Mookerjee and Chotzner, JJ.:— The subject matter of the litigation which has culminated in this appeal is a parcel of land in the town of Dacca, a temple erected thereon, two idols installed therein, together with ornaments and other articles appurtenant thereto. The first plaintiff is Ananda Chandra Chuckerbutty, a member of the legal profession practising at Dacca; and he has commenced this litigation, on his own behalf and also as shebait of the two idols, Rudranath and Mahamaya (images of God Siva and Goddess Durga respectively) who are joined as co-plaintiffs. The first defendant, Brajananda Saraswati, claims to be the Mohunt of the Bura Siva temple and Asthan, an ancient religious foundation situated in the town of Dacca in the immediate neighbourhood of the disputed temple. The second defendant Rudra Tridandi Tripuralinga Swami is alleged by the plaintiff to be the real Mohunt of the Bura Siva temple, who resides at Swamibag in the town of Dacca. The third and fourth defendants are representatives of the estate of the late Iswar Chandra Ghose, some time Government pleader it Dacca. The fifth defendant, Birendra Chandra Choudhury, is said to be a priest acting under the direction of the first defendant the case for the plaintiff is that the disputed temple known as the Anandamayi temple, was erected by him on land obtained by way of gift from Iswar Chandra Ghose, that the idols were established by him, and that he peacefully exercised his rights as founder-shebait till the time of the Durga Puja of 1914, when the first defendant raised a dispute and obstructed him. He was, however, able to perform the Puja, as an order under section 144 of the Criminal Procedure Code, was made by the authorities. But proceedings were instituted shortly afterwards under section 145 of the Original Procedure Code, which resulted in an order, made on the 2nd March, 1915 in favour of the first defendant. The plaintiff accordingly instituted the present suit on the 18th September, 1916 to establish and enforce his rights in respect of the Anandamayi temple and the idols Rudranath and Mahamaya. The first defendant alone contested the claim; the second defendant, so far as can be gathered from the record, lent his support to the plaintiff. The contesting defendant urged that the site of the temple was land comprised within the ambit of the Bura Siva temple and Asthan and was at no time the property of Iswar Chandra Ghose, the donor of the plaintiff. He further alleged that the plaintiff had no right in respect of the disputed temple and the idols installed therein, except such as is possessed by every member of the public. The Sub-ordinate Judge has come to the conclusion that the site of the temple did not belong to Iswar Chandra Ghose, but was comprised in the Bura Siva temple and Asthan. He has also disbelieved the story of verbal gift by Iswar Chandra Ghose in favour of the plaintiff. He has found, however, that the Anandamayi temple was in fact erected by the plaintiff and that the idols were established by him. But in the opinion of the Sub-ordinate Judge, this does not confer on the plaintiff any special rights, distinct from those enjoyed by the members of the public in general. In this view, the Sub-ordinate Judge has dismissed the suit. This is the decision assailed in the present appeal.

As regards the original title to the site whereon the Anandamayi temple stands, we have scrutinised the entire evidence which has been minutely discussed before us. On this part of the case, we are not prepared to dissent from the conclusion of the Sub-ordinate Judge which is based on an accurate and exhaustive review of the evidence. The conveyances relied upon by the plaintiff contain boundaries which cannot be identified with precision, and these documents do not prove that the disputed land was owned by the predecessors-in-interest of Iswar Chandra Ghose. We cannot further overlook that there are difficulties in connection with the alleged gift by Iswar Chandra Ghose in favour of the plaintiff, which have not been, satisfactorily removed. Even if it be assumed that the disputed land is covered by the conveyances, Iswar Chandra Ghose never acquired title to the entire property; whatever interest he acquired did not, so far as can be made out, exceed share. It is difficult to believe that the plaintiff, admittedly an orthodox Hindu, should have erected a temple on a site the title whereof was in part at least involved in uncertainty. It is well settled that dedication vests thew property in the idol, only when the founder has title. The ceremony divests the proprietorship of the temple from the builder and vests it in the image, which by process of vivification has acquired existence as a juridical personage; for, as Vijnaneswara puts it, gift consists in the relinquishment of one's own right and the creation of the right of another. This is feasible only when the dedicator has himself title. Apart from this, the Sub-ordinate Judge has rightly emphasised that a person in the position of the plaintiff was not likely to accept a gift without a deed or to erect a temple on land obtained by way of gift. On the other hand, we have the undoubted fact that the lands towards the west as also-towards the east of the disputed temple site, belong to the Bura Siva temple and Asthan. This, again renders it highly improbable that the intermediate parcel should have been the property of private individuals. We must, consequently, accept the finding of the Sub-Judge that the site of the Anandamayi temple forms part of the Bura Siva temple and Asthan. We have next to consider how and when the Anandamayi temple was erected and the idols installed therein.

The evidence, which has been accepted by the Sub-Judge, establishes beyond dispute that in or about the year 1897 the plaintiff cleared the disputed site and commenced the construction of what is now known as the Anandamayi temple. The images of Siva and Durga were installed and consecrated by the plaintiff on the 1st May, 1900 and were named Rudranath and Mahamaya after his father and mother, respectively. In the year following, the plaintiff constructed a raised pavement towards the north of the temple so that the ceremony known as Pradakshin (circumambulation), might be conveniently performed by the worshippers. In 1902, the plaintiff acquired a strip of land towards the south and dedicated the same to the idols established by him. The evidence makes it abundantly clear that from 1900 to 1914 the plaintiff had free access to the temple and regularly took part in the worship. There is also evidence to show that other structures were erected by friends of the plaintiff; for instance, the gate rooms were constructed by Krishna Kishore Basalt, while the front corridor was built at the cost of Iswar Chandra Ghose. We have thus the cardinal fact that on land comprised within the Asthan of Bura Siva, the plaintiff has erected a temple, wherein he has installed and consecrated two idols and has had, for a period of more than fourteen years, free access and opportunity for regular participation in the worship. This could have happened in either of two ways. The plaintiff may have by force obtained possession of the land and erected the temple thereon; or the plaintiff may have erected the temple with the concurrence, tacit or express, of the Mohunt of the Bura Siva temple and Asthan for the time being. In either view, the first defendant—if he be assumed to be the present Mohunt—is not competent to treat the plaintiff as a trespasser and to exclude him from the Anandamayi temple. If the first alternative be adopted, as the temple has been in existence for over twelve years, the idols to whom it is dedicated have acquired an indefeasible title to the site by adverse possession: Balwant v. Puran , Ramparkash v. Anand Das , Vidya v. Balusami , Khaw Sim v. Chuah Hooi , Damodar v. Lakhan . If the second alternative, which seems the more probable, be adopted, the present Mohunt is not competent to revoke the arrangement sanctioned by his predecessor, which resulted in the erection of the temple and the installation of the idols. It is thus plain that even if the conclusion of the Sub-Judge that the disputed site formed part of the Bura Siva Asthan be affirmed, it does not necessarily follow that the plaintiff has no rights on the facts admitted and proved.

It may be conceded that as a general rule the parties should be kept to their pleadings, but, as has been repeatedly pointed out, this is not of universal application and every variance between pleading and proof is not fatal. The rule that the pleading and proof must correspond is intended to serve a double purpose; first, to apprise the defendant distinctly and specifically of the case he is called upon to answer; and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding upon the same allegations. The test is, whether the defendant will be taken by surprise if relief is granted on the facts established by the evidence; or, as has sometimes been said, a variance between a pleading and what is proved is immaterial unless it hampers a defence or unless it relates to an integral part of the cause of action: Sital Das v. Protap Chandra , Jalim Singh v. Chooneelall , Nabadipendra v. Madhusudan , Hiralal v. Giribala , Ishan Chandra v. Nishichandra , Satish kantha v. Satis Chandra , Nepenbala v. Sitikantha , Ramkissen v. Pooran Mull . It is on this ground that Viscount Haldane emphasised in Haji Umar v. Gustadji that the principle of variance between pleading and proof should not be applied in an abstract way; the whole of the circumstances must be taken into account and carefully scrutinised, as the question is, in ultimate analysis, one of circumstance and not of law. To the same effect is the decision of the Judicial Committee in Motabhoy v. Mulji where Lord Dunedin said that as evidence had been fully taken on a plea arising in the case, it was not proper for the Court to decide against a party on a strict construction of the pleadings without considering such evidence, specially when such a technical view might have been obviated by an amendment of the pleadings. Similarly, in Basant Singh v. Mahabirprasad . Lord Atkinson observed that where a defect in title was apparent on the face of the documents, the Judicial Committee would decide the case accordingly, even though the point had not been clearly raised in the Courts below. Reference may, in this connection, be made to the decisions of the Judicial Committee in Fatehchand v. Kishan Kunwar and Skinner v. Naunihal Singh . These cases show that although the plaintiff must ordinarily adhere to the claim as brought, the Court will depart from strict enforcement of this rule, where it is satisfied that justice will not be done between the parties, if the suit were dismissed on a technical ground, with the prospect of further litigation for the determination of a controversy then substantially ripe for settlement.

Now it is well settled that when the worship of an idol has been founded, the shebaitship is vested in the founder and his heirs, unless he has disposed of it otherwise, or there has been some usage or course of dealing which points to a different mode of devolution: Gossami v. Roman Lalji , Jagadindra v. Hemantakumari , Mohan v. Gordhan , Ramanathan v. Muruguppa , Sital v. Protap , Raj Krishna v. Bipin , Sheoprasad v. Ayaram , Kunjamani v. Nikunja , Baldeo v. Gobind . In the application of this rule, it may not be always easy to determine, who are the founders. One person may provide the site of the temple, another may build the temple and establish the idol, while a third may dedicate property for the performance of the daily services of the idol. Where the owner of the site relinquishes his right in the land, he may not be a founder, unless he indicates, at the time, expressly or impliedly, that he will associate himself with the others in carrying out the object of the foundation: Venkuta v. Narain (10). Prima facie, all the persons who establish the worship are entitled to take part in the management. In England, it has been ruled that the person providing the original endowment is the founder rather than the person who performs the act of incorporation, which involves a distinction between the fundatio incipiens and the fundatio percipiens: Sutton's Hospital Case (11), Anon (12), Shelford on Mortmain p. 27. If a number of persons provide the original endowment, they may apparently together constitute the founder: Re St. Leonard . But persons who, subsequent to the foundation, furnish additional contributions, do not thereby become joint founders: their benefaction is regarded as nothing beyond an accretion to an existing foundation: Appasami v. Nagappa , Annasami v. Ramakrishna , Gossami v. Romanlalji . In the case before us, there is no room for controversy that the plaintiff is, if not the sole founder, at least one of the founders. As stated by Lord Mansfield in St. Johns College v. Todington , a charitable foundation, in so far as it is charitable, is the creature of the founder, and on this view Lord Hardwicke ruled in Green v. Rutherford that the founder may provide for the Government and administration of his creature; see also the decision of the King's Bench in Phillips v. Bury which was ultimately taken up to the House of Lords, Phillips v. Bury , and contains an elaborate review of the rights of founders of charitable and religious trusts. The plaintiff is, consequently, shebait of the idols installed by him in the temple, erected by means of his contribution for their worship and service. The Sub-ordinate Judge has assumed in his judgment that the Anandamayi temple, founded by the plaintiff is a public temple, and from this he has inferred that the plaintiff cannot be the shebait. He has overlooked however that there is weighty authority in support of the position that the shebaitship is vested in the founder and his heirs, unless he has disposed of it otherwise, equally in the case of private and public endowments. No distinction between the two classes of cases, has been drawn in this respect in the judicial decisions. Thus, in Sheoratan v. Rampargash , Sitaldas v. Protap Chandra , Rajkrishna v. Bipinbehari and Horidasi v. Secretary of State , the contention was expressly overruled that the principle enunciated in Jaibansi v. Chattardhari and approved by the Judicial Committee in Gossami v. Romanlalji , is confined to private foundations and does not extend to public trusts. The same view has been recently adopted by a Full Bench of the Madras High Court in Gauranga v. Sudevi see however Sethu v. Meru . Consequently, whether a foundation be public or private, the threefold principle is applicable, namely, (i) the devolution of the trust upon the death or default of each trustee, depends upon the terms on which it was created, or the usage of the particular institution where no express trust deed exists; (ii) the worship of the idol is vested in the founder and his heirs, in default of evidence to show that he has disposed of it otherwise; and (iii) where a shebait appointed by the founder fails to nominate a successor in accordance with the conditions or usage of the endowment, the office reverts to the founder and his representatives, even though the endowment has assumed a public character. It is thus unnecessary to decide, for the purposes of this case, whether the Anandamayi temple is or is not a public foundation.

If and when the question arises, the indicia of a public foundation, as enunciated in Thackersey v. Hurbhum , Chintaman v. Dhondo , Sridhundiraj v. Ganesh , Raghubar v. Kesho , Pesupati v. Kunduri , Muthia v. Perianan , Subramaniya v. Venkata , Subramanya v. Lakshmana must be carefully considered, and the existence or otherwise of obvious tests, such as user by the public, worship by the public and offerings by the public, must be investigated. It is sufficient to observe here that the fact that the site of the Anandamayi temple formed part of the land of the Bura Siva temple and Asthan, does not make in a public foundation. Much less does it justify the inference that the Mohunt of the Bura Siva temple became, by operation of law, the shebait of the new temple. There is also no room for the application of the principle, sometimes applied when one Mutt is an off-shoot of a parent Mutt and stands in the relation of a Sub-ordinate institution to the superior foundation: Kashibashi v. Chitumber , Giyana v. Kandasami , Kailasam v. Nataraja , Vithalbowa v. Narayan , Mohant Muhadev v. Bullabh (13), Prayad Das v. Mohanth Kriparam (14), Gossain Dowlut v. Bissessur (15). There is further no evidence in the case before us that the shebaitship of Rudrauath and Mahamaya was expressly vested by the founder in the Mohunt of the Bura Siva temple and his successors from generation to generation. Nor can the inference of such appointment, by implication, be drawn from the circumstance that the worship at the Bura Siva temple as also that at the Anandamayi temple was conducted by the same pujari or priest namely, by Ramji, Bhutananda, Sankarananda and Ramnath successively; they all received, as the evidence indicates, extra perquisites for their services as pujari in the Anandamayi temple. This, indeed, might be expected to happen in the normal course of events; the pujari who carried on the worship in the Bura Siva temple would naturally be found the most convenient man to employ for the purpose of the worship in the Anandamayi temple, and this arrangement might well continue till a dispute broke out, as it did, when the fifth defendant Birendra Chandra was brought in by the first defendant as priest. It must not further be overlooked that the pujari or archak is not the shebait, he is appointed by the shebait as the purohit to conduct the worship; but that does not transfer the rights and obligations of the shebait to the purohit: Maharanee Indurjeet Kooher v. Chundernun , Nafar v. Kailash and he is not entitled to be continued as a matter of right in his office as pujari: Nanabhai v. Trimbak , Narayana v. Ranga , Jagannatha v. Seenu , Seskadri v. Ranga . We may finally point out that as, in this case, the first defendant claims to belong to the Dasnami Sampraday, it is difficult to appreciate, how he could become the shebait of a temple dedicated to Durga; Dasnami Mutts founded by the ten disciples of the four most favourite pupils of Sankara are Saiva Mutts. We need not, however, pursue this aspect of the case further. The Anandamayi temple, as we have seen, was erected during the years 1897-1900. The first defendant was admittedly not the Mohunt at the time. The evidence shows that on the 5th July, 1901, he took admission into a secondary school and was described as a boy whose age was given as nine years, but who appeared to the Head Master to be eleven years old. His caste was given as Kshatriya, son of Tripurananda Giri, who as we know had died two years previously. He was represented as living under the guardianship of Tridandi Tripuralinga Swami the second defendant in this litigation. It is manifest that when the Anandamayi temple was constructed by the plaintiff, the first defendant was of such immature age that he could not be expected to possess a personal knowledge of the relevant events of that period. His father died in 1899 before the temple was completed, and the second defendant, whom he has since repudiated, acted at the time as his protector. The evidence does not furnish a convincing account of his subsequent history, much less does it show how he developed into a Mohunt. This much is plain that the second defendant is; reluctant to acknowledge him, while the plaintiff does not hesitate to treat him as an impostor, who has never attained the strict path of sanctity. On this state of the record, we need not investigate here Imprecise relation to the Bura Siva temple and Asthan, specially as there is a dispute on that very subject, between him and the second defendant. To determine what relief should be granted to the plaintiff, it is sufficient to hold that the following positions are established on the evidence:

(i) that the plaintiff has no personal right in the Anandamayi temple and is not entitled to maintain this suit in his personal capacity;

(ii) that the plaintiff is founder of the Anandamayi temple, and has installed and consecrated the idols Rudranath and Mahamaya to whom the temple has been dedicated;

(iii) that the plaintiff is shebait of the two idols and is entitled to maintain this suit, only in his character as shebait;

(iv) that as such shebait, the plaintiff is entitled to free access to the temple for purposes of the daily and periodical worship;

(v) that, for the above purpose, the Anandamayi temple will be taken to comprise the block of three rooms and verandah together with the pavement towards the east and north as shown in Exhibit 1 (map produced by defendant No. 1 on 5th February 1920 and admitted in evidence) as also the land covered by the deed of gift executed by the plaintiff on the 20th February, 1902;

(vi) that as shebait, the plaintiff is entitled to have the worship of the idols Rudranath and Mahamaya conducted by a pujari or archak and to use for that purpose the moveables which belong to the idols; and

(vii) that the contesting defendant is not entitled to interfere with the plaintiff in the discharge of his duties as shebait.

The result is that this appeal is allowed in part and the decree of the Sub-ordinate Judge set aside. A decree will be made in favour of the plaintiff containing the six declarations mentioned above and granting him an injunction to restrain the first defendant from interfering with him in the discharge of his duties as shebait in terms of the declaration. If any dispute arises as to the access to the Anandamayi temple, the Sub-ordinate Judge will decide the matter in execution and give such directions as may be necessary to carry out the terms of this decree. Each party will pay his own costs both here and in the Court below.

B.M.S

Appeal allowed in part.