Prompt:
Appeal No. 1604 of 1967.
From the judgment and order dated the 8th February, 1967 of Le Delhi High Court in Civil Writ No. 531 D of 1964.
P.P. Rao and R. N. Sachthey, for the appellants.
G.P. Pai, P. C. Bhartari and O. C. Mathur, for respondents nos.
1 & 2.
The Judgment of the Court was delivered by SARKARIA J.
Whether the Federation of Indian Chambers of Commerce and Industry, New Delhi (Respondent 1) is a "commercial establishment" within the meaning of s.2(5) of the Delhi Shops ,and Establishments Act, 1954 (for short the Act) is the sale question that falls for determination in this appeal by certificate directed against the judgment dated February 8, 1967 of the High Court of Delhi.
The facts bearing on this question may now be stated: Respondent 1 (hereinafter referred to as the Federation) is a Company registered under section 26 of the Indian Companies Act, 1913.
The primary objects of the Federation as given in the Memorandum of Association are "(a) To promote Indian business in matters of inland and foreign trade, transport, industry and manufactures, finance and all other economic subjects and to encourage Indian banking, shipping and insurance.
(b) To encourage friendly feeling end unanimity among business community and association on all subjects connected with the common good of Indian business.
(c) To secure organised action on all subjects mentioned above.
(d) To collect and disseminate statistical and other information and to make effort for the spread of commercial and economic knowledge.
(e) To take all steps by lawful means which may be necessary for promoting supporting or opposing legislation or other action affecting the aforesaid economic interests and in general to take the initiative to assist and promote trade commerce and industry.
(f)To provide for arbitration in respect of disputes arising, in the course of trade, industry or transport or other business matters, and to secure the services 350 of expert technical and other men to that end if necessary or desirable.
(g) To conduct, undertake the conduct of and participate in national and international exhibitions.
(h) To set up museums or show rooms, to exhibit the products of India and other countries and to participate in such activities.
(1) To secure the interests and well being of the Indian business communities abroad.
(k) To attain those advantages by united action which each member may not be able to accomplish in its separate capacity.
(m) To help in the Organisation of Chambers of Commerce or Commercial Associations in different commercial centres of the country.
(n) (O) (p) (q) (r) (s) (t) (u) (v) (x) (y) To sell or dispose of the undertaking of the Federation or any part thereof for such consideration as the Federation may think fit and in particular for shares, debentures, or securities of any other association or company having objects altogether or in similar to those of the Federation.
(z) To take or otherwise acquire and hold shares in any other association or company having objects altogether or in part similar to those of the Federation.
(zl) To establish a Trust or Trusts and/or appoint Trustees thereof from time to time and vest the funds or the surplus income or any property of the Federation in the Trustees who shall hold and deal with the funds, surplus income or property in such manner as the Committee may decide.
(z2) 351 (z3)To draw, make, accept, discount, execute and issue bills of exchange, promissory notes, bills of lading, warrants, debentures and other negotible instruments or securities.
(z4) (4) The income and property of the Federation, whencesoever derived, shall be applied solely towards the promotion of the objects of the Federation as set forth in the Memorandum of Association; and no portion thereof shall be paid or transferred directly or indirectly, by way of dividend, bonus, or otherwise by way of profit to the members of the Federation.
The Articles of Association inter alia provide that a Chamber or an Association can become an ordinary member of the Federation on payment of annual subscription of Rs. 1,000,/ or such higher amount as may from time to time be fixed by the Federation in addition to the admission fee of Rs. 5001 .
The scales of subscription on the basis of turnover, deposits or premia for associate members have also been prescribed.
The Chief Inspector of Shops and Establishments, Delhi (Appellant 2 herein) called upon the Federation to register its establishment 'he under the Act The Federation failed to comply with the direction and contended that it was not an "establishment" as defined in section 2(9) of the Act.
This contention did not find favour with the Chief Inspector who, in consequence, made a complaint under the Act for prosecution of the Secretary of the Federation (Respondent 2 herein) under the appropriate penal provisions of the Act in the Court of the Magistrate.
1st Class, Parliament Street, New Delhi.
The Federation then moved the High Court under Article 226 of the Constitution for bringing up and quashing the order, dated February 4, 1964 passed by the Chief Inspector (Appellant 2).
They further prayed for a writ of Prohibition directing the Magistrate not to proceed with the complaint.
Before the High Court, the contention of the Federation was that the premises in which the registered office of the Federation is located is not a "commercial establishment" within the meaning of section 2(5) of the Act which, in consequence had no application.
From the side of the present appellant, at first a half hearted attempt was made to show that the Federation is carrying on a profession as it is "tendering advice to all businessmen and traders".
This contention was negatived in these terms : " . that contention overlooks the fact that the advice in question is not tendered for any consideration.
It is done in the interest of trade and business of the country.
The 1st petitioner is not tendering any advice or giving any assistance to any trader in particular.
It deals with the trade or busi ness in general to secure the interest of the country.
it is predominantly a charitable organization and not a professional one.
" 352 It was then contended that the activities of the Federation carried on in the premises in question amounted to "work in connection with, or incidental or ancillary" to trade or business in general within the latter part of the definition of "commercial establishment".
This contention was also rejected with the observation that since the earlier part of the definition refers to "some particular business or trade carried on in a premises" the words "any work in connection with or incidental or necessary thereto" obviously refer to such particular business or trade and not to trade or business in general '.
In the result, it was held that the premises of the Federation were not a commercial establish ment, and the writ petition was allowed.
A certificate, however, was granted under Article 133(1) (c) of the Constitution that the case was fit for appeal to this Court.
Hence this appeal.
Before dealing with the contentions canvassed before us, it will be useful to notice briefly, the scheme and the relevant provisions of the Act.
The title of the Act is Delhi Shops and Establishments Act, 1954.
The main object of the Act as stated in its preamble is "regulation of hours of work, payment of wages, leave, holiday, terms of service and other conditions of work of persons employed in shop, commercial establishment, establishments for, public entertainment or amusement and other establishments and to provide for certain matters connected therewith." Section 1(4) indicates its extent and application.
It shall apply in the first instance.
only to the municipal areas, notified areas of Delhi and New, Delhi etc., but Government may by notification extend or apply it to shops and establishments in the other local area or areas.
The definitions of "commercial establishment", "establishment" and "shop" given in sub sections (5), (9) and (27) of section 2 are material for our purpose.
They read "Commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on and includes a society registered under the , and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with or incidental or ancillary thereto, ' journalistic and printing establishments, quarries and mines not governed by the , educational or other Institutions run for private gain and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is, carried on, but does not include a shop or a factory registered under the , or theaters, cinemas, restaurants, eating houses residential hotels, clubs or other places of public amusement or entertainment.
" "Establishment" means a shop, a commercial establishment, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishment as Government may by notification in the Official Gazette, 35 3 declare to be an establishment for the purposes of the Act.
" " Shop" means any premises where goods are sold, either by retail or wholesale Or where services are rendered to customers, and includes an office, a stoic room, godown, warehouse or workhouse, or work place, whether in the same premises or otherwise, used in or in connection with such trade or business but does not include a factory or commercial establishment.
" It will be seen that while the definition of "establishment" includes, a 'shop ' and 'commercial establishment, the definitions of 'shop ' and commercial establishment ' are mutually exclusive.
Further, the definition of "commercial establishment" is wider than that of "shop".
A place in order to fall within the definition of "commercial Establishment" must in the first instance be "premises".
Secondly, it should be premises wherein (a) any trade, business or profession is carried on, or (b) any work in connection with or incidental or ancillary thereto is carried on.
Sub clause (b) is only ancillary to (a).
There is no, doubt that the registered office of the Federation is premises.
The controversy centres round the questions whether the activity of the Federation carried on in these premises is a "trade, business or profession" within the meaning of pari (a) of the definition.
This question is not res integra.
It came up for consideration before this Court in Management of the Federation of Indian Chambers of Commerce and Industry vs Their workman, Shri R. K. Mittal.(1) After considering its Memorandum of Association, Articles of Association and other material, which was more or less the same, as in the present case, it was held by this Court that the activity of this Federation is in the nature of a business or trade.
Mr. Rao, learned Counsel for the appellants strongly relies on the aforesaid decision.
Mr. Pai, learned Counsel for the Federation has firstly raised a preliminary objection that before the High Court, at no stage, it was urged on behalf of the Appellants that the activity of the Federation carried on in the premises was a business or trade.
It is added that a half hearted argument was adVanced that its activity was a 'profession ' and that, too, was soon given UP In these circumstances, it is submitted, the appellants should not be allowed to commit a volte face and take up in this Court a stand which was either not taken or was given no in the High Court.
In the alternative, learned Counsel contends that even if this plea is allowed to be raised, then also the primary activity of the Federation cannot, by any stretch of reasoning, be called a 'trade, business of profession within the definition of "commercial establishment" given in the Act.
According to Counsel, the activity of the Federation is one of general utility; the only source of its income is from subscriptions.
The occasional exhibitions or , museums organised by it are activities which are only incidental or ancillary to the primary charitable object of the Federation.
No divi (1) [1972] 2 S.C.R. 353.
354 dends are declared, no profits are shared or divided among the Individual members, and no goods are sold or exchanged.
in support of his contentions, learned Counsel has referred to Commissioner of Income tax vs Andhra Chamber of Commerce.
(,) Mr. Pai further maintains that the ratio in R. K. Mittal 's case (supra) is not applicable to the instant case because the definition of " 'industry" in section 2(j) of the is far wider than that of "commercial establishment" in section 2(5) of the Act.
Mr. Pai further doubts the correctness of the decision in R. K. Mittal 's case (supra) inasmuch as it holds that the activity of the Federation partakes the character of trade or business.
This finding, it is urged, is based on a misapprehension of facts and requires reconsideration.
It is pointed out that it was wrongly assumed in Mittal 's case (supra) that the Federation, was systematically assisting not only its members but also other business men and industrialists even if they were not its members.
The fact of the matter is that the Respondent is a Federation of Federations and not an association of any individual traders, industrialists or businessmen.
As regards the preliminary objection, it is true that before the High Court, it was not argued that the activity of the Federation amounts to the carrying on of any business or trade in the premises in question.
All that was attempted to argue there was, that its activity amounted to a 'profession '.
Alternatively, it was contended that the case fell within part (b) of the definition of "commercial establishment" inasmuch as its activities were connected with trade and business, generally.
We do not think it proper to shut out the contentions now raised before us about the activity of the Federation being a trade or business, merely on the ground, that the point was not properly put before the High Court.
This point will not require any additional material for its decision.
The question is only of drawing a correct inference 'about the point in issue from the material already on record.
We, therefore, overrule the preliminary objection.
This takes us to the merits of the case.
In R. K. Mittal 's case, this Court was considering the activity of this Federation in the context of 'industry ' as defined in s.2(j) of the .
That definition reads: " "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupa tion or evocation of workmen.
" It will be seen that "any business, trade" is an element common to the definitions of "commercial establishment" and "industry" given in the respective statutes.
That was why the question, whether the ,activity of the Federation is a business or trade activity, was directly (1) ; 355 and substantially in issue in R. K. Mittal 's case.
therein, the Memorandum of Association, Articles of Association and the other material placed before the court were closely examined.
The entire case law was surveyed.
The contentions now canvassed were also raised and considered in that case.
Jagnmohan Reddy J. speaking for the Court,.
posed the question for decision thus : "In our view the linch pin of the definition of 'industry ' is to ascertain the systematic activity which the organization is discharging namely, whether it partakes the nature of a business or trade; or is an undertaking or manufacture or calling of employers".
(emphasis added) The answer given to this question has been correctly summed up, in the head note of the Report, as under: "The above being the position in law the were fact that the appellant Federation had charitable aims and objects would not take it out of the definition of industry.
An examination of the activities of the Federation showed that the Federation carried on systematic activities to assist its members and other businessmen and industrialists and even to non members as for instance in giving them the right to subscribe to their bulletin; in taking up their cases and solving their difficulties and in obtaining concessions and facilities from them from the Government.
These activities were business activities and material services rendered to businessmen, traders and industrialists who are members of the constituents of the Federation.
There could be no doubt that the Federation was an industry within the meaning of s.2(j) of the Act." (The crucial words are those that have been underlined).
The case under the Income tax Act wherein the main object of the organization was charitable, were also considered and found of little assistance.
It was observed that: "the object of an Organisation may be charitable but nevertheless its activity may be commercial so as to satisfy the definition of an industry as explained and illustrated by this Court particularly in Safdarjang Hospital 's case.(1) We could therefore envisage an institution having its aims and objects charitable and yet its activities could bring it within the definition of industry".
The above observations were made in the context of the definition of industry ' but they are equally applicable in the present case.
The very definition of "commercial establishment" indicates that the activity of a registered society, charitable or other trust will not take it out of the definition if the activity carried on by it amounts to a busi (1)[1971] 1, S.C.R. 177.
356 ness, trade or profession or any work in connection therewith or incidental thereto.
No doubt, the effective membership as distinguished from Honorary membership of the Federation is open only to Chambers of Commerce or Commercial Associations of requisite strength and standing, but the fact remains that it carries on systematic activities not only to assist its members but also other traders or businessmen members of the constituents of the Federation.
It has set up Tribunals for arbitration in disputes arising between individual traders or business concerns in the course of trade, industry or other business matters.
It takes up with the concerned authorities the specific difficulties experienced by the trade in the day today business and endeavours to attain for the traders and industrialists those material advantages by unified action which they may not be able to achieve in their individual capacity.
It helps businessmen and industrialists by securing for them the services of expert technical men (vide clauses (f) and (k) of the Memorandum of Association).
It undertakes regular publication of periodicals, bulletins, Reviews etc.
for the benefit of businessmen, big or small and whether or not they are members of the Federation.
These publications are available on payment of subscription or price even to individual businessmen or traders who are not members of the Federation.
All these are business activities are carried on systematically.
We therefore do not think that R. K. Mittal 's case (supra) was incorrectly decided and needs reconsideration.
It is true that in R. K. Mittal 's case (supra) it was held that these activities of the Federation are also in the nature of material services within the wider definition of 'industry '.
Though the rendering or services is not specifically mentioned as an element of the definition of "commercial establishment", yet this very element appears in the definition of 'shop ' in section 2(27) of the Act.
Any premises where services are rendered to customers fall within the definition of a "shop".
These services are material services.
For the application of the Act to the Federation, it is immaterial whether its activities bring its premises within the ambit of a "shop" or a "commercial establishment '.
It is well settled that a systematic activity can be a business activity even if no dividends are declared or profits shared.
In the matter.
of Incorporated Council of Law Reporting for England and Wales, (1) the Queens Bench was considering the interpretation of the expression "trade or business" in section 11 of the English Customs and Inland Revenue Act 1885 with reference to the activity of the Incorporated Council of Law Reporting for England and Wales.
The association was established for the objects of preparing and publishing under gratuitous professional control, reports of judicial decisions; of issuing digests and other publications relating to legal subjects.
In carrying them out the association employed editors, reporters, printers, and publishers and supplied its publications to subscribers and others for payment.
It was condended that the activity of the Association was not "a business or trade" because by the Memorandum of Associ (1) 357 ation all the property and income of the association were applicable solely to the promotion of the above objects, and no part thereof could be paid as dividend or otherwise, to any member.
Holding that the association was established for a "trade or business", Lord Coleridge C. J. repelled the contention in these terms: "Though it may be true that in the great majority of cases the carrying on of a trade does, in fact, include the idea of profit, yet the definition of the mere word 'trade ' does not necessarily mean something by which a profit is made.
But putting aside the question whether they carry on a trade, how can it be denied that the Council carry on a business? They are incorporated; they have a secretary; they employ editors, reporters, and printers; they print books, they sell those books, they do all that is ordinarily done in carrying on the business of a bookseller.
" The above observations apply mutatis mutandis to the activity of the Federation.
It will bear repetition that the Federation also publishes periodicals, bulletins etc.
and issues the same to member free of this Court in R. K. Mittal 's case (supra) we would hold that the commercial or industrial exhibitions, runs museums and makes profits.
Of course, that profit is ploughed back for the purposes of the Federation as set out in its Memorandum of Association, and is not distributed among its members.
But that does not alter the 'fact that its activity is a trading or business activity.
For all the foregoing reasons, particularly in view of the decision of this Court in R. K. Mittals case, (supra) we would hold that the pre premises of the Federation are a "commercial establishment" within the meaning of section 2(5) of the Act.
In the result we allow this appeal, set aside the judgment of the High Court and dismiss the writ petition.
In the circumstances of the case we make no order as to costs.
V.P.S. Appeal allowed.

Response:
The respondent was required by the Chief Inspector of Shops and Establishments to register its establishment ' under the Delhi Shops and Establishments Act, 1954.
The respondent contended that it was not an 'establishment ' which is defined in section 2(9) as meaning 'a shop or a commercial estab lishment ' and did not comply with the direction.
Proceedings for prosecution of its Secretary were instituted, where upon the respondent filed a petition in the High Court for quashing the order of the appellant and for directing the Magistrate not to proceed with the complaint.
Before the High Court the appellant contended that the respondent was a 'commercial establishment ' because, the activity of the respondent amounted to a 'Profession ', and alternatively, that the case fell within the latter part of the definition of 'commercial establishment ' in section 2(5), inasmuch as its activities were connected with trade and business generally, but, it was not urged that the activity of the respondent amounted to carrying on any 'business or trade ' in its premises.
The writ petition was allowed by the High Court, holding that premises of the respondent were not a 'commercial establishment '.
In appeal to this Court it was contended that the activities of the respondent amounted to a 'trade or business ', that therefore it was a 'commercial establishment ' and that the matter was covered by Management of the Federation of Indian Chambers of Commerce and Industry vs Sri R. K. Mittal [1972] 2 S.C.R. 353.
Allowing the appeal.
HELD : (1) It is not proper to shut out the contentions of the appellant now raised about the activity of the respondent being a 'trade or business ' merely on the ground that the point was not properly put before the High Court.
The question is only one of drawing a correct inference about the point in issue from the material already on record and will not require any additional material for decision.
[354E F] (2)A place, in order to fall within the definition of 'commercial establishment ' must, in the first instance, be 'premises '.
and secondly, should be premises wherein, (a) any trade, business or profession is carried on, or (b) any work in connection with or incidental or ancillary thereto is carried on.
[353C D] (3) The registered office of the respondent is 'premises '.
[353D] (4) All the activities of the respondent are business activities and are carried on systematically.
Though the profit made by it is ploughed back for its purposes as set out in its Memorandum of Association and is not distributed among its members.
Therefore, the decision in Mittal 's case [1972] 2 S.C.R. 353 that the activity of the respondent is in the nature of 'business or trade ' is correct and that case does not require reconsideration.
[356A E. 357D E] (5)A systematic activity can be a business activity even if no dividends are declared or profits shared.
[356F G] In the matter of Incorporated Council of Law Reporting for England and Wales , applied.
(6)The premises of the respondent, therefore, are a 'commercial establishment.
[357E] 349 (7)For the application of the Act to the respondent it is immaterial whether its activities bring its premises within the ambit of a 'shop ' or 'commercial establishment, within the meaning of the Act.
In Mittal 's case it was held that the activities of the respondent are also in the nature of material services within the wider definition of 'industry ' and, any premises where services are rendered to customers fall within the definition of a 'shop.
[356E F]


Prompt:
Civil Appeal No. 159 of 1974.
From the Judgment and Order dated 4 4 1973 of the Punjab and Haryana High Court at Chandigarh in R.S.A. No. 1482 of 1961.
488 N. N. Goswamy and Arvind Minocha, for the appellant.
Kapil Sibbal and D. Probir Mitra, for respondents.
The Judgment of the Court was delivered by MATHEW, J.
This is an appeal by special leave against a decree passed by the High Court of Punjab and Haryana holding that the appeal filed by the plaintiff appellant has abated and dismissing his suit.
The appellant brought the suit on the allegation that there was one Shiromani Nirankari Dera at Patiala, that this institution had two branches one at Landeke in Moga Tehsil and the other at Nanga Kheri in the erstwhile Patiala State, and that he, as mahant in charge of the Shiromani Dera at Patiala had the right to manage the properties attached to the Dera at Landeke.
The prayer in the plaint was for recovery of possession of the Dera and the properties attached to it.
Som Dass, the defendant, contended that the Dera at Landeke was an independent Dera and that he was in possession of the properties of the Dera as its lawfully appointed mahant.
The trial court decreed the suit.
In appeal by the defendant the decree was reversed.
Against that decree, an appeal was preferred by the appellant to the High Court.
While the appeal was pending in the High Court, Som Dass, the defendant, died on 13 10 1970.
No application was made by the appellant to bring on record his legal representatives within the period prescribed.
An application was made on 1 2 1971 by the appellant stating that Som Dass died on 26 11 1970 leaving behind him Shiam Dass as his Chela and for impleading him.
The correctness of the date of death of Som Dass was contested by Shiam Dass.
The High Court referred the question to the trial Court for enquiry and decision.
The trial Court, after taking evidence, found that Som Dass died on 13 10 1970.
Thereafter the appellant prayed before the High Court that his application dated 1 2 1971 might be treated as an application for setting aside the abatement of the appeal and the ground for setting aside the abatement was that the appellant did not know about the death of Som Dass at the time he died.
The High Court found no substance in the plea that the appellant had no knowledge about the date of the death of Som Dass and held that the appeal had abated and that there was no ground for setting aside the abatement.
The appellant had raised an alternative contention before the High Court that there was no abatement of the appeal even if Som Dass was not impleaded within the period prescribed as he claimed to represent the dera as its duly elected Chela.
The High Court held that after the death of Som Dass, Shiam Dass, as his Chela "inherited the sum total of the rights which earlier vested in Som Dass and when a controversy is raised about such rights, then the appellant was bound to bring on record the legal representatives of the deceased within the time prescribed by law.
" 489 We do not think that the view of the High Court was correct.
The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera at Landeke, that the defendant was unlawfully claiming to be the mahant of the Dera and entitled to manage the properties of the Dera, and that the appellant was entitled to be in possession of the properties.
As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera.
When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest had devolved.
Order 22, rule 10 reads: "R. 10(1) In other cases of an assignment, creation or devolution of any interest during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub rule (1).
" This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court.
When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, rule 10 and not rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason.
Order 22, rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office.
In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule.
The word 'interest ' which is mentioned in this rule means interest in the property i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit.
It was, however, contended on behalf of the respondent that there was no devolution of the interest in the subject matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed him.
The argument was that it was uncertain on the death of Som Dass as to who would become the mahant by election, that it was only when a person succeeded to the mahantship on the death of a previous mahant by virtue of law 490 or custom that there would be devolution of interest in the subject matter of the suit and, therefore, Order 22, rule 10, would not be attracted.
We see no force in this argument.
We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.
Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera.
Som Dass contended that he was lawfully appointed as mahant of the Dera.
He never set up any claim which was adverse to the Dera or its properties.
The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant.
In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant.
The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him.
The subject matter of the suit was the interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass.
And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 will apply(1).
In Thirumalai vs Arunachella (2) the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representative of the predecessor in office.
The Court said that where some of the trustees die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22, rule 10 notwithstanding that the period of limitation for impleading them had expired.
In Roshan Lal vs Kapur Chand the Court took the view that newly appointed trustees are not legal representatives of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22, rule 10 notwithstanding the fact that the period of limitation for an application to 491 impleaded them under Order 22, rule 3 had elapsed.
The Court said (at p. 384): "Such an application is obviously not an application under O. 22, R. 3 Civil Procedure Code.
" We also see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal.
In the result we reverse the decree of the court below and direct the High Court to dispose of the appeal on merits.
We allow the appeal but, in the circumstances, make no order as to costs.
V.P.S. Appeal allowed.

Response:
The appellant filed the suit on the basis that as the Mahant of a Dera he was entitled to possession and management of the properties of its branch Dera.
The defendant contended that it was an independent Dera and that he was in possession of the properties as its lawfully appointed Mahant.
The trial court decreed the suit but in appeal the decree was reversed.
While the second appeal, preferred by the appellant, was pending in the High Court, the defendant died.
As the application to implead the elected successor of the defendant was filed beyond the period prescribed for an application under O. 23, rr. 3 and 4, the High Court held that the appeal had abated and that there was no ground for setting aside the abatement.
In appeal to this Court, the appellant contended that even if the Chela, who had been elected as the Mahant on the death of the defendant, was not impleaded within the period prescribed, there would be no abatement, because he represented the Dera.
Allowing the appeal to this Court, ^ HELD: (1) When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is O. 22, r. 10 and not O. 22, rr. 3 or 4, whether the devolution takes place as a consequence of death or for any other reason.
The word 'interest ' in the rule means interest in the property, i.e., the subject matter of the suit, and the interest is the interest of the person who was the party to the suit.
This rule is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit.
The suit may be continued against the person acquiring the interest with the leave of the Court.
[489F G] In the present case, when the defendant died, the interest which was the subject matter of the suit devolved upon his successor elected as the Mahant of the Dera, and therefore, the appeal could be continued under O. 22 r. 10, C.P.C. [489B C] (2) Though it was uncertain on the death of the defendant as to who would become the Mahant by election, it would not make any difference for the application of O. 22, r. 10.
The devolution of the interest in the subject matter of the suit took place when the new Mahant was elected.
The suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure Mahant against the defendant as a de facto Mahant.
The subject matter of the suit was the interest of the defendant in the Dera and its properties and it devolved upon the new Mahant by virtue of his election subsequent to the death of the defendant.
As it was in a representative capacity that he defendant was sued and that it was in the same representative capacity that the appeal was sought to be continued against the new Mahant, O. 23, r. 10 will apply.
[490B E] Rajnam Pillai vs Natraja Desikar A.I.R. 1924 Madras 615, Thirumalai vs Arunachella, A.I.R. 1926 Madras 540 and Roshan Lal vs Kapur Chand, A.I.R. 1960 Punjab, 382, approved.


Prompt:
N: Criminal Appeal No. 425 1974.
Appeal by Special Leave from the Judgment and order dated the 22nd July 1974 of the Madras High Court at Madras in Criminal Appeal No. 24 of 1974 and Referred Trial No. 3 of 1974.
A. N. Mulla, K. Jayaram and P. Chandrasekhar for the Appellant. , A. V. Rangam and Miss A. Subhasini for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the 4 judgment and order of the, High Court of Madras convicting the appellant (hereinafter to be described as the accused) under section 302 IPC and sentencing him to death.
709 The police had submitted charge sheet under section 302/34 IPC against the present accused and accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and Thamizharasan alias Ramaswami, who was shown as an absconder.
On the prayer of the prosecution the case against the first two accused without the absconding accused, was taken up for trial.
The two accused were charged under section 120B read with sections 302 and 109 IPC as well as under section 302/34 IPC.
The case was referred to the High Court as usual and the accused also preferred appeals against their conviction and sentence.
The High Court acquitted accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and accepted the reference in respect of the present accused.
His appeal was also dismissed.
Hence this appeal by special leave.
The facts are in a brief compass.
The deceased, Viswanatham Pillai, was the village Munsif (Headman).
On April 26, 1971, at about 10.00 P.M. he was sleeping on a bench outside his cattle shed in the open space, which is shown in the site plan (exhibit P15) at No. 9.
The younger brother of the deceased, Pandurangam (PW 4), who is a leper, was also sleeping on the eastern parapet of the sluice of the north Boothagudi channel, which is shown at No. 5 in the site plan (exhibit P15).
Pandurangam woke up at about 11.15 P.M.
On hearing the shout of his deceased brother crying "younger brother: Karunakaran is running after stabbing me with knife. 'Catch him ' ".
He got up and saw the accused Karunakaran running on the eastern bank of the channel with a knife 8 inches long.
The electric lights were burning in the vicinity He also saw two persons running ahead of accused Karunakaran.
He further saw his two brothers, Gnanasakaran (PW 1) and Thiru gnanasambandam (PW 3) along with Ramasamy (PW 2) chasing them.
He ran to his elder brother who came from the side of the bench where he was sleeping and who fell down on the southern side of the sluice.
When he went near him he was already dead.
He had bleeding injuries on several parts of his body.
A crowd gathered and Pandurangam was asked to lodge information at the police station which he did.
The doctor (PW 16) who held the postmortem examination found nine injuries two of which he described as incised and four as punctured incised, two more as punctured and the remaining one as a vertical incised wound.
These were on the left upper arm, left fore arm, on the left side of the epigastrium, on the left side of the anterior axillary line, on the left mid axillary line, on the right side of the epigastrium and on the left side of the back.
Injuries are very severe and according to the doctor death was due to shock and hemorrhage on account of the injuries.
It is clear that whosoever had inflicted these injuries definitely had ? the intention to cause the death of the victim.
In the first information report which PW 4 lodged at the Thana, which is very close to the place of occurrence, within about 15 minutes of the occurrence, inter alia, stated thus: 4 L159SCI/76 710 At about 11.15.
P.M. I woke up on hearing a noise to the effect 'younger brother, Karunakaran is running after stabbing me with knife, 'catch him '.
I stood up and saw Karunakaran, son of Orathur Ayyathurai Padayachi running eastwards from the place where I lay and my elder brother chasing him from behind.
I too came running".
It will be seen that at the time of lodging of the first information report only the present accused was implicated.
Even so, later on four eye witnesses were produced implicating not only the present accused but also two other accused.
The High Court after appreciating the entire evidence rejected the evidence of these eye witnesses, namely, PW 1, 2, 3 and 5 and described them as "a bunch of liars", "unashamed liars and perjurers".
The High Court, therefore, acquitted the second accused, Jabamani Nadar alias Kanyakumari Comrade alias Ramu and also observed that necessarily no case would lie on this kind of testimony against even the absconding accused.
It was also observed that the High Court "can place no reliance on the testimony of PW 4 in so far as he implicated the second accused and Tharnizharasan in the case of murder of Viswanatham".
The High Court further observed: "Poor PW 4 was compelled to speak to a version which ought to accord and harmonise with the version given out by , PWs 1, 2 and 3".
Even so the High Court thought that it was justified in convicting the present accused on the sole testimony of PW 4 "corroborated by the contents of exhibit P1 (FIR)".
The High Court held that "PW 4 who was afflicted with the fell disease of leprosy. has absolutely no motive to implicate the first accused".
The High Court further held that PW 4 gave a "candid, natural and truthful version. at the earliest opportunity".
The High Court has taken note of the fact that "there has been a history of a bitter feud spanning over nearly a decade between the first accused and his father on the one hand and the deceased Viswanatham t on the other".
This is, therefore, a case where conviction of the accused depends .
on the sole testimony of a single witness.
If the witness is absolutely reliable there can be no infirmity in convicting the accused.
In that ' case even corroboration may not be sought for.
ordinarily in an appeal under article 136 of the Constitution we would have hestitated to go into the facts to reappreciate the evidence.
It is, however, not possible to adopt that course in this case where the testimony of the sole witness has been rejected with reference to the 1 second accused who was on the same boat with the appellant.
The very fact that this eye witness could be persuaded to substitute PWs 1, 2 and 3 for his deceased brother as chasing the assailants, degrades him from the status of an absolutely reliable witness.
He is definitely an obliging witness and cannot at all be trustworthy.
This witness may not have a qualm of conscience in implicating the accused for the 711 mere asking by someone, if not by the inimical police officer (PW 23) against whom criminal cases were pending at the instance of the accused 's father.
Apart from that we find that the High Court has not considered the intrinsic quality of the evidence of PW 4.
It failed to notice certain broad facts which should definitely weigh with the court while appreciating ocular testimony.
From the medical evidence it is clear that there were more than one assailant and yet for the FIR it appears that there was only one assailant.
This may not, in a given case, be considered as a very serious infirmity since the witness may not have seen the other.
assailants when he came running to the place of occurrence.
But the fact that the witness has stated in the first information report that the deceased was only mentioning the name of accused Karunakaran as his assailant, this earlier version appears to be contradicted by the medical evidence.
Besides, he has deliberately changed his own stand in court when he deposed that he saw two other persons running ahead of Karunakaran being chased by his two brothers and Ramaswamy.
Another very serious departure from his earlier version is that while PW 4 had stated in the first information report that "my elder brother" (meaning the deceased) was "chasing him from behind" in court he has completely given a go by to this statement and stated that Karunakaran was being chased by PWs 1, 2, and 3.
He did not at all refer to the deceased chasing him.
If his statement in court that he saw PWs 1, 2 and 3 chasing Karunakaran while running away after the assault is true, it is difficult to appreciate that he would not mention about this fact in the first information report.
He admitted in the course of cross examination that the Sub Inspector asked him whether he had any witnesses and that he "did not tell about them due to excitement".
It is difficult to accept this explanation of this witness.
Assuming that his earlier version in the first information report is true that the deceased chased the accused .
as the latter was running away after the assault we would have expected some evidence of a trail of blood stains from the place where he was sleeping to the place where he fell dead.
On the other hand we find that there is a mention about a pool of blood only where the dead body was found at No. 1 in the site plan.
There were also no blood stains on the bench where he was said to be sleeping.
We further find from the evidence of PW 4 in cross examination that when he went near his deceased elder brother about hundred persons were there and "none of them asked him as to how it had happened".
We do not find in this case a single witness out of that crowd produced in court for the purpose of corroborating PW 4.
If the statement of PW 4 is to be believed, the crowd had gathered at the place of occurrence already when he arrived.
It is also conceivable that those persons, who arrived at the place of occurrence a little earlier than PW 4, did not see the assailants who might have already escaped.
It also stands to reason that those persons who gathered would not ask PW 4, who arrived at the place a little later, for information with regard to the assailants.
There is considerable doubt as to this testimony with regard to seeing the accused running away from the place of occurrence.
When the accused is 712 going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that he is absolutely reliable.
We are unable to say that the High Court in this case has made a correct approach in assessing the quality of the testimony of this solitary eye witness.
The High Court is not even right that PW 4 stands wholly corroborated by the contents of the FIR.
On the other hand we have .
r shown that his version in the FIR stands contradicted by the testimony in court on a very material point.
For the reasons given above we are unable to place such reliance as is requisite on the testimony of this uncorroborated solitary witness for convicting the accused facing a murder charge.
The conviction and sentence of death are, therefore, set aside.
The appeal is allowed and the accused shall be released from detention forthwith.
S.R. Appeal allowed.

Response:
The appellant along with "J" & '.T" was charged for offences u/s 120B/109/ 302 I.P.C. as well as 302/34 I.P.C. The trial which proceeded in the absence of absconding "T", resulted in the conviction and both the accused were sentenced to death sentence.
On a reference and appeals by the accused the High Court acquitted "J" rejecting four out of five eye witnesses and disbelieving even the only other eye witness who lodged the First Information Report.
The High Court however maintained the conviction and confirmed the death sentence on the appellant relying on the testimony of the very same single witness.
on appeal by special leave, the Court ^ HELD: (i) Ordinarily in an appeal under article 136 of the Constitution the Court would hesitate to go into the facts to reappreciate the evidence.
It is, however.
not possible to adopt that course, where the testimony of the sole witness has been rejected with reference to the second accused was on the same boat with the appellant.
When the accused is going to lose his life in such a serious charge u/s 302 I.P.C. it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the sole single witness is absolutely reliable.
[710G, H, 711H, 712A] (ii) In the instant case, the High Court was not correct in appreciating the ocular testimony of a sole witness, because (a) the very fact that the eye witness could be persuaded to substitute PWs.
1, 2. and 3 for his deceased brother as chasing the assailants, contrary to the version of the F.I.R. degrades him from the status of an absolutely reliable witness, not having a qualm of conscience, but an obliging and untrustworthy witness.
[710H] (b) 'The version in the F.I.R. stands contradicted by the testimony in court on a very material point and does not corroborate.
[712 B] (c ) Placing such reliance.
therefore.
as is requisite on the testimony of the uncorroborated solitary witness for convicting the accused facing a murder charge is not possible in the case. [712 B]


Prompt:
ivil Appeal Nos.
630 631 of 1971.
Appeals by Special Leave from the Judgment and order dated the 19 1 1970 of the Andhra Pradesh High Court in Tax Revision Cases Nos 46 and 47 of 1969.
V. section Desai, Mrs. Vimla Markandeyulu and G. N. Rao for the Appellant.
P. Ram Reddy and P. P. Rao for the Respondents.
The Judgment of the Court was delivered by BEG, J.
The short question before us in these appeals by special leave, is whether sales of Arc carbons, known as "Cinema Arc Carbons", manufactured by the appellant company, were rightly subjected to sales tax for two assessment years 1965 66 and 1966 77 on the ground that they fall under entry No. 4 of the 1st Schedule of the Andhra Pradesh General Sales Tax Act, 1957, (hereinafter referred to as 'the Act ').
This entry reads as follows: "Cinematographic equipment, including cameras, projectors, and sound recording and reproducing equipment 562 lenses films and parts and accesories required for use their with As indicated above, the very name of the Arc Carbons, as commercial commodities, seems to attach the word "Cinema" to them because of the use to which they are generally put.
The High Court referred to the fact that the appellants had not produced their account books to show that they had been purchased by persons other than those who ran cinemas or for any other use.
Of course, it is very difficult to identify a taxable commodity merely by the use to which it may be put.
Nevertheless, it appears that the entry under consideration links the taxable object with its general or ordinary use.
The taxing authorities were, therefore, compelled to consider the use which is generally made of the arc carbons.
They had concluded that the common or ordinary use of the arc carbons was that they exuded their power foul light cast, through the projectors, on cinema screens.
It was pointed out that the Sales Tax Appellate Tribunal, the final departmental authority under the Act, had allowed an application for adducing expert evidence to determine the question whether arc carbons manufactured by the appellant company could be covered by the entry under consideration.
It, however, appears that, before further evidence could be taken, at the appellate stage, on the subject, a decision of the Andhra Pradesh High Court, in the State of Andhra Pradesh vs Srimathi Nidmarthi Saraswathi Devi(1), was brought to the notice of the Tribunal.
There, the High Court had held that such arc carbons are covered by the 4th entry in the 1st Schedule of the Act.
Hence, the Tribunal dismissed the appeal without taking further evidence.
In the High Court, two decisions cited on behalf of the appellants were: Deputy Commissioner of Commercial Taxes, Madhurai Division, Madhurai vs Ravi Auto Stores(2), and State of Madras vs Indian oxygen Ltd. (3).
The High Court pointed out that in both these cases what was decided was whether "welding electrodes", considered by themselves, were "electrical goods" falling within entry 41 of Schedule 1 of the Madras General Sales Tax Act.
It was held, in these cases, that they were only copper rods which were melted by electrical power in the process of welding.
Neither the use of the term "electrode" to describe them, suggesting a connection with electricity, nor their utilisation in a process involving application of electrical power could convert them into "electrical goods" as contemplated by the entry in the Madras Act.
The High Court rightly observed that these decisions had no bearing whatsoever upon the very different entry in a schedule of an entirely different Act of a different State.
The same question has been argued before us with the help of some more cases to which the same criticism applies.
The additional cases cited before us were: Pashabhai Patel & Co.(P) Ltd. vs Collector of Sales Tax, Maharashtra State(4), where it was held a "tractor" (1) T.R.C. No. 26 of 2962 (decided on 9th August, 1963) (2) (1968) 22 S.T.C. 172 (Madras) (3) (1968) 22 S.T.C. 476 (Madras) (4) (1964) 15 S.T.C.32.
563 is not "agricultural machinery", within the meaning of entry 9 in Schedule of the Bombay Sales Tax Act, 1953; Agrawal Brothers vs Commissioner of Sales Tax, Madhya Pradesh(1); where it was also held that a "tractor", which is "nothing but a self propelled vehicle capable of pulling a load", or "traction" does not acquire the character of "agricultural machinery or implement" merely because when used on agricultural land it is used also to draw certain agricultural implements like a plough; The State of Mysore vs Mores (India) Ltd.(2), where it was held that a typewriter ribbon is not an essential part of a type writer so as to attract the tax under entry 18 of the second schedule to the Mysore Sales Tax, Act, 1957, Commissioner, Sales Tax, U. P. v Free India Cycle Industries(3), where it was held that rexine saddle covers used also for bicycle seats are not covered by entry No. 34 introduced by Section 3A of the U.P. Sales Tax Act, 1948, as modified subsequently, which read: "bicycles, tricycles, cycle rickshaws and perambulators and parts and accessaries thereof other than tyres and tubes"; The Madhya Pradesh State Co operative Marketing Society, Jabalpur vs The Commissioner of Sales Tax, M.P. Indore(4), where it was held that oil engines and pumps", which are not known in the commercial world as "agricultural machinery" could not be covered by an entry meant for goods sold for agricultural purposes simply because some of them are also sold to agriculturists for agricultural purposes.
We do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote hearing, if any, upon any reasoning which could be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule 1 of the Act.
The meaning of this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs.
The entry No. 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression "required for use there with" has been employed for equipment or accessories connected with the main purpose.
For instance, in entry No. 5 the expression occurs at the end as follows: "Photographic and other cameras and enlargers, films and plates, paper and cloth and other parts and accessories required for use therewith".
Apparently, the deciding factor is the predominant or ordinary purpose or use.
It is not enough to show that the article can be put to other uses also.
It is its general or predominant user which seems to determine the category in which an article will fall.
The first entry in the schedule relates to "motor vehicles" and includes "component parts of motor vehicles" and "articles (including batteries) adapted for use as parts and accessories of motor vehicles." but excludes certain other articles by putting in the words "not being such articles as are ordinarily also used for other purposes than as (1) (1965) 16 S.T.C. 860.
(2) (1970) 26 S.T.C. 87.
(3) (1970) 26 S.T.C. 428.
(4) (1971) 27 S.T.C. 45.
564 part and accessories of motor vehicles".
Entry No. 2, relating to refrigerators, air conditioning plants covers also "component parts thereof".
Again, entry No. 3, for "wireless reception instruments and apparatus" includes "electrical valves, accumulators, amplifiers and loud speakers and spare parts and accessories thereof ' '.
The words "parts thereof" are used in several entries, such as entry No. 6 for clocks, time pieces and watches, entry No. 10 for dictaphones and other similar apparatus for recording sound, and entry No. 11 for sound transmitting equipment such as telephones and loud speakers.
our object in indicating the nature of entries, amdist which entry No. 4 occurs, is to show that some precision has been attempted in making the entries.
When it was intended to confine the entry to particular gadgets and "parts thereof" the entry said so.
Of course, even where an entry relates to parts manufactured for use for a particular kind of instrument of gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it.
We have to find the intention of the framers of the schedule in making the entry in each case.
The best guide to their intentions is the language actually employed by them.
We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition.
A sense in which the word accessory is used is given in Webster 's Third New International Dictionary as follows: "all objects or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else".
Other meanings given there are: "supplementary or secondary to something of greater or primary importance"; "additional"; "any of several mechanical devices that assist in operating or controlling the tone resources of an organ." "Accessories" are not necessarily confined to particular machines for which they; may serve as aids.
The same item may be an accessory of more than one kind of instrument.
It will be noticed that the entry we have to interpret includes parts" as well as "accessories" which are required for use in projectors or other cinematographic equipment.
We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas.
The fact that they can also be used for search lights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong.
That is determined by their ordinary or commonly known purpose or user.
This, as already observed by us, is evident from the fact that they are known as "cinema arc carbons" in the market.
This finding was enough, in our opinion, to justify the view taken by the Andhra Pradesh High Court that the goods under consideration are covered by the relevant entry No. 4.
Consequently, we dismiss these appeals with costs.
V.P.S. Appeals dismissed.

Response:
Entry 4 of the I Schedule of the Andhra Pradesh General Sales Tax Act, 1957, reads: Cinematographic equipment including. parts and accessories required for use therewith.
on the question whether Arc Carbons, known as 'Cinama Arc Carbons ' manufactured by the appellant fall under the entry and their sales were, there fore, rightly subjected to sales tax.
^ HELD: The meaning of an entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs.
and cases relating to totally different entries will have only a very remote bearing.
Entry 4 occurs in a Schedule of taxable goods.
When it was intended to confine an entry to particular gadgets and 'parts thereof ' the entry said so.
Entry 4, however, includes 'parts ' as well as 'accessories '.
The term 'accessories ' is used to describe goods which may have been manufactured for use as an aid or addition to particular machines, though, they may serve as aids to other kinds of instruments also.
But, this entry and other entries use the expression 'required for use therewith '.
The description of the goods in these entries indicates that the expression has been employed for equipment or accessories connected with the main purpose.
Therefore, it is its general of predominant use that determines the category in which an article will fall.
[563D F, G; 564B C] In the present case, the main use of Arc Carbons was proved to be that of production of powerful light used in projectors in Cinemas.
The fact that they can also be used for other purposes such as for search lights etc., will not detract from their classification under Entry 4.
The classification is determined by their ordinary or common known purpose or user which is evident from he fact thy are known as 'cinema Arc Carbons ' in the market.
[564 F H]


Prompt:
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. section Desai with M. N. Shroff for section 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.
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.
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 exhibit 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: section 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. " section 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 ' (exhibit 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".
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 (exhibit 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 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 (exhibit 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 exhibit 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 exhibit 35.
The principal emphasis on both these documents exhibit 35 and exhibit 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 exhibit 40,37,39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 and January 28, 1949, respectively.
In exhibit 40 the party taking the gift is described as Vahiwatdar Panch 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 exhibit 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 exhibit 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 exhibit 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".
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 exhibit 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 vs 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.
vs Sm.
Charusila Dasi.
Distinguishing the decision of the Privy Council in Bahu Bhagwan Din vs 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 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 vs 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 vs 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 vs 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 vs 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 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 exhibit 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 529 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.
* * * * * "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 530 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 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.

Response:
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 vs Murlidhar. ; and State of Bihar & Ors.
vs 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 vs Gopal Vinayak Gosavi and others; , , 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 vs 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 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 vs Rannchhoddas Kalidas and ors.
; , 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 section 2(13) of the Bombay Public Trust Act.