Full Judgment Text
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PETITIONER:
PRATAPSINHJI N. DESAI
Vs.
RESPONDENT:
DEPUTY CHARITY COMMISSIONER, GUJARAT & ORS.
DATE OF JUDGMENT11/08/1987
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1987 AIR 2064 1987 SCR (3) 909
1987 SCC Supl. 714 JT 1987 (3) 335
1987 SCALE (2)311
ACT:
Hindu Law: Religious endowment--Temple-Whether public or
private--Mixed question of--Fact and law--Dedication to
public-What is--Whether worshippers are the beneficiaries.
Bombay Public Trusts Act, 1950: Sections 2(13) and
2(17)-Temples of Shri Dwarakadhishji and Shri Trikamrayji at
Patadi-Whether ’temples"Public Trust’--Tests for determining
whether temple is private or public.
HEADNOTE:
At Patadi in the erstwhile State of Patadi in the Sau-
rashtra region of Gujarat State there were two temples known
as Sri Dwarkadhishji Mandir and Sri Trikamrayji Mandir,
which were constructed in the years 1872 and 1875 respec-
tively by the then ruler with funds from the State Treasury.
In the Gram Panchayat records the temples stood in the name
of the deities, and the appellant, the former ruler of the
State, was shown as a Vahivatdar. The temples were exempted
from payment of municipal and other taxes including land
revenue.
The Bombay Public Trusts Act, 1950 was extended to the
Saurashtra region of Gujarat State in the year 1952.
The Deputy Charity Commissioner, sometime in 1958, suo
motu initiated proceedings under s. 19 of the above named
Act, and issued show cause notice to the appellant, who was
Vahivatdar of the temples. The appellant pleaded that the
temples and the properties appurtenant thereto were private
properties of the ruler and the members of the royal family,
and were not public trusts. After examining witnesses, the
Deputy Charity Commissioner came to the conclusion that the
shrines had been dedicated as places of public religious
worship and were, therefore, temples within the meaning of
s. 2(17) of the Act, and that the temples together with the
properties appurtenant thereto constituted public religious
trust within the meaning of s. 2(13). These findings were
upheld by the Charity Commissioner.
On an application under s. 72 of the Act, the District Judge
held
910
that there was no clear, cogent or satisfactory evidence of
the existence of a public endowment, that the question
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whether the temples were dedicated to the public may be
inferred from a long course of conduct of the founders and
the descendants, and that the mere fact that the public was
allowed access to the temples was not conclusive as to the
nature of the endowment and that the department had failed
to discharge the burden of showing that they were public
endowments.
The department appealed to the High Court which held
that the temples fell within the meaning of s. 2(17) of the
Act and were, therefore, within the ambit of the expression
"public trust" under s. 2(13).
In the appeal to this Court, it was contended that there
was no evidence to establish that there was dedication of
the temples by the appellant’s ancestor for the use and
benefit of the public, that the findings reached by the High
Court and the Charity Commissioner were vitiated due to
misplacing of the burden to establish the existence of
public endowment, and that the High Court was in error in
holding that the temples were constructed by the appellant’s
ancestor for the benefit of the community at large and that
the general public or a particular section thereof, had an
unrestricted right of worship at the temples, merely because
there was proof of long user by the members of the Vaishnava
sect without any let or hinderance, that in the revenue
records and the register of the gram panchayat, the temples
were recorded in the names of the deities with the appellant
shown as a mere Vahivatdar, and that separate accounts were
kept in respect of the temples.
Dismissing the appeal, this Court,
HELD: 1. The findings arrived at by the High Court as
well as the Charity Commissioner that the temples were
’public temples’ and, therefore, ’public religious trusts’
within the meaning of s. 2(17) read with s. 2(13) of the
Bombay Public Trusts Act, 1950, and not the private proper-
ties of the appellant or the members of his family are
unassailable. [927C]
1.2 The question whether the temples had been dedicated
or were the private property of the appellant was essential-
ly a matter of inference to be drawn from the other facts on
record. There is clear, consistent, reliable and unimpeacha-
ble evidence to establish that although the temples in
question were constructed by the appellant’s ancestor, he
had intended and meant that they were for the use and bene-
fit of the
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public, that the public at large and members of the Vaishna-
va sect had been worshipping at the temples as of right for
the last over 100 years and that the temples had all along
been primarily maintained by contributions made by the
public particularly devotees belonging to the Vaishnava
sect. [918C, 926G-H]
2.1 The essence of a public endowment consists in its
being dedicated to the public; and in the absence of any
document creating the endowment, long user is the material
factor from which an inference of dedication may arise. The
distinction between a private and public endowment is that
whereas in the former the beneficiaries are specific indi-
viduals, in the latter they are the general public or a
class thereof. [921A-B]
2.2 When property is dedicated for the worship of a
family idol, it is a private and not a public endowment, as
the members who are entitled to worship at the shrine of the
deity can only be members of the family. But where the
beneficiaries are not the members of a family or specified
individuals but the public at large or a specified portion
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thereof, then the endowment can only be regarded as public
intended to benefit the general body of worshippers. [921G]
2.3 Dedication need not always be in writing and can be
inferred from the facts and circumstances appearing. In the
absence of a written grant, the question whether an endow-
ment made by a private individual is a public endowment or a
private one is a mixed question of fact and law and the
scope of dedication must be determined on the application of
legal concepts of public and private endowment. Facts and
circumstances, in order to be accepted as proof of dedica-
tion must be considered in their historical setting viz. the
origin of the temple, the manner in which its affairs are
managed, the nature and extent of the gifts received, the
rights exercised by the devotees in regard to worship there-
in, etc. [919F, 920E-F]
In the instant case, the temples were constructed at
public expenditure by meeting the cost of construction from
the public ex-chequer and the upkeep and maintenance of the
temples was met by public subscription. The High Court and
the Charity Commissioner therefore, rightly inferred exist-
ence of a public endowment. Such an inference was strength-
ened by the fact of user by the public as of right for over
a century. The appellant as well as his predecessors al-
though in management, have throughout treated the temples as
public temples of which they were mere Vahivatdars. The
finding reached by the High Court and the Charity Commis-
sioner is based on a proper appreciation of the
912
evidence. All the circumstances clearly support the finding.
[920G-H, C, 927B]
Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas & Ors.,
[1970] 2 SCR 275; Nar Hari Sastri & Ors. v. Shri Badrinath
Temple Committee, [1952] S.C.R. 849; Bihar State Board
Religious Trust, Patna v. Mahant Sri Biseshwar Das, [1971] 3
SCR 680; Radhakanta Deb & Anr. v. Commissioner of Hindu
Religious Endowments, Orissa, [1981] 2 SCR 826; Pujari
Lakashmana Goundan v. Subramania Ayyar, AIR 1924 PC 44; Babu
Bhagwan Din v. Gir Har Saroop, LR 1939 67 IA 1; Deoki Nandan
v. Murlidhar, [1956] SCR 756; Tilkayat Shri Govindlalji
Maharaj v. State of Rajasthan & Ors., [1964] 1 SCR 561;
Bhaneshwarbuwa Guru Purshottambuwa, owner of Shri Vithal
Rukhamai Sansthan v. The Charity Commissioner, State of
Bombay, [1976] 3 SCR 518; Hari Bhanu Maharaj of Baroda v.
Charity Commissioner, Ahmedabad, [1986] 4 SCC 162; Heir of
deceased Maharaj Purshottamlalji Mahara], Junagad v. Collec-
tor of Junagad District & Ors., [1986] 4 SCC 287 and Mulla’s
Hindu Law, 15th edn., para 424 at pp. 544-545, Mukherjea’s
Hindu Law of Religious & Charitable Trusts, 5th edn. paras
4.36 to 4.40 at pp. 185-190, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2041 of
1972.
From the Judgment and Decree dated 5.11.1971 of the
Gujarat High Court in First Appeal No. 693 of 1964.
Harish N. Salve, S.A. Shroff, S.S. Shardul and R. Sasi-
prabhu for the Appellant.
S.T. Desai and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal on certificate brought from the
judgment and order of the High Court of Gujarat dated July
3, 1972 raises a question whether the High Court was justi-
fied in reversing the decision of the District Judge, Suren-
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dranagar dated March 19, 1964 and restoring the order of the
Charity Commissioner, Ahmedabad, State of Gujarat dated
February 1, 1962 upholding that of the Deputy Charity Com-
missioner, Ahmedabad holding that the two temples of Sri
Dwarkadhishji and Sri Trikamrayji at Patadi were temples as
defined in s. 2(17) of the Bombay Public Trusts Act, 1950
and therefore they fell within the purview of the expression
’public trust’ within the meaning of s. 2(13) of the Act.
913
The facts giving rise to the appeal may be shortly
stated. The appellant is a former ruler of the semi-juris-
dictional State of Patadi, one of the 17 States which en-
tered into a covenant for the formation of the United State
of Kathiawad which on the reorganisation of the States
became part of the former State of Bombay and now forms part
of the State of Gujarat. The Bombay Public Trusts Act, 1950
was extended to the Saurashtra region including the area
that formed part of the erstwhile State of Patadi in the
year 1952.
In Patadi, which was the seat of the former Ruler, there
exist two temples known as Sri Dwarkadhishji Mandir or
Haveli which is the main temple and adjacent to it there is
the smaller temple known as Sri Trikamrayji Mandir. Both
these temples were constructed in the years 1872 and 1875
respectively by the then ruler of Patadi and the cost of
construction was met from the Patadi State Treasury. The
temples are situated on the main road in Patadi and do not
form part of the Darbargadh or the palace wherein the ruler
and the members of the royal family used to reside, although
there exists a passage leading to the public road presumably
meant for the use of the ladies of the royal family. In the
Gram Panchayat records Sri Dwarkadhishji Mandir or Haveli
stands in the name of the deities and the appellant is
merely shown as a Vahivatdar. Similarly, Sri Trikamrayji
Mandir is shown as the property of the deities and the
appellant as a Vahivatdar. The two temples were exempted
from payment of municipal as well as other taxes including
the land revenue presumably because they were public tem-
ples. This is one of the decisive factors in determining
whether a temple is a private or a public one.
It appears that the management of the temples remained
throughout with the successive ruler of Patadi but that
circumstance would not afford an indicia of ownership of the
temples being vested in the rulers. On the contrary, the
evidence shows that the temples were throughout treated as
places of public religious worship and the public in general
and members of the Vaishnava sect in particular were regu-
larly worshipping in the temples as a matter of right ever
since the installation of the deities and also taking part
in the ceremonial festivals like ’Hindola’ and ’Annakut’ and
making cash offerings of bhends, gifts of ornaments etc. The
evidence also discloses that nobody was required to take
permission from the darbar before entering into the temples
for darshan and worship, nor was there any obstruction made
at any point of time except after the initiation of the
proceedings from the appellant or the manager and/or his
servants to the use of the temples by the public as of
right. The cash offerings or
914
bhents, gifts or ornaments etc. made by the general public
and members of the Vaishnava sect were kept in a golak at
Sri Dwarkadhishji Mandir under the exclusive control of the
Vaishnava sect and remittances were made to Goswami Maharaj,
Acharya of the Vaishnava sect at Ahmedabad.
Even after the Act was extended to the erstwhile State
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of Patadi, the public in general and the members of the
Vaishnava sect in particular had unrestricted right of
worship at the temples. Sometime in the year 1958 the inhab-
itants of Patadi made a complaint to the Charity Commission-
er that there were several items of public religious and
charitable endowments under the possession and control of
the appellant and he was appropriating the income and prof-
its thereof. Thereupon the Deputy Charity Commissioner suo
motu initiated proceedings under s. 19 of the Act and issued
show cause notice to the appellant. In answer to the show
cause notice the appellant filed a reply admitting the
existence of some public trusts and agreed to get them
registered as such under s. 18 of the Act and thereafter
made an application. He however pleaded that the two temples
in question and the properties appurtenant thereto as well
as a public library were private properties of the ruler and
the members of the royal family and were not public trusts.
After the initiation of the proceedings the appellant put up
a board at both the temples that anybody seeking darshan
must seek his permission. During the inquiry, several wit-
nesses were examined on behalf of the public as well as by
the appellant. The appellant however did not enter the
witness box but examined his chief darbari NatwarIal Ranch-
hodlal. The Deputy Charity Commissioner by his order dated
January 29, 1960 on the totality of the evidence came to the
conclusion that the shrines had been dedicated as places of
public religious worship and were therefore temples within
the meaning of s. 2(17) of the Act and these temples togeth-
er with the properties appurtenant thereto have constituted
public religious trusts within the meaning of s. 2(13). The
appellant being dissatisfied carried an appeal to the Chari-
ty Commissioner who by his order dated February 1, 1962
upheld the finding reached by the Deputy Charity Commission-
er. Aggrieved, the appellant made an application under s. 72
of the Act before the District Judge, Surendranagar for
setting aside the order of the Charity Commissioner. The
learned District Judge disagreed with the finding reached by
the Charity Commissioner and held that there was no clear,
cogent or satisfactory evidence of the existence of a public
endowment. He held that the question as to whether the
temples in question were dedicated to the public depends
upon inferences which could legitimately be drawn from facts
not in
915
dispute and observed that a dedication to the public may be
inferred from a long course of conduct of the founders and
descendants. However, it was abundantly clear that the
temples which undoubtedly have been constructed by the then
ruler of Patadi adjacent to the Darbargadh were meant for
the worship of the family deities of the founder and his
family. The temples were constructed by the then ruler of
Patadi, the management of which exclusively remained with
the ruler for the time being, and there was nothing to-show
that they were intended for the use of the public at large
for an indeterminate though restricted class of the Hindu
community in general. According to the learned District
Judge, the mere fact that the public was allowed access to
the temples was not conclusive as to the nature of the
endowments and that the Department had failed to discharge
the burden of showing that they were public endowments.
Thereupon, the Deputy Charity Commissioner preferred an
appeal under s. 72(4) of the Act to the High Court. Disa-
greeing with the learned District Judge the High Court has
come to the conclusion following the decision of this Court
in Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas &
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Ors., [1970] 2 SCR 275 that the two temples were places of
public religious worship used as of right by the Vaishnavas
and observed:
"The circumstance that the public or a section
thereof have been regularly worshipping in the
temples as a matter of course and they could
take part in the festivals and ceremonies
conducted in that temple as appears from the
record, apparently as a matter of right, is a
strong piece of evidence to establish the
public character of the temple."
"There is nothing on record to indicate that
in the long past in Patadi, any ruler had put
any restriction on the use of the temples for
Darshan over a fairly long period during which
the members of the public have visited the
temples as if they were their temples and this
establishes their right. Such a consistent and
unobstructed user must be taken as of right.
It is well known that those who go for ’Dar-
shan’ and/or ’Puja’ do not and generally have
no occasion to assert their right. It is not
shown that the right was ever obstructed."
"Although there was a sort of private passage
running from
916
the Darbargadh leading to the public road,
presumably meant for the use of the ’Pardana-
shin’ ladies of the royal family, this would
not indicate that the temples were attached to
the Darbargadh or were reserved for the exclu-
sive use of the ruler and the members of the
royal family."
The High Court on a consideration of the evidence brought
out two circumstances, namely, (1) The general public and
particularly the members of the Vaishnava sect had unre-
stricted right of worship at the temples as a matter of
course and participated in the festivals of ’Hindola’ and
’Annakut’ functions and sewa at Sri Dwarkadhishji Temple and
daily darshan and worship at the other temple which, by
itself, was a strong piece of evidence to establish the
public character of the temples. And (2) The cash offerings
or bhents, gifts of ornaments etc. were in the usual course
credited in the two separate accounts kept for the two
temples, which were utilised for the upkeep and maintenance
of the temples, acquisition of immovable properties, ad-
vancement of loans and mortgages etc., also lead to the same
conclusion. On consideration of the evidence in the case,
particularly the two circumstances adverted to read in
conjunction with the evidence as to the way in which the
temple endowments had been dealt with and the evidence as to
the public user of the temples, the High Court came to the
conclusion that they were temples within the meaning of s.
2(17) of the Act which clearly fell within the ambit of the
expression ’public trust’ under s. 2(13)- It repelled the
contention of the appellant that the temples were the pri-
vate temples of the ruler and members of the royal family,
observing:
"These two relevant circumstances go to show
that the two temples which were places of
public religious worship were used as of right
by the Vaishnavas. Such a view has been taken
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by their Lordships of the Supreme Court in
Goswami Shri Mahalaxmi Vahuji v. Shah Ranch-
hoddas Kalidas (dead) & Ors. (supra). There is
no evidence on record to show that the temples
were treated as private property and that the
income from the offerings made at the temples
was merged with the State funds, much less
treated as the private income of respondent
no. 1 (ex-Ruler). There is also no evidence to
show that the temples were at any time closed
down on any occasion so as to exclude the
public from worship when the members of the
Ruler’s family visited the temple or temples
on any other family occasion."
917
"The mere management of the temples being with
the successive rulers of Patadi would not
afford an indicia to show the ownership of
temples as having been vested in the Rulers.
It is well known that in the princely regimes,
a citizen would not ordinarily interfere with
the management of such properties being made
by the then Ruler."
"The only evidence examined is of Darbar’s
Karbhari Natvarlal at Ex. 129 examined before
the Deputy Charity Commissioner. His evidence
that the darbar if it thinks fit can obstruct
any person from entering into the temples
introduced in the examination-in-chief is not
dependable. He has in his cross-examination
admitted that prior to the enquiry proceed-
ings, nobody was required to take permission
before entering the ’Haveli’ and the Mandir
for ’Darshan’ and worship. This would go to
show that there was no obstruction made at any
point of time by the Darbar and his manager
and/or his servants to the use of the temples
by the public as of right."
"Even if it be assumed that the temples
had originated as private temples, although
the case as urged by Mr. Chhaya is that the
origin is unknown or lost in antiquity, there
is good evidence to show that the temples were
being used as public temples. Taking an inte-
grated view of the circumstances aforesaid, as
appear from the relevant evidence on record,
in our opinion, it must be held that the
Vaishnavas were regularly worshipping in the
temples as a matter of course and they took
part in the festivals and ceremonies conducted
in the temples and outside apparently as a
matter of right."
"The mere fact that the successive Darbars
of the rulers were the managers of the temples
would not go to show that the temples were
private trust properties. The circumstances
aforesaid lead to a reasonable inference that
although the origin of the temples was at the
instance of
918
then Ruler of the Patadi State, the funds
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which went for the construction of the temples
were the funds of the State and, at least
gradually in course of time, there was dedica-
tion of the temples for the benefit of the
Vaishnav community as places of public wor-
ship."
We thought that on the overwhelming evidence on record--both
oral and dOcumentary---no other conclusion than the one
reached by the High Court was possible.
The question whether the temples had been dedicated to
the public or were the private property of the appellant was
essentially a matter of inference to be drawn from the other
facts on record and the findings arrived at by the High
Court as well as the Charity Commissioner were clearly
unassailable.
In support of the appeal, learned counsel for the appel-
lant has, in substance, advanced three main contentions,
namely: (1) There was no evidence whatever to establish that
there was dedication of the temples by the appellant’s
ancestor for the benefit or use of the public. Where in a
case like the present, the creation of the trust is not lost
in antiquity or shrouded in obscurity, the temples having
admittedly been constructed by the appellant’s ancestor
must, in the absence of a formal document of endowment, be
regarded as the private temples of the founder and the
members of the royal family, from the fact that the appel-
lant and his predecessors have throughout been in management
of the same. (2) The burden was on the Charity Commissioner
to establish the existence of a public endowment and as a
matter of law there had to be very strong and clear evidence
before such an inference could be raised and that burden the
Charity Commissioner has failed to discharge. The findings
reached by the High Court and the Charity Commissioner that
the temples were places of public religious worship and were
temples within the meaning of s. 2(17) of the Act and fell
within the purview of the expression ’public trust’ as
defined in s. 2(13), are therefore vitiated due to misplac-
ing of that burden. (3) The High Court was in error in
holding that the temples were constructed by the appellant’s
ancestor for the benefit of the community at large and that
the general public or a particular section thereof, had an
unrestricted right of worship at the temples merely because
of the circumstance that there was proof of long user of the
temples by the public particularly by the members of the
Vaishnava sect without any let or hinderance or the fact
that in the revenue records and the register of the gram
panchayat the temples were recorded in the names of
919
the deities with the appellant shown as a mere Vahivatdar
and that separate accounts were kept in respect of the
temples. According to the learned counsel, these circum-
stances were non-sequitur. He relied upon Mulla’s Hindu Law,
15th edn., para 424 at pp. 544-545, Mukherjea’s Hindu Law of
Religious & Charitable Trusts, 5th edn., paras 4.36 to 4.40
at pp. 185-190, Nar Hari Sastri & Ors. v. Shri Badrinath
Temple Committee, [1952] SCR 849; Goswami Shri Mahalaxmi
Vahuji v. Rannchhoddas Kalidas & Ors., [1977] 2 SCR 275;
Bihar State Board Religious Trust, Patna v. Mahant Sri
Biseshwar Das, [1971] 3 SCR 680 and Radhakanta Deb & Anr. v.
Commissioner of Hindu Religious Endowments, Orissa, [1981] 2
SCR 826.
We have no manner of doubt that there is no substance in
any of these contentions. As to the first, there is very
strong and clear evidence to establish that there was dedi-
cation of the temples by the appellant’s ancestor for the
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use or benefit of the public. "Endowment" is dedication of
property for purposes of religion or charity having both the
subject and object certain and capable of ascertainment. It
is to be remembered that a trust in the sense in which the
expression is used in English law is unknown in the Hindu
system, pure and simple. Hindu piety found expression in
gifts to idols and images consecrated and installed in
temples, to religious institutions of every kind and for all
purposes considered meritorious in the Hindu social and
religious system. Under the Hindu law the image of a deity
of the Hindu pantheon is, as has been aptly called, a
‘juristic entity’, vested with the capacity of receiving
gifts and holding property. The Hindu law recognises dedica-
tions for the establishment of the image of a deity and for
maintenance and worship thereof. The property so dedicated
to a pious purpose is placed extra-commercium and is enti-
tled to special protection at the hands of the Sovereign
whose duty it is to intervene to prevent fraud and waste in
dealing with religious endowments. Dedication need not
always be in writing and can be inferred from the facts and
circumstances appearing. It would be a legitimate inference
to draw that the founder of the temple had dedicated it to
the public if it is found that he had held out the temple to
be a public one: Pujari Lakshmana Goundan v. Subramania
Ayyar, AIR 1924 PC 44.
In view’ of this, the contention that there is no evi-
dence to establish that there was dedication of the temples
by the appellant’s ancestor for the benefit or use of the
public or a section thereof, cannot therefore prevail. On
the contrary, the evidence discloses that although the
temples had been constructed by the appellant’s ancestor,
the cost of their construction was met from out of the
public
920
exchequer and that the income from the offerings made by the
worshippers at the shrine in the form of bhents and gifts of
ornaments etc. as also the income from properties acquired
for the temple from out of such income were utilised for the
upkeep and maintenance of the temples. That evidence clearly
establishes that the temples were intended and meant by the
founder for the benefit and use of the public. As to the
second, undoubtedly the burden was on the Charity Commis-
sioner to establish the existence of a public endowment and
that burden the Charity Commissioner has discharged by
unimpeachable evidence of long and uninterrupted user of the
temples by the general public and particularly by members of
the Vaishnava sect. The finding reached by the High Court
and the Charity Commissioner that the temples were places of
public religious worship within the meaning of s. 2(17) read
with s. 2(13) of the Act is not vitiated by displacing of
that burden but the finding reached by them is based on a
proper appreciation of the evidence. As to the third conten-
tion, we would presently deal with the circumstances brought
out in the evidence which lead to no other conclusion than
the one arrived at by the Charity Commissioner and the High
Court, that the temples constructed ’by the appellant’s
ancestor were for the benefit of the community at large and
the members of the Vaishnava sect in particular and that
they had an unrestricted right of worship.
In the absence of a written grant, the question whether
an endowment made by a private individual is a public endow-
ment or a private one is a mixed question of fact and law
and the scope of dedication must be determined on the appli-
cation of legal concepts of a public and private endowment
to the facts found in each particular case. Facts and cir-
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cumstances, in order to be accepted as proof of dedication
of a temple as a public temple, must be considered in their
historical setting viz. the origin of the temple, the manner
in which its affairs are managed, the nature and extent of
the gifts received, the rights exercised by the devotees in
regard to worship therein, etc. In the present case, the
temples were constructed at public expenditure by meeting
the cost of construction from the public exchequer and the
upkeep and maintenance of the temples was met by public
subscription and therefore the High Court and the Charity
Commissioner rightly inferred existence of a public endow-
ment. Such an inference was strengthened by the fact of user
of the temples by the public or a section thereof, as of
right for over a century. The general effect of the evidence
is that the appellant as well as his predecessors although
in management, had throughout treated the temples as public
temples of which they were mere Vahivatdars.
921
The essence of a public endowment consists in its being
dedicated to the public; and in the absence of any document
creating the endowment, long user is the material factor
from which an inference of dedication may arise. The dis-
tinction between a private and public endowment is that
whereas in the former the beneficiaries are specific indi-
viduals, in the latter they are the general public or a
class thereof. The distinction is succinctly brought out in
Mula’s Hindu Law in para 424 at pp. 544-545 in these words:
"Religious endowments are either public or
private. In a public endowment the dedication
is for the use or benefit of the public. The
essential distinction between a public and a
private endowment is that in the former the
beneficial interest is vested in an uncertain
and a fluctuating body of persons, either the
public at large or some considerable portion
of it answering a particular description; in a
private endowment the beneficiaries are defi-
nite and ascertained individuals or who within
a definite time can be definitely ascertained.
The fact that the fluctuating and uncertain
body of persons is a section of the public
following a particular religious faith or is
only a sect of persons of a certain religious
persuasion would not make it a private endow-
ment. The essence of a public endowment con-
sists in its being dedicated to the public;
and in the absence of any document creating
the endowment, long user is the material
factor from which an inference of dedication
may arise. Besides user by the public, conduct
of the founder and his descendants is also
relevant, and if they in fact held out the
temple to be a public one a very strong pre-
sumption of dedication would arise. When
property is set apart for the worship of a
family god in which the public are not inter-
ested, the endowment is a private one."
It therefore follows that the principles are well-settled.
When property is dedicated for the worship of a family idol,
it is a private and not a public endowment, as the members
who are entitled to worship at the shrine of the deity can
only be the members of the family i.e. an ascertained group
of individuals. But where the beneficiaries are not the
members of a family or specified individuals but the public
at large of a specified portion thereof, then the endowment
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can only be regarded as public intended to benefit the
general body of worshippers.
We do not think that it would serve any purpose to refer to
all the
922
well-known decisions except a few. In Pujari Lakshmana
Goundan v. Subramania Ayyar (supra), the temple was not an
ancient one and there was no deed of endowment. The question
was whether the temple was a public temple or a private
temple. Although the temple was a private temple, the evi-
dence disclosed that the Pujari Lakshmana Goundan, the
founder of the temple had held out and represented to the
Hindu public in general that the temple was a public temple
at which all Hindus might worship. Sir John Edge, in deliv-
ering the judgment of the Privy Council held that on that
evidence the Judicial Committee had no hesitation in drawing
the inference that the founder had dedicated the temple to
the public, as it was found that he had held out the temple
as a public temple. Another Privy Council decision to which
we need refer is that of Babu Bhagwan Din v. Gir Har Saroop,
LR 1939 67 IA 1 where the grant was made to one Daryao Gir
and his heirs in perpetuity and the evidence showed that the
temple and the properties attached thereto had throughout
been treated by the members of the family as their private
property appropriating to themselves the rents and profits
thereof. Sir George Rankin, delivering the judgment of the
Privy Council held that the fact that the grant was made to
an individual and his heirs in perpetuity was not reconcila-
ble with the view that the grantor was in effect making a
wakf for a Hindu religious purpose. That very distinguished
Judge referred to the earlier decisions in Pujari Lakshar-
nana Goundan’s case, and observed:
"Their Lordships do not consider that the case
before them is in general outline the same as
the case of the Madras temple, 29 C.W.N. 112,
in which it was held that the founder who had
enlarged the house in which the idol had been
installed by him, constructed circular roads
for processions, built a rest house in the
village for worshippers, and so forth, had
held out and represented to the Hindu public
that it was a public temple."
The true test as laid down by this Court speaking through
Venkatarama Ayyar, J. in Deoki Nandan v. Murlidhar, [1956]
SCR 756 in determining whether a temple is a private or a
public temple, depends on whether the public at large or a
section thereof, ’had an unrestricted right of worship’ and
observed:
"When once it is understood that the true
beneficiaries of religious endowments are not
the idols but the worshippers, and that the
purpose of the endowment is the maintenance of
that worship for the benefit of worshippers,
the
923
question whether an endowment is private or
public presents no difficulty. The cardinal
point to be decided is whether it was the
intention of the founder that specified indi-
viduals are to have the right of worship at
the shrine, or the general public or any
specified portion thereof."
The learned Judge distinguished the decision of the Privy
Council in Babu Bhagwan Din v. Gir Har Saroop, (supra) on
the ground that properties in that case were granted not in
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favour of an idol or temple but in favour of the founder who
was maintaining the temple and to his heirs in perpetuity,
and said:
"But, in the present case. the endowment was
in favour of the idol itself, and the point
for decision is whether it was private or
public endowment. And in such circumstances,
proof of user by the public without interfer-
ence would be cogent evidence that the dedica-
tion was in favour of the public."
It was also observed while distinguishing the Privy Council
decision in Babu Bhagwan Din’s case that it was unusual for
rulers to make grant to a family idol. In Deoki Nandan’s
case the Court referred to several factors as an indicia of
the temple being a public one viz. the fact that the idol is
installed not within the precincts of residential quarters
but in a separate building constructed for that purpose on a
vacant site, the installation of the idols within the temple
precincts, the performance of pooja by an archaka appointed
from time to time for the purpose, the construction of the
temple by public contribution, user of the temple by the
public without interference, etc.
The next important decision is that of Tilkayat Shri
Govindlalji Maharaj v. State of Rajasthan & Ors., [1964] 1
SCR 561 where a Constitution Bench of this Court had to
consider whether the famous Nathdwara Temple which is held
in great reverence by the Hindus in general and members of
the Vaishnava followers of the Vallabha Sampradaya in par-
ticular was a public temple. It was held that neither the
tenets nor the religious practice at the Vallabha School
necessarily postulate that the followers of the denomination
must worship in a private temple. The Court observed that
the question whether a Hindu temple is private or public
must necessarily be considered in the light of the relevant
facts relating to it as well as the accepted principles laid
down by several judicial decisions, and it was said:
924
"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 rounded by him may attract
devotees in large number 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 avail-
able, 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 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
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to take part in the festivals and ceremonies
arranged in the temple? Are their offerings
accepted as a matter of right?"
It was then laid down that 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
would be a very strong factor in determining the character
of the temple.
Another significant decision is that of Goswami Shri
Mahalaxmi Vahuji v. Rannchhoddas Kalidas & Ors. (supra)
where the question arose whether the Haveli of Nadiad where
the idol of Sri Gokulnathji was installed which is wor-
shipped by the Vaishnava devotees of the Vallabha cult is a
private or public temple on the ground of dedication, and it
was laid down:
"In brief the origin of the temple, the manner
in which its affairs are managed, the nature
and extent of gifts received by it, rights
exercised by the devotees in regard to worship
therein, the consciousness of the manager and
the consciousness of the devotees themselves
as to the public
925
character of the temple are factors that go to
establish whether a temple is a public temple
or a private temple."
See also: Bihar State Board Religious Trust, Patna v. Mahant
Sri Biseshwar Das, [1971] 3 SCR 680; Dhaneshwarbuwa Guru
Purshottambuwa owner of Shri Vithal Rukhamai Sansthan v. The
Charity Commissioner, State of Bombay, [1976] 3 SCR 5 18 and
Radhakanta Deb & Anr. v. Commissioner of Hindu Religious
Endowments, Orissa, [1981] 2 SCR 826; Hari Bhanu Maharaj
ofBaroda v. Charity Commissioner, Ahmedabad, [1986] 4
SCC .162 and Heir of deceased Maharaj Purshottamlalji Maha-
raj, Junagad v. Collector of Junagad District & Ors., [1986]
4 SCC 287.
We have carefully gone through the evidence of the
witnesses examined by the Deputy Charity Commissioner as
also the finding reached by him as well as by the Charity
Commissioner which finding has been upheld by the High Court
while reversing the decision of the learned District Judge.
The Charity Commissioner with infinite care has marshalled
the entire evidence in coming to the conclusion that the
temples were public temples. Learned counsel for the appel-
lant however relied on the judgment of the learned District
Judge for the submission that the burden lay on the Charity
Commissioner to prove that the endowment was a public endow-
ment and not a private one and that burden he has failed to
discharge. We find no substance in the contention advanced.
There are overwhelming circumstances brought out in the
order of the Charity Commissioner as well as in the judgment
of the High Court and no other conclusion is possible than
the one reached by them that the temples in question were
public religious trusts within the meaning of s. 2(17) read
with s. 2(13) of the Act. The learned District Judge in
interfering with the order was largely influenced by the
fact that the management of the temples throughout remained
with the ruler for the time being and while adverting to the
other circumstances held that there was no evidence that the
temples were dedicated to the public at large or to a sec-
tion thereof and that the other circumstances brought out in
the evidence viz. public user for the past over 100 years
without any let or hinderance, the fact that the members of
the Hindu community in general and members of the Vaishnava
sect in particular were allowed to visit the temples for
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worship and make their offerings, or that the temples stand
recorded in the names of the deities in the revenue records
and the register of the gram panchayat with appellant shown
as a Vahivatdar, were not sufficient to draw an inference
that the temples were places of public religious worship. In
coming to that conclusion he relied upon the decision
926
of the Privy Council in Babu Bhagwan Din’s case (supra) as
also of this Court in Goswami Shri Mahalaxmi Vahuji’s case.
The underlying fallacy in the judgment of the learned
District Judge is that he proceeds on the assumption that
there was no dedication of the temples--express or
implied--by the founder for the benefit or use of the pub-
lic. Several circumstances are brought out by the Charity
Commissioner and the High Court showing that the temples
were public temples, namely: (1) Although the temples were
constructed by the appellant’s ancestor way back in 1872 and
1875, there was positive evidence showing that the entire
cost of construction was met from the public exchequer i.e.
Patadi State Treasury. (2) The general public and particu-
larly the members of the Vaishnava sect had an unrestricted
right of worship at the temples and participated in the
festivals and ceremonies conducted in the temples right from
the very inception, as it appears from the record, apparent-
ly as a matter of right without any let or hinderance on the
part of the appellant or his predecessors. (3) The Hindu
worshippers at the temples in general and members of the
Vaishnava sect in particular made cash offerings of bhents
into the golak kept at Sri Dwarkadhishji Mandir or Haveli
which was under the exclusive control of the members of the
Vaishnava sect and the remittances of it used to be made to
Goswami Maharaj, Acharya of Vaishnava sect at Ahmedabad. (4)
The public records showed that the temples stand recorded in
the names of the deities, the appellant and his predecessors
shown as mere Vahivatdars. It was an undisputed fact that
separate accounts being maintained in respect of the income
and expenditure of the temples i.e. the cash offerings,
gifts of ornaments etc. were not intermingled with the
monies belonging to the appellant or the members of the
royal family and the incomes from the temples were utilised
for their upkeep and maintenance and also for acquisition of
properties attached to the temples (5) The State used to
keep apart a share of vaje i.e. Darbar’s share of the crops
grown by the cultivators and also used to impose and collect
tola, a cess from the cultivators for the upkeep and mainte-
nance of the temples. There is therefore clear, consistent,
reliable and unimpeachable evidence to establish that al-
though the temples in question were constructed by the
appellant’s ancestor but he intended and meant that they
were meant for the use and benefit of the public. That
evidence shows that the public at large and members of the
Vaishnava sect had been worshipping at the temples as of
right for the last over 100 years and that the temples had
all along been primarily maintained by the contributions
made by the public particularly by the devotees belonging to
the Vaishnava sect. In course of time the tem-
927
ples particularly Sri Dwarkadhishji Mandir or HaveIi at-
tracted a large number of worshippers and they used to
participate in the religious festivals and ceremonies per-
formed there. The evidence of the witnesses also shows that
the deities were taken out in a palanquin by members of the
Vaishnava sect and it was joined by the general public. The
temples though adjacent to the Darbargadh were not in the
precincts of the palace but were constructed facing a public
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road allowing access to the general public. All these cir-
cumstances clearly support the finding reached by the Chari-
ty Commissioner and the High Court that the temples were
public temples and therefore public religious trusts within
the meaning of s. 2(17) read with s. 2(13) of the Bombay
Public Trusts Act, 1950 and the temples with the properties
attached thereto were not the private properties of the
appellant or the members of his family. The only factor
relied upon by the learned District Judge was that the
management of the temples remained with the ruler for the
time being but then the Court has to come a conclusion not
on one single factor alone but on a conspectus of all the
relevant factors i.e.1 upon an appreciation of all the facts
and circumstances appearing.
In the result, the appeal must fail and is dismissed with
costs.
N.P.V. Appeal dis-
missed.
928