Full Judgment Text
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PETITIONER:
DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER OF SHRI VITHALRUKHA
Vs.
RESPONDENT:
THE CHARITY COMMISSIONER, STATE OF BOMBAY
DATE OF JUDGMENT01/03/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 871 1976 SCR (3) 518
1976 SCC (2) 417
CITATOR INFO :
RF 1981 SC 798 (12)
R 1987 SC2064 (15)
ACT:
Bombay Public Trust Act, 1950 (20 of 1950)-s. 2(13)
Public or Private Trust-Tests for determination of.
HEADNOTE:
The principles of law for determination of the question
whether an endowment is public or private are:
(1) In a private trust, the beneficiaries are specific
individuals who are ascertained or capable of being
ascertained; in a private trust, they are the general public
or a class thereof which is incapable of being ascertained.
[526C]
(2) The intention of the founder as to whether
specified individuals or the general public or any specified
portion thereof could have the right of worship. [526E]
(3) When property is dedicated for the worship of a
family idol, it is a private and not a public endowment.
Where the beneficiaries are not specified individuals, the
endowment can only be regarded as public. [526-F]
Devki Nandan v. Murlidhar. [1956] S.C.R. 756 and State
of Bihar & Ors. v. Smt. Charusila Dasi, [1959] Suppl. S.C.R.
601/613, referred to.
(4) Proof of user by the public without interference
would be cogent evidence that the dedication is in favour of
the public. [527A]
Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak
Gosavi and others, [1960] 1 S.C.R. 773, referred to.
(5) It is unusual for rulers to make grants to a family
idol. [527B]
(6) Participation of the members of the public in the
darshan in the temple and in the daily acts of worship or in
the celebrations on festival occasions may be a very
important factor to consider in determining the character of
the temple. [527E]
Tilkayat Shri Govindlalji Maharaj v. The State of
Rajasthan and others, [1964] 1 S.C.R. 561. referred to.
(7) The origin of the temple, the manner in which its
affairs are managed, the nature and extent of the gifts
received by it, rights exercised by the devotees in regard
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to worship, the consciousness of the manager and the
consciousness of the devotees as to the public character of
the temple establish whether a temple is a public or a
private temple. [527F]
Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas
and ors. [1970] 2 S.C.R. 275, referred to.
(8) It is not always possible to have all the features
of a public trust in a given case: even some of the tests
may be sufficient to conclude about the character of the
trust. [528E]
Dismissing the appeal
^
HELD:
In the instant case from the documentary and oral
evidence the following features are present:
(i) The deity installed in the temple was intended by
the founder to be continually worshipped by an indeterminate
multitude of the Hindu public.
(ii) In order to facilitate worship by the public, the
founder also intended that regular bhajan, kirtan and
worship shall be maintained and annual ceremonies and
processions for pilgrimage shall be conducted by the saints
in succession nominated by the reigning saint.
519
(iii) There has been no evidence of any hindrance or
restriction in the matter of continuous worship by the
public extending over a long period.
(iv) More than a century ago the temple, in its own
name, was the recipient of land by Royal grant and the same
has been managed by the saints in succession as manager, not
as personal or private property.
(v) Gifts of land by members of the public from the
Taluka and outside it in favour of the temple or of the
Sansthan were made for the purpose of worship.
(vi) Collection of subscriptions were made from house
to house by taking Maharaj and also for ’Gulal’ ceremony.
(vii) Holding out of the Sansthan to all intents and
purposes as a public temple.
(viii) Treating of the Sansthan by those who are
connected with the management as intended for user by the
public without restrictions.
(ix) Absence of any evidence in the long history of the
Sansthan to warrant that it had any appearance of, or that
it was ever treated as, a private property. [530E-H; 531A-B]
The above features lead to the inescapable conclusion
that Shri Vithal Rukhamai Sansthan is a public trust within
the meaning of s. 2(13) of the Bombay Public Trust Act.
1950.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1231 of
1968.
Appeal by special leave from the judgment and order
dated the 20th December 1962 of the High Court of Judicature
at Bombay in Civil Appeal No. 151 of 1960.
B. D. Bal with A. G. Ratnaparkhi, for the appellant.
V. S. Desai with M. N. Shroff for S. P. Nayar, for
respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-The question that arises in this appeal by
special leave is whether Shri Vithal Sukhamai Sansthan at
Amalner, (East Khandesh) was a private Devasthan or a public
religious trust.
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There was a saint endowed with spiritual powers by the
name of Sakharam Maharaj at Amalner. The deity of his
worship was Shri Vithal Rukhamai. Although the origin of the
Sansthan is dipped somewhat in antiquity and direct
testimony was lacking, it has never been disputed that
Sakharam Maharaj constructed a temple in the year 1817 at
Amalner and installed the aforesaid deity according to
religious rites. He also acquired certain properties and the
said temple with the properties constituted Shri Vithal
Rukhamai Sansthan of Amalner. The sansthan had movable
property of the value of Rs. 19,164/- and immovable
properties of the value of Rs. 1,06,000/- and the average
gross annual income as well as the average annual
expenditure was Rs. 11,000/-.
After the passing of the Bombay Public Trusts Act, 1950
(No. 29 of 1950) (briefly the Act) an application under
section 18 of that Act was filed by three persons Bhaskarrao
Chimanrao Deshmukh, Ramrao Sahebrao Deshmukh and Ramkrishna
Tryambak Deshpande, as constituted attorneys of Vasudeobuwa
who was described in the application as the "owner" of the
property. The word ’Buwa’ means saint. The application was
made on May 29, 1952, to the Assistant Charity Commissioner,
Poona, under protest and without prejudice
520
to the claim made therein that the Sansthan was not a public
trust. In view of the penal provision under section 66 of
the Act in the case of non-compliance with section 18(1) of
the Act the said application was made ex abundanti cautela.
The Assistant Charity Commissioner after requisite notice
made an enquiry into the matter in accordance with the
provisions of the Act. On behalf of the applicants
representing the Sansthan evidence of the attorney
Ramkrishna Deshpande was recorded and he was cross-examined
by the assessors as well as by the Assistant Charity
Commissioner. Some documents were also produced on behalf of
the Sansthan. Three witnesses were examined on behalf of the
Assistant Charity Commissioner and were afforded an
opportunity to the applicants’ pleader for cross-
examination. At the close of the enquiry the Assistant
Charity Commissioner by his order of August 25, 1956, held
the Sansthan to be a public trust and ordered its
registration as a public trust under the Act.
The applicants thereupon filed an appeal under section
70 of the Act before the Charity Commissioner, Bombay, who
by his order of August 31, 1957, affirmed the decision of
the Assistant Charity Commissioner.
That led to an application under section 72 of the Act
to the District Judge of West Khandesh at Dhulia which was
duly filed on behalf of Purshottambuwa who meanwhile
succeeded Guru Vasudeobuwa as "owner" of the Sansthan. The
learned District Judge reversed the decision of the Charity
Commissioner by his order of October 16, 1959, and declared
the Sansthan to be a private property and not a public
trust.
The Charity Commissioner then appealed under section
72(4) of the Act to the High Court of Bombay. The High Court
by its order of 19/20th December, 1962, set aside the order
of the District Judge and held the Sansthan to be a public
trust under the Act and restored the order of the Charity
Commissioner. Hence this appeal by special leave which was
obtained on March 29, 1968, after condonation of delay, in
the peculiar circumstances of the case arising out of
revocation by the High Court of its earlier certificate in
favour of the appellant on account of default of deposit of
security.
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As noted earlier there was both oral and documentary
evidence adduced in this case. The learned District Judge
relied mostly on the documentary evidence for his conclusion
in favour of the appellant. The High Court took note of both
oral as well as documentary evidence. The High Court
particularly relied upon an admission of the appellant’s
witness, Ramkrishna Deshpande, when he stated that "we
cannot prevent people from going to the temple as the temple
is meant for the Darshan by the public".
It is not disputed by Mr. Bal appearing on behalf of
the appellant that the Sansthan in question is an endowment.
His only contention is that it is a private religious
endowment and not a public one. He submits that there is no
evidence of long user of this temple by
521
the public as a matter of right. Mr. Bal further contends
that the High Court failed to consider all the material
documents filed on behalf of the appellant except only Ex.
35 and that the conclusion was highly erroneous being
contrary to the one that had been reached by the District
Judge on appraisal of the entire documentary evidence.
Before we proceed further, it may be appropriate to
note the definitions of ’public trust’ and ’temple’ in
section 2(13) and section 2(17) respectively of the Act
which read as follows:-
s. 2(13): "Public trust’ means an express or
constructive trust for either a public religious or
charitable purpose, or both and includes a temple, a
math, a wakf, church syna gogue, agiary or other place
of public religious worship, a dharmada or any other
religious or charitable endowment...."
s. 2(17): "Temple’ means a place by whatever
designation known and used as a place of public
religious worship and dedicated to or for the benefit
of or used as of right by the Hindu community or any
section thereof as a place of public religious
worship".
Relying upon the above definitions Mr. Bal submits that
there is absolutely no evidence in this case about
dedication to the public or public user of the temple as a
matter of right.
Since the grievance of the appellant is directed
against the High Court’s absolute failure to consider all
the documentary evidence, we may deal with that aspect
first.
The earliest document produced in this case is a
’Sanad’ (Ex. 42) of November 1, 1863. This Sanad was granted
by the then British Government during the reign of Queen
Victoria in favour of "Devasthan Shri Vithal Rukhamai’. The
Sanad refers to the entry in the village accounts. The entry
mentioned therein is in the village accounts in the Khandesh
Collectorate for the year 1860-61, field Nos. 623 and 624
measuring 14.5 acres of land in the name of the holder as
Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru
Govindbuwa, Amalnairker. There are significant recitals in
the Sanad to the following effect:
"It is hereby declared that the said land shall be
continued for ever by the British Government as the
endowment property of Shri Vithal Rukhamai of Kasabe
Amalnair Talooka Amalnir on the following conditions,
that is to say, that the managers thereof shall
continue faithful subjects of the British Government,
and .. the said land shall be continued for ever as
endowment Inam without increase of land tax over the
said fixed amount".
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The amount fixed was Rs. 17/4/0 per annum.
522
It is true that the High Court has not referred to this
Sanad but the District Judge did. The District Judge held
that-
"..... the expression in the Sanad cannot be in
any way determinative of the nature of the temple or
religious endowment as a public trust".
It is, however, difficult to accept the conclusion of
the District Judge. The Sanad being an ancient Royal grant
is a very important piece of evidence to show that although
Sakharam Maharaj, the founder of the temple, had already
been succeeded by Guru Govindbuwa and the latter by
Balkrishnabuwa, the land had been held in the year 1860-61
in the name of the Devasthan. It is in the name of the
Devasthan alone that the grant was continued by the
Government. This would go to show that the Government
recognised the Sansthan with the temple as a public
religious endowment and only on that basis the grant was
continued. Apart from that the temple was shown to have a
Manager and not an owner as such. In the absence of anything
to the contrary of a convincing nature, a grant by the
Government in favour of the temple describing the property
to be in charge of a manager leads to an unerring inference
that the property is a public religious endowment.
From the evidence of Ramkrishna Deshpande, one of the
constituted attornies, we find the origin and the devolution
as follows:-
"The originator of this Sansthan is Sakharambuwa.
After Sakharam there came Gobindbuwa. He was followed
by Balkrishnabuwa. Then came Prahladbuwa. Thereafter
Tukarambuwa came to Gadi. After him there was Krishna
buwa and after him there was Balkrishna. Then came
Vasudeo. After him the present Buwa Purshottam came to
Gadi. This Gadi goes to Shishya from the Guru".
This evidence of Ramkrishna Deshpande stands
corroborated by the Sanad which shows in the year 1860-61
the Manager of the Sansthan as Balkrishnabuwa Guru
Govindbuwa. Guru Govindbuwa was the second in the line of
succession after Sakharam, the founder, and Balkrishnabuwa
being the third in the line. It is clear from the Sanad that
the Government treated the temple as a public religious
endowment.
The next document in sequence is a Varaspatra of
February 28, 1869 (Ex. 35) executed by Guru Govind
Balkrishna buwa in favour of Prahladbuwa. This is a document
which was relied upon both by the District Judge as well as
by the High Court. Varaspatra is a deed of nomination by
which an Adhikari for the Sansthan was nominated in order to
take charge of the property, maintain and continue the
religious worship of the deity as per tradition as well as
of the celebration of the festivals in accordance with the
customary practice of the Sansthan. The appellant draws our
attention to the following recitals in the above deed:-
"I have been carrying on the Malaki of Shri
Sansthan Amalner...."
523
According to the appellant this would go to show that
the executant of the document Balkrishnabuwa described
himself as ’Malak’ (owner) of the Sansthan. It is further
pointed out that while nominating Prahlad as Adhikari,
Balkrishnabuwa stated in the said document as follows:-
"You are entitled to the ownership of all the
incomes that will come before the Deity, Shri Samarth
and during the Swari (procession) as well as the income
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of Inam Najrana and the income of movable and immovable
property".
x x x x x
"The entire ownership of the Sansthan and all the
movable and immovable property etc. pertaining to the
Sansthan is of yours. That ownership is of your own.
Your Bhauband and others have no right whatsoever over
the same. You are free to give and take as per the
Shishya-sampradaya as has been done previously".
From the above, the appellant contends that the
Sansthan was a private property and it was also transferred
to the Shishya Adhikari to maintain it as his own property.
We are unable to accept this submission as we find some
other significant recitals in the documents itself
warranting a contrary conclusion. Although it is stated in
the document that Balkrishnabuwa was "carrying on the
Malaki", he at the same time states with regard to the
Sansthan thus:
"... the same was entrusted to me by Shri Guru
Maharaj".....
x x x x x
"I, therefore, thought that I should entrust the
work of the Sansthan to you and have appointed you to
the said Sansthan".
The nature of devolution is explicit in the above
extract.
Although there is use of the words owner and ’Malaki’
in the above recitals, the entire tenor of the document read
as a whole goes to show that the property has always been
treated as trust property even by the Adhikari saints and
the Adhikaris or the disciples who succeeded one after the
other were not owners but trustees of the property. This
ancient document read as a whole does not admit of any other
interpretation consistent with the nature of the property
and the avowed object and purpose of the founder clearly
revealed therein which has been carried into effect by
successive loyal and devoted disciples. The words ’Malaki’
and ’owner’ in the context, are not used in the broad sense
to indicate an absolute character of personal ownership.
The next document is Vyavasthapatra (Ex. 41) of April
25, 1897. We find from the evidence of Ramkrishna that the
Shishya is appointed by the Maharaj who happens to be
holding the Gadi at the relevant time. This fact is borne
out by the recitals in Ex. 41.
524
This document may be described as a deed of nomination or
will whereby it appears Krishnabuwa whose Guru was Tukaram
Maharaj nominated Balkrishna Gangadhar Dhamurkar as the
Devadhikari of the Gadi to succeed him. The appellant
submits that Balkrishna was bestowed a ’Malaki’ as the term
appears in this document.
Although the High Court has not dealt with this
document, there is a reference in its judgment to the
contents of the same as being similar to Ex. 35. The
principal emphasis on both these documents Ex. 35 and Ex. 41
is that the words ’owner’ and ’Malaki’ were used in the
recitals. As stated above we are unable to hold that
recitals in these documents taken as a whole can reasonably
lead to the conclusion that the Sansthan is a private
property.
After the turn of the century, coming now to
comparatively recent times, there are four documents Ex.
40,37,39 and 38 dated September 10, 1929, July 15, 1936,
July 2, 1946 and January 28, 1949, respectively. In Ex. 40
the party taking the gift is described as Vahiwatdar Panch
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of Shri Sakharam Maharaj, Sansthan, Vithalwadi, Amalner. The
donor, an old agriculturist of a different Taluka viz.
Erandole, writes:
"I give the gift deed in writing as follows:-
With the object of giving possible help through me
to the above sansthan, I have given in gift my
ancestral immovable property......
x x x x x
I have given in gift the above mentioned property
as aforesaid of my free will for the purpose of
religious work in order that my life may be of bliss as
I have no male issue and wife.
x x x x x
The said field should be used for the sansthan
from generation to generation. The above sansthan has
become full owner thereof".
In the gift deed Ex. 37 executed by three businessmen
of Amalner there are recitals to the similar effect:
"When we were joint, the said field was given as a
gift to you for the service of the sansthan, viz., Shri
Vithal Rukhmai Sansthan, Amalner and was given in your
possession. Now all our movable and immovable estate is
partitioned orally. Hence the gift deed of the said
field, which had remained unexecuted, has been executed
today......"
The said gift deed was in favour of Archak (worshipper)
Vasudeobuwa Guru Balkrishnabuwa. Again, in the gift deed Ex.
39 the donee is described as "Shri Rukhmini Pandurang
Sansthan, Sansthan Amalner Sakharam Maharaj at present
Vasudev Buwa Guru Bal-
525
krishna Maharaj". The following recitals in the said
document are eloquent:
"This land is given to you in charity as per the
order of (my) mother with a religious view and with an
intention of benefitting others with the object of
achieving happiness in this world and in the next world
according to the shastras and the above land is given
in your possession this day. Hence you are the full
owner of the land and you are free as full owner
thereof to manage and carry on the Vahiwat of the said
land by right of ownership perpetually from generation
to generation on the strength of this writing.
x x x x x
The Dindi of the said Sansthan from Amalner
remains at Shivgaon on the 30th of Jeshta vadya or on
the 1st of Ashad Shudha according to practice every
year. You should spend the income of the said property
for the purpose of Naivadya for the Deity Pandurang at
night that day."
The beneficiaries of this gift are clearly the
unascertained Hindu public and not ascertained individuals
and the donee is a trustee accepting the gift on behalf of
the Sansthan.
The last deed of gift is Ex. 38 and the donee is "Shri
Vasudev Buwa Guru Balkrishna Buwa" described as the
worshipper carrying on the "Vahiwat of Shri Vithal Rekhmai
Sansthan". The deed goes on to say:
"I have full faith in Shri Sakharam Maharaj. Hence
with the intention (object) that some service may be
rendered by me for his Devasthan, I have given in gift
out of love the below mentioned property valued at Rs.
600 (Six hundred) without taking any consideration from
you, for the purpose of expenses of performing worship
and offering Naivadya food".
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All the above gifts were donated to the Devasthan and
for the maintenance of worship therein. These gifts were not
made in favour of individuals as such in order that the
beneficiaries of the gifts will be only those individuals.
It is clear that the beneficiaries of the deeds are the
deity and the Sansthan and the gifts were made with the
object of maintenance of the worship of the deity for the
benefit of the Hindu public as a whole. The expression in
the recital that "you are free as the full owner thereof"
does not convert the gift which is expressly in favour of
the deity or Sansthan into that in favour of an individual
as private property. The appellant relies on all these
documents for the purpose of showing that the endowment is
private only because ownership of the donor is transferred
to the donee. We are, however, unable to accede to this
submission. It is very significant that in the last gift
deed Ex. 38 of January 28, 1949, there is a most reverential
reference to Shri
526
Sakharam Maharaj and his Devasthan when Sakharam Maharaj had
departed in the past century. Not much can be made therefore
from the expression "His Devasthan" to convert the property
into a private endowment. The reference to Sakharam Maharaj
Sansthan, wherever it appears, is only for the purpose of
identification and commemoration of the hallowed saint who
had admittedly founded the same.
The principles of law for determination of the question
whether an endowment is public or private are fairly well-
settled. This Court observed in Deoki Nandan v. Murlidhar as
follows:-
"The distinction between a private and a public
trust is that whereas in the former the beneficiaries
are specific individuals, in the latter, they are the
general public or a class thereof. While in the former
the beneficiaries are persons who are ascertained or
capable of being ascertained, in the latter they
constitute a body which is incapable of ascertainment".
This Court further held:
"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 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 individuals are
to have the right of worship at the shrine, or the
general public or any specified portion thereof. In
accordance with this theory, it has been held that when
property is dedicated for the worship of a family idol,
it is a private and not a public endowment, as the
persons who are entitled to worship at the shrine of
the deity can only be the members of the family, and
that is an ascertained group of individuals. But where
the beneficiaries are not members of a family or a
specified individual, then the endowment can only be
regarded as public, intended to benefit the general
body of worshippers".
(See also the State of Bihar & ors. v. Sm.
Charusila Dasi.
Distinguishing the decision of the Privy Council in
Bahu Bhagwan Din v. Gir Har Saroon on the ground that the
properties in that case were granted not in favour of an
idol or temple but in favour of one Daryao Gir who was
maintaining a temple and to his heirs in perpetuity, this
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Court further held in the above decision:
"But, in the present case, the endowment was in
favour of the idol itself, and the point for decision
is whether it
527
was private or public endowment. And in such
circumstances, proof of user by the public without
interference would be cogent evidence that the
dedication was in favour of the public".
This Court also distinguished the aforesaid Privy
Council decision of Babu Bhagwan Din’s case (Supra) in
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak
Gosavi and others.
This Court also observed in Narayan Bhagwantrao Gosavi
Balaji wale’s case (supra) that it is also unusual for rules
to make grant to a family idol.
In Tilkayat Shri Govindlji Maharaj v. The State of
Rajasthan and others this Court had to consider about a
Hindu temple being private or public and observed as
follows:-
"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.
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 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 festivals occasions may be a
very important factor to consider in deter mining the
character of the temple".
In Goswami Shri Mahalaxmi Vahuji v. Rannchhodds Kalidas
and an Ors., this Court observed as follows:-
"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 character of the temple are
factors that go to establish whether a temple is a
public temple or a private temple".
The learned counsel for the appellant relied upon the
decision in Bihar State Board Religious Trust, Patna v.
Mahant Sri Biseshwar Das and drew our attention to the
following observations therein:
"Thus, the mere fact of the public having been
freely admitted to that temple cannot mean that courts
should readily infer therefrom dedication to the
public. The value of such public user as evidence of
dedication depends on
528
the circumstances which give strength to the inference
that the user was as of right".
"Examples do occur where the founder may grant
property to his spiritual preceptor and his disciples
in succession with a view to maintain one particular
spiritual family and for perpetuation of certain rights
and ceremonies which are deemed to be conducive to the
spiritual welfare of the founder and his family. In
such cases it would be the grantor and his descendants
who are the only persons interested in seeing that the
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institution is kept up for their benefit. Even if a few
ascetics are fed and given shelter, such a purpose is
not to be deemed an independent charity in which the
public or a section of it has an interest. Such
charities, as already stated earlier, appertain to a
private debutter also".
*
We do not find that there is any difference in the
ratio of the principles followed in the above decision. The
case went against the Board in the above decision in the
absence of "evidence of a reliable kind" of public user as
"evidence of dedication".
It is not always possible to have all the features of a
public trust in a given case. Even some of the tests laid
down by this Court may, in a given case, be sufficient to
enable the court to come to a conclusion about the character
of the trust.
We cannot agree that the High Court was not right in
giving due importance to the admission of the constituted
attorney Ramkrishna Deshpande that they "cannot prevent
people from going to the temple as the temple is meant for
the Darshan by the public". The consciousness of the
constituted attorney about the nature of the property, which
has been held out for more than a century as a public
religious endowment, adds to the effect of the documentary
evidence produced by the appellant in this case in favour of
the same conclusion. It has to be remembered that the
founder Sakharam Maharaj was a celibate and the successive
disciples who succeeded as Adhikaris of the Gadi were also
celibates. From Ex. 35, the first Varaspatra of February 28,
1869, one gets a full picture of the working of the
Sansthan:
"The service and Bhajan etc. of the Deity have to
be made as per the order of the Guru according to the
Sampradaya".
"....you should perform the Bhajan as was being
done as per the Shishya Sampradaya and perform the
Bhajan in Chaturmas at Shrikshetra Pandharpur regularly
and there-after you should come to Amalner and keep up
the practice of celebrating the festivals etc. of Shri
Sakharam Maharaj regularly as was being done. You
should maintain the
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Mandali (Committee) of the sansthan and continue the
whole Mandali (Committee) with unanimous opinion. You
know the Vahiwet of the Sansthan as is going on. You
should continue the same accordingly in future".....
"That ownership is of your own. Your bhauband and
others have no right whatsoever over the same. You are
free to give and take as per the Shishya-sampradaya as
has been done previously. The Deshmukhs and Deshpandes
at Kashev-Amalner have been rendering service to the
said Sansthan faithfully. You should make arrangement
to accept service from them as being done accordingly
and go on rendering service and performing Bhajan etc.
faithfully as mentioned herein as per the Vaishnava
sampradaya as being done from before".
x x x x x
We have also seen from the evidence of Ramkrishna Deshpande:
"All the Buwas are saints. People go for darshan
because these people were saints. This Sansthan is
based on the principles of Shishya parampara. This
property goes from Guru to his Shishya.
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*
"The residents of the place where the Bhajans are
performed attend these Bhajans. In the days of
Pandharpur fair the Maharaj remains present. He stays
there for about 4 months. During his stay at Pandharpur
Bhajans are performed daily. During the fair his
Shishyas perform the Bhajans. While returning from the
pilgrimage also he performs Bhajans. Maharaj also
attends other fairs at Nasik etc. At that time also his
Shishyas accompany him. By Shishyas I mean the
disciples as well as followers. Shishyas are few but
the followers are in large numbers. In the utsava at
Amalner many saints of other places, Shishyas and
followers take part. The persons who attend this year
besides Shishyas and followers are about ten thousand.
The followers and saints are paid their cost of
journey. All their expenses of boarding and lodging are
met by this Sansthan. The Bhajans at Pandharpur
performed by Maharaj are attended by the public".
Ramkrishna Deshpande concludes his evidence by stating:
"I contend that this is a private temple because
others cannot perform puja without permission of
Maharaj".
The oral and documentary evidence leave no room for
doubt whatsoever that the Sansthan and the temple are public
religious endowments. Even in acknowledged public temples
any and everybody cannot perform puja in the sense in which
the head pujari daily performs
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at various stages. Public is not and may not be allowed to
the inner most sanctum where the deity is installed except
under special circumstances with special permission. That
would, however, not lead to the conclusion that the temple
is a private temple. Worshippers are not merely the
accredited daily pujaris but also the multitude of the
public who go to the temple for Darshan of the deity and for
offerings. The contention of Ramkrishna Deshpande in his
evidence, therefore, is without any force.
When the origin of an endowment is obscure and no
direct oral evidence is available, the Court will have to
resolve the controversy about the character of the trust on
documentary evidence, if any, the object and purpose for
which the trust was created, the consistent manner in which
the property has been dealt with or managed by those in
charge, the manner in which the property has long been used
by the public, the contribution of the public, to all
intents and purposes, as a matter of right without the least
interference or restriction from the temple authorities, to
foster maintenance of the worship the accretion to the trust
property by way of grants from the state of gifts from
outsiders inconsistent with the private nature of the trust,
the nature of devolution of the property, are all important
elements in determination of the question whether a property
is a private or a public religious endowment. We are
satisfied that in this case all the above tests are
fulfilled.
To sum up from the documentary and oral evidence
produced, the following features are present in the present
case:
(1) The deity installed in the temple was
intended by the Founder to be continually
worshipped by an indeterminate multitude of
the Hindu public:
(2) In order to facilitate worship by the public,
the founder also intended that regular
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Bhajan, Kirtan and worship shall be
maintained and annual ceremonies and
processions for pilgrimage shall be conducted
by the saints in succession nominated by the
reigning saint.
(3) There has been no evidence of any hindrance
or restriction in the matter of continuous
worship by the public extending over a long
period.
(4) More than a century ago the temple in its own
name was recipient of land by Royal grant and
the same has been managed by the saints in
succession as Manager not as personal or
private property.
(5) Gifts of land by members of the public from
the Taluka and outside it in favour of the
temple or of the Sansthan for the purpose of
maintenance of the worship.
(6) Collection of subscriptions were made from
house to house by taking Maharaj and also for
’Gulal’ ceremony.
(7) Holding out of the Sansthan to all intents
and purpose as a public temple.
531
(8) Treating of the Sansthan by those who are
connected with the management as intended for
user by the public without restriction.
(9) Absence of any evidence in the long history
of the Sansthan to warrant that it had any
appearance of, or that it was ever treated as
a private property.
While each case of endowment as to its character
depends on the particular history. tradition and facts, the
presence of the above features in the instant case lead to
the inescapable conclusion that Shri Vithal Rukhamai
Sansthan at Amalner is a public trust within the meaning of
section 2(13) of the Act.
In the result the appeal fails and is dismissed. We
will, however, make no order as to costs.
P.B.R. Appeal dismissed.
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