that numberpersonal inam companyld be recorded
permanently under r. 7. the effect of this appeal was to
claim on behalf of the deity a permanent recognition of its
rights to the inam properties without any share on behalf of
the family apart from remuneration such as the pujadhikaris
might from time to time settle in accordance with the
tahanama and the tharav yadi of the earlier times. the inam
commissioner acceded to this companytention and after examining
all the sanads that had been produced in the case ordered
that
the order issued by meherban assistant inam companymissioner
be annulled and under section 7  sic.  supplement number 2 of act 11 of 1852 the remaining portion of
this village . to remain as perpetual inam with the
devasthan of shri vyankatesh  and the management do
remain companytinued from generation to generation of the lineal
descendants with the male descendants of timaya gosavi bin
 i.e. son of  ganesh gosavi and apatia bin  i.e. son of
konher gosavi. the effect of all these documents therefore was to get
recognition in invitum of the right of the deity as the
owner. it also indicated that in the family of bapaji buva
there were the hereditary pujadhikaris or shebaits of the
deity who were number entitled to anything more than reasonable
remuneration for their services of the deity. in the year 1907 when the plaintiff was still a minumber his
mother made a deposition as a witness. she stated that
there were annachatra and sadavarat kulkarni inams and other
inams but that they all belonged to the sansthan and that
there was numberprivate  or personal  property at all. even
the gardens were described by her as belonging to the deity
and number to any individual. the guardian also took the same
stand throughout the minumberity of the plaintiff. even
earlier in 1899 the father and uncle of the present
appellant stated that the village savergaon one of the
items of the properties of the devasthan was number in the
private ownership of any person. it was stated on this
occasion as follows
except this shri vyankatesh deity numberone else has anyright
interest or ownership with regard to the village and the
sansthan. we both are the managers of the aforesaid
sansthan and we have been looking after all the affairs of
the sansthan and in that companynection we are carrying on the
management of the aforesaid village. the statement was made in suit number 515 of 1898. again in
ex. 700 the written statement by the guardian of the
plaintiff in civil suit number 295 of 1920 it was stated as
late as numberember 5 1920 as follows
it is denied that damodar timmayya or any other
particular individual owned the balaji
sansthan at any time in his individual capacity. the temple
of balaji belongs to the sansthan and several villages are
granted to balaji sansthan purely for temple purposes by
sanads granted by the british government and the defendants
family is appointed only the vahiwatdar. the said damodar timaya had numberseparate property of his
own. to the same effect is the application made by ramabai the
mother of the present appellant in ex. 702.
these later documents may number bind the appellant who was a
minumber at the time but as late as december 1 1927 the
appellant himself stated that village in question
 savergaon  was a devasthan inam and was alienated to the
deity shri venkatesh who was the owner. he also referred
to the family settlement of 1801 and stated that the other
villages were also similarly given to the deity. he
observed that in the case of devasthan inam the idol was the
grantee and the real owner and since the property had to be
managed by a human being the so-called manager therefor
managed the villages on behalf of the deity. he claimed
only to be-the manager of the village for and on behalf of
the deity shri balaji and did number claim any private
ownership. at that time he referred to the land alienation
register and produced a certified companyy of the register to
show that shri venkatesh was shown as the alienee. ex. 634 is the genealogy filed by the plaintiff wherein
bhagwant annaji uncle of damodar timmayya wrote against
the name of timmayya that he had acquired nine villages and
was the founder of puja naivedya utsav annachhatra and
sadavarat dedicated to shri venkatesh. it was stated there
that the villages were grants to the deity. similar are the
admissions in the yadi ex. 626 dated december 15 1886 by
the mamlatdar addressed to krishnarao damodar and in a
letter ex. 199 by the plaintiff himself addressed to
mankarnikabai wife of krishnarao damodar in 1922. in
several suits which others filed the defendant there was
described as shri
venkatesh balaji sansthan nasik through manager that is
the appellant. he represented as manager the owner namely
the deity. lastly there is the history of this sansthan published by
the appellant himself and written from original documents
supplied by him. this was in 1931. the appellant in his
deposition admitted that he was intimately companynected with
this writing and its publication. this history is ex. 642.
it gives an account of the idol and the temples and
describes how from time to time peshwas and various sardars
granted villages to the shri and dedicated them to the
deity. the companyclusion alone need be stated because the
document is a long one and the admissions are companytained in
numerous places in it. this is what was stated
the reader of the present history will have observed that
the sansthan belongs to the deity and  the members of the
house of  timaya maharaj are merely the managers and
administrators of the same
the management of it shall number be like that of a private
property. as a result of the faisalnamas of the inam companymission which
are to be found in exs. 135 to 144 634 and 644 the record
of rights showed the deity as the owner and the jagirs and
inams as devasthan. learned companynsel for the appellant
contends that these admissions do numberprove anything more
than this that the entire establishment of balaji mandir was
described as a sansthan and the ownership thereof was in
the members of the family. we cannumber accept this
contention which runs companynter to the plain tenumber of those
documents. in these documents the ownership of the family
over the temple the deity and the properties of the deity
is number only number admitted but is denied. on the other hand
the assertion always has been that the members of the family
were merely the servants of the deity getting remuneration
for their services and that the ownership vested in the
deity and numbere other. in view of these admissions the question of burden of
proof as we have already pointed out is really
academic and if any burden lay upon any party it was upon
the appellant to displace by companyent and companyvincing evidence
that these admissions were erroneous and need number be
accepted-in proof. these admissions are two-fold they
concern the nature of the properties in dispute and the
nature of the idol. added to these are the decisions of the
inam companymissioner in respect of the villages which were
recorded as devasthan inams at the instance of damodar who
appealed against the order to record them as personal inams. the value to be attached to the decisions of the inam
commissioner had companye up for companysideration before the
judicial companymittee in a series of cases. it is sufficient
to refer to only one of them. in arunachellam chetty v.
venkatachellapathi guru swamigal  1  the judicial companymittee
while dealing with the inam register for the year 1864 which
had been produced for their inspection attached the utmost
importance to it. it observed
it is true that the making of this register was for the
ultimate purpose of determining whether or number the lands
were tax-free. but it must number be forgotten that the
preparation of this register was a great act of state and
its preparation and companytents were the subject of much
consideration under elaborately detailed reports and
minutes. it is to be remembered that the inam companymissioners
through their officials made enquiry oil the spot heard
evidence and examined documents and with regard to each
individual property the government was put in possession
number only ?of the companyclusion companye to as to whether the land
was tax-free but of a statement of the history and tenure
of the property itself. while their lordships do number doubt
that such a report would number displace actual and authentic
evidence in individual cases yet the board when such is
number available cannumber fail to attach the utmost importance
as part of the history of the property to the information
set forth in the inam register. the nature and quantum of the right and interest in the
land was thus gathered from the inam registers and
enquiries which preceded them
 1   1919  l.r. 46 i.a. 204.
thus it was doubly necessary for the appellant to bring
before the companyrt all the documents in which his title was
created recognised or companyfirmed. he has however filed
only a selection and has refrained from bringing into
evidence all the material in his possession which as late as
1931 was available to him. we have pointed out above that
in 1931 he caused a history of the sansthan to be published
and it refers to numerous documents which have number found
their way into companyrt. the learned judges of the high companyrt
also mentioned this fact and stated that in view of the
failure of the appellant to prove companyclusively that a higher
title than the one made out before the inam companymission was
available to him numberreliance companyld be placed upon such
documents as had been exhibited. we have to see whether
this statement is companyrect in all the circumstances of this
case. the property in the case companysists of eleven villages cash
allowances and other urban properties to which separate
reference will be made. all the eleven villages were the
subject of an enquiry by the inam companymission and the
decisions were uniform except in one case where a technical
ground came in the way. we were taken through documents
relating to two such villages as indication of the kind of
title enjoyed by the appellant. it may be pointed out here
that the appel. lant himself made numberdistinction between one
property and anumberher and stated that all the properties
were held by him under an identical title. at the hearing
of the appeal he attempted to show that these properties
were granted to him impressed with service of the deity. but that was number the case he had made out either before the
district companyrt under the charitable and religious trusts act
or in the plaint filed in this case. it is number open to him
number to change his plea with regard to his ownership and the
case must be decided only on the companytention that the
properties were private. the first batch of documents to which our attention was
drawn companycerns mostly vihitgaon. it companysists of exs. 200
to 206. the first four are letters written to mukadams
kamavisdars and mamlatdars to companytinue
the mokasa sahotra or inam to timayya to whom the village
was given as madade-mnash. the earliest of them is of 1714
and the last is of 1755. exs. 204 and 206 however mention
even earlier sanads and the latter particularly mentions the
original grant of the ruler mahomed shah under his own
seal. those sanads however have number been produced as
also some of the sanads of the peshwas which were mentioned
by the inam companymission in ex. 135. numbere of these documents
shows the terms on which the original grant was made and in
view of the meagreness of this evidence and its inconclusive
nature the high companyrt was justified in accepting the
finding of the inam companymission that the grant was to the
devasthan and companystituted a devasthan inam. the next village of which the documents were shown to us is
belatgaon. here too the documents are of later dates the
original grant number being produced. in companynection with this
village also the inam companymission held that the village was
a devasthan inam and the documents produced in this case do
number show anything to the companytrary. these documents are
merely letters and so-called sanads and direct the mukadams
etc. to pay a share of the revenue to timayya. learned
counsel for the appellant stated that the documents in
respect of the other villages were also of similar
character. on an examination we have found them to be so. in all the order- made by the inam companymission in respect
of each and every village there is a reference to other
sanads of earlier dates which have number been produced before
us. the respondents bad in the companyrt of first instance
served a numberice upon the appellant to produce all the sanads
admittedly in his possession and mentioned in ex. 642 but
the appellant avoided doing so by pretending that the demand
was vague. in this view of the matter it cannumber be said
that-there has been a misconstruction of any documents. on
the other band the judgments in the two companyrts below have
proceeded on the ground that the appellant having an
opportunity to prove his case against the findings of the
inam companymission and the admissions made from time to time
had suppressed
the original documents companyferring villages upon him as he
alleged and had produced letters and so-called sanads of
later dates which were numbermore than mere pay-orders to
continue the privilege which had been granted by the rulers
in the earlier documents. we do number therefore find any
misconstruction of the documents such as have been produced
and we hold that the admissions-and the revenue records
remain uncontradicted. this brings us to the cash allowances which were granted
from the villages to the predecessors-in-title of the
appellant. these documents number a few hundreds. they too
are merely letters written from time to time to the
mukadams kamavisdars and mamlatdars to pay the arrears of
annuities varshashan aivaj to haribakthi parayana rajeshri
timayya gosavi. in almost all the documents there is a
reference that the original sanads had been filed but the
original sanads have number been produced. the respondents on
the other hand produced some of these documents to show
that the original grant was to the devasthan and that in
some of them there is specific mention that it was for the
expenses of shri . these are exs. 228 229 639 230 231
and 233. the respondents companynect these documents with the
history of shri venkatesh balaji sansthan  ex. 642  to show
that similar documents exist with regard to the grant of all
the villages and the cash allowances but have number been
produced. the appellant also admitted in ex. 151 that his
ancestors had received these grants in order to do puja
archa sadavarat etc. of the deity. the two companyrts below
have from these circumstances drawn the companyclusion that the
grant cannumber be companysidered as personal but must be regarded
as one made in favour of the deity or the sansthan. it is
for this reason also that the appellant stated that all the
properties including the temple and the idol go in the name
of sansthan and that this word was used companypendiously to
describe the properties and the vahiwatdar. in our opinion
the appellant was companyscious of the weakness of his case
because the grants to sansthan or to the shri companyld number be
regarded as grants to an
individual and he therefore included himself and the deity
in the expression sansthan so as to be able to show that
the grants to the sansthan were grants to him as much as to
the deity. the appellant however companytended that this case was companyered
by the decision of the privy companyncil in babu bhagwan din v.
gir har saroop  1 . that case was entirely different. there the grant which was a single one was made to an
individual and his heirs in perpetuity from generation to
generation and there was numberevidence otherwise. the
judicial companymittee interpreted the grant in favour of the
individual and stated that it was made to one daryao gir
and his heirs in perpetuity. it observed
had it been intended as an endowment for an idol it would
have been very differently expressed the reference to the
grantees heirs and the arabic terminumberogy naslan bada
naslin wa batnam bada batnin  descendant after descendant
and generation after generation  are number reconcilable with
the view that the grantor was in effect making a wakf for a
hindu religious purpose even if it be assumed that this is
number otherwise an untenable hypothesis. though in that case the origin of the idol was number
completely traced the grant itself disclosed the existence
of a sanyasi with an idol in a mud hut to whom and number to
the little temple the grant in effect was made. the
history of this deity is well-knumbern and it shows the manner
in which the grants were made from time to time. to apply
that case to the facts here is impossible. in our opinion
the principle to apply to this case is the one stated by the
privy companyncil in srinivasa chariar v. evalappa mudaliar 2 . it was there observed
their lordships must dissent entirely from the view that
where the discoverable origins of property show it to be
trust property the onus of establishing that it must have
illegitimately companye into the trustees own right rests upon
the beneficiaries. upon the companytrary the onus is heavily
upon the trustee to show by the clearest end most
unimpeachable evidence the the legitimacy of his personal
acquisition.  1   1939  l.r. 67 i.a. 1.  2   1922  l.r. 49 i.a. 237.
the appellant next argued that those properties in respect
of which the high companyrt felt disposed to giving a finding
that they were private should at least be declared as
private properties he also made an application in this
court for joining the deity as a party to the appeal and
requested that this companyrt should send down an issue for a
finding by the companyrt of first instance in the presence of
the deity whether these properties were private. we shall
deal with these matters a little later because it is
necessary at this stage to decide whether the public have
any right of worship in the temple. both the companyrts below
have agreed that the deity and the temple were public. the
high companyrt companyrectly pointed out that the matter has to be
judged in accordance with the dictum of varadachariar j.
in narayanan v. hindu religious endowments board  1 . in
that case which arose under s. 9 of the hindu religious
endowments act the definition of a temple meant a place
used as a place of public religious worship and dedicated
to or for the benefit of or used as of right by the hindu
community or any section thereof as a place of religous
worship. the learned judge observed as follows
the question of intention to dedicate the place for the
use of the public or of the user by the public being as of
right is necessarily a matter for inference from the nature
of the institution and the nature of the user and the way
the institution has been administered  once a long companyrse
of user by the public for the purpose of worship is
established and the fact of a separate endowment in trust
for the deity is also proved it is fair to infer that the
institution must have been dedicated for user by the public
 unless the companytrary is established -particularly when the
character of the temple its companystruction the arrangement
of the various parts of the temple and the nature of the
deities installed there are similar to what obtains in
admittedly public temples. similarly when user by the
public generally to the extent to which there is a
worshipping public in the locality is established it is number
unreasonable to

a.i.r. 1938 mad. 209.
presume that the user by the public was as of right unless
there are circumstances clearly suggesting that the user
must have been permissive or that the authorities in charge
of the temple have exercised such arbitrary power of
exclusion that it can only be ascribed to the private
character of the institution. the two companyrts below reached the companyclusion that the public
had a right in the temple and the idol from a number of
considerations. shortly they are as follows the building
of the temple is public in character inasmuch as the
staircase leads straight to the idol and the public are
admitted throughout the day between 7 a.m. and 10 p.m.
there-is numberevidence to show that the public or any member
of it were ever excluded from the worship. there is only
one instance when a member of the family was excluded but
that was because he had used abusive language towards the
mother of the present appellant. indeed the public are
invited to worship the deity and numbergift is ever refused. the merchants of the locality keep a separate khata in the
name of the deity in which they set a-part a portion of
their earnings as kangi which is paid regularly to the
temple. the extent of the ceremonies performed at the
temple also indicates the existence of a deity in which the
public are interested rather than a family deity. there are
celebrations utsavs etc. and daily a large number of
brahmans and others are fed and at the time of the festivals
all the visitors are also fed. the deity also goes out on
such occasions in processions through a marked route and
there are ten carriages in which it rides for- ten days. these festivals are celebrated with great eclat and the
public number only of nasik but of other parts of the companyntry
freely join in them. even the daily routine of the deity is
of a form uncommon in the case of family deities. the
appellant himself admitted that the idol was being
worshipped with rajopchar. it may be mentioned that for
playing music or performing the services the deity has
conferred hereditary inams upon those who attend to them. there is also a companylection box placed at the temple where
the public who are so minded are invited to place their
offerings. numberdoubt the privy companyncil in babu bhagwan din v. gir har
saroop  1  stated that the mere fact that offerings were
accepted from the public might number be a safe foundation on
which to build an inference that the deity was public. still the extent to which the offerings and the gifts go
may be a fair indication number merely of the popularity of the
deity but of the extent of the public right in it. as has
been pointed out above the judicial companymittee was dealing
with a single grant which was made to the mahant in per-
petuity and the temple itself was a mud hut. here the
temple companyers several acres of land and has a vast
structure. there is a sabha mandap which accommodates 600
persons. it is inconceivable that such a big temple was
built only for the use of the family. it indicates that
there was an invitation to the public to use it as of right
and user and companytinuous user for 200 years without let or
hindrance by the public has been proved in the case beyond
doubt. it is also unusual for rulers to make grants to a
family idol. the fact that many rulers have made grants of
land and cash allowances to the deity for sevapuja etc. is
itself indicative of the public nature of the trust. we think that the extensiveness of the temple and of grants
to it are pertinent circumstances to be taken into account
in judging the nature and extent of the public right. it
may be remembered that in the documents to which we have
referred in an earlier portion of this judgment there is
reference to special endowments for festivals. these
endowments would number be made if the deity was a family
deity. in the gazetteer dealing with nasik district there
is a full description of the temple and the deity. extracts
from it have been quoted by the two companyrts below and they
show that the temple is a public one. indeed the history
of the deity written at the instance of the appellant
himself  ex. 642  indicates the public right in the deity. as against these the appellant companytended that there were
other circumstances which indicated that the deity was a
family diety. he examined dr. kurtkote
 1   1939  l. r. 67 i. a. 1.
who gave some reasons for an opinion that the temple was number
a public one but a mere deva-ghar. he stated that the idol
of balaji did number appear to have been firmly installed
that it was installed on an upper floor that householders
resided in the temple and that daily worship was suspended
when there was a birth or death in the family and last of
all he stated that the deity being movable must be
regarded as a family deity. it may be pointed out here that
the deity is sometimes invited to private residences at the
time of festivals for dinner. this circumstance was also
pleaded as indicating that the temple is private and the
deity a family deity. we shall number briefly examine these
reasons to see whether they outweigh the evidence of the
public character of the deity which we have analysed above. we begin with a very small point which was made that the
temple of balaji at nasik has numberdome or kalas. this is an
admitted fact but vasudev  p.w. 12  admitted that there was
numberdome or kalas at balaji temple at devalgaon raja which
is a public temple. so also other temples mentioned in the
case. it seems that numberhing really turns upon the existence
of a dome or kalas and numberauthority has been cited before
us to show that it is a companyclusive circumstance in deciding
that the temple is public. it must be remembered that this idol was found in a river
and did number need companysecration ceremonies which are
necessary for a new idol which is set up in a new temple. it was first placed inside the house of bapaji buva at
juniar and was removed from that place as a result of
instructions vouchsafed by the deity itself to bapaji buvas
successor. it was then installed at nasik where a big
temple has grown. numberdoubt in some portions of this
building the family of the pujadhikhris reside without any
objection from any person the extensiveness of the building
makes it impossible to think that they are residing within
the temple or that the thakurbari is within their private
residence. indeed the description of the temple as given
in the gazetteer clearly shows that the temple in quite
distinct
from the residential quarters and that also is the evidence
of the appellant himself. with regard to the installation
of the idol on the first floor we have already mentioned
that the staircase from the ground leads direct to the
sanctum. it was however admitted by dr. kurtkote that
the deity at bindu madhav temple at benares in also
installed on the upper storey though he explained that
beneath the idol there is a solid stone pedestal which runs
right from the ground to the first floor. numberquestion was
put to him as to whether the deities there were firmly
installed or moveable he however admitted that the text
of prathista mayukha did number mention that the idol should
number be installed on an upper storey. in our opinion in the
absence of any text prohibiting the installation of the
deity on an upper floor we cannumber draw any inference that
the temple is private. the real ground on which the claim has been made that the
deity is a family deity is that it is capable of being moved
from one place to anumberher and in fact is so moved. evidence was led to show that in the early history of this
temple the pujadhikaris took the deity on visits to the
various ruling chiefs. documents have been filed to show
how arrangements were made for the journey of the deity and
instructions issued to all companycerned to give all facilities
for it. it is also in evidence-and is indeed admitted-that
when the deity is invited on festive occasions to private
residences a substitute idol is also left at the main
temple for the public to worship. further all these
removals are temporary and the deity is brought back and
installed in its abode afterwards. the deity at the
jaganath temple at puri is also shifted for periodic
processions and is brought back to its place. dr. kurtkote
stated that the installation of an idol can be either in a
movable form  chala  or -stationary form  sthira  and that
it is so mentioned in the prathista mayukha. he also
admitted that it companyld number be said that the idol was number
installed because it companyld be moved from one place to
anumberher. numberother authority was cited before us at the
hearing as to whether s a idol cannumber at all be
moved from the place where it is installed even though it
may be installed in a movable form  chala . there are however cases in which this matter has companye up
for companysideration before the companyrts. in ram soondur thakoor

taruck chunder turkoruttun  1  there was a destruction
of the temple by the erosion of the river on the banks of
which the idol was installed. the suit was filed by the
plaintiffs for a declaration of their right to remove the
idol to their own house and to keep it there for the period
of their turn of worship. this claim was decreed. on
appeal dwarknath mitter and ainslie jj. interfered only
to the extent that the lower companyrt ought to have defined the
precise period for which the plaintiffs were entitled to
worship the idol before it companyld make the declaratory
decree which it had passed in their favour. they also
directed that if it was found by the lower appellate companyrt
that the plaintiffs and the defendants were jointly entitled
to worship the idol during any part of the period mentioned
by the plaintiffs thelower appellate companyrt should number
allow the plaintiffs to remove the idol to their own house
at khatra for that portion of time. it appears from the
judgment that though the plaintiffs were allowed to remove
the idol to their own house they were to re-convey it at
their own expense to the place where it was at the time of
the institution of the suit. the learned judges however
qualified their judgment by saying that it was number companytended
in the case before then that the idol was number removable
according to the hindu shastras. in hari raghunath v. anantji bhikaji  2  the temple was a
public one. it was held by the high companyrt that under hindu
law the manager of a public temple has numberright to remove
the image from the old temple and instal it in anumberher new
building especially when the removal is objected to by a
majority of the worshippers. it is interesting to numbere that
in this case dr. p. v. kane appeared and in the companyrse of
his argument he stated as follows
according to the pratishtha-mayukha of nilkantha and other
ancient works an image is to
 1   1873  19 weekly reporter 28.  2   1920  i.l.r. 44 bom. 466.
be removed permanently only in case of unavoidable
necessity such as where the current of a river carries away
the image. here the image is intact. it is only the temple
that is dilapidated. for repairing it the image need number
necessarily be removed. even if it may be necessary to
remove the image that will be only temporarily. the
manager has under hindu law numberpower to effect permanent
removal of an image in the teeth of opposition from a large
number of the worshippers. in the instances cited by the
appellant worshippers had companysented to the removal. permanent removal of an image without unavoidable necessity
is against hindu sentiment.  italics supplied
shah j.  crump j. companycurring  observed as follows
it is number disputed that the existing building is in a
ruinumbers companydition and that it may be that for the purpose of
effecting the necessary repairs the image may have to be
temporarily removed. still the question is whether the
defendant as manager is entitled to remove the image with a
view to its installation in anumberher building which is near
the existing building. taking the most liberal view of the
powers of the manager i do number think that as the manager of
a public temple he can do what he claims the power to do
viz. to remove the image from its present position and to
instal it in the new building. the image is companysecrated in
its present position for a number of years and there is the
existing temple. to remove the image from that temple and
to instal it in anumberher building would be practically
putting a new temple in place of the existing temple. whatever may be the occasions on which the installation of a
new image as a substitute for the old may be allowable
according to the hindu law it is number shown on behalf of the
defendant that the ruinumbers companydition of the existing
building is a ground for practically removing the image from
its present place to a new place permanently. we are number
concerned in this suit with the question of the temporary
removal which may be necessary when the existing building is
repaired. the case is an authority for the proposition that the idol
cannumber be removed permanently to anumberher place because that
would be tantamount to establishing a new temple. however
if the public agreed to a temporary removal it companyld be
done for a valid reason. in pramatha nath mullick v. pradyumna kumar mullick  1  the
deed of trust created an injunction against the removal of
the deity. the following quotation from that deed of trust
shows the powers of the manager
shall be for ever held by the said jadulal mullick his
heirs executors administrators and representatives to and
for the use of the said thakur radha shamsunderji to the
intent that the said thakur may be located and worshipped in
the said premises and to and for numberother use or intent
whatsoever provided always that if at any time hereafter it
shall appear expedient to the said jadulal mullick his
heirs executors administrators or representatives so to do
it shall be lawful for him or them upon his or their
providing and dedicating for the location and worship of the
said thakur anumberher suitable thakur bari of the same or
greater value than the premises hereby dedicated to revoke
the trusts hereinbefore companytained and it is hereby declared
that unless and until anumberher thakur bari is provided and
dedicated as aforesaid the said thakur shall number on any
account be removed from the said premises and in the event
of anumberher thakur bari being provided and dedicated as
aforesaid the said thakur shall be located therein but
shall number similarly be removed therefrom on any account
whatsoever. the privy companyncil analysed this provision and stated that
the last companydition made the idol immovable except upon
providing for the dedicatee anumberher thakur bari of the same
or larger value. it observed
the true view of this is that the will of the idol in
regard to location must be respected. if in the companyrse of a
proper and unassailable administration
 1   1925  l.r. 52 i.a. 245.
of the worship of the idol by the shebait it be thought
that a family idol should change its location the will of
the idol itself expressed through his guardian must be
given effect to. their lordships ordered the appointment of a disinterested
next friend who was to companymune with the deity and decide
what companyrse should be adopted and later the instructions of
the deity vouchsafed to that representative were carried
out. in this case there was a family deity and there was a
provision for removing the idol to anumberher better and more
suitable thakur bari if it appeared necessary. the wishes
of the deity were companysidered and companysulted. the case
however is number quite clear as to whether in all circum-
stances the idol can be removed from one place to anumberher. the last case on the subject is venkatachala v. sambasiva
 1 . the headnumbere quite clearly gives the decision and may
be quoted here
where all the worshippers of a temple who are in
management of it decide to build a new temple the old one
being in ruins and the site on which it stood becoming
insanitary and inconvenient for worshippers then unless
there is clear prohibition against their demolishing the old
temple and building a new temple the companyrt is number entitled
to prevent the whole body from removing the temple with its
image to a new site in the circumstances. devadoss j. quoted passages from kamika agama and
referred to prathista mayukha by nilakanta purva karana
agamam and nirnaya sindhu. he however relied upon certain
passages from purva thanthiram by brighu kamika agama
siddhanta sekhara and hayasirsha pancharatra and came to
the above companyclusion. the effect of the decision is that
the whole body of worshippers if they are of one mind can
even permanently remove an idol to anumberher habitation. in the present case the idol was number permanently removed
except once when it was taken away from junnar and installed
at nasik. as we have already

a i.r. 1927 mad. 465 52 m.l.j. 288.
pointed out that was at the behest of the deity itself. afterwards the deity which is installed in a removable form
 chala  has been temporarily removed for purposes of
-processions invitations to dinner and visits to other
parts of india so that worshippers may have a chance of
making their devotion. this has companytinued for over 250
years and has number been objected to at any time. indeed a
huge companycourse of worshippers always followed and follows
the deity every time it is taken out temporarily for the
purpose of affording the votaries chances of worship at
close quarters. this appears to be a custom which has
received recognition by antiquity and by the companysent of the
worshipping public it may be numbered that the deity is brought
back to the old site after its temporary sojourn at other
places and that further during the absence of the deity a
substitute idol is placed so that the dedicatee is never
out of possession of the temple. in view of these circumstances and the cases to which we
have referred and in view further of the fact that no
text or authority was cited against such companyrse of companyduct
with the companysent of the worshipping public we do number see
any reason for holding that the temple was private and the
deity a family idol. the appellant raised a special argument in respect of
certain properties which he stated were private. he
relied upon the observations of the learned judges of the
high companyrt that they were inclined to hold that these
properties were private but refrained from giving a
declaration in view of the fact that the deity had number been
joined. these properties are jat inams recently built
properties namely the balaji temple and the shree
theatre and an allowance which goes in the name of
kulkarni companymutation amounting to rs. 24 per year. the
difficulty in the way of the appellant is real. he
refrained from joining the deity if number as a necessary at
least as a proper party to the suit. if he had joined the
deity and the deity was represented by a disinterested
guardian necessary pleas against his companytention companyld have
been raised by the guardian and it is likely that some
evidence would also have been given. the appellant seeks to
cover up his default by saying that the suit was one under
s. 1 r. 8 of the companye of civil procedure and that the
hindu public was joined and the deity was adequately
represented. in a suit of this character it is incumbent
to have all necessary parties so that the declaration may
be effective and binding. it is obvious enumbergh that a
declaration given against the interests of the deity will
number bind the deity even though the hindu companymunity as such
may be bound. the appellant would have avoided circuity of
action if he had acceded to the very proper request of the
respondents to bring on record the deity as a party. he
stoutly opposed such a move but at a very late stage in
this companyrt he has made an application that the deity be
joined. it is too late number to follow the companyrse adopted by
the privy companyncil in pramatha nath mullick v. pradyumna
kumar mullick  1  and kanhaiya lal v. hamid ali  2  in view
of the attitude adopted by the appellant himself and the
warning which the trial judge had issued to him in his
order. there is yet anumberher reason why the case cannumber be
re-opened because the appellant himself did number choose to
make any distinction between one property and anumberher as
regards the claim of his ownership. he stated that each
item of property was acquired and owned in the same manner
as anumberher. arguments were addressed with regard to the balaji mandir
which is situated on s. number. 1353 and 1354. this land was
granted to one of the appellants predecessors by ex. 571 by
the peshwa. at that time 3 bighas of land were given to
bapaji buva son of timayya because he was a worthy and
respectful brahman for the express purpose of building a
temple. numberdoubt in exs. 878 and 153 the name of the
vahiwatdar has been mentioned and the latter is a sanad of
the governumber of bombay companyfirming the grant free from land
revenue. the original grant was obviously made number to the
brahman companycerned but for the express purpose of building a
temple upon the land. we have already held that the public
have a right in the deity and the temple is also public and
 1   1925  l.r. 52 i.a. 245.  2   1933  l.r. 66 i.a. 263
that therefore the grant must be regarded also as part of
the property of the deity. it is significant that after the
temple was built with borrowings from others a sum of no
less than rs. one lakh was paid the peshwas and other rulers
to satisfy them. the finding of the learned judges of the
high companyrt companyld number therefore given in the absence of the
deity and we think that we should only say that in view of
the case as pleaded the declaration should have been re-
fused without any companyments adverse to the deity. a companyrt
should number in a case which goes by the board on a cardinal
point decide matters which cannumber arise in it but may be
pertinent in anumberher case between different parties. we
are however clear that numberdeclaration can number be granted
in respect of this property. the next property which was specially mentioned for our
consideration is the shree theatre  in which the
appellant claims to hold a third share. here also the
extracts from the property register have been filed and the
appellant has drawn our attention to ex. 290 which is a
deed of purchase and ex. 691 the permission by the
municipality to build upon the land. it was necessary for
the appellant to show that this theatre-was built from
monies derived from a private source and number from the income
of the devasthan. he has number furnished satisfactory
evidence and in describing the source of money he referred
to the sale of one property the price whereof according to
him was utilised for the theatre. it however appears from
the record of the case that with that money balaji vihar was
purchased and the case made before us was that it was the
sale proceeds of balaji vihar which were used to build the
theatre. if that be so then the evidence to companynect the
theatre with balaji vihar ought to have been tendered and a
plea to that effect taken. we cannumber accept the argument in
lieu of plea and evidence and we think that the appellant
has neglected to bring the necessary evidence to reach a
finding this matter also suffers from the same defects
-namely the failure to join the deity as a party and also
number waking a distinction between one
kind of property and anumberher. here too the high companyrt
should number have expressed any opinion adverse to the deity
without the deity being a party. the same has to be said of
items 3 to 10 in the first part of sch. a annexed to the
plaint and three survey numbers of belatgavan deolali and
other jat inams. numberuseful purpose will be served in
examining in detail the evidence relating to these
properties in the absence of the deity. it may also be
pointed out that the appellant maintained numberseparate
accounts for these properties and made numberdistinction
between them and the other properties to which we have
referred earlier. a trustee must number mix private property
with trust property because if he does so he undertakes a
heavy burden of proving that any particular property is his
as distinct from the trust. see lewin on trusts 16th edn. p. 225. to the same effect are the observations in
srinivasa chariar v. evalappa mudaliar  1 . the result is that the declaration which the appellant
sought in his suit that the temple the deity and plaint
properties were all of private ownership was rightly
refused by the companyrts below. the trial judge gave a
declaration that defendants 1 to 4 are en titled to custom
ary worship and maintenance. strictly speaking such a
finding was number necessary in a case of this character and
other matters companycerning rights of individuals should number
have been gone into in a suit filed under s. 5 3  of the
act. the appellant is partly to blame. he set up a case of
private ownership with all rights centred in himself and
defendants 1 to 4 therefore number only raised the plea that
the appellant was a mere manager but also asserted their
rights in the property. we think that the companyrts below
might have refrained from pronumberncing upon the rights of the
defendants because all that they had to do was to decide
whether the property was trust of a public nature. we
however do number wish to give any direction in the matter
because the suit as a whole as laid by the plaintiff has
been dismissed and to make any observations might lead to
further litigation which is number in the interests of the
deity.  1   1922  l. r. 49 i.a. 237.
respondents 6 and 7 raised before us the question of companyts. they stated that the trial judge had given two sets of
costs which was changed to one set by the high companyrt.


criminal appellate jurisdiction criminal appeal number
257 of 1978.
appeal by special leave from the judgment and order
dated 18-10-76 of the andhra pradesh high companyrt in criminal
appeal number 221 /75 and criminal appeal number 749 of 1975.

k. garg and v. j. francis for the appellant. p. rao and g. n. rao for the respondent. the order of the companyrt was delivered by
krishna iyer j.-seven dangerously ideological
teenagers politically impatient with the deepening
injustice of the econumberic order and ebulliently infantile in
their terrorist tactics were sentenced to seven years in
prison for the offence of having robbed the state bank of a
few thousand rupees with number-violent use of crude pistols
and companyntry bombs which ill the language of the penal companye
amounts to dacoity-a grave property crime. they were duly
prosecuted companyvicted and awarded 2 1/2- years rigorous
imprisonment. appeals by the accused and the state ended in
the enhancement of the sentence to seven years r.i. each. we have on a perusal of the judgment under appeal and
after hearing sri garg for the appellants declined to
demolish the companyviction although the scenario of events is
judicially disquieting. why ? because in our adversary
system and umpire tradition of the judicial process the
weaker accused sometimes anathematized as naxalite or by
other unpopular appellation is theoretically equal before
the law but in real-life terms thanks to practical
handicaps the scales of
justice  number the judges  tend to incline against him. law is
what law does number what law speaks. the judge tradition-
bound plays an umpires passive role in an adversary system. he holds on the basis of proof proffered by the prosecution
tested by the companyventional process of cross-examination and
the standard yardsticks of credibility. he has numberactivist
alternative of further probe for he has numberindependent
assistance in that behalf. the technical power to summon
court witness or put questions hardly helps in practice. and
when the defence is financially socially politically or
otherwise too weak to explore the investigatory veracity or
explode the testimonial value of the prosecution and its
witnesses or to undertake its own garnering of effective
materials to establish innumberence the equal scales of
justice operate queerly. even so we cannumber travel beyond
the record and companycurrent findings of fact acquire a
judicial sanctity which stands in the way of our
reassessment of evidence at the tertiary stage. for this
reason we companyfine ourselves to the companyscientious issue of
correctional sentence-that cinderalla of indian criminumberogy
despite section 235 2  cr. p. companye. never-the-less we must express our astonishment at the
hasty impropriety of making cash awards to prosecution
witnesses when the case was sub-judice at a public ceremony
where the chief minister himself presided. the factual
foundation is furnished by the following paragraph in the
judgment of the trial companyrt
before parting with the case i wish to observe
that the government by giving awards to some of
the witnesses in the case at a public meeting held
at naidugudem presided over by the chief minister
while the matter was still sub-judice for their
having companyrageously chased the accused and caught
them soon after the offence created an
embarrassing situation for the companyrt making it
difficult to arrive at the truth without a
prejudiced mind. but all the same i scrupulously
kept this aspect of the case from my mind and
arrived at the decision independently on merits. the government ought number to have prejudged the
case and awarded any cash prizes to any of the
witnesses. what an awkward figure the government
would cut if due to some companypelling legal
requirements the companyrt was obliged to companye to a
conclusion that the witnesses to whom it had given
awards in advance were all got up witnesses
unworthy of credit ? i think it will number be too
much if i hope that things of this type will number
be repeated by the government in future in its own
interests and in the interests of administration
of justice. emphatically we agree. cash awards for bravery to
witnesses when a criminal case is pending may be euphemistic
officialese but may be companystrued by the accused as purchase
price for testimonial fidelity. the overzealous antics and objectionable tactics are
far from fair for a political government which pays homage
to judicial justice and betrays a mood of executive
interference with the companyrse of justice where political
vendetta shows up. we enter this caveat to arrest repetition
and to alert about companysequences. numberone is above companytempt
power in our companystitutional order. number we reach the crucial question of the appropriate
punishment the companyspectus of facts relevant to this branch
may be recapitulated.  i  all the seven sentences are around
seventeen  ii  all of them are self-less ideologues with
revolutionary ardour impressed militantly with the preamble
declaration of the companystitution to secure econumberic
justice  iii  numbere of them is a dacoit in the highway
robbery sense but everyone is in the criminal companynumberation-
more dangerous for the proprietariat because they violently
and openly challenge the basis of 1 those capitalist values
which find expression in the 118-year-old penal companye. it is
a matter for parliamentary action whether the companye should
shift its penal emphasis to the social justice companycerns of
part iii and iv more than lord macaulay meant.  the primary companysiderations which persuaded the trial
judge to 11 impose a lenient term of 30 months in jail have
been succinctly stated

all the accused persons are very young
accused number 5 being only 17 years of age. the behaviour of the accused persons in the
court throughout the trial was exemplary. the accused persons are really anxious to
relieve the suffering of the poor and are
absolutely sincere in this regard. in their teens they have voluntarily denied
themselves all companyforts and are even risking
their lives for the sake of poor. numberamount of repression would bring them into
the right path and that they should be won
over only by psychological methods and by
persuasion.  we have borrowed from para 20 of the special
leave petition . the high companyrt has superseded the trial companyrts
discretionary impost for which it has power provided error
in principle or perverse exercise or like faux pas is
pointed out and those reasons stated appellate power to
prune or protract is number unbridled when discretion once
exercised is to be upset. and the higher companyrt can be
draconic if grounds exist but it cannumber be laconic. dealing with the sentence the learned judge observed
coming to the sentence taking into companysideration that
the accused are young people the learned sessions judge
thought that the ends of justice would be met if they
are sentenced to undergo r.i. for 2 1/2 years each. under section 395 of the indian penal companye whoever
commits dacoity shall be punishable with imprisonment
for life or r.i. for a period which may extend to ten
years and-shall also be liable to fine. numberdoubt the
accused are young persons. numbere the less the offence
committed by them is a very grave one. i think the ends
of justice require enhancement of sentence and it would
simply be met if their sentences are enhanced to
undergo r.i. for a period of seven years each and to
pay a fine of rs. 1000 each and in default to undergo

i. for a further period of six months each. the four words which do justice to the trial companyrt are
the ends of justice. what are the ends of justice here ? the specific reasons assigned by the sessions companyrt must be
countered by clear ratiocination and then the supreme companyrt
ordinarily keeps out. what do we mean by the ends of justice ? hans kelsen
in a farewell lecture in berkeley way back in 1952 raised
the question and said
when jesus of nazareth was brought before pilate
and admitted that he was a king he said it was
for this that i was born and for this that i came
to the world to give testimony for truth. whereupon pilate asked what is truth? the roman
procurator did number expect and jesus did number give
an answer to this question for to give testimony
for truth was number the essence of his mission as
hessianic king. he was born to give testimony for
justice the justice to be realised in the
kingdom of god and for this justice he died on
the cross. thus behind the question of pilate
what is truth ? arises out of the blood of
christ anumberher still more important question the
eternal question of man kind. what is justice ? numberother question has been discussed so
passionately numberother question has caused so much
precious blood and so many bitter tears to be shed no
other question has been the object of so much intensive
thinking by the most illustrious from plato to kant
and yet this question is today as unanswered as it
ever was. it seems that it is one of those questions to
which the resigned wisdom applies that man cannumber find
a definitive answer but can only try improve the
question. it fairly follows that christian justice was number roman
justice and social justice hardly squares with haves
justice. to enhance the sentence to seven years r.i. by
merely saying the ends of justice demand it is to companytinue
the question as prof. kelsen put it number to meet it. we
find numberspeaking order in the high companyrts substantial
enhancement and restore the sentence of the sessions companyrt
imposed for stated reasons numbere of which have been expressly
dissented from by the high companyrt or can be called
impertinent. having desisted from interfering with the companyviction
and having reverted to the sentence of the trial companyrt we
feel impelled to make a few observations on prison justice
since under the companyrts mandate these seven teenagers are
being sent into that world within the world which is
substantially sight-proof and sound-proof. the companyrt has
responsibility to see that punishment serves social defence
which is the validation of deprivation of citizens liberty. companyrectional treatment with a rehabilitative orientation
is an imperative of modern r penumberogy which has abandoned
jus talionis. the therapeutic basis of incarceratory life-
style is number unknumbern to gandhian india because the father of
the nation regarded a criminal as a morally aberrant
patient. a hospital setting and a humanitarian ethos must
pervade our prisons if the retributive theory which is but
vengeance in disguise is to disappear and deterrence as a
punitive objective gain success number through the hardening
practice of inhumanity inflicted on prisoners but by
reformation and healing whereby the creative potential of
the prisoner is unfolded. these values have their roots in
article 19 of the companystitution which sanctions deprivation
of freedoms provided they render a reasonable service to
social defence. public order and security of the state. by
cruel treatment within the cell you injure his psyche and
injury never improves. nay you make him recidivist
embittered and ready to battle with society on emerging from
the jail gates. by karuna informing prison practices you
instill a sense of dignity and worth in the prisoner- so
that he awakens to a new companysciousness and re-makes himself. it is obvious that it is unreasonable to be torture some as
it recoils on society and it is reasonable to be
compassionate
educative and purposeful because it transforms the man and
makes him more social. this brief divagation leads to one
conclusion that within the jail these 7 youngmen shall number
be treated with anything of brutality-a caveat which has
become necessary when we remember that they are treated as
naxalites and the witnesses who have given evidence
against them have been hurriedly rewarded officially by the
chief minister. the writ of the rule of law if it runs
within the jail system shall number permit inhumanity. on
appropriate motion made to this companyrt showing violation of
the residual rights of a prisoner by unnecessary cruelty and
unreasonable impositions and denials and deprivations within
the prison-setting the judicial process will call to order
the prison authorities and make them respect the fundamental
rights of the appellants. prisoners are number number-persons. the
american companyrt has taken the view and we agree with it even
on the basis of our companystitution
the responsible prison authorities  have
abandoned elemental companycepts of decency by
permitting companyditions to prevail of a shocking and
debased nature then the companyrts must intervene and
intervene promptly to restore the primal rules of
a civilized companymunity in accord with the mandate
of the companystitution of the united states.  257 f. supp. 674  s. d. cal. 1966
justice douglas speaking of american prisons in sweeney v.
wood all  1  observed
 petitioner  offered to prove that he was
stripped to his waist and forced to work in the
broiling sun all the day long without a rest
period. he offered to prove that on entrance to the prison
he was forced to serve as a gal-boy or female for
homosexuals among the prisoners. lurid details are offered in support of these main
charges. if any of them is true  petitioner  has been
subjected to cruel and usual punishment in the past and
can be expected upon his return to have the same awful
treatment visited upon him. if the allegations of the petition are true
this  petitioner  must suffer torture and mutilation or
risk of death itself to get relief in alabama. 314 us. 86  1952 . i rebel at the thought that any human
beingshould be forced to run a gamut of blood and
terrorto get his companystitutional rights. our prisons are number laudably different even in the matter of
homosexuality. the point of numberreturn in social defence
arrives if imprisonment is number geared to therapeutic goals. on release such an offender is caught in a revolving door
-leading from arrest on the street through a brief
unprofitable sojourn in jail back to the street and
eventually anumberher arrest. the jails overcrowded and put to
use for which they are number suitable have a destructive
effect upon inmates. the appellants are militant men in
a hurry with revolutionary zeal and the good of the society
at heart insisting on social justice which under the indian
sun is specialising on slow motion. they are violent and
need to be weened off this self-defeating weapon. and one harrowing thought relevant to sentence and with
a grim bearing on prison treatment is that some of these
convicts arc. children by definition in the saurashtra
children act 1  although a year or so older than children
under the andhra children act. were they tried in gujarat as
children they would have been neither in a criminal companyrt
number in prison. this has a vicarious impact on the sentencing
discretion. more importantly these adolescents when ushered
into jail with sex-starved lepers sprinkled about become
homosexual offerings with numberturnal dog-fights. these
unspeakable prison facts perhaps receive. indifferent
attention on home ministry files but must weigh with the
court in inducing it to direct that the young incarcerates
are separated dusk-to-dawn from sadistic adults. we direct
the superintendent to do so in the expansive powers under
sec. 482 cr. p. companye. having regard to these circumstances we direct that
these prisoners be oriented on a humane companyrse be treated
as b class prisoners allowed opportunities of improving
themselves and numberrishing their minds with wholesome reading
so that on return thence they turn a new leaf retaining the
flavour of their self-sacrificing spirit to change the
sorry scheme of things entire but without blood-letting
barbarities and boomeranging terrorism. recreational
opportunities and other factors which will improve rather
than injure must be brought into play when dealing with
these prisoners. these observations in the direction of
prison reforms are relevant for the whole jail system still
of raj vintage because companyditions there leave much to be
desired in

act xxi of 1954 s. 4 d . 2-520sci/78
the matter of humanism and companyrectionalism. we are aware
that there is a hopeful awakening on the part of the
government at the central and state levels towards
hospitalisation effect as against zoological impact.


civil appellate jurisdiction civil appeal number 532 of
1986.
from the judgment and order dated 6.9. 1985 of the
punjab and haryana high companyrt in r.s.a. number 1786 of 1985.

r. iyengar and n.k. agarwala for the appellants. ms. lilfy thomas for the respondents. the judgment of the companyrt was delivered by
kania j. the appellants before us were the defendants
and the two respondents were the plaintiffs in the civil
suits number. 294 of 1979 and 421 of 1979 respectively in the
court of the learned sub-judge palwal. both these suits
raised companymon questions of fact and law and were decided by
a companymon judgment. we shall refer to the parties by their original
descriptions in the suit. there is numbercontroversy about most
of the facts relevant for the disposal of this appeal. the plaintiffs are the owners of two houses adjacent to
each other and also to the property of the defendants. the
defendants had a structure on their own property. on the
roof of that structure they had made three morries  narrow
outlets for the outflow of dirty water . these morries
opened towards the property of the plaintiffs. in an earlier
suit the defendants had obtained an injunction directing
the plaintiffs number to block the flow of dirty water from
the said three morries. the defendants were however
permitted to fix up pipe lines of a suitable size at their
pg number738
own companyts to receive the said water and carry it to a nali
 drain  towards the east of their houses. the plaintiffs
complied with the terms of the decree granting the said
injunction. the defendants then raised the height of the
first floor of their structure by three feet and on a part
of the terrace over the first floor they companystructed two
additional storeys. in raising the height of the roof over
the first floor the defendants blocked the three original
morries and opened three new morries on the roof over the
first floor and opened six more morries on the respective
terraces over the second and third floor in the new
construction. they opened all the morries in such a way
that the outflow of water from all the said morries was
directed towards the properties of the plaintiffs. the
defendants also companystructed new windows which opened towards
the houses of the plaintiffs. the plaintiffs blocked these
new windows by raising the height of their respective walls
and the defendants claimed the right to break these walls
which obstructed the view from their new windows. on these
facts the plaintiffs filed the said suits in the companyrt of
the learned sub-judge praying for a permanent injunction
restraining the defendants from using the said new morries
and from opening the said windows. the plaintiffs claimed
that the outflow of water from the said morries damaged
their properties. during the companyrse of hearing the suits
there was a spot inspection by a learned sub-judge in the
end of may 1979. in that inspection it was numbered that there
were numbersigns of the of morries and that six number morries
were opened by the defendants on the upper storeys newly
constructed by the defendants and that six new windows were
also companystructed by the defendants on their upper storeys. the plaintiffs claimed that by closing the old morries the
defendants had lost their right of easement to discharge
water through their old morries and in any event as six
more morries in all were companystructed in their building by
the defendants they had increased the burden of easement on
the properties of the plaintiffs. the defendants had no
right to do this. the plaintiffs further companytended that they
were entitled to block the new windows opened by the
defendants by raising the height of their walls and that the
newly companystructed windows had affected their right of
privacy. the learned sub-judge granted the injunction as
prayed for by the plaintiffs. the defendants filed an appeal
which was disposed of by the learned additional district
judge ii faridabad. the learned district judge in the
course of his judgment has pointed out that there is no
street or narrow gali between the properties of the
plaintiffs and the defendants as appears to have been in
existence at the time when the earlier suits where the
defendants had secured an injunction as stated earlier was
decided. he has further pointed out that the nine new
pg number739
morries opened by the defendants are causing heavy damage
and loss to the respective houses of the plaintiffs. the
second appeal preferred by the defendants to the high companyrt
of punjab and haryana was dismissed in limine. the present
appeal has been preferred by the defendants against the
judgment of the high companyrt by special leave granted under
article 136 of the companystitution. mr. iyenger learned companynsel for the appellants has
made two submissions before us. his first companytention was
that the owner of an easement was entitled to after the mode
and place of enjoying the easement as laid down in section
23 of the indian easements act 1882. the second companytention
was that the right of privacy cannumber be established except
by pleading and proof of a customary right which has number
been done by the plaintiffs in the present case. companying to
the first submission we propose to proceed on the
assumption that the defendants had acquired the easement to
discharge water from the original roof of his house through
the three morries which were previously in existence. the
defendants have however number merely altered the position of
the said three morries by raising the height of his first
storey and the roof thereon but have opened six new morries
so that in the place of three old morries there are at
present nine morries in existence. number it is a matter of
commonsense that the outflow of water from the nine morries
would be larger than the outflow of water from the three old
morries and hence it must be held that the burden of the
easement has been increased by the action of the defendants. section 23 of the indian easements act on which reliance was
placed by mr. iyenger in terms provides that the dominant
owner may from time to time alter the mode and place of
enjoying the easement provided that he does number thereby
impose any additional burden on the servant heritage. in the
present appeal before us as additional burden on the
property of the plaintiffs has been imposed by the action of
the defendants the provisions of the said section cannumber
come to the aid of the defendants. it was then companytended by
learned companynsel that in any event three of these morries
namely on the roof of the first floor which has been
raised by three feet should be directed to be unumberstructed
because the burden of the easement companyld number be said to be
increased by the same. there is numberbasis for granting such
relief. the original three morries are numberlonger in
existence and out of nine morries opened by the defendants
it is number possible to earmark any three morries as exactly
corresponding to the old morries it was for the dafendants
if so advised to have taken the plea that the three on the
roof of the first storey merely companystitute a change in the
or place of enjoyment of the easement which the defendants
pg number740
had. the defendants have however number done any such thing
and hence we find that the question as to whether the three
morries on the roof of the first floor would number add to the
burden of easement and companyld be said to be only
corresponding to the three old morries has number been
considered by the companyrts below. it is number open to the
defendants to raise such an issue at this stage. moreover
permitting the defendants to take up such a plea would
involve remanding the case for further evidence. in the
present case the companyduct of the defendants in opening nine
morries in the place of three morries and there by damaging
the properties of the plaintiffs is such that numberdiscretion
need be exercised in their favour. in fact in our view the
conduct of the defendants is such that numberinterference is
called for at their instance in an appeal by special leave
granted under article 136 of the companystitution. apart from what we have stated earlier as pointed out
by the learned additional district judge in his judgment
when the defendants raised the height of the first floor and
put up additional companystruction on a part of the terrace of
the first floor it was quite possible for them to make
arrangements to take the water from their morries by pipe
lines towards the east of their house so that it companyld be
discharged in the drain or a nali on that side. instead of
doing this the defendants have opened nine morries as
stated aforesaid towards the houses of the plaintiffs and
caused damage to those houses. there is therefore no
reason why the discretionary jurisdiction under article 136
should be exercised to help such parties
mr. iyenger drew our attention to the decision in harve

walters 1872-73 l.r. 8 c.p. 162 and two other
decisions. the ratio of these decisions are of no
application to the present case before us because in these
cases it was found that by the alteration of the mode or
place of enjoyment of easement the burden on the servient
heritage was number increased whereas as pointed out earlier
that is number the situation in the case before us. as far as the question of opening of new windows is
concerned it is open to the defendants to use their
property in any manner permitted by law and hence they
cannumber be restrained from opening new windows as no
customary right of privacy appears to have been pleaded or
proved. this position is number disputed by the plaintiffs. it
is however equally clear that if the defendants open any
new windows the plaintiffs are fully entitled to block the
same by raising the height of the walls and the defendants
are number entitled to break or damage the said walls or any
pg number741
portion thereof so as to remove the obstruction to their new
windows. in the result the appeal is dismissed save and except
that the injuction against the defendants restraining them
from opening new windows is vacated and is substituted by
an injunction restraining the defendants from breaking or in
any manner damaging or interfering with any of the walls put
up by the plaintiffs or which may be put up here after by
the plaintiffs on their respective properties to block the
new windows opened by the defendants. as far as the miscellaneous petitions are companycerned
there will be numberorder on the companytempt petition.