Appeal No 250 of 1953 Appeal from the judgment and decree dated July 14 1948 of the Chief Court of Audh Lucknow in Second Appeal No 365 of 1945 arising out of the decree dated May 30 1945 of the Court of District Judge Sitapur in Appeal No 4 of 1945 against the decree dated November 25 1944 of the Court of Additional Civil Judge Sitapur in Regular Civil Suit No 14 of 1944
A D Mathur for the appellant
Jagdish Chandra for respondent No 1 758 1956
October 4
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship
One Sheo Ghulam a pious Hindu and a resident of the said village had the Thakurdwara constructed during the years 1914 1916 and the idol of Shri Radhakrishnaji ceremoniously installed therein
He was himself in management of the temple and its affairs till 1928 when he died without any issue
On March 6 1919 he had executed a will whereby he bequeathed all his lands to the Thakur
The provisions of the will in so far as they are material will presently be referred to
The testator had two wives one of whom Ram Kuar had predeceased him and the surviving widow Raj Kuar succeeded him as Mutawalli in terms of the will and was in management
till her death in 1933
Then the first defendant who is the nephew of Sheo Ghulam got into posses sion of the properties as manager of the endowment in accordance with the provisions of the will
The appellant is a distant agnate of Sheo Ghulam and on the allegation that the first defendant bad been mismanaging the temple and denyinng the rightg of the public therein he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920 but the court declined to interfere on the ground that the endowment was private
An application to the Advocate General for sanction to institute a suit under section 92 of the Code of Civil Procedure was also refused for the same reason
The appellant then filed the suit out of which the present appeal arises for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship
The first defendant contested the suit and claimed that the Thakurdwara an d the idols were private and that the general public had no right to make any interference
759 The Additional Civil Judge Sitapur who tried the suit was of the opinion that the Thakurdwara had been built by Sheo Ghulam for worship by his family and that it was a private temple
He accordingly dismissed the suit
This judgment was affirmed on appeal by the District Judge Sitapur whose decision again was affirmed by the Chief Court of Oudh in second appeal
The learned Judges however granted a  certificate under section 109c of the Code of Civil Procedure that the question involved was one of great importance and that is how the appeal comes before Us
The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact
In Lakshmidhar Misra vs Rang alal1 in which the question was whether certain lands had been dedicated as cremation ground it was observed by the Privy Council that it was essentially a mixed question of law and fact and that while the findings of fact of the lower appellate court must be accepted as binding its actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself
In the present case it was admitted that there was a formal dedication and the controversy is only as to the scope of the dedication and that is also a mixed question of law and fact the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found and that is open to consideration in this appeal
It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private and then to examine in the light of those principles the facts found or established
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 1 1949 LR 76 IA 271
761 laid down in the Sanskrit Texts
Thus in his Bhashya on the Purva Mimamsa Adhyaya 9 Pada 1 Sahara Swami has the following Words such as village of the Gods land of the Gods  are used in a figurative sense
That is property which can be said to belong to a person which he can make use of as he desires
God however does not make use of the village or lands according to its desires
Therefore nobody makes a gift to Gods
Whatever property is abandoned for Gods brings prosperity to those who serve Gods
Likewise Medhathithi in commenting on the expression Devaswam in Manu Chapter XI Verse 26 writes Property of the Gods Devaswam means whatever is abandoned for Gods for purposes of sacrifice and the like because ownership in the primary sense as showing the relationship between the owner and the property owned is impossible of application to Gods
For the Gods do not make use of the property according to their desire nor are they seen  to act for protecting the same
Thus according to the texts the Gods have no beneficial enjoyment of the properties and they can be described as their owners only in a figurative sense Gainartha and the true purpose of a gift of properties to the idol is not to confer any benefit on God but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship
762 In Bhupati Nath Smritititha vs Ram Lal Maitra1 it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a sentient being  and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends
Thus it was observed by Sir Lawrence Jenkins C J at p 138 that the pious purpose is still the legate the establishment of the image is merely the mode in which the pious purpose is to be effected and that the dedication to a deity may be a compendious expression of the pious purposes for which the dedication is designed
Vide also the observations of Sir Ashutosh Mookerjee at p 155
In Hindu Religious Endowments Board vs Yeeraraghavachariar2 Varadachariar J dealing with this question referred to the decision in Bhupati Nath Smrititirtha vs Ram Lal Maitra supra and observed As explained in that case the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple by making it possible for them to have the worship conducted in a proper and impressive manner
This is the sense in which a temple and its endowments are regarded as a public trust
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 the 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 1 Cal
2 AIR 1937 Macl
763 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
In the light of these principles we must examine the facts of this case
The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads1 the will of Sheo Ghulam Exhibit A 1 2 user of the temple by the public 3 ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthsarga and 4 other facts relating to the character of the temple
1 The will Exhibit A 1 is the most important evidence on record as to the intention of the testator and the scope of the dedication
Its provisions so far as they are material may now be noticed
The will begins with the recital that the testator has two wives and no male issue that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein and that he is making a disposition of the properties with a view to avoid disputes
Clause I of Exhibit A 1 provides that after the death of the testator in the absence of male issue the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrisbnan and mutation of names shall be effected in favour of Sri Radhakrishnan in the Government papers and my wives Mst
Raj Kuer and Mst
Ram kuer shall be the Muta wallis of the waqf
Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime and the remaining half was to continue to be spent for the expenses of the Thakurdwara
It is implicit in this provision that after the lifetime of the wives the whole of the income is to be utilised for the purpose of the Thakurdwara
Clause 4 provides that if a son is born to the testator then the properties are to be divided between the son and the Thakurdwara in a specified 764 proportion but as no son was born this clause never came into operation
Clause 5 provides that the Mutawallis are to have no power to sell or mortgage the property that they are to maintain accounts that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit property should be purchased in the name of Sri Radhakrishnaji
Clause 2 appoints a committee of four persons to look after the  management of the temple and its properties and of these two are not relations of the testator and belong to a different caste
It is further provided in that clause that after the death of the two wives the committee may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion
This Murlidhar is a divided nephew of the testator and he is the first defendant in this action
Clause 3 provides for filling up of vacancies in the committee
Then finally there is cl 6 which runs as follows If any person alleging himself to be my near or remote heir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed
The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment or that it should be public
The learned Judges of the Chief Court in affirming the decisions of the courts below that the temple was built for the benefit of the members of the family observed that there was nothing in the will pointing to a conclusion that the trust was a public one and that its provisions were not inconsistent with the property being a private endowment
We are unable to endorse this opinion
We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family
The testator begins by stating that he had no male issue
In Nabi Shirazi vs Province of Bengal supra the question was whether a wakf created by a deed of the year 1806 was a public or a private 765 endowment
Referring to a recital in the deed that the settlor had no children Khundkar J observed at p 217 The deed recites that the founder has neither children nor grandchildren a circumstance which in itself suggests that the imambara was not to remain a private or family institution
Vide also the observations of Mitter J at p 228
The reasoning on which the above view is based is obviously that the word family  in its popular sense means children and when the settlor recites that he has no children that is an indication that the dedication is not for the benefit of the family but for the public
Then we have clause 2 under which the testator constitutes a committee of management consisting of four persons two of whom were wholly unrelated to him
Clause 3 confers on the committee power to fill up vacancies but there is no restriction therein on the persons who could be appointed under that clause and conceivably even all the four members might be strangers to the family
It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations he would have entrusted the management thereof to a body consisting of strangers
Lastly there is clause 6 which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial and it is noteworthy that under clause 2 even the appointment of the first defendant as manager of the endowment is left to the option of the committee
It is inconceivable that with such scant solicitude for his relations Sheo Ghulam would have endowed a temple for their benefit
And if he did not intend them to be beneficiaries under the endowment who are the members of the family who could take the benefit thereunder after the lifetime of his two wives If we are to hold that the endowment was in favour of the members of the family then the result will be that on the death of the two wives it must fail for want of objects
But it is clear from the provisions of the will that the testator contemplated the continuance 766 of the endowment beyond the lifetime of his wives
He directed that the properties should be endowed in the name of the deity and that lands are to be purchased in future in the name of the deity
He also provides for the management of the trust after the lifetime of his wives
And to effectuate this intention it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public and not merely of his family
In deciding that the endowment was a private one the learned Judges of the Chief Court failed to advert to these aspects and we are unable to accept their decision as correct
In the absence of a deed of endowment constituting the Thakurdwara the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public
The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference and indeed it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers as there was no temple in the village
The trial Judge did not discard this evidence as unworthy of credence but he held that the proper inference to be drawn from the evidence of PW 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace
PW 2 was a pujari in the temple and be deposed that while Sheo Ghulam s wife was doing puja within the temple he stopped outsiders in whose presence she used to observe purdah from going inside
We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right
It is nothing unusual even in well known public temples for the puja hall being cleared of the public when a high dignitary comes for worship and the act of the pujari in stopping the public is expression of the regard which the entire villagers must have had for the wife of the founder who was a pardanashin lady when she came in for worship and cannot be construed as a denial of their rights
The learned Judges of the Chief Court also relied on the decision 767 of the Privy Council in Babu Bhagwan Din vs Gir Har Saroon1 as an authority for the position that the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private
In that case certain properties 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
The contention of the public was that subsequent to the grant the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication
In repelling this contention the Privy Council observed that as the grant was initially to an individual a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was not made out merely by showing that the public was allowed to worship at the temple since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away
But in the present case the endowment was in favour of the idol itself and the point for decision is whether it was a 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
In Mundancheri Koman vs Achuthan2 which was referred to and followed in Babu Bhagwan Din v Gir Har Saroon1 the distinction between user in respect of an institution which is initially proved to have been private and one which is not is thus expressed Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad and so were private trusts their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts
As it is they are of 1 1939 LR 67 IA 1
2 1984 LR 61 IA 405
768 opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temples and their endowment were public religious trusts
We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment
It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies provided the settlor has clearly and unambiguously expressed his intention in that behalf
Where it is proved that ceremonies were performed that would be valuable evidence of endowment but absence of such proof would not be conclusive against it
In the present case it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras
P W 10 who officiated as Acharya at the function has deposed that it lasted for seven days and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha
Not much turns on this evidence as the defendants admit both the dedication and the ceremonies but dispute only that the dedication was to the public
In the court below the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public and that as P W 10 stated that Prasadothsarga was performed the endowment must be held to be public
The learned Judges considered that this was a substantial question calling for an authoritative decision and for that reason granted a certificate under section 109c of the Code of Civil Procedure
We have ourselves read the Sanskrit texts bearing on this question and we are of opinion that the contention of the appellant proceeds on a misapprehension
The ceremonies relating to dedication are Sankalpa Uthsarga and Pra 769 thista
Sankalpa means determination and is really formal declaration by the settlor of his intention to dedicate the property
Uthsarga is the formal renunciation by the founder of his ownership in the property the result whereof being that it becomes impressed with the trust for which he dedicates it
Vide The Hindu Law of Religious and Charitable Trust by B K Mukherea 1952 Edition p 36
The formulae to be adopted in Sankalpa and Uthsarga are set out in Kane s History of Dharmasastras Volume 11 p 892
It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made it is the Uthsarga that in terms dedicates the properties to the public Sarvabhutebyah
It would therefore follow that if Uthsarga is proved to have been performed the dedication must be held to have been to the public
But the difficulty in the way of the appellant is that the formula which according to P W IO was recited on the occasion of the foundation was not Uthsarga but Prasadoasarga which is something totally different
Prasada  is the mandira  wherein the deity is placed before the final installation or Prathista takes placer  and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada
Prasadothsarga is the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows It will be seen that this is merely the Sankalpa without the Uthsarga and there are no words therein showing that the dedication is to the public
Indeed according to the texts Uthsarga is to be performed only for charitable endowments like construction of tanks rearing of gardens and the like and not for religious foundations
It is observed by Mr Mandlik in the Vyavahara Mayukha Part 11 Appendix II IIp
339 770 that there is no utsarga of a temple except in the case of repair of old temples
In the History of Dharmasastras Volume II Part II p 893 it is pointed out by Mr Kane that in the case of temples the proper word to use is Prathista and not Uthsarga
Therefore the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples
The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga
But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples and that there was Prathista of Sri Radhakrishnaji as spoken to by PW 10 is not in dispute
In our opinion this establishes that the dedication was to the public
4We may now refer to certain facts admitted or established in the evidence which indicate that the endowment is to the public
Firstly there is the fact that the idol was installed not within the precincts of residential quarters but in
a separate building constructed for that very purpose on a vacant site
And as pointed out in Delroos Banoo Begum vs Nawab Syud Ashgur Ally Khan1 it is a factor to be taken into account in deciding whether an endowment is private or public whether the place of worship is located inside a private house or a public building
Secondly it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts
That is more consistent with the endowment being public rather than private
Thirdly the puja in the temple is performed by an archaka appointed from time to time
And lastly there is the fact that there was no temple in the village and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them
This evidence has not been considered by the courts below and if it is true that will be decisive to prove that the endowment is public
1 1875 16 Ben
LR 167186
771 It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private
He did not aver that the temple was founded for the benefit of the members of the family
At the trial while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and for his puja only
The view of the lower court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading and is not supported by the evidence in the case
Having considered all the aspects we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple
In the result the appeal is allowed the decrees of the courts below are set aside and a declaration granted in terms of para 17 a of the plaint
The costs of the appellant in all the courts will come out of the trust properties
The first defendant will himself bear his own costs throughout
Appeal allowed


Summary:
The issue whether a religious endowment is a public or a private one is a mixed question of law and fact the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found and is open to consideration by the Supreme Court
Lakshmidhar Misra vs Bangalal 1949 LR 76 IA 271 re ferred to
The distinction between a private and a public endowment is that whereas in the former the beneficiaries are specific individuals in the latter they are the general public or a class thereof
757 Though under Hindu law an idol is a juristic person capable of holding property and the properties endowed for the temple vest in it it can have no beneficial interest in the endowment and the true beneficiaries are the worshippers as the real purpose of a gift of properties to an idol is not to confer any benefit on God but the acquisition of spiritual benefit by providing opportunities and facilities for those who desire to worship
Prosunno Kumari Debya vs Golab Chand Baboo 1875 LR 2 I A 145 Maharaja Jagadindra Nath Boy Bahadur vs Bani Hemanta Kumari Debi 1904 LR 31 IA 203 Pramatha Nath Mullik vs Pradhyumna Kumar Mullik 1924 LR 52 IA 245 and Bhupati Nath Smrititirtha vs Bam Lal Maitra 1910 ILR  referred to
A pious Hindu who was childless constructed a temple and was in management of it till his death
He executed a will whereby he bequeathed all his lands to the temple and made provision for its proper management
The question was whether the provisions of the will disclosed an intention on the part of the testator to dedicate the temple to the public or merely to the members of the family
Hold that the recital in the will that the testator had no sons coupled with provisions for the management of the trust by strangers was an indication that the dedication was to the public
Nabi Shirazi vs Province of Bengal ILR 1942 1 Cal 211 referred to
Held further that the performance of ceremonies at the con secration of the temple Prathista the user of the temple and other evidence in the case showed that the dedication was for worship by the general public