Nar Hari Sastri and Others v. Shri Badrinath Temple Committee

Division Bench consisting of. Varma C. J. and Mathur J. and, by their judgment dated 22nd Novem-ber, 1946, the learned Judges dismissed the plaintiffs' appeal and allowed the cross objections filed by the defendants. Thus, the decision resulted in a total "'-'""- dismissal of the plaintiffs' suit. It is from this judg-ment that the present appeal has come before us.

It was held by the High Court that the plaintiffs 1952 failed miserably to esta81ish that there was any im-memorial usage in existence under which they were Nar Hari Sastri and Others entitled to accompany the pilgrims, as of right, inside v. the precincts of the temple. It was held also that even Shri Badrinath if any such usage existed, that must be deemed to have Temple been abrogated by the provisions of Shri Badrinath Committee. Temple Act, and reference was made in this con-Mukherjea nection to section 25 (1) (m) of the Act, which em-powers the temple committee tc; frame bye-laws not inconsistent with the provision~ of the: Act for the "maintenance of order inside the temple and regulating the entry of persons therein."

It is to be noted that after the judgment of the trial court was delivered and the appeal came up for hear-ing before the High Court, the Badrinath Temple Committee passed a resolution which was approved of by the Governor of the U.P. State, and was to the following effect:-

"Subject to the provision of bye-laws and any direction given by the committee, the Pandas can accompany their Yajmans within the temple."

This resolution was communicated to the plaintiffs by the 2nd defendant by a letter dated 29th May, 1942, and undoubtedly after passing of this resolu-tion, tht: grievance of the plaintiffs in regard to temple entry disappeared to a large extent. The H1gh Court however, refused to give the plaintiffs a declaration of their right in this respect even in a limited form as, jn its opinion, the plaintiffs could not claim such de-claration as a matter of right. The view taken by the High Court seems to be that it is entirely for the committee to decide, whether the Pandas should be allowed to enter the temple at all, and if so, to what extent and under what conditions.

On the 1other question irdating to ',the right of the plaintiffs to accept gifts made in their favour by the pilgrims within the precincts of the temple, it was held by the High Court that under section 3(b) of the Shri Badrinath Temple Act, such gifts would be-Ji,

come part of the endownment, and the donees would be

1952 incapable of laying any claim to the same. It was, Nar Hari SOstri further, held that bye-law (8) of the Puja Bye-laws

and Others , framed by the temple committee which prevents a

v.

Shri Badrinath person other. than those whose rights have been spec\-

Temple fically recognised by the Committee, from receiving Com111;ttcc; any gifts within the precincts of the temple, was

/. quite a legitimate provision the making of which was Muk_herjea

within the rule-making authority of the committee of management. It was held, therefore, that in view of this rule, the plaintiffs' , claim, in regard to -receiving of gifts within the temple was not maintainable in law.

Mr. Iyengar, appearing in support of the appeal be-fore us, has assailed the propriety of the High Court's decision on both these points.

The first point that requires consideration is whether the plaintiffs can, on the facts admitted and found in this case, claim a declaration of their right to accom-pany the Y ajmans or clients inside the Badrinath temple and assist them in having 'darshan' of the deities and in performing such ceremonies as indi-vidual worshippers may perform. Mr. Dar, who appears on behalf of the respondents, draws our attention to the fact that this right has practically been conceded by the temple cammitJtee in their resolution passed in March, 1942, referred to , already. The learned counsel has very · fairly stated to us that he would have no objection if the plaintiffs are given a declaration of their rights in this respect in some suitable form as might safeguard their interest, without in any way trenching upon the rights of temple committee and thereby obviate all disputes in the future.

It seems to us that the approach of the court below ~o -~ ~SfPect; of the ·case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan' or worship is a right which flows from the nature of the institution itself, 1952 and for the acquisition of such righ~, no custom or im-memorial usage need be asserted or proved. As the N ar H ari Sastri Panda as well as his client are both Hindu wor-and Others shippers, there can be nothing wrong in the one's ac-v. Shri Badrinath companying the other inside the temple and subject Temple to what we will s.tate presently, the fact that the Committee. pilgrim, being a stranger to the spot, takes the assist-ance of the Panda in the matter of 'darshan' or Mukheriea f. worship of the deities or that the Panda gets remun-eration from his client for the services he renders, does.

not in any way affect the legal rights of either of them.

In law, it makes no difference whether one performs the act of worship himself or i,s aided or guided by another in the performance of them. If the Pandas daim any special right which is not enjoyed ordi-narily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.

This right of entry into a public temple is, how-ever, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the 'Holy of Holies' where the deity is actually located. Quite apart from these, it is always com-petent to the temple authorities to make and enforce rules to ensure good order and decency of worship and present overcrowding in a temple. Good conduct or orderly behaviour .is always an obligatory condition of admission into a temple(1), and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye-laws by the temple committee inter alia for maintenance of order inside the temple and regula-ting the entry of persons within it(2).

(') Vide Kalidas fivram v. Gor Pa1·jaram, I.L.R. 15 Born. p. 309;

Thackersay v. Harbhum, I.L.R. 8 Born. p. 432.

(2) Vide Section 25 (1) (rn).

1952 The true position, ·therefore, is that the plaintiffs' N H Sastri right of entering the temple along with their Yajmans.

ar ari is not a precarious or a permissive right depending and Others

v. for its existence upon the arbitrary discretion of the Shri Badrinath temple authorities; it is a legal right in the true

Temple sense of the expression but it can be exercised subject Committee. to the restrictions which the temple committee may Muk,_herjea /. impose in good faith for maintenance of order and

decorum within the temple and for" ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form. We now come to the other point which is the real bone of contention between the parties to this appeal,. and the question for consideration is whether the plaint-· iffs are entitled to a declaration that they have a right to take, within the precincts of the temple, whatever is put into their hands as gifts by their clients at the time of workship. The trial court,. as pointed out above, gave the plaintiffs a quali-fied declaration on this point, though the High Court rejected this claim altogether. Mr. Iyengar has vehemently assailed the propriety of the grounds upon which the decisioi;i of the High Court rests, whereas Mr. Dar has contended inter· alia that the claim of the plaintiffs under this head is wholly untenable in view of the provision of bye-law (8) of the Puja Bye-laws framed by the tem-ple committee. · It may be stated at the outset that as the gift, if any, which a pilgrim might choose to make within the temple precincts is entirely a voluntary act on his part and as he could not be compelled to make a gift either in favour of the Pandas or anybody else, there could, strictly speaking, be no legal right in the plaintiffs t0< receive any gift from his client which can be declared by a court of law. The plaintiffs do accept the posi-tion that the pilgrims are not bound to give anything to the Pandas by way of Daks hiina or sacrificial fee at the conclusion of the ceremonies in the temple ; but what they say is this that if the pilgrims choose tO< make any gift to them, the temple committee could: not, in law, prevent the latter from accepting the same 1952 and treat such gifts as part of the temple property. It is argued that bye-law (8) of the Puja Bye-laws is Nar Hari Sastri-and Others illegal and ultra vires and cannot take away the legal v. right of the donee to the gifted property under the Shri Badrinatk ordinary law which has not been and cannot be affect-Temple ed in any way by the provisioµs of the Sri Badrinath Committee. Temple Act. Muk_herjea I~ A number of respectable witnesses examined on behalf of the plaintiffs do say that when they went on pilgrimage to Badrinath they made gifts to their Pandas inside the temple at the close of the ceremony of darshan and worship. But the evidence taken, even at its face value, does not establish that the prac-tice of making gifts to Pandas within the temple is a general one or that the pilgrims regard it as an indi&- pensable part of the ceremony of worship; many .of the witnesses plainily admit that they do not remem-ber to have made any gifts at a11 within the temple precincts and others say that they paid dakshina or sacrifieial fees to all the Brahmans who were found ---/ inside the temple at that time and not exclusively to

their Pandas. It is also stated that suphal or final blessing is obtained from the Pandas by the pilgrims .

after making presents to them at the place called Tapta Kundu where the hot spring Lies which is outside the temple. Mr. Iyengar has drawn our attention to certain texts from the Kedar Kanda of Skanda Purana which describe the glory of the deity Badrinath, to show that it is a religious duty enjoined by the Hindu scriptures that a worshipper who goes to Badrikasram should make gifts to Brahmans after the diarshan of the idol is obtained and offerings are made to it. An English rendering of the passages relied upon by the learned counsel would read thus:-

"After having bathed in the Ganges, in the Narada Hrada (Kund) and others (Hradas), one (worshipper) shall bathe in the Vahni Tirth (Tapta Kunda) after performing the obligatory duties and with his mind

1952 kept under control, he shall go into the temple of Nar Hari Sastri Badrinath with his mind concentrated on Shri Hari.

and Others He shall make ofl'erings to the . best of his capacity

v. and with utmost devotion. Then he shall look at the .Shri Badrinath All Pervading N arayana from crown to foot, and

Temple HERE make gifts tp Brahmans to the best of his Committee. capacity. Thereafter, he shall do PRADAKSHINA Mukherjea /. (go-round) with the utni.ost devotion. Then he shall

come back to the Tirthas (Vahni Tirtha etc.) and make gifts according to his ,means"(').

It cannot and is not disputed that according to orthodox Hindu ideas, gift to Brahmans is considered as a meritorious act and there are texts, to some of which Mr. Iyengar · drew our attention, which extol the merits of such gifts when made at a sacred place or within a temple or on the banks of a holy river. It may be as Mr. Iyengar suggests that the idea of making gifts within the temple had its origin in the religious texts to which the learned counsel drew our attention. But, the point that requires consideration in the present case is a difl'erent and much narrower one. The question is ·whether under the powers of making bye-laws which are conferred by the Sri Badrinath Temple Act upon ·the managing committee, the latter could niake a rule as they have done, by which all persons other than those whose rights are specifically recognised are disabled from receiving gifts. within the precincts of the temple.

It is perfectly 'true that under the general law, nobody can be prevented froin accepting a gift which another person may be inclined to make in his favour, and it is immaterial in such cases at what i:Jlace the gift is actually made. One has to enquire, therefore, on what grounds the com-mittee can interdict the taking' of any gifts within the temple precincts. The High Court seems to be of opinion-and this view is sought to be sup-ported on behalf of the respondents before us-that the Sri Badrinath Temple ·Act itself has in express (!) Skanda Purana, Kedar Khand, Badri Mahatma, Chapter VI, Verses 46-49.

terms abrogated the rights of the donee in regard to a 1952 gift made to him within the temple and as such gifts Na;n1Ja;j1l:::" come within the definition of "endowment" as given in the Act the temple committee gets a controlling hand v. over them and can make any regulations in relation Shri Badrinath thereto. Reliance lis placed in this connection upon Temple section 3 (b) of the Sri Badrinath Temple Act which Committee. lays down that the expression "endowment" in relation to the Act "means all property moveable or immove-Mukheriea able belonging to or given or endowed for the main-tenance or improvement of, or additions to, or wor-ship in the temple, or for the performance of any service or charity connected therewith and includes the idols installed therein, the premises of the said temple and gifts of property made to anyone within the precincts of the temple." The definition is un-doubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property, a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience, comfort or benefit of the pilgrims.

It is conceded by Mr. Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is a quite in accordance with the existing principles of Hindu law. He con-tends, however, that such gifts could not vest in the donee, as well, in accordance with the definition of "endowment" given in section 3 (b) of the Sri Badri-nath Temple Act. In other words, according to the interpretation which he would like to plit upon sec-tion 3 (b) of the Act, such gifts should be regarded as totally void after the passing of the Act and con-sequently title to the thing given would still remain in the donor even after the gift is made. This does not seem to us to be a sound view to take. If a legis-lation wants to take away the propnetary right which a person acquires under the ordinary law, it must express its intention in clear and unambigu-ous terms. We are unable to spell a)ly such intention out of the language used in section 3(b) of the Sri

1952 Badrinath Temple Act. It may be that the wording of

this sub-section is defective and that there is an appa-Nar Hari Sastri rent conflict between the provision of this sub-section

and Others and that of section 4 of the Act. It is an arguable

v.

Shri Badrinath point whether the expression "gifts of property made

Temple to any one" should not be construed to mean gifts Committee. made to any one for the benefit of the temple or for

/. other purposes as are specified in section 4. But it is Mukherjea

not necessary for our purpose to express any opinion on that point in the present case. All that we desire to say is tl.!at there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him.

But, even if the gifts made within the temple and 'intended for the benefit of the donee personally cannot vest in the temple under section 4 of the Sri Badri-nath Temple Act, the question still remains whether the committee in exercise of their powers to make bye-laws, can frame a rule that no such gifts should be allowed to be made within the temple and whatever gifts the pilgrims might choose to make in favour of any person which is unconnected w'ith offerings to the deity must be made outside the temple precincts.

Section 25 of the Act empowers the committee to make bye-laws not inconsistent with the Act or the rules made thereunder or any other law for a variety of purposes which are enumerated in the different clauses of the section; and clauses ( m) and ( n) run as follows :

(m) The maintenance of order within the temple or inside the temple and regulating the entry of persons therein; and (n) The performance of duties prescribed in sec-tion 23.

Section 23 lays down the duties of. the committee and sub-section (9) prescribes it to be duty of the committee to do all such things as may be incidental and conducive to the efficient management of the .._, temple and endowments and the convenience of the j pilgrims. In our opinion, bye-law (8) of the Puja 1952

Bye-laws referred to above, which forbids the acceptance of the gifts by any person within the Nar Hari Sastri and Others temple, unless he comes within the category of v. person specifically authorised by the committee Shri Badrinath to receive the same, is a perfectly legitimate bye-law Temple which it was quite competent for the committee Committee. to enact under the terms of clauses (m) and (n) of Muk_herjea section 25 referred to above. It will be remembered that the religious duty to make gifts within the temple or at sacred· places which is enjoined on Hindu worshippers by the texts relied upon by Mr. Iyengar has no particular reference to the Pandas who accompany the worshipper. The injunction is to make gifts in favour of Brahmans generally and the Pandas, be-cause they are Brahmans and happen to be available at the spot, naturally become recipients of such gifts.

It is a thing too well known to require mention that in many of the Hindu temples of renown in India, the pilgrims after their worship is finished, or even before that, are literally beseiged by an army of mendicants including many Sadhus or ascetics, the begging Brahmans who abound in all sacred places, and even people who are associated with various duties in the temple itself. The presence of a large number of such persons who certainly do not come inside the temple as worshippers is positively detrimental to the main-tenance of good order, decency and solemnity in the temple and not unoften it is a source of very great annoyance and discomfort to the pilgrims themselves.

It seems to us that one of the objects which the temple committee had in view in framing these bye-laws was to prevent this religious mendicancy showing itself in an unseemly manner witftin the precincts of the temple itself. Bye-law 8 of the Puja Bye-laws referred to above, which prevents taking of a gift by any person within the temple, lays down, further, that the permanent employees of the temple shall not receive or solicit for any remuneration, reward or Dakshina in any form from the pilgrims. ,This pro-hibition is not confined to the temple but extends also

1952 to places outside it. Then again, bye-law i5 specifi-

cally provides that no Sadhu or beggar shall beg or sit Nar Hari Sastri for begging for alms within the temple. We think,

and Others

v. therefore, that for the purpose of preventing over-Shri Badrinath crowding within the temple and to ensure order,

Temple decency and worshipful behaviour on the part of those Committee. who enter into it, the committee was quite justified in Mukherjca /. framing this bye-law which lays down in substance

that whatever gifts a pligrim might be desirous of making and which is unconnected with the offerings to the deity shall be made outside the temple precincts and not inside it. In our opinion, the Pandas do not stand to lose anything by reason of this regulation and their grievance · is more or less a sentimental one. As we have said already, the gift intended for the Pandas can under no circumstances vest in the temple, but a regulation of this character could certain-ly be deemed to be necessary as conducive to efficient management of the temple and endowments, the con-venience of the pilgrims and the maintenance of order and decent behaviour within the temple precincts. We do not see how such bye-law can be said to be, in any way, inconsisteno w1i.th the provisions of the Act. It· is certainly confined to the circumstances · COiiltemplat-ed by the Statute itself and is not repugnant to the general principles of Hindu law which we have refer-red to already. It does not, in our opinion, tiake away the proprietary right of any person which it recognis-ed under ordinary law. Thus, although we cannot agree with the High Court of Allahabad regarding the inter-pretation that it has put upon sections 3 (b) and 4 of the Act, we think that bye-law 8 of the Puja Bye-laws is perfectly valid and is within the ambit of the powers conferred upon the committee by section 25 of the Act.

The appeal is thus allowed only in part. The plaintiffs shall have a declaration that they are entitl-ed to. accompany their Yajmans inside the temple subject tc any bye-law or rule made by the committee in proper.; exercise of their powers under section 25 of the Sri Badrinath Temple Act. The other prayer of 1952 the plaintiffs is rejected. Nar Hari Sastri

As the appeal succeeds in part and as it raised ques-and Others tions of general importance with regard to which v. there were longstanding disputes between the parties, Shri Badrinath Temple· we ... think that the proper order should be to direct Committee. each party to bear his own costs in all the Courts.

The costs of the defendant shall come out of the Mu~berjea 7. temple funds.

Appeal allowed zn part.

Agent for the appellants : . C. P. Lal.

Agent for the respondent : S. S. Sukla.

r· ' GUR NARAIN DAS AND ANOTHER 1952

v. May 16.

GUR TAHAL DAS AND OTHERS

[ SAIYID F AZL Au and VIVIAN Bos.F. JJ.]

Hindu law-Illegitimate son of Sudra-Right to demand partition of separate pr'Jperty of father.

Under Hindu law, though an illegimate son of . a Sudm cannot enforce partition during his father's lifetime, he can enforce partition after his father's death if the father was sepa-nte from hirs collaterals and has ~~ft separate property and legitimate sons.

CIVIL APPELLATE JuRISDICTION : Civil Appeal No.

104 of 1950.

Appeal from a judgment and decree dated the 9th April, 1947, of the High Court of Judicature at Patna (Manohar Lal and Mukherjee JJ.) in First Appeal No. 68 of 1944 arising out of judgment and decree dated the 23rd December, 1943, of the Court of the First Additional Subordinate Judge, Gaya, in Suit No.

4 of 1941.

Gurbachan Singh (Manohar Lal Sachdev, with him) for the appellants.

S. B. Jathar .for the legal representative of respond-ent No. 4.

7-9 S.C. India/71

C1VIL APPELLATE JURISDICTION : Civil Appeal No. 105 of 1951.

On appeal from the judgment and decree dated the 22nd November, 1946, of the High Court of Judi-cature at Allahabad (Verma C.J. and Mathur J.) in First Appeal :t)To. 310 of 1941 arising out of judgment and decree dated the 4th March, 1941, of the Court of the Senior Civil Judge of Pauri, Garhwal, in Original Suit No. 1 of 1934.

K. S. Krishnaswamy Iyengar (R. C. Ghatak and N. C. Sen, with him) for the appellants.

_..,. S. K. Dar (D. D. Unival, with him) for the res-

pondent.

1952 1952. May 9. The Judgment of the Court was

delivered by Nar Hari Sastri

and Others MuKHERJEA J.-The sanctity which orthodox

v;

Shri Badrinath Hindu thought and ;Eeeling attribute to 1visiting of

Temple sacred places is nowhere better illustrated than in the Committee. vast concourse of pilgrims, who are attracted every

uk year, from all parts of India, to the mountain shrines M heriea /. at Badrinath, situated, high up in the Himalayas, in

the District of Garhwal. The place to which the appellation od' 'Puri' is given, contains a number of temples but the principal temple is the one where the idol Badrinath along with some other subsidiary idols is in.tailed. This main temple is divided into three portions or apartments, and to the innermost portion which is considered to be the holiest and where the deities are located, no pilgrim is allowed access. The pilgrims gather in the middle room; they have 'darshan' or look at the diety from this place and there also they make their offerings and perform other . rites of individual worship. The last room is an outer apartment which is used as a sort of waiting place for the worshippers. Outside the temple and at a short distance from it, there is a hot spring known as Tapta Kundu where the worshippers take ceremonial bath before they enter into the temple and to the Tapta Kundu they come back again after the ceremonies are over.

The temple at Badrinath is an ancient institution and is admittedly a public place of worship for the Hindus. The chief priest or ministrant of the temple is known by the name of 'Rawal' who originally looked after both· the spiritual and temporal affairs of the idol subject to certain rights of supervision and control cxercisab'.le by the Tehri Durbar which, however, were not very clearly defined.

It appears that there was a scheme for the manage-ment of the temple framed by the Commissioner of Kumaun division, within whose jurisdiction Badri-nath is situated, some time in the year 1899. Under this scheme, 'Rawal' was to be the sole trustee of the Badrinath temple and its pro-1952 perties, and the entire management was entrusted to him subject to his keeping accounts, which he N ar H ari Sastri had to submit for approval by the Tehri Durbar, and Others v. and making arrangements for the disposal and safe Shri Badrinath custody of cash receipts and other non-perishable Temple valuables. This scheme apparently did not work well Committee. and led to constant friction between the 'Rawal' on the one hand and the Tehri Durbar on the other. This Mukherjea unsatisfactory state of affairs led to public agitation and demand for reforms, and in 1939, the U.P. Legis-lature passed the Sri Badrinath Temple Act, the object of which was to remove the chief defects in the exist-ing system of management. The Act restricts the 'Rawal' to his priestly duties and the secular manage-ment is placed in the hands of a small committee, the members of which are partly elected and partly nominated, powers being reserved to the Government to take steps against the committee itself, if it is found guilty of mismanagement. The Act preserves the traditional control of the Tehri Durbar.

_ The appellants before us, who were the plaintiffs in the trial Court, claim to be Pandas associated with the Badrinath temple. The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all important public places of worship in India. They are not temple pr'iests in the proper sense of the expression and have nothing to do with the regular worship of the idol which is carried on by the Shebayat, the High Priest or the manager as the case may be. Their chief duty consists in acting as guides or escorts of the pilgrims, and taking them to various places of worship acquainting them at the same time with detailed informations regarding the reputed sanctity of each. They look after the comforts of the pilgrims and make arrangements for their boarding and lodging and also act as Tirtha Purohits, in which capacity they assist the pilgrims in the performance • of various acts of individual worship as distinguished from the general worship which is conducted by or on behalf of the temple authorities.

1952 It 1s admitted that there are several classes of

Pandas in Badrinath and the Deoprayagi Pandas to N ar H ari Sastri which category the plaintiffs belong get normally the

and Others

v. charge of all the pilgrims that come from the plains, Shri Badrinath whereas the Pandas of the 'Dimn' class act as

Temple attendants on all hill people. The people coming to Committee. Badrinath from the plains generally follow the pil-

/. grim's route from Hardwar to Badrinath and in Mukheriea this route, at a distance of about 58 miles from

Hardwar, stands the place known as Deoprayag where all the Deoprayagi Pandas reside.

It is in the light of these few introductory facts that we propose to follow the history of this litigation and deal with the points in controversy that it has given rise to.

The suit was commenced by the appellants iJn the Court of the Senior Civil Judge of Garhwal on 16th April, 1934, and the only defendant in the suit, as it was filed originally, was the 'Rawal' who was at that time in entire charge of the Badrinath Institution, both as Trustee and High Priest. The suit was a re-presentative one and purported to be brought on be-half of all the Deoprayagi Pandas and permission of the Court under Order I, rule 8, of the Civil Pro-cedure Code was duly taken. The allegations in the plaint in substance are that the plaintiffs who are a body of Brahman Purohits residing at Deoprayag and also at Badrinath have the right, by immemorial L custom, to act as Pandas and 'Tirtha Purohits' of the pilgrims at Badrinath. ~t is said that in perfor-mance of their duties they meet the pilgrims at Hardwar and conduct them throughout the pilgrim-age to different places of sanctity and finally to Badrinath itself. Besides looking to their creature comforts, they assit the pilgrims, while they stay at • Badrin.ath, in having their ceremonial ablutions in the

'Tapta Kundu' and then conduct them into the pre-cincts of the temple and assist them in having 'darshan' of the idols and making offerings to them. 1952 The plaintiffs aver that because of the support that Nar Hari Sastri they lent to the transfer of the management of the and Others temple from the 'Rawal' to the Tehri Durbar, the v. defendant 'Rawal' was displeased with them and in Shri Badrinath August 1933, wrongfully and without any just cause Temple or excuse, obstructed and threatened to obstruct the Committee. plaintiffs from entering the precincts of the temple Mukheriea along with their Yajmans or clients and unlawfully restrained them from assisting the pilgrims in the usu:ll way at the time of 'darshan' and worship of the deities inside the temple. The reliefs. prayed for in the pliint after it· was amended stand as follows:-

( I) That a declaration be gran~ d .nat the plaint-iffs are 1the Pandas of Badrinath .cmple and that they have a right to personally go into the precincts of the Badrinath temple at all times and on all occasions without obstruction when the said temple is open for doing 'darshan', worship etc.

(2) That the plaintiffs have the right freely to go into the precincts of the said temple with their Yajmans or clients whenever it is open for assisting them in the matter of 'darshan' or worship of God Badrinarayan and other deities and in the matter of making offerings to them.

(3) That the plaintiffs have the right to take within the precincts of the said temple whatever is put into their hands as gift by their clients at the time of worship etc.

( 4) That a perpetual !IlJUnction be issued res-traiBing the defendant 'Rawal' from interfering with the immemorial rights of the plaintiffs.

The defendant, in his written statement, admitted that the Pandas did sometimes accompany rich pil-grims as their guides and receive presents from them for the services they rendered. It was also admitted that the plaintiffs in their individual capacity as Hindus had the right to enter the temple of Badrinath for purposes of worship. It was asserted, however,

6-9 S.C. India/71

1952 that it was neither necessary nor desirable that the

plaintiffs should be allowed to accompany their Yaj-Nar Hari Sastri mans or clients into the temple, as the defendant h'im-

and Others

v. self made adequate arrangements for 'darshan' and Shri Badrinath worship by the pilgrims; and he, as the sole trustee

Temple and manager of the temple, had the right to regulate Commi'ttee. entry into . the temple so that over-crowding might be Muk_herjea /. avoided and order maintained inside it. lt was further

pleaded that the suit of the plaintiffs was barred by res judicata and the law of limitation.

On these pleadings, two issues of a preliminary nature were framed by the Civil Judge, one of them being, whether the plaintiffs' suit was barred by res judicata. This issue was decided against the plaintiff and the Civil Judge dismissed the suit on 18-9-1934 holding that the suit was barred by the rule of res judicata, as an earlier suit brought by five of the Deo-prayagi Pandas and claiming identical reliefs against the 'Rawal' was dismissed by the Commissioner of the Kumaun Division in the year 1896. Against this order of dismissa~, an appeal was taken by the plaint-iffs to the High Court of Allahabad and a Division Bench of the High Court, by its judgment dated 23rd May, 1938, reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits. The case then went back before the Civil Judge and while it was still pending, the .Sri Badri-nath Temple Act was passed. A temple committee being formed in accordance with the provisions of this Act the said committee through its Secretary, was impleaded as Defendant No. 2 in the suit. The com-mittee filed a fresh written sratement in which certain additional grounds were taken. It was contended primarily that the suit as framed, was not maintain-able by reason ·. of the provisions of : Sri Badrinath Temple Act of 1939, whic\l abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee. It was asserted, further, that all gifts made within the precincts of the temple would vest in the temple commi.ittee under section 3(b) of the Act and that the 1952 committee had the absolute right to regulate entry of Nar Hari Sastri. persons inside the temple. and Others

A number of issues were framed after this written v. Shri Badrinath. statement was filed, and on hearing the evidence Temple adduced by the parties, the Civil Judge disposed of Committee. the suit by his judgment dated 4th March, 1941.

The suit was decreed in part and the plaintiffs were Mukheriea f. 'given a declaration in their favour on one of the points in an attenuated and restricted form. Besides certain pleas in bar which were raised by the defend-ants in their written statements and in regard to which the trial judge's decision was in favour of the plaintiffs, the substantial controversy between the parties centred round the two following points :

(1) Whether the Deoprayagi Pandas could accompany their Y ajmans or clients inside the temple and ass~st ·them in the 'd'.arsihan' and worship of the deities?

(2) Whether the Pandas would have the right to accept within. the precincts of the temple whatever was paid by the pilgrims as gifts or presents to them and not to the temple?

As regards the first point, the learned Civil Judge reviewed the entire evidence relating to the practice of admitting the Pandas along with their Yajmans inside the temple, as it obtained from very early times down to the date of the institution of the suit. It appears that in 1892 certain rules were framed by the then 'Rawal'

for regulation •of pilgrims in the Badrinath temple, and ....J.

to these rules the Commis~ioner of Kumaun Division accorded bis sanction on 4th July, 1892. One of these rules, namely Rule (3), expressly laid down that "at the time of 'darshan' by the pilgrims, no other persons and Pandas shall be allowed to go inside the temple along with the pilgrims". On 22nd October, 1894, an appli-cation was filed before the Commissioner of Kumaun Division by some residents of Deoprayag complaining of unjust prohi;bition from entering the temple by the new manager and it was prayed that directions might

1952 be given to the said Manager to desist from encroach-

ing upon the time-l1onoured rights of the Pandas. On Nar Hari Sastri 28th October, 1894, the Commissioner ordered that a

and Others

v. copy of the petition might be sent to the Manager for Shri Badrinath report and in the body of the order he recorded his

Temple opinion that "the duty of the Pandas consists normally Committee. in escorting the pilgrims to the temple precincts. Mukherjea /. Their entering the temple can be permitted when they

did so as pilgrims." The petiti:On was eventually rejected, and on 19th August, 1895, five Deoprayagi Pandas filed a suit in the Court of the Deputy Collec-tor, Garhwal, who was invested with the powers of a Civil Court, praying for a declaration of their right to go inside the temple with their Yajmans which the 'Rawal' was not willing to allow unless· he gave special permission. The trial cqurt allowed the plaintiffs' prayer but, on appeal, the judgment was reversed and the suit was dismissed. This order of dismissal was affirmed on Second Appeal by the Commissfoner of Kumaun Division who had the powers of a High Court in regard to this area, by his order dated 9th March, 1896. This is the earli1er decision on the strength of which the plea of res judicata was taken by the defend-ant._. in the present suit. According to · the learned C1vil Judge, after ·the.rules as mentioned above were framed in 1892 and the judgment of the Commis-- sioner, Kumaun Division, in the Civil Suit was given in 1896, it was the 'Rawa:.1' who decided whether or not he would give permission to any particular Panda to go inside the temple as an escon of his Yajmans and practice was almost uniform on th.is point down to the year 1903. The same practice prevailed, according to .\..... the learned Judge, from 1903 to · 1920. From 1921, however, the practice became lax to a great extent and from the evidence of respectable witnesses examined on . 'behalf of the plaintiffs, the learned Judge was of opinion that in many cases the Pandas ·were able to go ·inside the temple without any let ' or hindrance and without seeking any express. permis-

sion from the 'Rawal'~ A definite challenge to the rights of the Pandas occurred ag~in in. 1933 which led to the institution of the present suit. After reviewing 1952 this eviidence, the learned Civil Judge discussed the provisions of the Shri Badrinath Temple Act bearing Nar Hari Sastri on this point and summed up his conclusions as and Others ... follows:- Shri Badrinath

"In my view under the scheme of the Shri Badrinath Temple Committe~. Act, the Pandas or pilgrims have no absofote right to go inside the temple, regardless of the conditions im-Mukherjea posed by the Committee about entry into the temple, but ordinarily if the entry of the pilgrims or Pandas is in accordance with the rules or bye-laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas, who are entitled as devout Hindus to go inside the temple, and perform worship there, and can assist their Yajmans also. In other words, there is no right of the plaintiffs which has to be recognised, and can be recognised, on the grounds of custom, usage, or otherwise, that they can without any let or hindrance and regardless of the conditions imposed by the Committee, enter the temple with the pilgrims whenever they like. Like other pilgrims, and persons who are all subject to the control of the conditions that may be imposed by the Committee, the Deoprayagi Pandas can also enter the temple, perform worship there, and even help their Yajmans wh01 happen to be inside the temple. To lay down an absolute prohibition against them would not be in accordance w~th the provisions of Shri Badrinath Temple Act, and similarly to recognise.

that they have · an absolute right to enter the temple with the pilgrims, would also nullify a number of .-~'

prov1s10ns in the Shri Badrinath Temple Act. Issue No. 2 rs decided accordingly in the negative, but subject to . recognition of the conditional right of the plaintiffs to accompany tlieir pilgrims and help them in the 'darshan', as mentioned above subject to the control of the Committee."

. In spite of this finding, which is certainly not very definite the Court dismissed in toto - the plaintiffs'

prayer . No. 2 in the plaint, the reason given being tliat 1952 no absolute right as was claimed by the plaintiffs was

established on the footing of a custom or otherwise. N ar H ari Sastri

and Others As regards the other point, the learned Judge was

v. of opinion that although a Panda had no absolute right Shri Badrinath to go inside the temple along with his clients, yet if

Temple the committee or the temple authorities allowed him Committee.

to do so, there was nothing in law or custom which Mukherjea /. could preven,t him from accepting a gift which any

pilgrim might desire to make in his favour. The result was that the learned Judge gave the plaintiffs a decla-ration in the following terms :- "The plaintiffs' suit is decreed for a declaration that they have a right to accept within the precincts of the temple whatever was put into their hands as gifts (Dan or Dakshina or Shankalp) by the pilgrims, for the benefit of the plaintiffs and · not the temple, and to retain such gifts for their personal benefit. ·This right is however subject to the administrative control of the temple committee so far as the maintenance of order and decency and the enforcement of proper behaviour within the temple are concerned. The exercise of this right will further be restricted by any special or general condit10ns imposed by the Committee of management under any bye-law' framedd by hit in a ccordance with the provisions of Shri Ba rinat Temp 1 e Act or any other special law that may hereafter be applicable to the temple."

The rest of the plaintiffs' claim was di,smissed.

Against this judgment, the plaintiffs took an appeal to the High Court of Allahabad. The defendants also preferred cross-objections challenging the propriety of that part of the trial Court's decree which was in favour of the plaintiffs. The appeal was heard by a