Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan & Ors [1963] INSC 5 (21 January 1963)
21/01/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 1638 1964 SCR (1) 561
CITATOR INFO:
R 1964 SC1043 (132) R 1964 SC1501 (5,6) R 1964 SC1793 (13) R 1965 SC 906 (8) R 1970 SC2025 (9) R 1971 SC 891 (11,12) R 1975 SC 706 (19) R 1975 SC2299 (587) R 1976 SC 871 (35) RF 1983 SC 1 (17,128) R 1984 SC 51 (11) RF 1986 SC2094 (10,16) R 1987 SC2064 (14) RF 1992 SC1277 (22,34,88)
ACT:
Nathdwara Temple-Private or public temple-Tests--Validity of enactment providing for proper administration of templeConstitutionality-Nathdwara Temple Act, 1959 (Rajasthan 13 of 1959) ss. 2 (viii), 3, 4, 5, 7, 1O, 11, 16, 21, 22, 27, 28, 30, 35, 36, 37-Constitution of India, Arts. 14, 19 (1) (f), 25, 26, 31 (2).
HEADNOTE:
The history of the Nathdwara Temple in the District of Udaipur showed that Vallabha, who was the founder of the denomination known as Pushtimargiya Vaishnava Sampradaya, installed the idol of Srinathji in a temple and that later on his descendants built the Nathdwara Temple in 1761. The religious reputation of the temple grew in importance and several grants were made and thousands of devotees visiting the temple made offering to the temple. The succession to the Gaddi of the Tilkayat received recognition from the Rulers of Mewar, but on several occasions the Rulers interfered whenever it was found that the affairs of the temple were not managed properly. In 1934 a Firman was issued by the Udaipur Darbar, by which, inter alia, it was declared that according to the law of Udaipur all the property dedicated or presented to or otherwise coming to the Deity Shrinathji was property of the shrine, that the Tilkayat Maharaj for the time being was merely a custodian, Manager and Trustee of the said property and that the Udaipur Darbar had absolute right to supervise that the 562 property dedicated to the shrine was used for the legitimate purposes of the shrine. The management of the affairs' by the appellant Tilkayat was not successful and it became necessary that a scheme should be framed for the management of the Temple. On February 6, 1939, the Governor of Rajasthan promulgated an Ordinance, which was in due course replaced by the Nathdwara Temple Act, 1939. The appellant challenged the validity of the Act on the grounds, inter alia, that the idol of Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties and, as such, the State Legislature was not competent to pass the Act, that even if the Nathdwara Temple was held to be a public temple, he as Mahoney or Shebait had a beneficial interest in the office of the high priest as well as the properties of the temple and that on that footing, his rights under Arts. 14, 19 (1) (f) and 31 (2) of the Constitution of India had been contravened by the Act.
it was also urged that the provisions of the Act infringed the fundamental rights guaranteed to the Denomination under Art. 55 (1) and 26 (b) and (c) of the Constitution. The question was also raised as to Whether the tenets of the Vallablia denomination and its religious practices required that the worship by the devotees should be performed at the private temple and so the existence of public temples was inconsistent with the said tenets and practices.
Held, (1) that neither that tenets nor the religious practices of the' Vallablia school necessarily postulate that the followers of the school must worship in a private temple.
(2)that in view of the documentary evidence in the case it could not be held that the temple was built by the Tilkayat of the day as his private temple or that it still continues to have the character of a private temple; that though from the outside it had the of a Haveli, the majestic structure inside was consistent with the dignity of the idol and with the character of the temple as a public temple.
(3)that ail absolute monarch was the fountain-head of all legislative, executive and judicial powers, that it was of the very essence of sovereignty which vested in him that he could supervise arid control the administration of public charity, and that this principle applied as much to Hindu monarchs as to ,my other absolute monarch. Any order issued by such a Ruler would have the force of law and govern the rights of the parties affected there by and that, accordingly, the Firman issued by the Maharana of Udaipur in 1934 was a law by which the affairs of the Nathdwara Temple were governed after its issue, 563 Madhaorao Phalke v. The State of Madhya Bharat, [1961] 1 S. C. R. 957, relied on.
(4)that under the law of Udaipur the Nathdwara Temple was a public temple and that the Tilkayat was no more than the Custodian, Manager and Trustee of the property belonging to the temple.
(5)that having regard to the terms of the Firman of 1934 the right claimed by the Tilkayat could not amount to a right to property under Art. 19 (1) (f) or constitute property under Art. 31 (2) of the Constitution,; that even if it were held that this right constituted a right to hold property, the restrictions imposed by the Act must be considered as reasonable and in the interests of the public under Art. 19 (5).
Vidya Varuthi Thirtha v. Balusami Ayyar, (1921) L. R. 48 1.
A. 302 and the Commissioner Hindu Reliqious Endowment,Madras v.Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt, [1954] S.C. R. 1005, considered.
(6) that the Act was not invalid on the ground of discrimination under Art. 14.
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, [1959] S. C. R. 279, relied on.
(7)that the right to manage the properties of a temple was a purely secular matter and could not be regarded as a religious practice under Art. 25 (1) or as amounting to affairs in matters of religion under Art. 26 (b).
Consequently, the Act in so fit, as it provided for the management of the properties of the Nathdwara Temple tinder the provisions of the Act, did not contravene Arts. 25 (1) and 26 (b).
The Durgah Committee, Ajmer v. Syed Hussain Ali, [1962] 1 S.
C. R. 333, referred to.
(8)that the expression "Law" in Art. 26 (d) meant a law passed by a competent legislature and under that Article the legislature was competent to make a law in regard to the ad.
ministration of the property belonging to the denomination and that the provisions of the Act providing for the constitution of a Board to administer the property were valid.
Ratilal Panachand Candhi v. The State of Bombay, [1934] S. C, R. 1035, referred to.
564 (9)that the scheme envisaged by ss. 3, 4, 16, 22 and 34 of the Act merely allowed the administration of the Properties Of the temple which was a purely secular matter to be undertaken by the Board and that the sections were valid.
(10)that under s. 5 (2) (g) it was necessary that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti Margiya Vallabhi Sampradaya; and that the proviso to s. 5 (2) (g) which enabled a Collector to be a statutory member of the Board even though he may not be a Hindu and may not belong to the denomination, did not contravene Arts. 25 (1) and 26 (b).
(11) that the expression "affairs of the temple" in s. 16 referred only the purely secular affairs in regard to the administration of the temple and that the section was valid.
(12)that s. 30 (2) (a) in so far as it conferred on the State Government power to make rules in respect of the qualifications for holding the office of the Goswami, was invalid.
(13)that ss. 5, 7, 10, 11, 21, 27. 28, 35, 36 and 37 were valid.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 652, 653 and 757 of 1962.
Appeals from the judgment and order dated january 31, 1962, of the Rajasthan High Court in D. B. Civil Writ Petition No. 90 of 1959.
AND VICE VERSA (b) Civil Appeals Nos. 654, 655 and 758 of 1962.
Appeals from the judgment and order dated january 31, 1962, of the Rajasthan High Court in D.B. Civil Writ Petition No. 3 10 of 1959.
AND VICE VERSA (c) Civil Appeal No. 656 of 1962.
565 Appeal from the judgment and order dated January 31, 1962, of the Rajasthan High Court in D. B. Civil Writ Petition No. 421 of 1960.
(d) Writ Petition No. 74 of 1962.
Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights.
M. C. Setalvad, Attorney-General for India G. S. Pathak, B. B. Desai, V. A. Seyid Muhammad and B. C. Misra, for the appellant (in C. A. No. 652 of 1962) and respondent No. 1 (in C. As. Nos. 653 and 757 of 1962).
C. K. Daphtary, Solicitor-General of India, G. C. Kasliwal Advocate-General for the State of Rajasthan, M. M. Tewari, S. K. Kapur, B. R. L. lyengar, Kan Singh, V. N. Sethi, B. R. C. K. Achar and P. D. Menon, for respondents Nos. 1 and 2 (in C. A. Nos. 652 and 656/62) respondent No. 1 (in C. A. No. 654/62), respondents Nos. 2 and 3 (in C. A. No. 757/62), respondent No. 11 (in C. A.No. 758/62) and appellants (in C. A. Nos. 653, and 655/62).
Sarjoo Prasad, S. B. L. Saxena and K. K. Jai,&, for respondents Nos. 3 to 5 (in C. A. No. 652/62) respondents Nos. 2-4 (in 'C. A. No. 653 /62), respondents Nos. 2, 3, 5, 6 and 7 (in C. A. No. 654/62), the Board and its members (in C. A. No. 655/62), respondents Nos. 3-12 (in C. A. No.
656/62) and the appellants (in C. A. Nos. 757 and 758 of 1962.) A.V. Viswanatha Sastri Balkrishna Acharya and M. V. Goswami for the appellants (in C. A. No. 654162), respondents Nos. 1-10 (in C. A No. 655 /62 and respondents Nos. 1-10 (in C. A. No. 758/62). P.K. Chakravarty, for the appellant (in C. A. No. 656/62).
566 G.S. Pathak, B. Datta and B. P. Maheshwari, for the petitioner (in W. P. No. 74/62).
C.K. Daphtary, Solicitor-General of India, G. S. Kasliwal, Advocate-General for the State of Rajasthan, M. M. Tewari, S. K. Kapur, B. R. L. Iyengar, Kan Singh, V. N.
Sethi and P. D. Menon, for respondents Nos. 1 and 2 (in W.P. No. 74/62).
Sarjoo Prasad, S. B. L. Sexena and K. K. Jain, for respondents Nos. 3-12 (in W. P. No.,74/62).
1963. January 21. The judgment of the Court was delivered by GAJENDRAGADKAR, J.--This group of seven cross-appeals arises from three writ petitions field in the High Court of judicature for Rajasthan, in which the validity of the Nathdwara Temple Act, 1959 (No. XIII of 1959) (hereinafter called the Act) has been challenged. The principal writ petition was Writ Petition No. 90 of 1959 ; it was filed by the present Tilkayat Govindlalji (hereinafter called the Tilkayat) on February 28, 1959. That Petition challenged the validity of the Nathdwara Ordinance, 1959 (No. 11 of 1959) which had been issued on February 6, 1959.
Subsequently this Ordinance was repealed by the Act which, after receiving the assent of the President, came into force on March 28, 1959. Thereafter, the Tilkayat was allowed to amend his petition and after its amendment, the petition challenged the vires of the Act the provisions of which are identical with the provisions of its predecessor Ordinance.
Along with this petition Writ Petition No. 310 of 1959 was filed on August 17, 1959, by ten petitioners who purported to act on behalf of the followers of the Pushtimargiya Vaishnava Sampradaya. This petition attacked the validity of the Act on behalf of the Denomination of the followers of Vallabha. On November 3, 1960, 567 the third Writ Petition (No. 421 of 1960) was filed on behalf of Goswami Shri Ghanshyamlalji who as a direct descendant of Vallabha, set up an interest in himself in regard to the Nathdwara Temple, and as a person having interest in the said Temple, lie challenged the validity of the Act. These three petitions were heard together bythe High Court and have been dealt with by a common judgment.
In substance, the. High Court has upheld the validity of the Act, but it has struck down as ultra vires a part of the definition of temple' in s. 2 (viii) , a part of s. 16 which refers to the affairs of the-temple; s. 28, sub-ss. (2) and (3); s. 30 (2)(a); ss. 36 and 37. The petitioners as well as the State of Rajasthan felt aggrieved by this decision and that has given rise to the present cross-appeals. The Tilkayat has filed Appeal No. 652 of 1962, whereas the State has filed appeals Nos. 653 and 75 7 of 1960. These appeals arise from Writ Petition No. 90 of 1959. The Denomination has filed Appeal No 654 of 1962, whereas the State has filed Appeals Nos. 655 and 758 of 1962. These appeals arise from Writ Petition No. 310 of 1959. Ghanshyamlalji whose Writ Petition No. 421 of 1960 has been dismissed by the High Court on the ground that it raises disputed questions of fact which cannot be tried under Art. 226 of the Constitution, has preferred Appeal No. 656 of 1962). Since Ghanshyamlalji's petition has been dismissed in limine on the ground just indicated, it was unnecessary for the State to prefer any cross-appeal. Besides these seven appeals, in the present group has been included Writ Petition No. 74 of 1962 filed by the Tilkayat in this Court under Art. 32. By the said writ petition the Tilkayat has challenged the vires of the Act on some additional grounds. That is how the principal point which arises for our decision in this group is in regard to the Constitutional validity of the Act.
At this stage, it is relevant to indicate broadly the contentions raised by the parties before the High 568 Court and the conclusions of the High Court on the points in controversy. The Tilkayat contended that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties and as such, the State Legislature was not competent to pass the Act. In the alternative, it was urged that even if the Nathdwara Temple is held to be a public temple and the Tilkayat the Mahant or Shebait in charge of it, as such Mahant or Shebait he had a beneficial interest in the office of the high priest as well as the properties of the temple and it is on that footing that the validity of the Act was challenged under Art. 19 (1) (f) of the Constitution. Incidentally the argument for the Tilkayat was that the idols of Shri Navnit Priyaji and Shri Madan Mohanlalji were his private idols and the property pertaining to them was in any case not the property in which the public could be said to be interested.
The Denomination substantially supported the Trilkayat's case. In addition, it urged that if the temple was held to be a public temple, then the Act would be invalid because it contravened the fundamental rights guaranteed to the denomination under Art. 25 (1) and Art. 26 (b) and (c) of the Constitution. Ghanshyamlalji pleaded title in himself and challenged the validity of the Act on the ground that it contravened his rights under Art. 19 (1) (f).
On the other hand, the State of Rajasthan urged that the Nathdwara Temple was a public temple and the Tilkayat was no more and no better than its manager. As such, he had no substantial beneficial interest in the property of the temple. The contention that the Tilkayat's fundamental rights under Art. 19 (1) (f) have been contravened by the Act was denied; and the plea of the Denomination that the fundamental rights guaranteed to it under Arts. 25 (1) and 26 (b) and (c) had been infringed was also disputed. It was urged that the law was prefectly valid and 569 did no more than regulate the administration of the property of the temple as contemplated by Art.26 (c) of the Constitution. The Tilkayat's claim that the two idols of Navnit Priyaji and Madan Mohanlalji were his private idols was also challenged. Against Ghanshyamlalji's petition, it was urged that it raised several disputed questions of fact which could not be appropriately tried in proceedings under Art. 226.
The High Court has upheld the plea raised by the State against the competence of Ghanshyamlalji's petition. We ought to add that the State had contended that the Tilkayat's case about the character of the temple was also a mixed question of fact and law and so, it could not be properly tried in writ proceedings. The High Court, however', held that it would be 'inexpedient to adopt a technical attitude in this matter and it allowed the merits of the dispute to be tried before it on the assurance given by the learned counsel appearing for the Tilkayat that the character of the property should be dealt with on the documentary evidence adduced by him. Considering the documentary evidence, the High Court came to the conclusion that the temple is a public temple. It examined the several Firmans and Sanads on which reliance was placed by the Tilkayat and it thought that the said grants supported the plea of the State that the temple was not the private temple of the Tilkayat. It has, however, found that the Tilkayat is a spiritual head of the Denomination as well as the spiritual head of the temple of Shrinathji. He alone is entitled to perform 'Seva' and the other religious functions of the temple. In its opinion, the two minor idols of Navnit Priyaji and Madan Mohanlalji were the private idols of the Tilkayat and so, that part of the definition which included them within the temple of Shrinathji was struck down as invalid. In this connection, the High Court has very strongly relied on the Firman issued by the Maharana of Udaipur on December 31, 1934, and it 570 has observed that this Firman clearly established the fact that the temple was a public temple, that the Tilkayat was no more than a Custodian, Manager and Trustee of the property belonging to the temple and that the State had the absolute right to supervise that the property dedicated to the shrine was used for legitimate purposes of the shrine.
Having found that the Tilkayat was the head of the denomination and the head priest of the temple, the High Court conceded in his favour the right of residence, the right to distribute Prasad and the right to conduct or supervise the worship and the. performance of the Seva in the temple. In the light of these rights the High Court held that the Tilkayat had a beneficial interest in the properties of the temple and as such, was entitled to contend that the said rights were protected under Art. 19 (1) (f) and could not be contravened by the Legislature.
The High Court then examined the relevant provisions of the Act and held that, on the whole, the major operative provisions of the Act did not contravene the fundamental rights of the Tilkayat under Art. 19 (1) (f); ss. 16, s. 28, sub-ss. (2) and (3), s. 30 (2) (a), ss. 36 & 37, however, did contravene the Tilkayat's fundamental rights according to the High Court, and so, the said sections and the part of the definition of 'temple' in s. 2 (viii) were struck down by the High Court as ultra vires. The plea that the fundamental rights under Art.25 (1) and Art. 26 (b) and (c) were contraveneisd didnot appeal to the High Court to be well-founded. In the result, the substantial part of the Act hasbeen held to be valid.
It appears that before the High Court a plea was raised by the Tilkayat that his rights under Arts. 14 and 31 (2) had been contravened by the Act. These pleas have been rejected by the High Court and they have been more particularly and specifically urged before us by the Tilkayat in his Writ Petition No. 74 of 1962. That, in brief, is the 571 nature of the findings recorded by the High Court in the three writ petitions filed before it.
Before dealing will the merits of the present dispute, it is necessary to set out briefly the historical background of the temple of Shrinathji at Nathdwara and the incidents in relation to the management of its properties which ultimately led to the Act. The temple of Shrinathji at Nathdwara holds a very high place among the Hindu temples in this country and is looked upon with great reverence by the Hindus in general and the Vaishnav followers of Vallabha in particular. As in the case of other ancient revered Hindu temples, so in the case of the Shrinathji temple at Nathdwara, mythology has woven an attractive web about the genesis of its construction at Nathdwara. Part of it may be history and part may be fiction, but the story is handed down from generation to generation of devotees and is believed by all of them to be true. This temple is visited by thousands of Hindu devotees in general and by the followers 'of the Pushtimargiya Vaishnava Sampradaya in particular. The followers of Vallabha who constitute a denomination are popularly known as such. The denomination was founded by Vallabha (1479-1531 A. D.)* He was the son of a Tailanga Brahmin named Lakshmana Bhatt. On one occasion, Lakshmana Bhatt had gone on pilgrimage to Banaras with his wife Elamagara. On the way, she gave birth to a son in 1479 A. D. That son was known as Vallabha. It is' said that God Gopala Krishna manifested himself to Vallahha on the Govardhana Hill by the name of Devadamana, also known as Shrinathji. Vallabha saw the vision in his dream and he was commanded by God Gopala Krishna to erect a shrine for Him and to propagate amongst his followers the cult of worshiping Him in order to obtain salvation (1). Vallabha then went to the hill and he found the image corresponding to the vision which he had seen in this dream.. Soon thereafter, lie got a small *Some scholars think that Vallabha was born in 1473 A:D. vide The Cultural Heritage of India vol. III at p. 347.
(1) Bhandarkar on 'Vaishnavism, S'aivism & Minor Religious systems a 572 temple built at Giriraj and installed the image in the aid temple. It is believed that this happened in 500 A. D. A devotee named Ramdas Chowdhri was entrusted with the task of serving in the temple. Later on, a rich merchant named Pooranmal was asked by Govardhannathji to build a big temple for him. The building of the temple took as many as 10 years and when it was completed, the Image was installed there by Vallabha himself and he engaged Bengali Brahmins as priests in the said temple, (1).
In course of time, Vallabha was succeeded by his son Vithalnathji who was both in learning and in saintly character a worthy son of a worthy father. Withalnath bad great organising capacity and his work was actuated by missionary zeal. In the denomination, Vallabha is described as Achilles or Maha Prabhuji and Vithalnath is described as Gosain or Goswamin. It is said that Vithalnath removed the idol of Shrinathji to another temple which had been built by him. It is not known whether any idol was installed in the earlier temple. Vithalnath lived luring the period of Akbar when the political atmosphere in the country in Northern India was actuated by a spirit of tolerance. It appears that Akbar heard about the saintly reputation of Vithalnath and issued a Firman granting land in Mowza of Jatipura to Vithalnathji in order to build buildings, gardens, cowsheds and workshops for the temple of Govardhannathji This Firman was issued in 1593 A.D. Later, Emperor Shahajahan also issued another Firman on October 2, 1633, which shows that some land was being granted by the Emperor for the use and expenses of Thakilrdwara exempt from payment of dues.
Goswami Vithalnath had seven sons. The tradition of the denomination believes that besides the idol of Shrinathji Vithalnathji received from his father (1) Bhai Manilal C. Parekh's 'A Religion of Grace'.
573 seven other idols which were also "Swaroops" (manifestations) of Lord Krishna. Before his death, Vithalnathji entrusted the principal. idol of Shrinathji, to his eldest son Girdharji and the other idols were given over to each one of his other sons. These brothers in turn founded separate shrines at various places which are also held by the members of the denomination in high esteem and reverence.
When Aurangzeb came on the throne, the genial atmosphere of tolerance disappeared and the Hindu temples were exposed to risk and danger of Aurangzeb's intolerant and bigoted activities. Col. Todd in the first volume of his 'Annals of Rajasthan' at p. 451 says that "when Aurangzeb prescribed Kanaya and rendered his shrines impure throughout Vrij, Rana Raj Singh offered the heads of one hundred thousand Rajpoots for his service, and the God was conducted by the route of Kotah and Rampoora to Mewar. An omen decided the spot of his future residence. As he journeyed to gain the capital of the Sessodias, the chariot-wheel sunk deep into the earth and defied extrication; upon which the Sookuni (augur) interpreted the pleasure of the deity that he desired to dwell there. This circumstance occurred at an inconsiderable village called Siarh, in the fife of Dailwara, one of the sixteen nobles of Mewar. Rejoiced at this decided manifestation of favour, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the patent of the Rana. Nathji (the god) was removed from his car, and in due time a temple was erected for his reception, when the hamlet of Siarh became the town of Nathdwara. This happened about 1671 A. D." This according to the tradition, is the genesis of the construction of the temple at Nathdwara. Since then, the religious reputation of the temple has grown by leaps and bounds and today it can legitimately claim to be one of the few leading religious temples of the Hindus. Several 574 grants were made and thousands of devotees visiting the temple in reverence made offerings to the temple almost every day throughout the year. No wonder that the temple has now become one of the richest religious institutions in the country.
The succession to the Gaddi of the Tilkayat has, from the beginning, been governed by the rule of Primogeniture. This succession received recognition from the rulers of Mewar from time to time: It appears that in 1813 A. D. Tilkayat Govindlalji was adopted by the widow of Tilkayat Damodarji and the ruler of Mewar recognised the said adoption. Later, the relations between the ruler of Mewar and the Tilkayat were strained during the time of Tilkayat Girdharlalji. It seems that the Tilkayat Was not content with the position of a spiritual leader of the denomination but he began to claim special secular rights, and when the Darbar of Udaipur placed the villages belonging to the Natbdwara Temple under at Lachment, a protest was made by the members of the denomination on behalf of the Tilkayat. It was as a result of this strained relationship between the Darbar and the Tilkayat that in 1876 Tilkayat Girdharlal i was deposed and was deported from Nathdwara by the order passed by the Rana of Mewar on May 8, 1876...... The reason given for this drastic step was that the Tilkayat disobeyed the orders of the ruling authority and so, could not be allowed to function as such. In place of the deposed Tilkayat, his son Gordhanlalji was appointed as Tilkayat. Girdharlalji then went to Bombay and litigation started between him and his Tilkayat son in respect of extensive properties in Bombay.
Girdharlalji claimed the properties as his own whereas his Tilkayat son urged that the fact that Girdharlalji had been deposed by the Rana of Udaipur showed that the properties no longer vested in him. It appears that the Bombay High Court consistently took the view that the order passed by 575 the Rana of Udaipur on May 8, 1876, was an act of a foreign State and did not effect his right to property in Bombay.
It was observed that Girdharlalji was regarded as owner of the property, he had not lost his right as such to the said property in consequence of his deposition, and if he was merely a trustee, he had not been removed from his office by any competent Tribunal vide Nanabai v. Shriman Goswami Girdharji (1). Goswami Shri Girdharji Maharaj Shri Govindraiji Maharaj Tilkayat v. Madhowdas Premji and Goswami Shri Govardhanlalji Girdharji Maharaj ( 2 ) and Shriman Goswami Shri 108 Shri Govardhanlalji Girdharlalji v. Goswami Shri Girdharlalji Govindrajji (3). So far as the Nathdwara temple and the properties situated in Mewar were concerned, the Tilkayat Gordhanlalji who had been appointed by the Rana of Udaipur continued to be in possession and management of the same.
Unfortunately, in 1933, another occasion arose when the Rana of Udaipur had to take drastic action. After the death of Goverdhanlalji on September 21, 1933, his grandson Damodarlalji became the Tilkayat. His conduct. however, showed that he did not deserve to be a spiritual leader of the denomination and could not be left in charge of the religious affairs of the Shrinathji temple at Nathdwara.
That is why on October 10, 1933, he was deposed and his son Govindlalji, the present Tilkayat, was appointed the Tilkayat of the temple. Before adopting this course, the Rana had given ample opportunities to Damodarlalji to improve his conduct, but despite the promises made by him Damodarlalji persisted in the course of behavior which he had adopted and so, the Darbar was left with no other alternative but to depose him That is how the present Tilkayat's regime began even during the lifetime of his father.
(1) 12 Bom. 331.
(2) 17 Bom. 600, (3) 17 Bom, 620 576 As on the occasion of the deposition of Girdharlalji in 1833, so on the occasion of the deposition of Damodarlalji, litigation followed in respect of Bombay properties. On January 6, 1934, Damodarlalji filed a suit in the Bombay High Court (No. 23 of 1934) against the Tilkayat and other persons representing the denomination, In this suit, he claimed a declaration that he was entitled to and had become the owner of all the properties mentioned in the plaint and that he was the owner of all the rights, presents, offerings, and emoluments arising in and accruing from the ownership of the idols, Shrinathji and Shri Navnit Priyaji as well as his position as the Tilkayat Maharaj in due course of his succession. In the said suit, the idols of Shrinathji and Shri Navnit Priyaji were added as defendants.
At that time, the Tilkayat was a minor. Written statements were filed on his behalf and on behalf of the two idols. A counter claim was preferred on behalf of the idols that the properties belonged to them. Subsequently, the suit filed by Damodarlalji was withdrawn; but the counterclaim made by the idols was referred to the sole arbitration and final determination of Sir Chimanlal H. Setalvad, a leading Advocate of the Bombay High Court. On April 10, 1942, the arbitrator made his award and in due course, a decree was passed in terms of the said award on September 8, 1942.
This decree provided that all the properties, movable, and immovable, and all offerings and Bhents donated to the idol of Shrinathji or for its worship or benefit belonged to the said idol, whereas properties donated, dedicated or offered to the Tilkayat Maharaj for the time being, or at the Krishna Bhandar Pedhis if donated, dedicated or offered for the worship or benefit of the idol belonged to the said idol. It also provided that the Tilkayat Maharaj for the time being in actual charge at Nathdwara is entitled to hold, use and manage the "Properties of the said idol according to the 577 usage of the Vallabhi Sampradaya." The said award and the decree which followed in terms of it were naturally confined to the properties in the territories which then comprised British India and, did not include any properties in the territories which then formed part of princely India or Native State as they were then known.
Meanwhile, after Damodarlalji was deposed and his son Govindlalji was appointed the Tilkayat, the Rana of Udaipur issued a Firman on December 31, 1934. By this Firman it was laid down that the 'Shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnavas Sampradayak and all the properties offered at the shrine were the property of the-shrine and that the Tilkayat Maharaj was merely a Custodian, Manager and Trustee of the said property for the shrine. It also provided that the Udaipur Darbar had absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. It also made certain other provisions to which we shall have occasion to return later.
When he was, appointed the Tilkayat, Govindlalji was a minor and so, the management of the temple and the property remained with the Court of Wards, till April 1, 1948. On that date, the management of the Court of Wards was withdrawn and the charge of the property was handed over to the Tilkayat. It appears that the management of affairs by the Tilkayat was not very happy or successful and the estate faced financial difficulties. In order to meet this difficult situation the Tilkayat appointed a committee of management consisting of 12 members belonging to the denomination some time in 1952. This was followed by another committee of 21 members appointed on June 11, 1953.
Whilst this latter committee was in charge of the 578 management, some valuables stored and locked in the room in the premises of the Temple of Shrinathji were removed by the Tilkayat in December, 1957. This news created excitement amongst the members of the public in general and the followers of the denomination in particular, and so, the Rajasthan Government appointed a Commission of Enquiry. In the preamble to the notification by which the Commission of Enquiry was appointed, it was stated that the State of Rajasthan as the successor of the covenanting State of Mewar had a special responsibility to supervise that the endowments and properties dedicated to the shrine are safeguarded and used for the legitimate purposes of the shrine. The Commission of the Enquiry made its report on October 11, 1959. This report passed severe strictures against the conduct of the Tilkayat. At this stage, we ought to add that the dispute between the Tilkayat and the Rajasthan Government as to the ownership of the valuable articles removed from the temple was later referred to the sole arbitration of Mr. Mahajan, the retired Chief justice of this Court. The arbitrator made his award on September 12, 1961, and held that except in regard to the items specified by him in his award, the rest of the property belonged to the Tilkayat; and he found that when the Tilkayat removed the properties, he believed that they were his persona I properties.
It was in the background of these events that the State of Rajasthan thought it necessary that a scheme should be drafted for the management of the Temple and this proposal received the approval of the Tilkayat. In order to give effect to this proportion was agreed between the parties that a suit under, s. 92, Code of Civil Procedure , should be filed in the Court of the District judge at Udaipur. The paste then thought that the suit would be non-contentious and would speedily end in a scheme of maegans ment being drafted with the consent of parties 579 Accordingly, suit No. 1 of 1956 was filed in the District Court at Udaipur, and in accordance with the agreement which he had reached with the authorities, the Tilkayat filed a non contentious written statement. However, before the suit could make any appreciable progress, Ghanshyamlalji and Baba Rajvi, the son of Tilkayat, applied to be made parties to the suit and it became clear that these added parties desired to raise contentions in the suit and that entirely changing the complexion of the litigation. It was then obvious that the litigation would be a long-drawn out affair and the object of evolving a satisfactory scheme for the management of the affairs of the temple would not be achieved until the litigation went through a protracted course.
It was under these circumstances that the Governor of Rajasthan promulgated an Ordinance called the Nathdwara Ordinance, J959 (No. 11 of 1959) on February 6, 1959. The Tilkayat immediatelyfiled his Writ Petition No. 90 of 1959 challengingthe validity of the said Ordinance. The Ordinance was in due course replaced by Act 13 of 1959 and the Tilkayat was allowed to amend his original writ petition so as to challenge the vires of the Act. Shortly stated, this is the historical background of the present dispute.
The first question which calls for our decision is whether the tenets of the Vallabh denomination and its religious practices postulate and require that the worship by the devotees should be performed at the private temple owned and managed by the Tilkayat, and so, the existence of public temples is inconsistent with the said tenets and practices.
In support of this argument, the learned Attorney General has placed strong reliance on the observadons made by Dr. Bhandarkar in his work on Vaisnavism, Saivism and Minor Religious Systems, ti 80. In the section dealing with Vallabh and his 580 school, the learned Doctor has incidentally observed that the Gurus of this sect ordinarily called Maharajs are descendants of the seven sons of Vithalesa. Each Guru has a temple of his win, and there are no public places of worship. He has also added that the influence exercised by Vallabh and his successors over their adherents is kept up by the fact that God cannot be worshipped independently in a public place of worship, but in the house and temple of the Guru or the Maharaj which, therefore, has to be regularly visited by the devotees with offerings. These temples are generally described as Havelis and the argument is that the said description also brings out the fact that the temples are private temples owned by the Tilkayat of the day. It is true that the observations made by Dr. Bhandarkar lend support to the contention raised before us by the learned Attorney-General on behalf of the Tilkayat, but if' the discussion contained in Dr. Bhandarkar's work in the section dealing with Vallabh is considered as a whole, it would be clear that these observations are incidental and cannot be taken to indicate the learned Doctor's conclusions after a careful examination of all the relevant considerations bearing on the point. Since, however, these observations are in favour of the plea raised by the Tilkayat, it is necessary very briefly to enquire whether there is anything in the tenets or the religious practices of this denomination which justifies the claim made by the learned Attorney-General.
What then is the nature of the philosophical doctrines of Vallabh? According to Dr. Radha Krishnan (1), Vallabh accepts the authority not only of the Upanishads, the Bhagvad gita and the Brahma Sutras, but also of the Bhagavata Purana. In his works, Anubhasya, Siddhantarahasya and Bhagavata Tikasubodhini, he offers a theistic interpretation of the Vedanta, which differs from those or Sankara and Ramanuja. His view is called Suddhadvaita, or (1) "Indian Philosophy" by Dr. Radha Krishnan, pp. 756 and 758.
581 pure non-dualism, and declares that the whole world is real and is subtly Brahman. The individual souls and the inanimate world are in essence one with Brahman. Vallabha looks upon God as the whole and the individual as part. The analogy of sparks of fire is employed by Him to great purpose. The Jiva bound by maya cannot attain salvation except through the grace of God, which is called Pushti.
Bhakti is the chief means of salvation, though Jnana is also useful. As regards the fruit of Bhakti, there are diverse opinions, says Dasgupta (1). Vallabha said in his Sevaphala-vivrti that as a result of it one may attain a great power of experiencing the nature of God, or may also have the experience of continual contact with God, and also may have a body befitting the service of God. Vallabha, however, is opposed to renunciation after the manner of monastic sanyasa, for this can only bring repentance, as being inefficacious. Thug, it will be seen that though Vallabha in his philosophical theories differs from Sankara and Ramanuja, the ultimate path for salvation which he has emphasised is that of Bhakti and by Bhakti the devotee obtains Pushti (divine grace). That is why the cult of Vallabha is known as Pushtimarg or the path for obtaining divine grace.
Dr. Bhandarkar points out that according to Vallabha, Mahapushti, or the highest grace, is that which removes great obstacles and conduces to the attainment of God himself. Thus Pushtibhakti is of four kinds: (1) PravahaPushtibhakti, (2) Maryada Pushtibhakti, (3) PushtiPushtibhakti and (4) Sudha Pushtibhakti. The first is the path of those who while engaged in a worldly life with its me and mine, do acts calculated to bring about the attainment of God' The second is of those who, withdrawing their minds from worldly enjoyments, devote themselves to God by hearing His praise and listening to discourses about Him. The third is of those who already enjoyed God's grace and are made competent (1) A history on "Indian Philosophy" by Das Gupta, pp. 355356.
582 to aquire knowledge useful for adoration and thus come to know all about the ways of God. The fourth is of those who through mere love devote themselves to the singing and praising of God as if it were a haunting passion. Thus, it would be seen that the tenets of the cult emphasised the importance of Bhakti, and the religious practices accordingly centered round this doctrine of Bhakti.
The practical modes of worship adopted by the members of this cult bring out the same effect. Lord Krishna as a child is the main object of worship. His worship consists of several acts of performance every day in the prescribed order of ceremonies. These begin with the ringing of the bell in the morning and putting the Lord to bed at night.
After the Lord is awakened by the ringing. of the bell, there is a blowing of the conch-shell, awakening of the Lord and offering morning refreshments; waving of lamps; bathing;
dressing; food; leading the cows out for grazing; the midday meal; waving of lamps again; the evening service; the evening meal and going to bed. These rituals performed with meticulous care from day to day constitute the prescribed items of Siva which the devotees attend every day in the Vallabh temple. In order to be able to offer Bhakti in a p way, the members of this denomination are initiated into this cult by the performance of two rites; one is Sharana Mantropadesh and the other is Atma Nivedan. The first gives the devotee the status of a Vaishnava and the second confers upon him the status of an Adhikari entitled to pursue the path of service of devotion. At the performance of the first rite, the mantra which is repeated in the ears of the devotee is "Shree Krishna Sharanam Mamah" and on the occasion a "tulsi Kanthi' is put around the neck of the devotee. At the second initiation, a religious formula is repeated, the effect of which is that the devotee treats himself and all his properties as belonging to Lord Krishna.
We have already, 583 referred to the original image which Vallabha installed in the temple built in his time and the seven idols which Vithalnathji gave to his sons. These idols are technically described as "Nidhi Swaroops'. Besides these idols, there are several other idols which are worshipped by Vaishnava devotees after they are sanctified by the Guru. It is thus clear that believing in the paramount importance and efficacy of Bhakti, the followers of Vallabha attend the worship and services of the Nidhi Swaroops or idols from day to day in the belief that such devotional conduct would ultimately lead to their salvation.
It is significant that this, denomination does not recognise the existence of Sadhus or Swamis other than the descendants of Vallabha and it emphasises that it is unnecessary to adopt ritualistic practices or to repeat Sanskrit Mantras or in cantations in worshipping the idols. Besides, another significant feature of this cult is that it does not believe in celibacy and does not regard that giving up' worldly pleasures and the ordinary mode of a house-holder's life are essential for spiritual progress. In fact Vallabha himself lived a house-holder's life and so have all his descendants.
This cult does not, therefore, glorify poverty and it teaches its followers that a normal house-holder's life is quite compatible with the practice of Bhakti, provided of course, the devotee goes through the two ceremonies of initiation and lives up to the principles enunciated by Vallabha.
The question which we have to decide is whether there 'is anything in the philosophical doctrines or tenets or religious practices which are the special features of the Vallabha school, which prohibits the existence of public temples or worship in them. The main object underlying the requirement that devotees should assemble in the Haveli of the Guru and worship the idol obviously was to encourage collective and congregational prayers. Presumably 584 it was realised 'by Vallabha and his descendants that worship in Hindu public temples is apt to clothe the images worshipped with a formal and rigid character and the element of personality is thereby Obliterated ; and this school believes that in order that Bhakti should be genuine and passionate, in the mind of the devotee there must be present the necessary element of the personality of God. It is true that Vaishnava temples of the Vallabha sect are Generally described as Havelis and though they are grand and majestic inside, the outside appearance s always attempted to resemble that of a privates. This feature can, however, be easily explained if we recall the fact that during the time when vithalnathji with his great missionary zeal spread he doctrine of Vallabha, Hindu temples were constantly faced with the danger of attack from Aurangzeb. In fact, the traditional story about the foundation of the Srinathji temple at Nathdwara itself eloquently brings out the fact that owing to the religious persecution practiced during Aurangzeb's time, Srinathji himself bad to give up his abode near Mathura and to start on a journey in search of a place for residence in more hospitable and congenial surroundings.
Faced with this immediate problem Vithalnathji may have started building the temples in the form of Havelis so that from outside nobody should know that there is a temple within.
It may also be true historically that when the first temple was built in the life time of Vallabha it may have been a modest house where the original image was installed and during the early years just a few devotees may have been visiting the said temple. Appropriately enough, it was then called a Haveli. Later, even when the number of devotees increased and the temples built by the Vallabha sect began to collect thousands of visitors, traditional adherence to time-honoured words described all subsequent temples also as Havelis however big and majestic 585 they were. Therefore, we are satisfied that neither the tenets nor the religious practices of the Vallabha school necessarily postulate that the followers of the school must worship in a private temple. Some temples of this cult may have been private in the past and some of them may be private even today. Whether or 'not a particular temple is a public temple must necessarily be considered in the light of the relevant facts relating to it. There can be no general rule that a public temple is prohibited in Vallabha School. Therefore, the first argument urged by the learned Attorney-General in challenging the finding of the High Court that the Srinathji temple at Nathdwara is a public temple, cannot be accepted.
The question as to whether a Hindu temple is private or public has often been considered by judicial decisions. A temple belonging to a family which is a private temple is not 'Unknown to Hindu law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the, private temple founded by him may attract devotees in large numbers and the mere fact that A large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case, the temple would clearly be a public temple. Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to. be a public temple ? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry 586 in the temple ? Are they entitled to take part in offering service and taking Darshan in the temple ? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple ? Are their offerings accepted as a matter of right ? The participation of the members of the public in the Darshan in the temple and in the daily Acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is.
therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilkayat cannot rest on any such considerations which, if proved., may have helped to establish either that the temple is private or is public.
There are, however, certain ancient documents which show that the temple cannot be a private temple. We have already referred to the Firmans issued by Akbar and Shahjahan.
These Firmans are strictly not material for the purpose of the present dispute because they have no relation to the temple at Nathdwara. However, as a matter of history, it may be worthwhile to recall that the Firman issued by Akbar on May 31, 1593 A. D. shows that Vithalraj had represented to the Darbar that he had purchased on paying its price land from the owners thereof in the Mowzah of Jatipura, situated in the Paraganah, adjoining Gordhan and had caused to be built thereon buildings, gardens, cowsheds and Karkhanas (workshops) for the temple of Gordhan Nath and that he was residing there. Having received this representation, Akbar issued an order that the above-mentioned Mowzah had been given over tax-free into the possession of the abovementioned Goswami from descendant to descendant. It would thus be seen that though the grant by which the land 587 in question was exempted from payment of taxes is in the name of the Goswami, there 'can be no doubt that it was so named on the representation made by the Goswami that he had purchased the land and built structures on it for the temple of Gordhan Nath. Thus, in substance, the grant was made to the Goswami who was managing the temple of Gordhan Nath.
The grant of Shah Jahan made in 1633 A. D. is to 'the same effect.' These grants are in reference to the temple built by Vithalrai in Jatipura. We have already seen that the idol of Shrinathji was' removed from the said temple and brought to Nathdwara in about 1671.
The earliest document in regard to Siarh is of the year 1672 A.D. The document has been issued by the Rana of Udaipur and it says that "Be it know that Shrinathji residing at Sihod Let uncultivated land as may desire be cultivated till such time. When Shrinathji goes back to Brij the land of those to whom it belongs will be returned to them. If any one obstructs in any way he will be rebuked." The next document is of 1680 A. D. It has been issued by Rana of Udaipur and is in similar terms. It says that when Shririathji goes back to Brij from Singhad Brahmins will get the land which is of the Brahmins. 'I hey will get the land as is entered in previous records. So long as Shrinathji stays here, no Brahmin shall cultivate towards the West of Shah Jagivan's wall up to and across the foot of the hillock. If any one cultivates a fine of Rs. 225/shall be realised collectively.
Fortunately, for Nathdwara, the temple which was then built for Shrinathji for a temporary abode has turned out to be Shrinathji's permanent place of residence. These two documents clearly show that after Shrinathji was installed in what is now known as Nathdwara, the land occupied for the purpose of the temple was given over for that purpose and the actual occupants and cultivators were told that they would get the land back when Shrinathji goes back to Brij.
588 We have already cited the extract from Col. Todd's 'Annals of Rajasthan' in which he has Graphically described the traditional belief in regard to the choice of Siarh for the abode of Shrinathji. That extract shows that as soon the chariot wheel of Shrinathji stopped and would not move, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the patent of the Rana. Nathji was removed from his car and in due course of time a temple was erected for his reception. That is how the hamlet of Siarh became the town of Nathdwara. This assurance given by the chief was confirmed by the two grants to which we have just referred. Thus, there can be no doubt that the original grants were for the purpose of the temple.
A deed of dedication executed by Maharana Shri Bhim Singhji in favour of Gusainji in Sambat 1865 also shows that the lands therein described had been dedicated to Shriji and Shri Gusainji and that all the income relating to those lands would be dedicated to the Bhandar of Shriji.
A letter written by the Maharana on January 17, 1825, speaks to the same effect. "Our ancestors," says the letter, "kept the Thakurji Maharaj and the Gosainji Maharaj at the village of Shinhad which is near Udaipur and presented that village to the Thakurji. After this, our ancestors became followers of that religion and agreed to obey orders. They all granted lands and villages for the expenses of the God.
Besides these certain lands were granted for the grazing of the cows belonging to the Thakurji." This letter contains certain orders to the officers of the State to respect the rights of the temple and Gosainji.
Consistently with this record, we find a declaration made by Tilkayat Gordhanji in 1932 in which he 589 stated that "the money of Shri Thakurji as is the practice now, that it is not spent in our private expenditure the same will be followed", though along with this declaration he added that the proprietary right was 'his own from the time of the ancestors. In conformity with the same, the entry will continue as usual in the accounts of credit and debit as is the continuing mutation. Even though the Tilkayat set up the claim that the temple was private, it is consistently adhered to that the income derived from the properties of the temple is not intended to be and has never been used for the personal requirements of the Tilkayat.
It is true that there are other grants which have been produced on the record by the Tilkayat for the purpose of showing that some gifts oil immovable property were made in favour of the Tilkayat. Such grants may either show that the gifts were made to the Tilkayat because he was in the management of the temple, or they may have' been made to the Tilkayat in his personal character. Grants falling in the former category would constitute the property of the temple, whilst those falling in the latter category would constitute the private property of the Talikayat. These grants, however, would not affect the nature of the initial grants made to the temple soon after Shrinatliji came to Nathdwara.
Therefore in our opinion, having regard to the documentary evidence adduced in the present proceedings, it would be unreasonable to contend that the temple was built by the Tilkayat of the day as his private temple and that it still continues to have the character of a private temple. From outside it no doubt has the appearance of a Haveli, but it is common ground that the majestic structure inside is consistent with the dignity of the idol 'and with the character of the temple as a public temple.
We have referred to these aspects of the matter because they were elaborately argued before us by 590 the learned Attorney-General. But as we will presently point out, the Firman issued by the Udaipur Darbar in 1934 really concludes the controversy between the parties on these points and it shows that the Shrinathji Temple at Nathdwara is undoubtedly a public temple. It is therefore, now necessary to consider this Firman. This Firman consists of four clauses. The first clause declares that according to the law of Udaipur, the shrine. of Shrinathji has always been and is a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated, offered or presented to or otherwise coming to the Deity Shrinathji has always been and is the property of the shrine ;and that the Tilkayat Maharaj for the time being is merely a Custodian, Manager and Trustee of the said property for the shrine of Shrinathji and that the Udaipur Darbar has absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. The second clause deals with the question of succession and it provides that the law of Udaipur has always been and is that the succession to the Gaddi of Tilkayat Maharaj is regulated by the law of Primogeniture, and it adds that the Udaipur Darbar has the absolute right to depose any Tilkayat Maharaj for the time being if in its absolute discretion such Maharaj is considered unfit and also for the same reason and in the same way to disqualify any person who would otherwise have succeeded to the Gaddi according to the law of primogeniture. The third clause provides that in case the Tilkayat Maharaj is a minor, the Darbar always had and has absolute' authority to take any measures for the management of' the shrine and its properties during such minority. The last clause adds that in accordance with the said law of Udaipur, the Rana had declared Shri Domodarlalji unfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat, 591 Maharaj, and it ends with the statement that the order issued in that behalf on October 10, 1933, was issued under his authority and is lawful and in accordance with the law of Udaipur.
In appreciating the 'effect of this Firman, it is first necessary to decide whether the Firman is a law or not. It is matter of common knowledge that at the relevant time the Maharana of Udaipur was an absolute monarch in whom vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maharana of Udaipur, it is difficult to make any distinction between an executive order issued by him or a legislative command issued by 'him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. This position is covered by decisions of this Court and it has not been disputed before us, Vide Madhaorao Phalke v. The State of Madhya Bharat (1). Ammerun-Nisa Begam v. Mahboob Begum (2) and Director of Endowments, Government of Hyderabad v. Akram Ali It is true that in dealing with the effect of this Firman, the learned Attorney-General sought to raise before us a novel point that under Hindu law even absolute monarch was not competent to make a law affecting religious endowments and their administration. He suggested that he was in a position to rely upon. the opinions of scholars which tended to show that a Hindu monarch was competent only to administer the law as prescribed by Smritis and the oath which he was expected to take at the time of his coronation enjoined him to obey the Smritis and to see that their injunctions were obeyed by his subject. We do not allow the learned Attorney General to develop this point because we hold that this novel point cannot be accepted in view of the well-recognised principles of jurisprudence. An (1) [1960] 1 S.C.R. 957.
(2) A.I.R. 1955 S.C. 352.
(3) A.I.R. 1956 S.C. 60.
592 absolute monarch was the fountain-head of all legislative, executive and judicial powers and it is of the very essence of sovereignty which vested in him that he could supervise and control the administration of the public charity. In our opinion, there is no doubt whatever that this universal principle in regard to the scope of the powers inherently vesting in sovereignty applies as much to Hindu monarchs as to any other absolute monarchy. Therefore, it must be held that the Firman issued by the Maharana of Udaipur in 1934 is a law by which the affairs of the Nathdwara temple and succession to the office of the Tilkayat were governed after its issue.
Then the learned' Attorney-General contended that in judging about the effect of this Firman we should not ignore the background of events which necessitated its issue.
Damodarlalji had been deposed by Maharana and it was more in anger that the Firman was issued to meet the challenge of the said incident. Damodarlalji had filed certainsuits in the Bombay High Court and it appeared as if a doubt would arise in the minds of the followers and devotees of the temple as to whether the deposition of Damodarlalji was valid or not. It was with a view to meet this specific particular situation that the Firman was issued and so, it need not be treated as a law binding for all times. In our opinion, this argument is clearly misconceived. Whatever may be the genesis of the Firman and whatever may be the nature of the mischief which it was intended to redress, the words used in the Firman are clear and as provisions contained in a statute they must be given full effect.
There can be little doubt that after this Firman was issued, it 'would not be open to anyone to contend that the Shrinathii temple was a private temple belonging to the Tilkayat Maharaj of the day. This law declares that it has always been and would always be a public temple. The validity of this law was not then and is not now open to any 593 challenge when it seeks to declare that the temple in question has always been a public temple. We have already seen that the original grants amply bear out the recital in cl. 1 of the Firman about the character of this temple.
The fIrman then clearly provides that the TilkayaT Maharaj is merely a Custodian, Manager and Trustee of the said property and that finally determines the nature of the office held by the Tilkayat Maharaj. He can claim no better and no higher rights after the Firman was issued. The said clause also declares that the Darbar has absolute right to see to it that the property is used for legitimate purpose of the shrine. This again is an assertion which is validly made to assert the sovereign's rights to supervise the administration of public charity. Clause 2 lays down the absolute right of the Darbar to depo
