# NARAYAN BHAGW ANTRAO GOSA VI f' BALAJIWALE v. GOPAL VINAYAK GOSAVI AND OTHERS

- **Citation:** [1960] 1 S.C.R. 773
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** S. R. Das, S. K. Das, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-bhagw-antrao-gosa-vi-f-balajiwale-v-gopal-vinayak-gosavi-and-others-1827
- **Pages:** 34

## Headnote

Charitable and Religious Trust-Test-Inference drawn from
documents, if and when a question of law-Burden of proof, meaning
of-Admission, evidcntiary value of-Frame of suit-Deity, if a
necessary party-Charitable and Religious Ti•usts Act, z920 (I4 of
z920), s. 5(3).
The question for determination in this appeal, arising out of
a suit filed by the appellant under s. 5(3) of the Charitable and
Religious Trusts Act, 1920, was whether the ancient temple of
Shri Balaji Venkatesh at Nasik and its Sansthan constituted a
charitable and religious trust within the meaning of the Act.
The deity was Swayambhu and revealed itself in a dream to one
Ganapati Maharaj who. at its behest, brought the deity from the
river Tambraparni and installed it in his house. Ganapati's rnn
Timmaya, who removed the deity to Nasik, took the idol to the
courts of Rulers and acquired the properties in suit consisting of
lands and cash. Timmaya's eldest son obrained an extensiv.e
plot of land as a gift from the Peshwa and thereon built a vast
temple with a Sabha Mandap which could accommodate no less
than 600 persons and installed the deity in the first floor with a
staircase leading straight to it. The Hindu public has been
worshipping at the temple for more than 200 years and there was
no evidence to show that they had ever been excluded from it
and any gift had ever been refused. The ceremonies performed
in the temple were appropriate to a public deity. It was admitted
by the sons of Timmaya in Tahanama, executtd by them in 1774·
that the Inam villages were granted for the wor,hip of the deiry
and the temple belonged to the Sansthan, none of t~em having
any share in it. In the Tharav Y adi of 1800, the maintenance
allowance provided by the said Tahanama for the different
branches of the family was described as 'Vetan'. The Inam
Commissioner, functioning under Act II of 1852, recorded the
Inam villages as permanently held Debasthan inams at the
instance of t1.e then Sthanic and on the basis of original sanads
filed by him, reversing the decision of the Assistant Inam
Commissioner who had recorded them as personal inams. Those
sanads were not filed in the suit. In 1931 the appellant published
a history of the Sansthan wherein it was clearly stated that the
Sansthan was not a private or family property but was the
property of the deity, the members of the family being merely
the managers. The deity was not made a party to the suit
although representatives of the Hindu public were joined as
98
r959
September 1111
z959
Natayan
Bhagwantrao
Gosavi Balajiwale
I
v.
G11pal
Vinayak Gosavi
774
SUPREME COURT REPORTS [1960(1))
parties under 0. r, r. 8 of the Code of Civil Procedure. The
High Court, while it concurred w1\h the trial Judge in holding
that the deity was a public deity and that its Sansthan constituted
a public trust, was. however, inclined to hold that some of the
properties might be per>onal properties of the appellant but
refused to grant any such declaration on the ground that no
effective decree could be passed against the deity in its absence.
It was contended on behalf of the appellant in this court that
the courts belo'v had misconstrued the document and were wrong
in drawing the inferences they did and that the burden of proof
had been wrongly placed on the appellant to prove by positive
evidence that the deity was a family deity and the properties his
private properties.
Held, that the courts below were right in coming to the
conclusion they reached, and the appeal must fail.
A mistaken inference drawn from documents is no less a
finding of fact, if there is no misconstruction of the docnments
and no misconstruction of documents having been proved, the
appellant could not succeed.
An admission is the best evidence that an opposing party can
rely upon, and, although it is not conclusive. is often decisive of
the matter unless it can be successfully withdrawn or proved to
be erroneous.
The expression "burden of proof " means one of two things
(r) that

## Text

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S.C.R.
SUPREME COURT REPORTS
773
NARAYAN BHAGW ANTRAO GOSA VI
f'
BALAJIWALE
v.
GOPAL VINAYAK GOSAVI AND OTHERS
(S. R. DAS, C.J., S. K. DAS and M. HIDAYATULLAH, JJ.)
Charitable and Religious Trust-Test-Inference drawn from
documents, if and when a question of law-Burden of proof, meaning
of-Admission, evidcntiary value of-Frame of suit-Deity, if a
necessary party-Charitable and Religious Ti•usts Act, z920 (I4 of
z920), s. 5(3).
The question for determination in this appeal, arising out of
a suit filed by the appellant under s. 5(3) of the Charitable and
Religious Trusts Act, 1920, was whether the ancient temple of
Shri Balaji Venkatesh at Nasik and its Sansthan constituted a
charitable and religious trust within the meaning of the Act.
The deity was Swayambhu and revealed itself in a dream to one
Ganapati Maharaj who. at its behest, brought the deity from the
river Tambraparni and installed it in his house. Ganapati's rnn
Timmaya, who removed the deity to Nasik, took the idol to the
courts of Rulers and acquired the properties in suit consisting of
lands and cash. Timmaya's eldest son obrained an extensiv.e
plot of land as a gift from the Peshwa and thereon built a vast
temple with a Sabha Mandap which could accommodate no less
than 600 persons and installed the deity in the first floor with a
staircase leading straight to it. The Hindu public has been
worshipping at the temple for more than 200 years and there was
no evidence to show that they had ever been excluded from it
and any gift had ever been refused. The ceremonies performed
in the temple were appropriate to a public deity. It was admitted
by the sons of Timmaya in Tahanama, executtd by them in 1774·
that the Inam villages were granted for the wor,hip of the deiry
and the temple belonged to the Sansthan, none of t~em having
any share in it. In the Tharav Y adi of 1800, the maintenance
allowance provided by the said Tahanama for the different
branches of the family was described as 'Vetan'. The Inam
Commissioner, functioning under Act II of 1852, recorded the
Inam villages as permanently held Debasthan inams at the
instance of t1.e then Sthanic and on the basis of original sanads
filed by him, reversing the decision of the Assistant Inam
Commissioner who had recorded them as personal inams. Those
sanads were not filed in the suit. In 1931 the appellant published
a history of the Sansthan wherein it was clearly stated that the
Sansthan was not a private or family property but was the
property of the deity, the members of the family being merely
the managers. The deity was not made a party to the suit
although representatives of the Hindu public were joined as
98
r959
September 1111
z959
Natayan
Bhagwantrao
Gosavi Balajiwale
I
v.
G11pal
Vinayak Gosavi
774
SUPREME COURT REPORTS [1960(1))
parties under 0. r, r. 8 of the Code of Civil Procedure. The
High Court, while it concurred w1\h the trial Judge in holding
that the deity was a public deity and that its Sansthan constituted
a public trust, was. however, inclined to hold that some of the
properties might be per>onal properties of the appellant but
refused to grant any such declaration on the ground that no
effective decree could be passed against the deity in its absence.
It was contended on behalf of the appellant in this court that
the courts belo'v had misconstrued the document and were wrong
in drawing the inferences they did and that the burden of proof
had been wrongly placed on the appellant to prove by positive
evidence that the deity was a family deity and the properties his
private properties.
Held, that the courts below were right in coming to the
conclusion they reached, and the appeal must fail.
A mistaken inference drawn from documents is no less a
finding of fact, if there is no misconstruction of the docnments
and no misconstruction of documents having been proved, the
appellant could not succeed.
An admission is the best evidence that an opposing party can
rely upon, and, although it is not conclusive. is often decisive of
the matter unless it can be successfully withdrawn or proved to
be erroneous.
The expression "burden of proof " means one of two things
(r) that a party has to prove an allegation before it is entitled to
a judgment in its favour, or (2) that the one or the other of the
two contending parties has to introduce evidence on a contested
issue. The question of onus is material only where the party on
which it is placed would eventually lose if it failed to discharge
the same.
Where issues are, however, joined, evidence is led and
such- evirlence can be weighed in order to determine the issues,
the question of burden becomes academic.
In the present case, if the onus lay on any party, it was
clearly on the appe!Jant to prove by cogent evidence that the
admissions made by his predecessors-in-title and by him were
either erroneous or unavailable and this he had failed to do. The
earlier sanads, admittedly in his possession, not having been
produced and those produced not being in any way inconsistent
with the said admissions or the revenue records, no question of
any misconstruction of documents could arise.
Babu Bhagwan Din v. Gir Nar Saroon, (r939) L.R. 67 I.A. I,
held inapplicable.
Srinivasa Chariar v. Evalappa Mudaliar, (r922) L.R. 49 I.A.
237, applied.
The entries made in the Inam Register prepared under Act II
of r852, were entitled to great weight and although they could
not displace actual and authentic evidence in an individual case,
it was well-settled that, in absence of such evidence, they must
prevail.
S.C.R.
SUPREME COURT REPORTS
775
Arunachalam Chetty v. Venkatachalapathi Guru Swamigal,
z959
(1919) L.R. 46 I.A. 204, referred to.
Held, further, that the vastness of the temple, the mode of
Narayan
its construction, the long user by the public as of right, grant of
Bh~gwant~ao
land and cash by the Rulers, taken along with other relevant Gosaw Bala;iwale
factors were consistent only with the public nature of the endowGv.
ment.
.
opal
•
.
. .
V 1nayak Gosa1
Narayanan v. Hindu Religious Endowments Board, A.LR.
1938 Mad. 209, relied on.
The absence of a dome or Kalas on the temple was not by
itself a decisive factor as to its public/ character, nor was consecration imperative of a deity that was Swayambhu.
Nor is the temporary movement of the idol from place to
place inconsistent with its public character.
Ram Soondur Thakoor v. Taruk Chun~er .Turkoruttum, (1873)
19 Weekly-Reporter 28; Hari Raghunath v. Apantii Bhikajii,
(1920) I.L.R. 44 Born. 466; Prematha Nath Mullick v. Pradyumna
Kumar Mullick, (1925) L.R. 52 I.A. 245 and Venkatachala v.
Sambasiva, A.I.R. (1927) Mad. 465; 52 M.L.J. 288, considered.
The defect in the frame of such a suit resulting from the
omission of the deity as a party to it, cannot be remedied by the
subsequent addition of the representatives of the Hmdu Public as
parties to it, and no effective decree could be passed against the
deity in such a suit.
CIVIL .APPELLATE JURISDICTION:
Civil Appeal No.
261 of 1955.
Appeal from the judgment and decree dated April 22,
1949, of the Bombay High Court, in Appeal No. 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 No. 5 of
1943.
Purshottam Tricumda,s, Mrs. E. UdayaratMm and
S. S. Shukla, for the appellant.
R. GaMpathy Iyer, K. L. Hathi and R. H. DhelJar,
for respondent No. I.
W. S. Barlinge, Shankar Anand and A. G. RatMparkhi, for respondents Nos. 6 and 7.
1959. September 22. The Judgment of the Court
was delivered by
Hrn!.YATULLAH J.-This appeal with a certificate· Hidayatulfnh ./.
of the High Court of Judicature, Bombay, has been
filed against the judgment and decree of that Court
776
SUPREME COUR'l' REPORTS [1960(1)]
z959
dated April 22, 1949, in First Appeal No. 403 of 1945,
confirming the judgment and decree of the Civil Judge,
BhNaraya,n
Senior Division, Nasik, in Special Suit No. 5 of 1943,
agwan rao
.
A
H.
Gosavi Balajiwale de01ded on
ugust 14, 1945. The
1gh Court made a
v.
slight modification in the matter of costs, to which we
Gopal
shall refer later.
Vinayak Gosavi
The plaintiff, who is the appellant here, is the desHidayatullah J. cendn,nt of one Gan pa ti 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 concerns 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 desc.indants from Ganpati's daughter, Nagubai.
On April 23, 1942, the first four respondents made
an application to the District Court under s. 3 of the
Charitable and Religious Trusts Act, 1920 (No. 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 t1·ust, 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 :
S.C.R.
SUPREME COURT REPORTS
777
(1) It may be declared that 'Shri Vyankatesh
z959
Balaji Deity' and 'Shri Vyankatesh Balaji Sansthan'
N
1
b
D
d
arayan
are not legal trust as al eged y the
efendants an
Bhagwantrao
their nature also is not such as alleged by the Gosavi BalajitHll
Defendants.
v.
(2) If the court holds that a trust in the matter of
Gopal
'Shri Vyankatesh Balaji Deity' and 'Shri VyankaVinayak Gosavi
tesh Balaji Sansthan' exists, then it may be declarHidayatullah ;.
ed that the said trust is not a public one, that the
same has not come into existence for the religious
and charitable purposes and that the Religious and
Charitable Trusts Act (sic.)(No. 14 of 1920) is not
applicable to the same.
(3) It may be declared that the Defendants for
themselves or as the representatives of the entire
Hindu Community have no right and authority
whatever over 'Sri Vyankatesh Balaji Devta' and
Shri Vyankatesh1Balaji Sansthan' and that they or
the entire Hindu Community has no right a.nd
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 a.sk for reliefs mentioned in prayer claases
of the Miscellaneous Application No. 19 of 1942."
The trial Judge framed eight issues. The first two
involved the declarations sought. Three others concerned the position of defendants I 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 liluit was bad because the deity was
not joined and the remaining two were consequential.
The trial Judge decided all the issues against thti
appellant. He held that the suit properties were not
the personal or private properties of the appellant,
that the plp.intiff was estopped from making such a
claim, th.at the deity itself was not 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 &kebait to manage them.
778
SUPREME COURT REPORTS (1960(1))
'959
The trial Judge also gave a finding that the first four
Narayan
defendants were e.ntitled to customary wor~hip. an?-
Bhagwantrao
emoluments as might be fixed by the Pu;adhikaris
Gosavi Balajiwale descended from the eldest branch of Bapaji Buva and
v.
could be removed for failure to perform the duties
Vina~;f~osavi assigned to them. The application unde~ s. 3 of the
Act was held to be competent, and the suit was also
Hidaya1ullah J. held to be bad in the absence of the deity. In the
result, the trial Judge dismissed the suit, a warding
two sets of costs to the defendants. It may be pointed out that after the suit was filed, a public notice
under 0. 1, R. 8 of the Code 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 not a necessary party to s1,1eh
a :; ;iit, and desired that the deity should be joined,
represented by an independent guamian-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
no need 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
contention and did not join the deity as a party. He,
however, warned the appellant by his order that in
case the deit.y 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 Court of Bombay. The learned Judges of the High Court (Rajadhyaksha and
Chainani, JJ.), dismissed the appeal but modified the
order about costs, directing that only one set of costs
be paid to the defendants in the suit. The learned
Judges traced the history of the various properties
and how they were acquired, and concluded that in
respect of some of the properties there was no doubt
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,
S.C.R.
SUPREME COURT REPORTS
779
they held that no declaration could be given, since the
z959
deity was not a party to the proceedings. They, however, gran~ed i:" certificate ?f fitness under Art. l::t3 of
B/:,,;::~;ao
the Const1tut10n, read with ss. 109 and llO of the Gosavi Balajiwala
Code of Civil Procedure, and the present appeal has
v.
been filed as a result.
Gopal
Before dealir.g with the appeal proper, it is nece,sVinayak Gosavi
sary to refer to certain landmarks in the history of Hidayatullah J.
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 not acquire any property, but in the
lifetime of his son, the deity was moved from J unnar
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 not content with this alone, he took the
deity to the Courts 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 continued 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 Bapaji's Buva's 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 (E~ 122) was
drawn up.
By that agreement, instead of the cash
allowances for the maintenance of the branches certain
780
SUPREME COURT REPORTS [1960(1)]
'959
villages were assigned to them. Next came the Inam
Na,ayan
Commission under the. Bombay Rent-free Estates
Bhagwanfrao
Act, 1852 (Born. 11of1852), by which in accordance
Gosavi Balajiwale with the policy laid down by Lord Ben tick, all jagirdars
v.
and inamdars were required to prove the sources of
. Gopal
. their titfo and the conditions on which the jagirs· or
Vsnayak Gosam
•
h l l
Th A - t
t I
C
· ·
mams were e c •
e
ss1s an
nam
omm1ss10ner
Hidayatullah J. 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 Commissioner, and contended that the
villages were not held a$ personal inams but were
Devasthan inams and could only be recorded under ,
R. 7 of Sch. B. The difference between the two Rules
was that whereas personal inams could be held only
so long as the family survived, Devasthan inams were
held permanently and were to be recorded as such.
The Inam Commissioner accepted this contention, 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 who8e minority the
property was managed by a guardian appointed by
Court. 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 consider
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 Courts below have
concurred in holding that the deity was not a mere
fa.milydeityin which the public had no interest, and that
the properties given to the deity constituted a religious
and charitable endowment of a public nature. Ordinarily, such a finding is a finding of fact not open to
further scrutiny by this Court, but the appellant contended that the legal inference drawn from the proved
facts in the case was erroneous and a point of law
S.C.R.
SUPREME COURT REPORTS
781
therefore arose. A mistaken inference from documents
z959
is no less a finding of fact, ifthere is no misconstruction
Naraya"
of the documents, and this principle should be applied
Bhagwantrao
to the discussion of the documentary evidence in this Gosavi Balajiwale
case, because if there was no misconstruction of the
v.
documents,-the concurrent findings would be not of Gopal Vi~yak
'f.
Gosav•
law but of fact and the error, I any, equally of fact.
Both the Courts below have analysed at length the Hi!l,,yatullah J.
documents which number several hundreds, and have
pointed out that there was nothing inconsistent in
them with the contention 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
conclusion was not correct 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
Courts below relied strongly against the appellant on
the admissions made by his predecessors-in-title from
1774 onwards.
Learned counsel for the /appellant
contended that the documents were misconstrued and
thus, the inference from them in which these so-called
admissions were contained, was exactly the opposite
of what the Courts 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 contended 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
contended 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 tw-o
different things. It means sometimes that a party ilJ
119
782
SUPREME COURT REPORTS [1960(1)]
' 959
required to prove an allegation before judgment can
Narayan
be given in its favour; it also means that on a contBha~wanirao
ested issue one of the two contending parties has to
Gosavi Balajiwale introduce evidence. Whichever way one looks, the
v.
question is really academic in the present case,
Gopal Vinayak b
b th
t'
h
· t d
d th ·
'd
Gos
.
ecanse
o
par 1es ave m ro uce
eir ev1 ence
""'
on the ques~ion of the nature. of the deity and the proHidayatullah J- perties and have sought to establish their own part of
the case. The two Cburts below have not decided the
case on the abstract question of burden of proof; nor
could the suit be decided in such a way. The burden
of proof is of importance only where by reason of not
discharging the burden which was put upon it, a party
must eventually fail.
Where, however, parties have
joinea issue and have led evidence and the conflicting
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 not
detain us for another 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
not bind him. An admission is the best evidence
that an opposing party can rely upon, and though not
conclusive, is decisive of the matter, unless successfully
withdrawn or proved erroneous.
We shall now
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 no private
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
S.C.R.
SUPREME COURT REPORTS
783
Pancha.s long before the present dispute arose. It is
.c959
stated there that "Shrimant Pant Pradhan and other
N
Sardars of (both) Nizam and Deccan (States) have
Bha;;:~;ao
granted in Inam villages for the purposes of Seva Gosavi Balajiwal•
(worship) of Shri (deity)." It was again stated that
v.
the Shri's temple which was newly built on the banks Gopal Vinayak
of the river Ganga (Godavari) belonged to Shri's
Gosavi
Sansthan and nobody had a share therein. By the Hidayatullah J.
Tahanama, the three brothers set a part a certain sum
for the Seva (worship) of the deity in accordance with
their practice which sum was not to be diminished
under any circumstance. They, however, took a small
portion of the income as their own N emnuk (maintenance), which N emnuk was to be reduced if the income
was not sufficient to meet the expenses of Shri (deity).
Learned counsel for the appellant stated that the
Tahanama was misconstrued by the two Courts below.
He contended that this was a private temple, and if
anything could 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 theks.
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 not a consecrated
idol. If none .of the members of the family had any
interest in the Shri's temple or any shares in the properties thereof, obviously the properties were not
private properties, nor 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 Ya.di of 1800; the N emnuk allowance which
the members of the family had taken out of the income
was described as V etan (remuneration) for, doing service
to the deity and " Sansar Begmi " for themselves. The
use of the word " Vet,an " does not indicate ownership,
but on the contrary, paid service. Even as far back
as 177 4 to 1800, the predecessors of the appellant considered themselves as the servants of the deity, and all
that they did was to make a stable arrangement for the
784
SUPREME COURT REPORTS [1960(1)]
z959
application of the funds, so that the deity could enjoy
Na•ayan
its own property and the servants were regularly pa.id.
Bhawantyao
When the Inam Commission was established to enGosavi Balajiwale quire into the jagirs and inams which ha.d passed into the
G
1 ';;·
. k territory of the East India.Company, Act No. 11 ofl852
op~0,;:•>a
was passed. The Ina.m Commission purported to be
established under tha.t Act and for purposes of enquiry
Hidayatullah J. as laid down under that Act. The Assistant Inam
Commissioner at that time held tha.t 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 Ina.m Commissioner,
complaining against the record of the ina.ms as persona.I, and claimed that they should be recorded as
Devastha.n ina.ms. His appeal is Ex. D-643 . dated
March 5, 1858. He stated therein tha.t the moka.BB
Amal and the jagfr and Sardeshmukhi in the villages
were granted " for the expenditure on account of the
Shri ". He relied on the Sana.ds, in which it was
stated that the .Amals (revenue shares) were for the
purpose of worship and N aivedya (food offering) to the
Devasthan of Shri Venkatesh. He referred to the
earlier documents to which we ha.ve referred, a.nd
claimed tha.t the order of the Assistant Inam !Jommisioner was erroneous, because the ina.ms must be
recorded in the name of the deity under R. 7 of Sch. B
to the Act of 1852 and not under R. 3, as was ordered
by the Assistant Inam Commissioner. We ha.ve
already pointed out the different effect of the two
Rules, and proviso (6) to R. 7 stated that no personal
ina.m could be recorded permanently under R. 7. The
effect of this appeal was to claim on behalf of the
deity a. perma.nent 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 Y adi of the earlier
times. The Inam Commissioner acceded to this
contention, and after examining all the Sana.ds that
had been produced in the case, ordered that,
" the order issued by Meherban, Assistant Ina.m
Commissioner be annulled and under Section 7 (Bic.)
S.C.R.
SUPREME COURT REPORTS
785
Supplement No. 2· of Act 11 of 1852 the remaining
z959
portion of this village .. ·. to remain as perpetual
N
Inam with the Devasthan of Shri yyankatesh...
Bha;;::;ao
and the management do ·remain continued from Gosavi Bijlajiwal1
generation to generation of the lineal c\escendv.
ants with the male descendants of Timaya ,Gosavi Gopal Vinayak
bin (i.e. son of) Ganesh Gosavi and Apatia bin (~.e.
Gosavi
son of) Konher Gosa vi."
Hidaya11'Uah 1.
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 Puja4kikaris or
Sheba.its of the deity who were not entitled to anything more than reasonable remuneration for their
services of the deity,
In the year 1907 when the plaintiff 'was still a
minor, his mother made a deposition as a witness.
She stated that. there were Annackatra and Sadavarat
Kulkarni Inams and other Ina.ms, but that they all
belonged to the Sansthan, and that there was "no
private (or personal) property a.tall". Even the gardens
were described by her as belonging to the deity and
not to any individual. The guardian alSo took the same
stand throughout the minority 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 not
in the private mynership of any person. It was stated
on this occasion as follows :
"Except this Shri Vya.nka.tesh deity no one else has
anyright; interest or ownership with regard to the
village andthe Sansthan. We both are the managers of the aforesaid Sansthan and we have been
looking after all the affairs of the Sanstha.n and in
that collJlection we a.re carrying on the management
of the aforesaid vill!'lige."
The statement was made in Suit No. 515of1898~
Again, .in Ex. 700, the written statement hy the guard,ia.n of the plaintiff, in Civil Suit No. 295 of 1920, it
was stated as late as November 6, 1920, as follows:
"It is denied that Da.modar Timmayya or any
other " particular individual owned the Balaji
786
SUPREME COURT REPORTS [f960(1))
I959
Narayan
Bhagwanlrao
Gosavi_Balajiwale
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 Defendant's family is
v.
Gopal Vinayak
Gosavi
Hidayatullah J.
appointed only the vahiwatdar."
The said Damodar Timaya had no separate property
of his own."
To the same effect is the application made by Rama.-
bai, the mother of the present appellant, in Ex. 702.
These later documents may n:ot bind the appellant,
who was a. minor at the time, but as late as December 1, 1927, the appellant himself stated tha.t village
in question (Savergaon) wa.s a Deva.sthan ina.m, and
was alieIJ.ated 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
a.nd 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 Ba.Jaji, and did not
claim any private ownership. At that time, he refer.
red to the Land Alienation Register and produced a.
certified copy of the Register to show that Shri
V enkatesh wa.s shown a.s the alienee.
Ex. 634 is the genealogy filed by the plaintiff wherein Bhagwant Annaji, uncle of Damoda.r Timma.yya.,
wrote against the name of Timmayya. that he ha.d
acquired nine villages, and wa.s the founder of Puja
Naivooya, Utsav, Annachhatra and Badavarat dedicated
to Shri Venka.tesh. It wa.s stated there that the
villages were grants to the deity. Similar a.re the
admissions in the Yadi, Ex. 626 dated December 15,
1886, by the Mamlatdar addressed to Krishna.ra.o
Damoda.r and in a letter, Ex. 199, by the plaintiff
himself addressed to Ma.nkarnika.ba.i, wife ofKrishna.-
rao Damoda.r in 1922. In several suits which others
filed, the defendant there wa.s described a.s " Shri
S.C.R.
SUPREME COURT REPORTS
787
Venkatesh Balaji Sansthan, N asik, through manager"
r959
that is the appellant. He represented as manager the
NrJrayan
owner, namely, the deity.
Bhagwantr1Jo
Lastly, there is the history of this Sansthan publish- Gosavi Balajiwale
ed by the appellant himself and written from original
v.
documents supplied by him. This was in 1931. The Gopal Vinayak
Gosavi
appellant in his deposition admitted that he was intimately connected with this writing and its publication. Hidayatullahf.
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 conclusion alone need be stated, because the document is a
long one and the admissions are contained 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 a.re
merely the managers and administrators of the
same .............. .
The management of it shall not be like that of a
private property."
As a result of the Faisa.lnama.s of the Inam Commission which are to be found in Exs. 135 to 144, 634and
644, the record of rights showed the deity as the owner
and the jagirs and inams as Devasth~.n. Learned
counsel for the appellant contends that these admissions do no prove 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 cannot accept this contention,
which runs counter to the plain tenor of tho.se documents. In these documents, the ownership of the
family over the temple, the deity and the properties
of the deity is not only not 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 none other.
In view of these admissions, the question of burden
of proof, as we have already pointed out, is really
788
SUPREME COURT REPORTS [1000(1)]
z959
academic, and if any burden lay upon any party, it
N• •r•n
was upon the appellant to displace by cogent and conBnag;anirao
vincing evidence that these admissions were erroneous
Gosavi Balajiwale and. need not be accepted in proof. These admissions
v.
are two-fold ; they concern the nature of the properGopal YinayllA ties in dispute and the nature of the idol. Added to
Gos•vi
these are the decisions of the Inam Commissioner in
Hidayatullah 1. respect of the villages, which .were recorded as Devas-·
than inams at the instance of Damodar, who appealed
against the order to record them as personal ina.m.s.
The value to be attached to the decisions of the Inam
Commissioner had come up for consideration before
the Judicial Committee in a series of cases. It is sufficient to refer to only one of them. In Arun1J,Cke1J.am
Oketty v. VenlcatackeU.apatki Guru Swamigal ('), the Judi~
cial Committee 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
not the lands were tax-free. But it must not be
forgotten that the preparation of this Register was
a great act of State, and its preparation ·and contents were the subject of much consideration under
elaborately detailed reports and minutes. It is to be
remember,ed. that the Ina.m Commissioners through
their officials made enquiry on the spot, heard evidence and examined documents, and with regard to
ea.ch individual property, the Government was put
in possession not only of the conclusion come to as
to whether the land was tax-free, but of a statement
of thti history and tenure of the property itself.
While their Lordships do .not doubt that such a
report would not displace actual and authentic evidence in individual cases; yet the Board, when ·such
is not. available, cannot fail to attabh the utmost
importance, as part of the history of the· property;
to the infol'mation set forth in the Inam Register."
The natul'e and quantum Qf the right and interest in
the land was thus gathered from the Inam Rej!isters
r.nd enquiries, which ·preceded the;m.
(1) (1919) 1..R. 46 LA. ""f·
S.C.R.
SUPREME COURT REPORTS
789
Thus, it was doubly necessary for the appell~nt to
r959
bring before the Court all the documents in which his
title was created, recognised or confirmed. He has,
BhNaraya1n
.
.
f
agwan rao
however, filed only a selection, and has reframed rom Gos,,,vi Balajiwala
bringing into evidence all the material in his possession
v.
which as late as 1931 was available to him. We have Gopal Vinayak
pointed out above that in 1931 he caused a history
Gosavi
of the Sansthan to be published, and it refers to Hidayatullah 1.
numerous documents, which have not found their way
into Court. The learned Judges of the High Court
also menti tDed this fact, and stated that in view of
the failure of the appellant to prove conclusively that
a higher title than the one made out before the Inam
Commission was available to him, no reliance could be
placed upon such doruments as had been exhibited.
We have to see whether this statement is correct in all
the circumstances of this case.
The property in the case consists of eleven villages,
ca.sh 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 Commission, 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 appellant himself made no distinction bet.ween one property
and another, 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 not the case he had made out
either before the District Court under the Charitable
and Religious Trusts Act or in the plaint· filed in this
case. It is not opPn to him now to change his plea
with regard to his ownership, and the case must be
decided only on the contention that the properties
were private.
The first batch of documents to which our attention
was drawn, concerns mostly Vihitgaon. It consists of
Exs. 200 to 206. The first four are letters written to
Mukadams, Kamavisdars and Mamlatdars to continue
IOO
790
SUPREME COURT REPORTS
[1960(1)
r959
the Mokasa, Sahotra or Inam to Timayya, to whom
N
the village was given as Madade-Mnash. The earliest
Bha;r;;;:i:.0
of them is of 1714 an? the last is o~ 1755. Exs. 204 and
GosaviBalajiwale 206, however, ment10n even earlier sanads and the
v.
latter particularly mentions the original grant of the
Gopal Vinayal• ruler, Mahomed Shah, under his own seal.
Those
Gasavi
sanads, however, have not been produced, as also
some of the sanads of the Peshwas, which were menH idayatullah J. tioned by the Inam Commission in Ex. 135.