Judgment Case ID: 430

Judgment:
Appeal No. 250 of 1953	 Appeal from the judgment and decree dated July 14	 1948 of the Chief Court of Audh	 Lucknow in Second Appeal No. 365 of 1945 arising out of the decree dated May 30	 1945 of the Court of District Judge	 Sitapur in Appeal No. 4 of 1945 against the decree dated November 25	 1944 of the Court of Additional Civil Judge	 Sitapur in Regular Civil Suit No. 14 of 1944. A. D. Mathur	 for the appellant. Jagdish	 Chandra	 for respondent No. 1. 758 1956. October 4. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship. One Sheo Ghulam	 a pious Hindu and a resident of the said village	 had the Thakurdwara constructed during the years 1914 1916	 and the idol of Shri Radhakrishnaji ceremoniously installed therein. He was himself in management of the temple and its affairs till 1928 when he died without any issue. On March 6	 1919	 he had executed a will whereby he bequeathed all his lands to the Thakur. The provisions of the will	 in so far as they are material	 will presently be referred to. The testator had two wives one of whom Ram Kuar	 had predeceased him and the surviving widow	 Raj Kuar	 succeeded him as Mutawalli in terms of the will and was in management. till her death in 1933. Then the first defendant who is the nephew of Sheo Ghulam	 got into posses sion of the properties as manager of the endowment in accordance with the provisions of the will. The appellant is a distant agnate of Sheo Ghulam	 and on the allegation that the first defendant bad been mismanaging the temple and denyinng the rightg of the public therein	 he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920	 but the court declined to interfere on the ground that the endowment was private. An application to the Advocate General for sanction to institute a suit under section '92 of the Code of Civil Procedure was also refused for the same reason. The appellant then filed the suit	 out of which the present appeal arises	 for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship. The first defendant contested the suit	 and claimed that "the Thakurdwara an d the idols were private"	 and that "the general public had no right to make any interference". 759 The Additional Civil Judge	 Sitapur	 who tried the suit was of the opinion that the Thakurdwara had been built by Sheo Ghulam "for worship by his family"	 and that it was a private temple. He accordingly dismissed the suit. This judgment was affirmed on appeal by the District Judge	 Sitapur	 whose decision again was affirmed by the Chief Court of Oudh in second appeal. The learned Judges	 however	 granted a ' certificate under section 109(c) of the Code of Civil Procedure that the question involved was one of great importance	 and that is how the appeal comes before Us. The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact. In Lakshmidhar Misra vs Rang alal(1)	 in which the question was whether certain lands had been dedicated as cremation ground	 it was observed by the Privy Council that it was "essentially a mixed question of law and fact"	 and that while the findings of fact of the lower appellate court must be accepted as binding	 its "actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself". In the present case	 it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication	 and that is also a mixed question of law and fact	 the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found	 and that is open to consideration in this appeal. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private	 and then to examine	 in the light of those principles	 the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals	 in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are (1) [1949] L.R. 76 I.A. 271. 761 laid down in the Sanskrit Texts. Thus	 in his Bhashya on the Purva Mimamsa	 Adhyaya 9	 Pada 1	 Sahara Swami has the following: "Words such as 'village of the Gods 'land of the Gods ' are used in a figurative sense. That is property which can be said to belong to a person	 which he can make use of as he desires. God however does not make use of the village or lands	 according to its desires. Therefore nobody makes a gift (to Gods). Whatever property is abandoned for Gods	 brings prosperity to those who serve Gods". Likewise	 Medhathithi in commenting on the expression "Devaswam" in Manu	 Chapter XI	 Verse 26 writes: "Property of the Gods	 Devaswam	 means whatever is abandoned for Gods	 for purposes of sacrifice and the like	 because ownership in the primary sense	 as showing the relationship between the owner and the property owned	 is impossible of application to Gods. For the Gods do not make use of the property according to their desire nor are they seen ' to act for protecting the same". Thus	 according to the texts	 the Gods have no beneficial enjoyment of the properties	 and they can be described as their owners only in a figurative sense (Gainartha)	 and the true purpose of a gift of properties to the idol is not to confer any benefit on God	 but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. 762 In Bhupati Nath Smritititha vs Ram Lal Maitra(1)	 it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a 'sentient being '	 and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus	 it was observed by Sir Lawrence Jenkins C. J. at p. 138 that "the pious purpose is still the legate	 the establishment of the image is merely the mode in which the pious purpose is to be effected" and that "the dedication to a deity" may be "a compendious expression of the pious purposes for which the dedication is designed". Vide also the observations of Sir Ashutosh Mookerjee at p. 155. In Hindu Religious Endowments Board vs Yeeraraghavachariar(2)	 Varadachariar J. dealing with this question	 referred to the decision in Bhupati Nath Smrititirtha vs Ram Lal Maitra (supra) and observed: "As explained in that case	 the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple	 by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust". When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers	 and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers	 the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine	 or the general public or any specified portion thereof. In accordance with this theory	 it has been held that when property is dedicated for the worship of a family idol	 it is a private and not a public endowment	 as the persons who are entitled to worship at the shrine of the deity can only be the members of the family	 (1) Cal. (2) A.I.R. 1937 Macl. 763 and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual	 then the endowment can only be regarded as public	 intended to benefit the general body of worshippers. In the light of these principles	 we must examine the facts of this case. The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads:(1) the will of Sheo Ghulam	 Exhibit A 1	 (2) user of the temple by the public	 (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthsarga	 and (4) other facts relating to the character of the temple. (1) The will	 Exhibit A 1	 is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its provisions	 so far as they are material	 may now be noticed. The will begins with the recital that the testator has two wives and no male issue	 that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein	 and that he is making a disposition of the properties with a view to avoid disputes. Clause I of Exhibit A 1 provides that after the death of the testator "in the absence of male issue	 the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrisbnan	 and mutation of names shall be effected in favour of Sri Radhakrishnan in the Government papers and my wives Mst. Raj Kuer and Mst. Ram kuer shall be the Muta wallis of the waqf". Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime	 and the remaining half was to "continue to be spent for the expenses of the Thakurdwara". It is implicit in this provision that after the lifetime of the wives	 the whole of the income is to be utilised for the purpose of the Thakurdwara. Clause 4 provides that if a son is born to the testator	 then the properties are to be divided between the son and the Thakurdwara in a specified 764 proportion; but as no son was born	 this clause never came into operation. Clause 5 provides that the Mutawallis are to have no power to sell or mortgage the property	 that they are to maintain accounts	 that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit	 property should be purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a committee of four persons to look after the 	 management of the temple and its properties	 and of these	 two are not relations of the testator and belong to a different caste. It is further provided in that clause that after the death of the two wives the committee "may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion". This Murlidhar is a divided nephew of the testator and he is the first defendant in this action. Clause 3 provides for filling up of vacancies in the committee. Then finally there is cl. 6	 which runs as follows: "If any person alleging himself to be my near or remote heir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed". The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment	 or that it should be public. The learned Judges of the Chief Court in affirming the decisions of the courts below that the temple was built for the benefit of the members of the family	 observed that there was nothing in the will pointing "to a conclusion that the trust was a public one"	 and that its provisions were not "inconsistent with the property being a private endowment". We are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family. The testator begins by stating that he had no male issue. In Nabi Shirazi vs Province of Bengal (supra)	 the question was whether a wakf created by a deed of the year 1806 was a public or a private 765 endowment. Referring to a recital in the deed that the settlor had no children	 Khundkar J. observed at p. 217: "The deed recites that the founder has neither children nor grandchildren	 a circumstance which in itself suggests that the imambara was not to remain a private or family institution". Vide also the observations of Mitter J. at p. 228. The reasoning on which the above view is based is	 obviously	 that the word 'family ' in its popular sense means children	 and when the settlor recites that he has no children	 that is an indication that the dedication is not for the benefit of the family but for the public. Then we have clause 2	 under which the testator constitutes a committee of management consisting of four persons	 two of whom were wholly unrelated to him. Clause 3 confers on the committee power to fill up vacancies; but there is no restriction therein on the persons who could be appointed under that clause	 and conceivably	 even all the four members might be strangers to the family. It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations	 he would have entrusted the management thereof to a body consisting of strangers. Lastly	 there is clause 6	 which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial	 and it is noteworthy that under clause 2	 even the appointment of the first defendant as manager of the endowment is left to the option of the committee. It is inconceivable that with such scant solicitude for his relations	 Sheo Ghulam would have endowed a temple for their benefit. And if he did not intend them to be beneficiaries under the endowment	 who are the members of the	 family who could take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family	 then the result will be that on the death of the two wives	 it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance 766 of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the deity	 and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intention	 it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public	 and not merely of his family. In deciding that the endowment was a private one	 the learned Judges of the Chief Court failed to advert to these aspects	 and we are unable to accept their decision as correct. In the absence of a deed of endowment constituting the Thakurdwara	 the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference	 and indeed	 it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers	 as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence	 but he held that the proper inference to be drawn from the evidence of 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 be deposed that while Sheo Ghulam 's wife was doing puja within the temple	 he stopped outsiders in whose presence she used to observe purdah	 from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right. It is nothing unusual even in well known public temples for the puja hall being cleared of the public when a high dignitary comes for worship	 and the act of the pujari in stopping the public is expression of the regard which the entire villagers must have had for the wife of the founder	 who was a pardanashin lady	 when she came in for worship	 and cannot be construed as a denial of their rights. The learned Judges of the Chief Court also relied on the decision 767 of the Privy Council in Babu Bhagwan Din vs Gir Har Saroon(1) as an authority for the position that "the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private". In that case	 certain properties were granted not in favour of an idol or temple but in favour of one Daryao Gir	 who was maintaining a temple and to his heirs in perpetuity. The contention of the public was that subsequent to the grant	 the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship	 and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication. In repelling this contention	 the Privy Council observed that as the grant was initially to an individual	 a plea that it was subsequently dedicated by the family to the public required to be clearly made out	 and it was not made out merely by showing that the public was allowed to worship at the temple "since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away". But	 in the present case	 the endowment was in favour of the idol itself	 and the point for decision is whether it was a private or public endowment. And in such circumstances	 proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. In Mundancheri Koman vs Achuthan(2)	 which was referred to and followed in Babu Bhagwan Din v Gir Har Saroon(1)	 the distinction between user in respect of an institution which is initially proved to have been private and one which is not	 is thus expressed: "Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad	 and so were private trusts	 their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions	 would affect the private character of the trusts. As it is	 they are of (1) [1939] L.R. 67 I.A. 1. (2) [1984] L.R. 61 I.A. 405. 768 opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temples and their endowment were public religious trusts". We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment. It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies	 provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed	 that would be valuable evidence of endowment	 but absence of such proof would not be conclusive against it. In the present case	 it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras. P. W. 10	 who officiated as Acharya at the function has deposed that it lasted for seven days	 and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji	 Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence	 as the defendants admit both the dedication and the ceremonies	 but dispute only that the dedication was to the public. In the court below	 the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public	 and that as P. W. 10 stated that Prasadothsarga was performed	 the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision	 and for that reason granted a certificate under section	 109(c) of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question	 and we are of opinion that the contention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa	 Uthsarga and Pra 769 thista. Sankalpa means determination	 and is really formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property	 the result whereof being that it becomes impressed with the trust for which he dedicates it. Vide The Hindu Law of Religious and Charitable Trust by B. K. Mukherea	 1952 Edition	 p. 36. The formulae to be adopted in Sankalpa and Uthsarga are set out in Kane 's History of Dharmasastras	 Volume 11	 p. 892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made	 it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah). It would therefore follow that if Uthsarga is proved to have been performed	 the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to P. W. IO was recited on the occasion of the foundation was not Uthsarga but Prasadoasarga	 which is something totally different. Prasada ' is the 'mandira '	 wherein the deity is placed before the final installation or Prathista takes placer ' and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion	 and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without the Uthsarga	 and there are no words therein showing that the dedication is to the public. Indeed	 according to the texts	 Uthsarga is to be performed only for charitable endowments	 like construction of tanks	 rearing of gardens and the like	 and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha	 Part 11	 Appendix II	 II	p. 339 770 that "there is no utsarga of a temple except in the case of repair of old temples". In the	 History of Dharmasastras	 Volume II	 Part II	 p. 893	 it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and not Uthsarga. Therefore	 the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public	 but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples	 and that there was Prathista of Sri Radhakrishnaji as spoken to by P.W. 10	 is not in dispute. In our opinion	 this establishes that the dedication was to the public. (4)We may now refer to certain facts admitted or established in the evidence	 which indicate that the endowment is to the public. Firstly	 there is the fact that the idol was installed not within the precincts of residential quarters but in. a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum vs Nawab Syud Ashgur Ally Khan(1)	 it is a factor to be taken into account in deciding whether an endowment is private or public	 whether the place of worship is located inside a private house or a public building. Secondly	 it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly	 the puja in the 'temple is performed by an archaka appointed from time to time. And lastly	 there is the fact that there was no temple in the village	 and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has not been considered by the courts below	 and if it is true	 that will be decisive to prove that the endowment is public. (1) [1875] 16 Ben. L.R. 167	186. 771 It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated "for the worship of the general public"	 the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were 'private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial	 while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus	 the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading	 and is not supported by the evidence in the case. Having considered all the aspects	 we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple. In the result	 the appeal is allowed	 the decrees of the courts below are set aside	 and a declaration granted in terms of para 17 (a) of the plaint. The costs of the appellant in all the courts will come out of the trust properties. The first defendant will himself bear his own costs throughout. Appeal allowed.

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