Civil Appeal No 87 of 1959
Appeal from the judgment and decree dated April 6 1955 of the former Andhra High Court in ASO No 13450
T V R Tatachari for the appellants
Bhimasankaram K R Choudhuri and T M Sen for the respondent
December 21
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
This is an appeal on a certificate granted by the High Court of Andhra Pradesh against the judgment and order of the High Court reversing the judgment and order of the District Judge Vizagapatam holding that the place of worship in suit was not a temple as defined in the Madras Hindu Religious Endowments Act 1926 Madras Act II of 1927 hereinafter called the Act
On March 28 1947 the Board of Commissioners for Hindu Religious  Charitable Endowments Madras held the institution in suit to be a temple as defined in the Act
The appellants thereafter filed a petition under section 842 of the Act in the Court of the District Judge Vizagapatam and prayed for the setting aside of the order of the Board
They alleged that the institution known as the Poohari Fakir Sadavarthy at Bondilipuram Chicacole a ongstanding institution was started by one Malukdas 278 Bavajee some time during the reign of the Moghul Emperor Aurangazeb
The Emperor in recognition of the Bavajee s piety and devotion to God made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthy to Fakirs and Sadhus and to pray to God for the prosperity of the Empire and Emperor according to what was stated in the well known historical works like Bhakthamala by Maharaja Raghunandha Singh Deo of Rewa
The institution flourished and continues up to this day
The original plaintiff No 2 Rajaram Das Bavajee was the ninth in succession from the founder Malukdas Bavajee
He died during the pendency of the proceedings and is now represented by appellant No 2 Mahant Gangaram Das Bavajee
Sithaldas Bavajee the sixth head of the institution who lived in the first half of the Nineteenth Century built a temple and installed therein certain idols for his private worship
The shrine was an adjunct of the institution Poohari Fakir Sadavarthy
It is alleged to be a private temple known as Jagannadhaswami temple Balaga and is meant for the worship of the Mahant and his disciples one of whom conducts the daily worship
The income from the various properties granted to Malukdas Bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through Balaga
A part of the income was however spent on the expenses of the worship in the temple and the incidental expenses connected with it
The respondent Board denied that Jagannadhaswami temple was a private place of worship that the public had no access to it without the permission of the Bavajee and alleged that the temple possessed all the features of a place of public 279 religious worship and was dedicated to or for the benefit of or used as of right by the Hindu community as a place of religious worship
The appellants examined five witnesses including plaintiff No 2 in support of their case
The respondent examined one witness
The plaintiffs also filed a number of documents
The respondent filed a few documents which included the Board s order dated March 28 1947 and its enclosure
The learned District Judge concluded from the evidence that Jagannadhaswami temple was not a temple as defined in the Act it being a private temple existing for the benefit of the appellants only
He therefore set aside the impugned order of the Board
On appeal the High Court came to a different conclusion and allowed the appeal
It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established  i the temple is a very old temple constructed in or about the year 1750 ii the temple has the structure and polity of a public temple iii there are utsava vigrahams and vahanams iv it has a big compound wall with the gate opening into the Chinna Bazaar Road v regular worship is performed every day at the scheduled time vi there is an archaka who performs worship vii a large number of pilgrims attend every day and partake in the food given after naivedyam to the God 280 viii there are utsavams and the rathotsavam which is particularly conducted on large scale and is attended by members of the public
The High Court relied on the statement of the solitary witness examined for the Board and rejected the statements of the witnesses examined for the appellants
The sole question for determination in this appeal is whether this institution is a temple  as defined in the Act
Clause 12 of section 9 of the Act reads  Temple  means a place by whatever designation known 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 religious worship
 The institution in suit will be a temple if two conditions are satisfied
One is that is a place of public religious worship and the other is that it is dedicated to or is for the benefit of or is used as of right by the Hindu community or any section thereof as a place of religious worship
We are of opinion that the oral and documentary evidence fully establish the appellants  case that it is not a temple as defined in the Act
The documents on record and bearing dates from 1698 to 1803 A D mention the grants to be for the purposes of the Bavajee ie the head of the institution
The first document Exhibit P 1 is of the Hizri year 1117 corresponding to 1698 AD and purports to be executed by Ibrahim Khan Bahadur a humble servant of Badshah Alamgir Ghazi
 ie Emperor Aurangazeb
This order says The village of Cheedivalasa Boonamali Pargana Haveli town towards Kaling of the 281 said Sirkar has been fixed and continued as a complete inam in favour of Poohari Poojari Fakir Sadabarty in accordance with the Sanads of the previous rulers
Meanwhile in view of the claims of the said person it has been confirmed as per endorsement in accordance with momooli usage and mustamir continuing lasting long
It is necessary that the said village be placed in the enjoyment of the said person so that utilising the incomes thereof for his own maintenance he may engage himself in praying for the stability of the State till eternity
 The purpose of the other grants is stated in practically similar terms aud it is necessary to quote them
None of the grants of land or other property on record bears a date subsequent to that of the year 1803 AD
The documents Exhibits P 47 P 48 and P 49 are orders of the Collectors and refer to the villages of Cheedivalasa and Thallavalasa and the last two state that the income of these two villages was given for sadavarty feeding for the respective year to Phalari Phulhari Bavaji
There is no mention in any of these two documents that any grant was being made for the purposes of the temple or for the purposes of the Bavaji as well as for those of a temple
The only reference to the construction of the temple is in Exhibit P 52 an extract from the Register of Inams dated May 22 1865 with respect to village Vanzangi
The name of the village however does not appear in the document itself
It is stated in this document About century ago the trustees built a temple of Jagannadhaswamy
 According to this note the temple may be said to have been built in about 1760 AD
The documents of the period from 1761 to 1803 AD Exhibits P 31 282 to P 49 do not record that the grants under them were for the expenses of the temple as well
The grants simply mention them to be for the expenses of Fakirs in the name of Poohari Fakir Sadavarthy and not for the temple
The non reference to the temple in the various documents is consistent with the temple being for the private worship of the head of the Sadavarti Institution and being an adjunct to that institution as in that case there was to be no grant to the temple and the grant had to be to the Sadavarti institution or to its head
It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence
Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well known institution in that part of the country where it has been held judicially there is a presumption of a temple being a public temple
We may make it clear that among the documents referred to we are not at the moment including entries in the Inam registers
It follows from an examination of the various documents of the period between 1608 and 1803 AD that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself it being always in the name of the Bavajee in charge of that institution
Before discussing the entries in the inam registers which carry great weight we may first refer to the Rules in pursuance of which the entries in the Inam registers were made after due investigation
The various extracts from the Inam registers which have been filed show that the proposals for the grant were confirmed under rule 3 clause 1 tax free
This makes it of importance to consider the rule 283 thus referred to
It is one of the rules for the adjudication and settlement of the inam lands of the Madras Presidency and is quoted at page 219 in the case reported as Arunachellam Chetty vs Venkatachalapathi Guruswamigal 1 If the inam was given for religious or charitable objects such as for the support of temples mosques colleges choultries and other public buildings or institutions or for services therein whether held in the names of the institutions or of the persons rendering the services it will be continued to the present holders and their successors and will not be subject to further interference so long as the buildings or institutions are maintained in an efficient state and the services continue to be performed according to the conditions of the grant
 It was also said at page 217 But the Inam Register for the year 1864 has been produced and to it their Lordships attach importance
It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free
But it must not be forgotten that the preparation of this Register was a great act of state and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes
It is to be remembered that the Inam Commissioners through their officials made inquiry on the spot heard evidence and examined documents and with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax free but of a statement of the history and tenure of the property itself
While their Lordships do not doubt that such a report would not displace actual 284 and authentic evidence in individual cases yet the Board when such is not available cannot fail to attach the utmost importance as part of the history of the property to the information set forth in the Inam Register
 Exhibit P 50 is the extract from the Inam Register No 48 relating to village Tallavalasa in the Taluk of Chicacole in the district of Ganjam
The note of the Deputy Collector Inam Commissioner records inter alia the following particulars 1 The village was granted originally by the Nawab Mafuz Khan in Hiziri 1155 corresponding with AD 1739 to one Inamdar Bairagi as the original sanad is not forthcoming it is impossible to mention here without entering into details the object of the grant and the tenure of the village
This mokhasa jahagiri is in possession of the person in column II who is known by the name of Palahara Mahant Bartudoss Bavaji a Bairagi 
2 This Bartudoss Bavaji pleaded that this village and three other villages were granted in the district by the former Rulers for Sadavarti and for certain other Divine Service and that the proceeds of them were appropriated to the expenses attendant on the temple of Sri Jagannadhaswami to some extent and to distributing Sadavarti or supplying victuals fire wood etc or dressed food to Bairagis and others resorting to Rameswaram from Benaras and vice versa
3 This Bartudoss Bavaji produced a sanad of Sri Seetaram Ranzi Maharaja the former zamindar of Vizianagaram in Vizagapatam district granted to one Gopaladass Palahari Bavaji dated Subhakrutu year corresponding with AD 1782
This Sanad 285 showed that the said Gopaladass was then a manager of the branch of charity and that this village was granted free from any tax in lieu of the income in the villages of Balaza Petranivalasa and Serumohannadpuram which were granted originally by the authorities for the support of the charity and which were resumed and incorporated with circar lands
The sanad explicitly stated that the proceeds of the village were to be appropriated for Sadavarti
4 On the whole it appears that this mokhasa was granted for Sadavarti  and for the support of the temple of Sri Jagannadhaswami in Balaga
There is a Bairagi Mattam in Balaga and a temple of Sri Jagannadhaswami
This is therefore a charitable grant
To keep up the object of grant I think the village may be confirmed on its present tenure
5 Column 8 meant for noting the description of the inam mentioned Granted for the support for the Sadavarti Bairagi mattam in Balaga and of the temple of Sri Jagannadhaswami in the same village now efficiently kept up  6 In column 10 under the heading hereditary unconditional for life only or for two or yihre lives  is mentioned hereditary 
7 Column 11 meant for recording the name of the grantor and the year of the grant mentions under it Mafusu Khan Nawab dated Hijiri 1155
8 In column 13 Mandasa Palahari Bairagi is mentioned as the original grantee
9 Under column 18 referring to relationship to original grantee or subsequent registered holders is written Sadavarti 286 Bairagi mattam and the temple of Sri Jagannadhaswami in Balaga Trustee Palahara Mahant Barta Dasu Bavaji 
It is clear from the fact that the grant was considered a charitable grant  that the grant was not taken to be for the purposes of the temple but was taken to be a grant for the purposes Sadavarti
This is also clear from the Statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent 
There is no suggestion that the temple was in existence in 1739 A D when the grant was made
This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spend on the temple by the Bavaji after the temple had been constructed
Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry
He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service 
The divine service  really meant as would appear from the expression in the other documents of the period 1698 to 1802 AD service by way of prayers for the stability and continuity of the State 
The expression that the grant was hereditary  also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant
In fact the sanad granted by Seetaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti
287 This extract therefore supports the case of the appellants even though the name of the temple has been mentioned along with Sadavarti Bairagi
The confirmation of the grant tax free was recommended by the Deputy Collector Inam Commissioner under Rule 3 Clause 1
The order of the Officiating Inam Commissioner dated July 1864 is Confirmed on present tenure  and column 9 described the tenure as tax free 
Exhibit P 51 is the extract from the Inam Register in the Zamindari estate of Tekkaly in the Chicacole Taluk Ganjam District and relates to the village Chinna Zavanapalli
The report of the Deputy Collector shows that the claim of the then Bavajee was that the village was granted in the name of Gopaladass trustee and priest of the mattam in Hijari 1165 corresponding to 1752 AD
It further records It is explained by the Zamindar s shiristadar on behalf of the Zamindar that this was granted for the support of the mattam and this is not a personal grant
This was entered in the permanent settlement account as an agrahar
The object of the grant is to feed Bairagis and etc who travel between Benaras and Rameswaram or supply victuals clothes and etc
This branch of charity is known by the name of sadavarti 
The proceeds of this village with the other villages which granted for the support of the charity are appropriated to sadavarti and to worship the idols in the temple of the mattam
As this is granted on the whole for the support of the charity branch it should I think be confirmed on its present tenure
 The entries under the various columns are practically on the lines of the entries in Exhibit P 50
The entries in this register also support the case of the appellants to the extent that the original grant 288 in 1752 A D was to the then Bavajee and was for the purposes of the charity
Exhibit P 52 is the extract from the Register of Inams with respect to village Vanzangi
It records very clearly The object of this grant is to give sadavarti  to travellers that is distributing alms and supplying victuals to travellers
This grant was made during the reign of Alangir Padsha 
Ever since the Inam is continued undisturbed
About century ago the trustees built a temple of Jagannadhaswamy
Now in addition to distributing alms and giving Sadavarti to Bairagis and others the idol in the temple is worshipped and annual festivals are made
It appears that the Trustee is defraying charges to meet the object of the grant and that he is not mis appropriating the proceeds of the Inam in any way
 The inam was confirmed as a charity grant to Mandasu Sadavarty Charity according to the terms of the grant
This extract is of great importance as it in clear terms mentions that the object of the grant was to give sadavarti to travellers and that it was confirmed as a charity grant to this charity
It speaks of the erection of the temple and still states that the Trustee was defraying the charges to meet the object of the grant
This indicates that the expenses of the temple were taken to be incidental to the expenses of the entire sadavarti and that the temple was just an adjunct to the sadavarti institution
Exhibit P 7 Parwana dated November 15 1722 corresponding to 14th day of Rabial Awwal 1135 Hijiri refers to the grant of this village to Poohari Fakir Sadavarti
Exhibit P 53 is the extract from the Register of Inams relating to village Ragolu in Chicacole 289 Taluk
It records In the sanad it was mentioned that the inam was given for the support of fakirs to the original grantee about a century ago
The other notes in this extract are practically identical with those in Exhibit P 52
The final order of the Inam Commissioner was also in terms similar and was confirmed to the fakirs the sadavarti charity according to the grant free there being no excess
It is interesting to note that in column 2 general class to which inam belongs is noted Dewadayam  ie dedicated to God that in column 8 meant for the description of the inam is noted for the support of Pagoda of Sri Jagannadhaswami in Bondilipuram  and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754 55 A D
It is clear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee Mandasa Palahari Bairagi in Column 13 about a century ago and that it was the trustees of the institution who constructed the temple
When the temple was constructed by the trustees of the institution viz the Sadavarti institution the original grant could not have been to the temple or to God
The entries in this extract confirm the construction we have placed on similar entries in Exhibit P 52 and other extracts indicating the grant to the temple
Exhibit P 54 is the extract from the Inam Register of No 85 Tallavalasa in the Taluk of Chicacole in the District of Ganjam
It is mentioned in this that Pratapa Rudra Narayana Devu granted this village to Falar Gosayi for the support of the Bavajee  or Swami in Hiziri 1141 which would correspond to about 1747 A D
It is also noted in the report that the object of the grant was that the proceeds should be appropriated for divine purpose and that the proceeds were appropriated to the temple and sadavarti
The note for the support 290 of the pagoda of Jagannadhaswami  in column 8 meant for the description of the inam again appears to be an entry made under an erroneous impression
There was no temple in existence when the grant was made in about 1747 A D Exhibit P 55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk dated August 13 1881
It mentions under the heading by whom granted and in what year the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hiziri 1171 corresponding with English years 1754 55
It is also noted the Sanad granted is in existence  It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings they should be restored to him in pursuance of the long standing right
This means that the firman which was not forth coming during the inam enquiry dated from very early time
It must be noted again that this extract also describes the inam as Devadayam i e dedicated to God
Again clearly this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P 12 a parvana of 1742 AD under the seal of Nawab Jafer Ali Khan
It records It has been proved that Mandas the successor of Poohari Poojari Faqir Sadabarti has per endorsement six kattis of land free from assessment in the village of Balaga and etc
 villages of the said Haveli Sircar fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers
Therefore in consideration 291 of the blessings to follow it has been confirmed as of yore
 It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up presumably the service of the deity as the distribution of charity would not be properly described as service  The fact that the Inam Commissioner treated the grant relating to Exhibit P 50 to be in support of Sadavarti and for support of the temple of Sri Jagannadhaswami would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity
The observations of the Privy Council in Arunachellam s Case 1 that in the absence of the original grant the Inam Register is of great evidentiary value does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself
We have already stated that the divine service  referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State
We do not find anything on record to support the observations in the High Court judgment that the Bavajee with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple
No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being
Exhibits P 52 and P 55 just mentioned that the trustees built a temple of Sri Jagannadhaswami
The 292 expression trustees  refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such
There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being
The appellants examined five witnesses to support their case that the Hindu public have no right to offer worship in the temple which is a private temple
The learned Judges described the statement of Janardhana Prasad Bhatt PW 4 as worthless
No particular reliance is placed on his statement by the appellants in this Court
The appellants however contend that the statements of the other witnesses have been rejected by the High Court for inadequate reasons
The first witness is Iswara Satyanarayana Sarma PW 1
He was aged 63 at the time of his deposition in 1949
He was a Sanskrit and Telugu Pandit in the Municipal High School and practised as an Ayurvedic Doctor
He has given reasons for the view that the temple is not a public temple
It is not necessary to refer to them
His statement has been rejected as he was considered to be interested in the Mahant who had been his patient and as the statement made by him that people including the sishyas ie the disciples take permission of the Mahant for worshipping was considered artificial
This witness did not state that even disciples had to take permission of the Mahant for worship and so the latter reason was based on an erroneous impression of his statement The mere fact that the Mahant consults him for his ailments and the ailments of other sadhus is no ground for him to make false statements
He is not under obligation to the Mahant
It may be that the Mahant is under obligation to him
The next witness is P Kameswara Rao PW 2
He is aged about 30 years
He was the 293 Additional Public Prosecutor of Vizagapatam had been Municipal Councillor for a decade President of the Co operative Central Bank and resided close to the temple
He was in a very good position to know about the public worshipping at the temple as a matter of right
He stated that he never found the public using the temple and that he himself might have visited the temple roughly about hundred times
He was put a direct question in cross examination and gave a clear cut answer
He denied from personal knowledge that the place was used as a place of public religious worship and that members of the public who were Hindus had a right of access to the temple for purposes of religious worship
It may be mentioned that the question also referred to the temple being built as a place of public religious worship and the answer would include a denial of this fact
It is obvious that the witness could not have known anything about it
He seemed to have overlooked the significance of this part of the question
We do not consider that his denying this fact on personal knowledge affects his veracity in any way and especially when he further stated that his personal knowledge consisted of three facts i his attending the Rathayatra and seeing that no offerings of harati and dakshina were made ii his not seeing any member of the public entering the temple whenever he entered into the temple and iii whenever he entered the temple he took the permission of the mahant
The learned Judges rejected his testimony with this observation The evidence of this witness is more like an advocate supporting the case of mahant than that of a witness who has come into the witness box to speak of facts
The aforesaid facts based on his personal knowledge afford a very slender foundation for the conclusion which this witness has so boldly asserted in the witness box
 294 The expression the aforesaid facts  had reference to the facts on which his personal knowledge was based
These facts in our opinion afford good ground for the view expressed by him that the temple was not a public temple
He visited the temple so many times and never saw any member of the public visit it
He himself took permission from the Mahant when he entered the temple
Nothing could be better corroboration of his own statement than his own personal conduct in seeking permission from the Mahant
We do not see any good reason for discrediting his testimony
The next witness is G Venkata Rao PW 3 aged 48 years
He is a chairman of the Municipal Council Chicacole Secretary  Vice President of the Co operative Central Bank
His statement has been considered to be very artificial
His statement that whenever he visited the temple he asked the permission of the Mahant is good corroboration of his statement that he considered the temple to be a private temple and not a public one
The facts that the Mahant is also a Municipal Commissioner and consults him occasionally as a doctor are no good grounds to discredit him
The last witness the plaintiff No 2 the predecessor of the appellant No 2
He is undoubtedly interested in the success of the proceedings started by him
But that alone is no reason to ignore his statement altogether
In fact his statement should be accepted in view of the support it gets from the statements of the other three witnesses just referred to
It is very significant as pointed out by learned counsel for the appellants that none from the Hindu public of the place has been examined for the respondent in support of its contention that the Hindu public go to this temple for worship as a matter of right
Quite a good number of people 295 should have been available for the purpose if it was a fact
The respondent on the other hand examined only M Adinarayana Rao who had been Inspector of Hindu Religious Endowments Board of the Chicacole division from 1946 to 1948
He certainly states that the temple in suit is a public temple in which all people can go as a matter of right for worship
It is a moot question as to how he can make such a statement even if he had seen a number of people entering the temple and worshipping there which itself is not a fact
When there be good evidence about the temple being a private one the mere fact that a number of people worship at the temple is not sufficient to come to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disallow visitors to the temple even if it be a private one
He stated that there were several festivals like Nethroshasevam the car festival and kalyanam
In cross examination he had to admit that he had not visited the kalyan festival and did not know when it was celebrated
This is sufficient to indicate that he is a zealous witness
He stated that there was an archak but he could not give the archak s name
Ordinarily it need not have been expected of him to have known the archak s name
But considering that he was an Inspector of the Board and had visited the temple officially also and had to submit a report it is rather difficult to believe that if he had really found an archak a priest other than the Mahant and his disciples he would not have considered it essential for the purposes of his enquiry to know his name
We see no reason to prefer his shaky statement to the statements of the witnesses examined for the appellants
296 We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit
It is admitted by the respondent s witness that there is a Tulsi plant before the shrine
It is strenuously urged for the appellants that no public has a Tulsi Kotta and this contention seems to find support from the statement made by the respondent s witness in reexamination that generally in Oriya temples no flag staffs are located and Tulsi plants are grown instead
The description of the temple with respect to its construction equipment practices observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple
The statement of the respondent s witness that generally Oriya temples have no flag staffs and have Tulsi plants has significance in one other connection also
It was said in Mundancheri Koman vs Achuthan Nair 1 at page 408 that in the greater part of the Madras Presidency where private temples were practically unknown the presumption is that temples and their endowments form public charitable trusts
The presumption is certainly rebuttable
The evidence in this case sufficiently rebuts it
The temple is situate at a place which was practically at the boundary of the Madras Presidency and close to the common boundary between that Presidency and Orissa
The presumption with respect to the temple in the Madras Presidency therefore will be a very weak one with respect to the temple so situated
We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community or any section thereof as a place of religious worship
We therefore allow the appeal with costs throughout set aside the order of the Court below and 297 restore the order of the District Judge Vizagapatam setting aside the order of the Board dated March 28 1947
Appeal allowed


Summary:
The Emperor Aurangazeb made certain grants to one Mukuldas Babajee founder of the institution Poohari Fakir Sadavarthy for the purpose of his maintenance and to carry on the distribution of Sadavarthy to Fakirs etc
The sixth head of the institution built a shrine for his private worship
It was adjunct to the aforesaid institution and the public had no access to it without the permission of Mahant
The income from various properties granted to the founder and his disciples had been regularly utilised for the maintenance of the head of the institution and for distributing charities for the Sadhus and pilgrims a part was spent on the expenses of the worship in the temple
The Board of Commissioners for Hindu Religious and Charitable Endowments Madras held that the temple in suit was a public temple
The sole question for determination was whether this institution was a public temple as defined in the Act  Held that an institution would be a public temple within the Hindu Religious Endowments Act 1926 if two conditions are satisfied firstly that it was a place of public religious worship and secondly that it was dedicated to or was for the benefit of or was used as of right by the Hindu Community or any section thereof as a place of religious worship
When there be good evidence about the temple being a private one the mere fact that a number of people worship at the temple is not sufficient to come to the conclusion to the temple must be a public temple to which those people as a matter of right as it is not usual for the owner of together temple to disallow visitors to the temple even if it be private one
In the present case the description of the temple with respect to its construction equipment practices observances 277 and the form of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple
The temple is not a temple as defined in the Act and it is not used as of right by Hindu Community or any section thereof as a place of religious worship
Held further that the Inam Register is of great evidentiary value but that does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself