Case: Deoki Nandan Vs. Murlidhar

idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public. 15. In the court below, the appellant raised the contention that the performance ofUthsargaceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P.W. 10 stated thatPrasadothsargawas performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under S.109 of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the property.Uthsargais the formal renunciation by the founder of his ownership on the property, the result thereof being that it becomes impressed with the trust for which he dedicates it.Vide the Hindu Law of Religious and Charitable Trusts by B.K.Mukherjea, 1952 Edition, p.36.the formula to be adopted inSankalpaandUthsargaare set out in Kanes History of Dharmasasatra, Vol.II, p.892. It will be seen therefrom that while theSankalpastates the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhatebyab).It would, therefore, follow that ifUthsargais proved to have been performed, the dedication must be held to have been to the public.But the difficulty in the way of the appellant is that the formula which according to P.W.10 was recited on the occasion of the foundation was not Uthsarga butPrasadothsarga,which is something totally different.Prasadais themandira, wherein the deity is placed before the final installation orPrathista takes place, and the PrathistaMayukha prescribes the ceremonies that have to be performed when the idol is installed in thePrasada. Prasadothsargais the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without theUthsarga,and there are no words therein showing that the dedication is to the public. Indeed, according to the texts,Uthsargais to be performed only for charitable endowments,like construction of tanks, rearing of gardens and the like, and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p.339 that "there is noutsargaof a temple except in the case of repair of old temples".In the History of Dharmasastras, Vol.II, part II, p. 893,it is pointed out by Mr. Kane that in the case of temples the proper word to use isPrathistaand notUthsarga.Therefore, the question of inferring a dedication to the public by reason of the pefromance of theUthsargaceremony cannot arise in the case of temples.The appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the public. 16. (4) We may now refer to certain facts admitted or established in the evidence, which indicate thatthe endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, 15 Beng L R 167 at p. 186(J) it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the, Thakurdwara was built at the instance of the villagers for providing a place of worship for them.This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public. 17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found, and is open to consideration in this appealUnder the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in itThough such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the plaint), it is now established beyond all controversy that this is not the true position.It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed propertiesIt cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the Sanskrit text7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficultyIt is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the ThakurdwaraIt is further provided in that clause that after the death of the two wives the committee"mayappoint my nephew Murlidhar as Mutawalli by their unanimous opinion". This Murlidhar is a divided nephew of the testator and he is the first defendant in this actionWe are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his familyIt is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangersIt is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefitIf we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the diety, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intentions, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct13. (2) In the absence of a deed of endowment consituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P. W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and he deposed that while Sheo Gbulams wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right.It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rightsBut, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the publicWe are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment14. (3)It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settler has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the publicWe have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the propertyThe appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the publicThis evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.