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

2. On March 28, 1947, the Board of Commissioners for Hindu Religious and Charitable Endowments, Madras, held the institution in suit to be a temple as defined in the Act. The appellants, thereafter, filed a petition under S. 84(2) of the Act, in the Court of the District Judge, Vizagapatam, and prayed for the setting aside of the order of the Board. They alleged that the institution known as the Poohari Fakir Sadvarthy, at Bondilipuram, Chicacole, a long-standing institution, was started by one Malukdas Bavajee, some time during the reign of the Moghul Emperor, Aurangazeb. The Emperor, in recognition of the Bavajees piety and devotion to God, made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthi to Fakirs and Sadbus and to pray to God for the prosperity of the Empire and the Emperor, according to what was stated in the well-known historical works like Bhakthamala by Maharaja Raghunadha Singh Deo of Rewa.3. The institution flourished and continues up to this day. The original plaintiff No.2, Rajaram Das Bavajee, was the ninth in succession from the founder Malukdas Bavajee. He died during the pendency of the proceedings and is now represented by appellant No.2, Mahant Gangaram Das Bavajee. Sithaldas Bavajee, the sixth head of the institution who lived in the first half of the Nineteenth Century, built a temple and installed therein certain idols for his private worship. The shrine was an adjunct of the institution Poohari Fakir Sadavarthi. It is alleged to be a private temple known as Jagannadhaswami temple, Balaga, and is meant for the worship of the Mahant and his disciple, one of whom conducts the daily worship.4. The income from the various properties granted to Malukdas Bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through Balaga. A part of the Income was, however, spent on the expenses of the worship in the temple and the incidental expenses connected with it.5. The respondent Board denied that Jagannadhaswami temple was a private place of worship, that the public had no access to it without the permission of the Bavajee an alleged that the temple possessed all the features of a place of public religious worship and was dedicated to or for the benefit of or used as of right by the Hindu community as a place of religious worship.6. The appellants examined five witnesses including plaintiff No. 2, in support of their case. The respondent examined one witness. The plaintiffs also filed a number of documents. The respondent filed a few documents which included the Boards order dated March 28,1947, and its enclosure.7. The learned District Judge concluded, from the evidence, that Jagannadhaswami temple was not a temple as defined in the Act, it being a private temple existing for the benefit of the appellants only. He therefore set aside the impugned order of the Board. On appeal, High Court came to a different conclusion and allowed the appeal. It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established :(i) the temple is a very old temple constructed in or about the year 1750;(ii) the temple has the structure and polity of a public temple;(iii) there are utsava vigrahams and vahanams;(iv) it has a big compound wall with the gate opening into the Chinna Bazaar Road;(v) regular worship is performed every day at the scheduled time;(vi) there is an archaka who performs worship;(vii) a large number of pilgrims attend every day and partake in the food given after naivedyam to the God;(viii) there are utsavams and the rathotsavam which is particularly conducted on large scale and is attended by members of the public.The High Court relied on the statement of the solitary witness examined for the Board and rejected the statements of the witnesses examined for the appellants.

Reasoning: 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.