Case: Poohari Fakir Sadavarthy of Bondilipuram &amp; Another Vs. Commissioner, Hindu Religious &amp; Charitable Endowments

for the support of the pagoda of Jagannadhaswami in column 8 meant for the description of the inam again, appears to be an entry made under an erroneous impression. There was no temple in existence when the grant was made in about 1747 A.D.23. Exhibit P-55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk, dated August 13, 1881. It mentions, under the heading by whom granted and in what year, the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hizira 1171 corresponding with English years 1754 55. It is also noted: the Sanad granted is in existence. It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings, they should be restored to him in pursuance of the long-standing right. This means that the firman, which was not forthcoming during the inam enquiry, dated from very early times. It must be noted again that this extract also describes the inam as Devadayam, i.e., dedicated to God. Again, clearly, this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P-12, a parvana of 1742 A. D. under the seal of Nawab Jafer All Khan. It records :"It has been proved that Mandas, the successor of Poohari (Poojari) Fakir Sadavarti has per endorsement full six kattis of land, free from assessment, in the village of Balaga and etc., villages of the said Haveli Sircar, fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers. Therefore in consideration of the blessings to follow, it has been confirmed as of yore."It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as service.24. The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.26-32. Their Lordships then considered the evidence in the case and continued as under :33. We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.34. The statement of the respondents witness that generally Oriya temples have no flag-staffs and have Tulsi plants has significance in one other connection also. It was said in Mundacheri Koman v. Achuthan Nair, 61 Ind App 405 at p. 408: (AIR 1934 PC 230 at p.231) that in the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments from public charitable trusts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa. The presumption with respect to the temples in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated.35. We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship.

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

Explanation:
1[ds]12. It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence. Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known institution in that part of the country, where, it has been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the various documents of the period between 1698 and l803 A.D., that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself, it being always in the name of the Bavajee in charge of that institution.It is clear from the fact that the grant was considered a charitable grant that the grant was not taken to be for the purposes of the temple, but was taken to be grant for the purposes Sadavarti. This is also clear from the statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds, as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent. There is no suggestion that the temple was in existence in 1739 A.D., when the grant was made. This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spent on the temple by the Bavaji after the temple has been constructed. Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry. He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service. The divine service really meant, as would appear from the expression in the other documents of the period 1698 to 1802 A.D. service by way of prayer for the stability and continuity of the State.16. The expression that the grant was hereditary also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant. In fact, the sanad granted by Sectaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship.