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PETITIONER: NAR HARI SASTRI AND OTHERS

       Vs.

RESPONDENT: SHRI BADRINATH TEMPLE COMMITTEE.

DATE OF JUDGMENT: 09/05/1952

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID DAS, SUDHI RANJAN

CITATION:  1952 AIR  245            1952 SCR  849  CITATOR INFO :  R          1971 SC2540  (16)  RF         1987 SC2064  (7)

ACT:     Hindu law--Religious Endowments--Right to worship--Right of Pandas to  accompany  worshippers  to temple--Bye-law  of temple  committee to prohibit taking of gifts within  temple precincts --Validity--Badrinath Temple Act, 1939, ss. 3, 4.

HEADNOTE:     The  right of the Deoprayagi Pandas to enter the  Badri- nath Temple along with their Yajmans is not a precarious  or permissive  right depending for its existence on  the  arbi- trary  discretion of the temple authorities; it is  a  legal right  in  the true sense of the expression, but it  can  be exercised only subject to the restrictions which the  temple committee may impose in good faith for maintenance of  order and  decorum within the temple and for ensuring proper  per- formance of customary worship.     There  is  nothing in the Badrinath Temple Act,  1  939, which vests in the temple committee or the idol, gifts  made to  Pandas within the precincts of the temple.  But  bye-law (8)  of  the Puja Bye-laws framed by  the  temple  committee which  forbids the acceptance of gifts by any person  within the  precincts  of  the temple unless he  comes  within  the category of persons specifically authorised by the committee to  receive the same is a valid bye-law, which it was  quite competent  for  the committee to enact under  the  terms  of clauses  (m)  and (n) of sec. 25 of the Act and in  view  of this bye-law the Pandas are not entitled to a declaration by the  Court that they have a right to take, within  the  pre- cincts of the temple, whatever they receive as gifts at  the time of worship.

JUDGMENT: CIVIL  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 Judicature at Allahabad

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(Verma  c.J. and Mathur J.) in First Appeal No. 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 lyengar (R. C. Ghatak and  N.C.  Sen, with him) for the appellants.     S.K. Dar (D. D. Unival, with him) for the respondent. 850     1952 May 9.  The Judgment of the Court was delivered by     MUKHERJEA  J.--The   sanctity   which   orthodox   Hindu thought  and feeling attribute to visiting of sacred  places is nowhere better illustrated than in the vast concourse  of pilgrims,  who are attracted every year, from all  parts  of India, to the mountain shrines at Badrinath, situated,  high up in the Himalayas, in the District of Garhwal.  The  place to  which  the appellation of ’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  installed.  This main temple is divided into three  por- tions  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 deity 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 spirit- ual  and  temporal affairs of the idol  subject  to  certain rights  of supervision and control exercisable by the  Tehri Durbar which, however, were not very clearly defined.     It appears that there was a scheme for the management of the  temple framed by the Commissioner of  Kumaun  Division, within  whose jurisdiction Badrinath is situated, some  time in the year 1899.  Under this scheme, the ’Rawal’ was  to be the  sole 851 trustee  of  the  Badrinath  temple and its properties,  and the  entire management was entrusted to him subject  to  his keeping accounts, which he had to submit for approval by the Tehri  Durbar, and making arrangements for the disposal  and safe  custody  of  cash receipts  and  other  non-perishable valuables. This scheme apparently did not work well and  led to constant friction between the ’Rawal’ on the one hand and the Tehri Durbar on the other. This unsatisfactory state  of affairs led to public agitation and demand for reforms,  and in 1939, the U.P.Legislature passed the Sri Badrinath Temple Act, the object of which was to remove the chief defects  in the existing system of management.  The Act restricts the  ’ Rawal’ to his priestly duties and the secular management  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 commit- tee 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  Badri- nath  temple.   The  Pandas are Brahmans  belonging  to  the

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priestly  class and are found to exist in almost all  impor- tant public places of worship in India. They are not  temple priests  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  var- ious  places  of worship acquainting them at the  same  time with detailed information 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. 852     It is admitted that there are several classes of  Pandas in Badrinath and the Deoprayagi Pandas to which category the plaintiffs  belong get normally the charge of all  the  pil- grims  that come from the plains,  whereas the   Pandas   of the ’Dimri’ class act as attendants on all hill people.  the people coming to Badrinath from the plains generally  follow the  pilgrim’s route from. Hardwar to Badrinath and in  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 in 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 representative one and purported to be brought on behalf  of all the Deoprayagi Pandas, and permission of  the Court under Order I, rule 8, of the Civil Procedure 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 custom, to act as Pandas and ’Tirtha Purohits’ of the pilgrims at Badrinath. It is said that in performance of  their duties they meet the pilgrims at Hardwar and  con- duct  them throughout the pilgrimage to different places  of sanctity and finally to Badrinath itself. Besides looking to their  creature  comforts, they assist the  pilgrims,  while they stay at Badrinath, 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    853 ’darshan’  of  the idols and making offerings to  them.  The plaintiffs  aver that because of the support that they  lent to  the  transfer of the management of the temple  from  the ’Rawal’  to  the  Tehri Durbar, the  defendant  ’Rawal’  was displeased  with them and in   August 1933,  wrongfully  and without any just cause or excuse. obstructed and  threatened to  obstruct the plaintiffs from entering the  precincts  of the temple along with their Yajmans or clients and unlawful- ly restrained them from assisting the pilgrims in the  usual way  at  the time of ’darshan’ and worship  of  the  deities inside  the  temple. The reliefs prayed for  in  the  plaint after it was amended stand as follows :--    (1) That a declaration be granted that the plaintiffs are the Pandas of Badrinath temple and that they have a right to personally go into the precincts of the Badrinath temple  at

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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  dei- ties 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 injunction be issued  restraining 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 pilgrims  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 assert- ed, however, 854 that  it  was  neither  necessary  nor  desirable  that  the plaintiffs should. be allowed to accompany their Yajmans  or clients  into  the  temple, as the  defendant  himself  made adequate   arrangements  for  ’darshan’  and    worship   by the.pilgrims; and he, as the sole trustee and manager of the temple,  had the right to regulate entry into the temple  so that  over-crowding  might be avoided and  order  maintained inside  it.  It was further  pleaded that the  suit  of  the plaintiffs was barred by res judicata and the law of limita- tion.   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  dis- missed  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 Deoprayagi Pandas and claiming  iden- tical  reliefs  against  the ’Rawal’ was  dismissed  by  the Commissioner  of  the  Kumaun Division  in  the  year  1896. Against this order of dismissal, an appeal was taken by  the plaintiffs  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 Badrinath  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 committee filed  a  fresh written  statement in which certain additional grounds  were taken.  It was contended primarily that the suit as  framed, was  not  maintainable by reason of the  provisions  of  Sri Badrinath  Temple Act of 1939, which 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 855 committee under section 3(b) of the Act and that the commit- tee  had  the absolute right to regulate entry  of   persons inside the temple.     A number of issues were framed after this written state- ment  was filed, and on hearing the evidence adduced by  the

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parties,  the Civil Judge disposed of the suit by his  judg- ment   dated 4th March, 1941. The suit was decreed  in  part and the plaintiffs were 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  de- fendants 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  Yajmans or clients inside the temple and assist  them in the ’darshan’ 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 to these rules  the Commissioner of Kumaun Division accorded his 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 application  was  filed before the  Commissioner  of  Kumaun Division  by  some  residents of  Deoprayag  complaining  of unjust  prohibition  from  entering the temple  by  the  new manager and it was prayed that directions might 111 856 be given to the said Manager to desist from encroaching upon the  time-honoured  rights of the Pandas. On   28th  October 1894, the Commissioner ordered that a   copy of the petition might be sent to the Manager. for  report and in the body of the  order he recorded his   opinion that "the duty  of  the Pandas consists normally     in  escorting  the pilgrims  to the  temple  precincts.  Their entering the  temple  can  be permitted when they  did so as pilgrims."  The petition  was eventually rejected, and on 19th August, 1895. five Deopray- agi  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  court 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 Commissioner 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 earlier 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     Civil Judge,   after   the   rules   as   mentioned   above   were framed in 1892 and the judgment of the Commissioner,  Kumaun Division, in the Civil Suit was given       in 1896, it  was the  ’Rawal’  who decided whether or     not he  would  give permission  to any particular Panda to go inside the  temple as  an  escort  of his Yajmans and     practice  was  almost uniform  on this 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

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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  permission  from the  ’Rawal’.  A definite challenge to the    rights of  the Pandas occurred again in 1933 which led 857 to  the  institution of the present suit.   After  reviewing this evidence, the learned Civil Judge discussed the  provi- sions of the Shri Badrinath Temple Act bearing on this point ,and summed up his conclusions as follows: -     "In my view under the scheme of the Shri Badrinath  Act, the  Pandas or pilgrims have no absolute right to go  inside the  temple,  regardless of the conditions  imposed  by  the Committee about entry into the temple, but ordinarily in 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  enti- tled  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  hin- drance  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  who happen  to  be inside the temple. To lay  down  an  absolute prohibition against them would not be in accordance with 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 provisions in the Shri Badrinath Temple Act. Issue No. 2  is decided accordingly in the negative, but subject to recogni- tion of the conditional right of the plaintiffs to accompany their 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 that 858 no  absolute  right  as was claimed by  the  plaintiffs  was established on the footing of a custom or otherwise. As regards the other point, the learned Judge was  of  opin- ion  that  although a Panda had no absolute  right    to  go inside the temple along with his clients, yet if the commit- tee  or the temple authorities allowed him to do  so,  there was  nothing in law or custom which  could prevent 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 declaration 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 conditions imposed by the  Committee  of

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management under any bye-law framed by it in accordance with the  provisions  of Shri Badrinath Temple Act or  any  other special law that may hereafter be applicable to the temple." The  rest  of the plaintiffs’ claim was  dismissed. 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  plain- tiffs.  The appeal was heard by a Division  Bench   consist- ing  of   Varma C.J. and Mathur J. and,  by  their  judgment dated 22nd November, 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 judgment that the present appeal has come before us,   859     It was held by the High Court that the plaintiffs failed miserably  to establish that there was any immemorial  usage in existence under which they were entitled to accompany the pilgrims,  as of right, inside the precincts of the  temple. It  was held also that even if any such usage existed,  that must  be deemed to have been abrogated by the provisions  of Shri  Badrinath Temple Act, and reference was made  in  this connection  to section 25 (1)(m) of the Act, which  empowers the temple committee to frame bye-laws not inconsistent with the  provisions  of the Act for the  "maintenance  of  order inside the temple and regulating the entry of persons there- in."  It  is to be noted that after the judgment of the  trial court  was  delivered  and the appeal came  up  for  hearing 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 resolution, the  grievance of the plaintiffs in regard to temple entry disappeared to a large  extent. The High Court however, refused to  give  the plaintiffs a declaration of their right in this respect even in  a limited form as, in its opinion, the plaintiffs  could not  claim such declaration 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  al- lowed to enter the temple at all, and, if so, to what extent and under what conditions.     On  the  other  question relating 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  Badri- nath Temple Act, such gifts would become part of the  endow- ment,. and the donees would be 860 incapable of laying any claim to the same.  It was  further, held  that bye-law (8) of the Puja Bye-laws  framed  by  the temple  committee  which prevents a      person  other  than those whose rights have been specifically recognised by  the Committee, from receiving any gifts within the precincts  of the  temple, was quite a legitimate provision the making  of which was 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.

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   Mr.Iyengar,  appearing in support of the  appeal  before 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  accompany  the Yajmans  or clients inside the Badrinath temple  and  assist them  in having ’darshan’ of the deities and  in  performing such  ceremonies as individual worshipers 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 committee 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  to this  aspect 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 ha.s 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     861 which  flows from the nature of the institution itself,  and for the acquisition of such rights, no custom or in memorial usage  need be asserted or proved. As the Panda as  well  as his  client  are both     Hindu worshippers.  there  can  be nothing  wrong in  the one’s accompanying the  other  inside the  temple   and subject to what we will  state  presently, the  fact  that the pilgrim, being a stranger to  the  spot, takes the assistance of the Panda in the matter of ’darshan’ or  worship of the deities or that the landa gets  remunera- tion  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 is aided or guided by  another  in  the performance of them.  If the Pandas claim any special  right which  is  not enjoyed ordinarily 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,  however, 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 competent  to the  temple authorities to make and enforce rules to  ensure good  order and decency of worship and prevent  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  regulating  the entry of persons within it(2). (1)  Vide Kalidas Jivram v. Gor Parjaram, I.L.R. 15 Bom.  p. 309;   Thackeray v. Harbhum, I.L.R. 8 Bom. p. 432.

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(2) Vide Section 25 (1)(m). 862 The true position, therefore, is that the plaintiffs’  right of  entering the temple along with their Yajmans   is not  a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities;  it is a legal right in the true sense of the expression but  it can  be  exercised  subject to the  restrictions  which  the temple committee may 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  plaintiffs  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  wor- ship.    The  trial court, as pointed out  above,  gave  the plaintiffs  a qualified  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 decision 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 temple 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 to receive any gift from his  client  which can be declared by a court of  law.   The plaintiffs do accept the position that the pilgrims are  not bound’ to give anything to the Pandas by way of Dakshina  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 863 not, in law, prevent the latter from accepting the same  and treat  such  gifts as part of the temple  property.  It   is argued that bye-law (8) of the Puja Bye-laws is illegal  and ultra  vires  and cannot take away the legal  right  of  the donee to the gifted property under the   ordinary law  which has not been and cannot be affected in any way by the provi- sions of the Sri Badrinath Temple Act.   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  estab- lish that the practice of making gifts to Pandas within  the temple  is a general one or that the pilgrims ,regard it  as an  indispensable part of the ceremony of worship;  many  of the  witnesses  plainly admit that they do not  remember  to have  made any gifts at all within the temple precincts  and others  say that they paid dakshina or sacrificial  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

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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 darshan 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  obliga- tory duties and with his mind 112 864 kept under control, he shall go into the temple of    Badri- nath with his. mind concentrated on Shri Hari. He shall make offerings to the best of his capacity and with utmost  devo- tion.  Then he shall look at the All Pervading Narayana from crown to foot,  and HERE make gifts to Brahmans to the  best of  his capacity.  Thereafter, he shall do PRADAKSHINA  (go- round) with the utmost devotion. Then he shall come back  to the Tirthas (Vahni Tirtha etc.) and make gifts according  to his means"(1).  It cannot and is not disputed that according to  ortho- dox Hindu ideas, gift to Brahmans is considered as a merito- rious 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 considera- tion  in the present case is a different 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 make a rule as they have done, by which all persons other than those  whose rights are specifically recognised are disabled from receiv- ing gifts within the precincts of the temple.      It is perfectly true that under the general law, nobody can be prevented from accepting a gift which another  person may be inclined to make in his favour,  and  it  is  immate- rial   in  such cases at what  place the  gift  is  actually made.   One has to enquire, therefore, on what  grounds  the committee   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 supported on  behalf of the respondents before us--that the Sri Badrinath  Temple Act itself has in express      (1) Skanda purana, Kedar Khand, Badri Mahatma,  Chapter VI, Verses 46-49. 865 terms abrogated the rights of the donee in regard to a  gift made  to  him within the ,temple and as  such  gifts    come within  the definition of ’endowment’ as given in  the  Act, the  temple committee gets a controlling hand over them  and can  make any regulations in relation thereto.  Reliance  is placed  in  this connection upon section a (b)  of  the  Sri Badrinath  Temple  Act which lays down that  the  expression "endowment"  in  relation  to the Act  "means  all  property moveable or immoveable belonging to or given or endowed  for the  maintenance  or  improvement of, or  additions  to,  or worship in the temple, or for the performance of any service or  charity connected therewith and includes the  idols  in- stalled  therein, the premises of the said temple and  gifts

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of  property made to anyone within the precints of the  tem- ple."   The definition is undoubtedly 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   quite  in  accordance  with  the  existing principles  of Hindu law.  He contends, however,  that  such gifts  could not vest in the donee, as well,  in  accordance with  the definition of ’’endowment" given in section a  (b) of the Sri Badrinath Temple Act.  In other words,  according to  the interpretation which he would like to put upon  sec- tion  3  (b) of the Act, such gifts should  be  regarded  as totally  void after the passing of the Act and  consequently 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 legislation wants  to take  away the  proprietary  right which a person  acquires  under  the ordinary  law,  it must express its intention in  clear  and unambiguous terms. We are unable to spell any such intention out of the language used in section 3 (b) of the Sri 866 Badrinath  Temple Act. It may be that the wording of    this sub-section  is  defective  and that there  is  an  apparent conflict between the provision of this sub-section and  that of  section 4 of the Act.  It is an arguable  point  whether the  expression "gifts of property made to any  one"  should not  be  construed  to mean grits made to any  one  for  the benefit of the temple or for other purposes as are specified in  section 4.  But it is not necessary for our  purpose  to express any opinion on that point in the present case.   All that  we desire to say is that 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 intend- ed  for the benefit of the donee personally cannot  vest  in the temple under section 4 04 the Sri Badrinath 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 with 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  sec- tion; 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 there- in; and      (n)  The  performance of duties prescribed  in  section 2:3.      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 867 pilgrims.  In our opinion, bye-law (8) of the Puja  Bye-laws referred   to  above,’ which forbids the  acceptance of  the

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gifts  by  any person within the  temple,  unless  he  comes within  the category  of persons specifically authorised  by the  committee  to receive the same, is a perfectly  legiti- mate bye-law which it was quite competent for the  committee to enact under the terms of clauses (m)and (n)of 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,   because 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 maintenance of  good  order, decency and solemnity in the temple and not unoften it is  a source  of very great annoyance and discomfort to  the  pil- grims  themselves.It  seems to us that one  of  the  objects which  the  temple committee had in view  in  framing  these byelaws was to prevent this religious mendicancy showing  it itself  in  an unseemly manner within 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 remunera- tion,  reward  or Dakshina in any form  from  the  pilgrims. This  prohibition is not confined to the temple but  extends also 868     to  places outside it.  Then again, bye-law 15  specifi- cally provides that no Sadhu or beggar shall beg or sit  for begging  for alms within the temple.  We  think,  therefore, that  for the purpose of preventing overcrowding within  the temple and to ensure order, decency and worshipful behaviour on  the part of those who enter into it, the  committee  was quite  justified in framing this bye-law which lays down  in substance that whatever gifts a pilgrim 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 certainly be deemed  to be  necessary  as conducive to efficient management  of  the temple  and endowments, the convenience 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, inconsistent with the provisions of  the Act.  It is certainly confined to the circumstances  contem- plated  by  the Statute itself and is not repugnant  to  the general  principles of Hindu law which we have  referred  to already. It does not, in our opinion, take away the proprie- tary right of any person which is recognised under  ordinary law.  Thus, although we cannot agree with the High Court  of Allahabad regarding the interpretation that it has put  upon sections 3 (b) and 4 of the Act, we think that bye-law 8  of

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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  plain- tiffs  shall  have a declaration that they are  entitled  to accompany  their  Yajmans inside the temple subject  to  any bye-law or rule made by the committee in proper exercise  of their powers under section 25 of    869 the  Sri  Badrinath  Temple Act.  The other  prayer  of  the plaintiffs is rejected.     As  the appeal succeeds in part and as it  raised  ques- tions of general importance with regard to which there  were longstanding  disputes between the parties,  we  think  that the proper order should be to direct each party to bear  his own  costs  in all the Courts. The costs  of  the  defendant shall come out of the temple funds. Appeal allowed in part. Agent for the appellants: C.P. Lal. Agent for the respondent :S. S. Sukla.