BALA SHANKAR MAHA SHANKAR BHATTJEE AND ORS.versusCHARITY COMMISSIONER, GUJARAT STATE

   BALA SHANKAR MAHA SHANKAR BHATTJEE AND ORS.                                  A
                                     v.
           CHARITY COMMISSIONER, GUJARAT STATE

                            AUGUST 17, 1994

              [J.S. VERMA AND K. KAMASWAMY, JJ.j                                B

      Bombay Public Tntsts Act 1951>-Sectio11 2(13) and 2(17)--l'ublic
places for religious worship-Nature o/-f'roperties of a temple-Detem1ining
the character of a temple-W/1ether private or public.
                                                                                c
      Words and Phrases:---''Temple" and "Public Tntst''-Mea11ing of i11 the
co11tat of-Bombay Public Tntsts Act, 1950.

      llldian Evidence Act 187:l:-Sections 35 & Bl-Gazette of Bombay
Presidency Vol. III-Published i11 1879-Admissibility of Evidence.
                                                                                D
      In the State of Gujarat in Panchmahal district near the town of
Champaner atop the Pavagarh hill a Haveli and a few temples including
Kalika Mataji temple are situated. The temple is more than a thousand
years .of old and its record is lost in antiquity. /After the downfall of the
Mughal empire, the Marathas and Scindias attached great importance to           E
it. Regular cash grants of fixed sums to the temple were made by the
Scindias and later the British who annexed the territory pursuant to a
treaty with them in 1860.

      An application under Section 18 of The Bombay Public Trusts Act,
1950 was made, under protest, for registration of the temple as a Public        F
Trust by the appellant's predecessors after conducting an inquiry the
Asstt. Charity Commissioner held that the temples and the Haveli were
public trust properties. On appeal the Charity Commissioner confirmed
it. On further appeal, the District Judge declared all the temples to be
private properties and directed deletion of their registration from under       G
Act. The High Court reversed and upheld the registration of Kalika Mataji
Temple as a public trust property and remitted for fresh inquiry in favour
of other four temples and Haveli.

      The appellants contended that their family, their predecessors and
their ancestor, Dev Shanker who had constructed the Temple about a H
                                 687
    688                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A thousand years ago had always treated the temple and the lands attached
    to it as private properties. They relied on the Will of Bai Diwali, widow of
    their predecessor who had bequeathed the temple to her brother, imer se
    disputes and litigation resulting from the said Will, appropriation of
    income, lack of dedication to the public, prohibition of entry without
    permission and permission to devotees only for Darshan and not Pooja as
B
    evidence to show that the temple was a private temple.

          The respondents' position was that the temple's origin was lost in
    antiquity, it was situated on a hill where there was no permanent human
    habitation, it was a mile away from the nearest villlage, thousands of
c   pilgrims visited it each year for Darshan and perfonnance of individual
    rituals without let or hindrance, they made small and large offerings.
    Government records showed the temple as belonging; to Mataji and the
    appellants as Vahivatdars and Pujaris, the deity received cash allowance
    from the State treasury, separate accounts for the deity's income from
    three sources i.e. State allowance, devotees' offerings and income from
D   immovable property given in Mataji's name were maintained and these
    factors pointed to the temple being a public temple.

          Dismissing the appeal, this Court

          HELD : 1.1. A plilce in order to be a temple, must be a place for
E
    public religious worship used as such and must be either dedicated to the
    Community at large or any section thereof as a place of public religious
    worship. In a private temple the beneficiaries were specific individuals
    whereas in a public temple they were indeterminate or Ductuating general
    public or a class thereof. (700-E]
F
          1.2. Dedication to the public may be oral. Actual dedication when the
    origin of the temple is lost in antiquity may be diffii:ult to prove· but it
    could be inferred from conduct, facts and circumstances. No document of
    dedication is needed but the consciousness of the manager of the temple
G   or the devotees as to the public character of the temple, gift of properties
    by the public or grant by the ruler or Government and long use by the
    public as of right to worship without let or hindrance are relevant for
    showing a temple as a 'public temple'. No set of general principle could be
    laid down. [701·D·G]

H         1.3 Treating the Gazette of the Bombay Presidency. Vol. III published
                 BALA SHANKAR v. CHARITY COMMNR .                         689

. in 1879 as admissible under S. 35 read with S. 81 of the Evidence Act. 1872, A
  being an official record evidencing public affairs, the recitals therein as to
  location, type of worshipers, period of major worship, historicity etc. were
  treated as evidence, though not conclusive, u/s. 45 of the Evidence Act. The
  recitals in the Gazette stood corroborated by a noted historian. M.S.
  Commissionaria's statement published in 1938 R.N. Jogeikar's manual ol
  1921 in conjunction with other evidence showed that the temple was con-
                                                                                 B
 structed around the 14th century and that the people congregated in
  thousands and worshipped Kalika Mataji as of right. (702-C, 703-A)

       1.4 Bai Diwali's treatment of the temple as private property in her
 Will was not conclusive as the concept of public trust and public temple
 was not in vogue at that time. The inter se disputes resulting from the Will
                                                                                 c
 were self serving evidence without any probative value as the character of
·the temple had not been called in issue in the litigation. (703-B)

      1.S. The fixed cash grants by the Scindias and the British successors,
the large endowments of agricultural lands by the devotees in the name of        D
Kalika Mataji as corroborated by the revenue records, situation of the
temple on top of the hill away from the village, worship by a section of the
Hindus in congregation of thousands without any let or hindrance and as
of right, giving of offerings in large sums in discharge of vows by devotees
established the temple as a public temple. (703-C-E]
                                                                                 E
       1.6 Prohibition of pooja and entry without permission was only inter-
nal regulation arranged for the orderly Darshan. Enjoyment of the proper-
ties and non interference by the public in the management were not
sufficient to conclude that the temple was a private temple. (703-G]

      1.7 The High Court considered the evidence placed on record and had        F
drawn the necessary conclusions and inferences from the proved facts that
Kalika Mataji Temple was a public temple. It was finding of fact. The oral
evidence too was rightly appreciated and it being a question or fact, no error
was found in the assessment of the evidence by the High Court. Kalika
Mataji temple was a 'public trust' within the meaning of Section 2(13) and       G
a 'public temple' under 2(17) of the Act. (704-B-CJ

     Deoki Nandan v. Murlidhar, [1956] SCR 756; Tilkayat Shri Govindlalji
Maharaj v. The State of Rajashthan & Ors., (1964) 1 SCR 561; Narayan
Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors., [1960) 1
SCR 773; Mahant Ram Saroop Dasji v. S.P. Sahi Special Officer-in-charge H
    690                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A of the Hindu Religious Trusts & Ors., [19S9] Suppl 2 SCR 583; Goswami
  Shri Mahalaxmi Vahuji v. Ranclthoddas Kalidas & Ors., [1969) 2 SCC 853
    =AIR (1970) SC 2025; State of Bihar v. Smt. Charusila Dasi, AIR (1959)
  SC 1002; Bihar State Board of Religious Trust v. Mahan.t Sri Biseshwar Das,
  AIR (1971) SC 2057; T.D. Gopalan v. Commissioner of Hindu Religious and .
B Charitable Endowments, [1973) 1SCR584; Dhaneshwarbuwa Guru Purshot-
  tambuwa 01vner of Shri Vithal Rukhamal Sansthan v. The Charity Commis-
  sioner, (1976) 3 SCR 518; T.V. Mahalinga Iyer v. State of Madras AIR (1980)
  SC 2036; Sri Radhakanta Deb v. Commissioner of Hindu Reliious Endow-
  ments, (1981) 2 SCC 226; Harl Bhanu Maharaj of Baroda v. Charity Com-
  missioner, [1986) 4 SCC 162; Jammi Raja Rao v. Sri Anjaneyaswami Temple
C Valu & Ors., (1992) 3 SCC 14 and Kapoor Chand v. Ganesh Dutt, (1993)
    Suppl. 4 S~C 432, relied on.

          Black's Law Dictionary, 6th Edition and P.Ramanatha Aiyar's "the
    law Lexcion" reprint Edition 1987, referred to.

D           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 175 of
    1973.

         From the Judgment and Order dated 25/29.8.72 of the Gujarat High
    Court in F.A. No. 417 of 1964.

E           Yogeshwar Prasad and Ms. S. Baggar for the Appellants.

            M.L._Verma and Devender Singh for the Intervenor.

         R.P. Bhatt, M.N. Shroff, Tanuja Sheel, Reema Bhandari and Anip
F   Sachthey for the Respondent.

            The Judgment of the Court was delivered by

          K. RAMASWAMY, J. This appeal, by leave under Article 133,
    granted by the High Court, arises from the Division Bench Judgment of
G   the Gujarat High Court in First Appeal No. 417/64 dated August 25/29,
    1972 reversing the decision of the District Judge Panchmabal in O.M.C.A.
    No. 19/1961. Near the town of Champaner in Halo! taluka of Panchmabal
    District, there is hill called Pavagarh hill. On its . top Kalika Mataji,
    Bhadrakali Mataji, Annapurna Mataji and Budhia Darwajani Budhia
    Mataji temples are situated. Another temple by name Ranchhodji along
H   with in Haveli is also situated in the main village which are the subject
     BALASHANKARv.CHARITYCOMMNR.[K.RAMASWAMY,J.) 691

matters of these proceedings. The High Court held that Kalika Mataji           A
temple is a public trust and a public temple within the meaning of s.2(13)
read with s.2(17) of the.Bombay Public Trust Act, 1950, (for short 'the
Act') and set aside the contra declaration of the district judge. The
Assistant Charity Commissioner was directed to conduct de nove inquiry
in regard to other temples, finding that the join enquiry held by the
Assistant Charity Commissioner has led to "prejudicial and lopsided            B
results".

      The facts for our decision are as under :

       The appellants' predecessors were called upon and under protest
made an application under s.18 of the Act for registration of the temples      C
as Public Trust. By order dated June 6, 1958, after conducting an enquiry,
the Asstt. Charity Commissioner held that the five temples and Haveli as
Public Trust properties. On appeal the Dy. Charity Commissioner in his
order dated october 20, 1959, remitted for fresh inquiry. Thereafter the
Asstt. Charity Commissioner after inquiry, by his order dated August 24,       D
1969, reiterated that the temples and Haveli to be public trust properties
and accordingly ordered their registration under the Act. On appeal, the
Charity Commissioner in his order dated May 22, 1961 confirmed the same
and dismissed the appeal. On further appeal under s. 72, at the instance of
the appellants, the district judge declared. that all the five temples and     E
Haveli are private properties and directed deletion of their registration
under the Act. As stated earlier, the High Court reversed and upheld the
registration of Kalika Mataji temple as a public trust property and remitted
for fresh inquiry in respect of .other four temples and Haveli.

       Sri Yogeshwar Prasad, the Learned senior counsel contended that F
 the district judge had elaborately considered the entire evidence from the
 factual matrix to conclude that Kalika Mataji temple and other temples are
 private temples and that, therefore, they are not public trust properties for
 being registered under Section 18 of the Act. He had taken us through the
 entire evidence,. judgments of the District Court and the High Court. He G
 contends that the High Court had not correctly applied the legal tests laid
 by this Court in adjudging Kalika Mataji to be public temple which was
 refuted by Sri Bhatt, senior counsel appearing for the respondents and Sri
 Verma for the intervener who has been permitted to argue the matter by
 specific order in that behalf. We have gone through the judgment of the
.High Court and that of the District Court, scanned the entire evidence on H
    692                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A records and given our anxious consideration to their respective conten-
    tions.

          The question emerges whether the Kalika Mataji temple is a public
    Trust. The High Court after exhaustively· subjecting the entire material
    evidence to close scrutiny concluded thus :
B
          (1) It (Kalika Mataji temple) is ,·ery ancient temple more than
    thousand years old.

          (2) It origin is lost in antiquity. It is not possible to rely upon the
    evidence of witness Chandramukharam and witness witness- Pavinbhi that
C   about a thousand years ago their ancestor Devshanker had the vision of
    Mataji at that place and that the had constructed that temple for his own
    worship. They cannot have knowledge of events which took place a
    thousand years ago. We are, there fore, of the opinion that so far as the /
    origin of the temple is concerned it is lost in antiquity. The temple is
D   situated on a hill were there is no permanent human habitation.

          (3) It is situated about a mile away from Champaner which is .the
    nearest village.

          ( 4) Pilgrims in thousands visit every year this temple for Darshan, for
E   performing' their individual rituals and for discharging themselves from the
    vows (Badhas) which they take for due fulfillment of their desires. They do
    so on account of their faith in Mataji.

          (5) The visitors visit the temple without let or hindrance. Therefore,
    no evidence of any one having been obstructed in his visit to temple for
F   Darshan. There is evidence on record regarding offerings from the visitors
    to. Mataji not only in small coins but also in big things, as we shall shortly
    show.

          (6) The temple has been shown in Govt. records as belonging to
    Mataji an 'the respondents have been described as it Vahivatdars and
G   pujaris.

            (7) There is cash allowance paid from the State Treasury to maintain
    it. It has been paid to the deity. The respondents are only its recipients in
    their capacities as the Pujaries or Acharyas of the temple.

H            (8) The evidence of witness Chandrakukharam shows that separate
     BALA SHANKAR v. CHARITY COMMNR. [K. RAMASWAMY. J.]                   693

accounts of the income of the temple have been maintained.                       A

      (9) Sanad No. 19 to which we have referred in the foregoing para-
graphs of this judgment, shows that Scindias in their capacity as sovereign
Rules had interest in that temple and that they had passed on their
obligation in respect of the temple to the British Gmt. by the Treaty
concluded between them and the British Govt. in 1860.                            B

      (10) The properties attached to the temple of Kalika Mataji have
been shown in all Go\t. records in the name of Mataji and not in the names
of the respondents. Obviously this factor leads to the inference that the
immovable properties standing in the name of Mataji were gifted or               C
donated to the deity.

      (11) The e\idence further discloses that the deity has three sources
of income (a) Cash allowance from the State Treasury, (b) Offerings by
the devotees and \lsitors and (c) Income from immovable properties given
over to and in the name of Mataji.                                               D
       In view of all these factors we have no doubt in our mind that temple
of Kalika Mataji is 'temple' within the meaning of s.2(17} of the Bombay
Public Trusts Act, 1950 and is therefore, a public trust as defined in Section
2(13) of the said Act. We record this conclusion on the strength of the fact     E
that taking into account the nature of public user of the temple and other
attendant factors the members of the Hindu Community have been using
it as of right. In a given case public user as of right may not amount to
implied dedication. It depends upon the facts of each case. But so far as
the facts of the present case are concerned, no doubt it is left in our mind
that .on an analysis of the e'1dence discussed by as above not only the user     F
by the evidence discussed by us above not only the user by members of the
Hindu Community of the said temple has been as of right but that it
amounts to implied dedication for the benefit of the Hindu Community.

      The main question that needs decision is whether Kalika Mataji             G
temple is a temple within the meaning of s.2(17) and a Public Trust under
s.2(13} of the Act. Temple has been defined in. s.2(17) of the Act, which
reads thus :

        ""temple'.' means a place by whatever designation known and ·used
        as place of public religious worship and dedicated to or for the H
    694                  SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A           benefit of or used as of right by the Hindu community or any
            section thereof as place of public religious worship."

    and Public Trust has been defined in s.2(13) thereof which reads as under:

            '"'Public trust" means an express or constructive trust for either a
B           public religious or charitable purpose or both and includes a
            temple, a math, a wakf, a dharmada or any other religious or
            charitable endowment and a society formed either for a religious
            or charitable purpose or for both and registered under the
            Societies Registration Act, 1860.''
c
          A bare conjoint reading of the two definitions would show that the
    definition of public trust is an inclusive one bringing within its ambit, an
    express or constructive trust for which a public religious or charitable
    purpose or for both which includes a temple, a math, a wakf, a charmada
    or any other religious or charitable endowment and a society formed either
D   for religious or charitable purpose or for both and a registered society
    under society Registration Act. A public place by whatever designation is
    temple when it is used as a place of public religious worship. It must be
    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.
E
           Black's Law Dictionary, 6th Edition, at page 1512 defines 'Public
    Trust' to mean by one constituted for the benefit either of the public at
    large or of some considerable portion of it answering a particular descrip-
    tion; public trusts and charitable trusts may be considered in general as
    synonymous expressions. At page 1510 'Charitable trust' has been defined
F   as 'trusts designed for the benefit of a class or the public generally. They
    are essentially different from private trusts in that the beneficiaries are
    uncertain. In general, such trust must be created for charitable, education-
    al, religious or scientific purposes'. In p. Ramanatha Aiyhar's 'The Law
    Lexicon' Reprint Edition 1987, at page 1298 'Public and Private Trust' has
G   been defined as 'in the case of a temple an idol publicly constituted and
    publicly accessible in which the appearance may be what one may describe
    a ambiguous, one would expect and ought to insist upon clear evidence of
    permission given or license given and permission withheld because it is
    equally true that a private individual may construct, out of this private
    purse, a private temple and idol retaining the control and management in
H   his own hands and that of his family or some other selected individuals and
     BALASHANKAR v. CHARITY COMMNR. [K. RAMASWAMY, J.]                 695

yet so conduct himself as of provide conclusive evidence of dedication by A
implication and by conduct. There is a broad difference when one comes
to construe a dedication, between conduct which shows that the owner of
the property is giving individuals and conduct which shows that he intends
certain members of a class whom he desires to benefit to act indis-
criminately without permission that is to say, as of right. A useful test, for B
a judge to apply to see whether the evidence satisfies the conditions of the
private trust, is to ask himself whether any of the acts testified to by the
witnesses could have been prevented or penalised by proceedings for
trespass. In private trust the beneficial interest is vested absolutely in one
or more individual who are, or within a given time, may be definitely
ascertained. On the other hand public trust has for its object the members C
of an uncertain and fluctuating body and the trust itself is of a permanent
and indefinite character and is not confined within the limits. prescribed to
a settlement of a private trust.

      Deoki Na11da11 v. Murlidhar, (1956] SCR 756, is a leading judgment
of this court by a Bench of four Judges. In that case the facts found were D
that one sheo Ghulam, a pious childless Hindu, constructed Thakurdwara
of Sri Radhakrishnaji in Balasia village of District Sitapur. He was in
management of the temple till his death. He executed a 'Will' bequeathing
all his properties to the temple and made provisions for its proper manage-
ment. The question arose whether the temple was dedicated to the public E
and whether the temple was a public or private temple. This court laid
down that the issue whether the religious endowment is a public or a
private is a mixed question of law and facts, the decision of which must be
taken on the application of the legal concepts of public and private
endowment to the facts found and it is open to consideration of this court.
The distinction between a private or a public endowment is that whereas F
in the former the beneficiaries are specific individuals, in the letter they
are the general public or a class thereof. An idol is a juristic person capable
of holding properties. The properties endowed for the tmeple vest in it,
but the idol has no beneficial interest in the endowment. The true
beneficiaries are its worshipers. On facts it was found that the temple was G
a public temple. In Tilkayat Shri Govi111llalji Maharaj v. The State of
Rajashthal! & Ors., (1%4) 1 SCR 561 the Constitution Bench of this. court
held, on construction of evidence, that Nathdwara temple of Udaipur is a
public temple with the management of the trustee of the property belong-
ing to the temple vested in the trustee. In Narayal! Bhagwal!trao Gosavi
Balajiwa/a v. Gopal Vi11ayhak Gosavi & Ors., (1960) l SCR TI3 a Bench of H
    696                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A three Judges held that the long user by the, public as of right and grant of
    land and cash by the Rulers, taken alo1ng with other relevant facts are
    consistent only with the public nature of the endowment. It was held that
    Sri Balaji Venkatesh at Nasik and its Sansthan constituted charitable and
    religious trusts within the meaning of the charitable and Religious Trusts
    Act, 1920. In that contest this court also considered the question of burden
B   of proof and held it would mean one of two things, namely, (i) that a party
    has to prove an allegation before it is entitled to a judgment in its favour;
    and (2) that the one or the other of the two contending parties had to
    introduce evidence on a contested issue. The question of onus is material
    only where the party on which it is place would eventually lose if it failed
    to discharge the same. Where issues are, however, joined, evidence is led
c   and such evidence ·can be weighed in order to determine the issues, the
    question of burden becomes academic.

          In Maham Ram Saroop Dasji v. S.P. Salli, Special Officer-in-Charge
    of the Hindu Religious Trnsts & Ors., (1959] Suppl. 2 SCR 583, another
D Constitution Bench reiterated the distinction between the public and
    private trust. In the former the beneficial interest is vested in an uncertain
    and fluctuating body of persons, either the public at large or <ame consid-
    erable portf<in of it, answering a particular description. In the latter, the
    beneficiaries are definite and ascertained individuals or who within a time
    can be definitely ascertained. The fact that the uncertain and fluctuating
E   body of persons is a section of the public: following a particular religious
    faith or is only a sect of persons of a certain religious persuasion would
    not make any difference in the matter and would not make the trust a
    private trust. It was held that Shri Thakur Laxmi Narainji was a public trust
    within the meaning of s.2(e) of the Bihar Hindu Religious Trusts Act, 1950.
F   In Goswami Shri Maha/axmi Vahuji v. Ranchhoddas Kalidas & Ors., [1969]
    2 SCC 853, relied on by the appellant, this court construing whether a
    temple is a public trust or a private temple laid down the following tests :

             "(1) Is the temple built in such imposing manner that it may prima
             faci~ appear to be a public temple?
G
             (2) Are the members of the public entitled to worship in that
             teniple as of right?

             (3) Are the temple expenses met from the contributions made by
H            the public?
     BALA SHANKAR v. CHARITY COMMNR. [K. RAMASWAMY, J.]                 697

        (4) Whether the Sevas and Utsvas conducted in the temple are           A
        those usually conducted in oublic temples?

        (5) Have the management as well as the devotees been treating
        that temple as a public temple?
                                                                               B
On the facts of that case, it was held that Haveli at Nadiad was a public
temple. In that context this court emphasized that 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, the
consciousness of the manager and the consciousness of the devotees them-
selves as to the public character of the temple are relevant factors which     C
would go to establish that the temple is whether a public or a private one.
The true character of a particular temple is to be decided on the basis of
diverse circumstances.

      In Goswami Shri Maha/axami Vahuji v. Shah Ranchhoddas Kalidas D
(dead) & Ors., AIR (1970) SC 2025 while considering whether Shree
 Gokulnathji temple at Nadiad was a public trust, this court had held that
the temple belongs to Vallabha sampradayees and the custom that the
public are asked to enter the temple only after Goswami has finished
worship in on circumstance to show that temple is private one. The power
to manage temple includes the power lo maintain discipline within its E
precincts. It was held that Shree Gokulnathhji temple was a public trust.
In State of Bihar & Ors. v. Smt Charusi/a Dasi, AIR (1959) SC 1002, another
Constitution Bench found that Ishwar Shree Gopal was installed as a family
deity by Smt. Charusila Dasi. A trust deed was settled by her. Subsequent
execution of the trust deed and the terms thereof were considered by this F
court and held to be a public endowment. In Bihar State Board of Religious
Trust v. Mahant Sri Biseshwar Das, AIR (1971) SC 2057, relied on by the
appellant, while reiterating the distinction between public or private en-
dowment, one of the tests laid was that user by public as of right would be
a strong circumstance to give stand to the inference that it was dedicated
to the public and the public users were as of r.ight. With regard to the G
management of the properties and enjoyment thereof this court pointed
out to find whether the property was given to the Math or to the head of
Math for personal benefit which has to be decided either from the terms
of the grant of from the circumstance of the case. On the terms of the deed
of the gift it was held that the properties were stamped a trust properties H
    698                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   for public purpose.

           In T.D. Gopala11 v. Commissio11er of Hindu Religious and Charitable
    Endowme11ts, [1973] 1 SCR 584, relied on by the appellants, the facts were
    that the Mandapam was constructed on their own land. The Garbha Griha
B   in front of the mandapam, stone idols called Dwarabalakas on either side
    and implements necessary for offering Puja in the mandapam existed. The
    Commissioner declared it to be a public temple but in the suit the trial
    court declared in to be a private temple. On appeal, the High Court
    reversed the decree of the trial court and held that the temple was a public
    temple on the ground that members of the public had been worshiping at
C   the shrine without let or hindrance, and that the temple was being run by
    contributions and by benefactions obtained from members of the public.
    this Court considered the nature of the temple, place of worship without
    attaching importance of the o:·igin of the temple, the management thereof
    by the members of the family and absenc'' of any endowed property etc.,
D   declared it to be private temple and confirmed the decree of the trial court.
    While considering those facts, this Court held that the origin of the temple,
    the manner in which its affairs were managed, the nature and extent of the
    gifts received by it, the rights exercised by devotees in regard to worship
    therein, the consciousness of the Manager or devotees themselves as to the
    public character of the temple are facts which go to establish whether a
E   temple is public or private. The absence of Dwajasthamba or Nagara bell
    or Hundial in the temple were considered to be factors to declare the
    temple to be a private temple. In Dhaneshwarbuwa Guru Purshottambuwa
    owner of Shri Vithal Rukhamal Sansthan v. The Charity Commissioner,
    [1976] 3 SCR 518, while reiterating the well-settled distinction between
F   private trust or public trust, this Court emphasised the deity installed in
    the temple was intended by the founder to be continually worshiped by an
    indeterminate multitude of the Hindu public without any hindrance or
    restriction in the matter of worship by the public extending over a long
    period. Receipt of the Royal grant, gifts of the land by members of the
    public, absence of any evidence in long history of the Sansthan to warrant
G   that it had any appearance of, or that it was ever treated as, a private
    property were some of the features to lead to an inescapable conclusion
    that Shri Vithal R ukhamai Sansthan was to be public trust within the
    meaning of s.2(13) of the Act.

H         In T. V. Mahalinga Iyer v. State of Madras, AIR (1980) SC 2036, it was
     BALA SHANKAR 1·. CHARITY COMMNR. IK. RAMASWAMY, J.]                  'i99

held that crucial question is as a whether the public worship in the temple      A
as of right. Ordinarily, there may not be direct f'idence regarding the
exercise of such right by the general public and an inference has to be
dra\\n from a wealth of circumstances. The dedication to the public need
not be bv a deed and may be spilt out of the circumstances present. The
right of the public to worship is also a matter of inference. The initial
                                                                                 B
presumption with regard to temples in South India is that they are the
public temples, rebuttable by clinching testimony. The temple, in question,
in that case, was held to be a public temple.

      In Sri Rad!rakama Deb v. Commissioner of Hindu Religious Endow-
ments, [1981] 2 SCC 226, this Court was to consider whether Radhakanta           C
Deb in Orissa State is a public or private trust. This Court held that each
case has to be decided with reference to the facts proved therein and it is
difficult to lay down any test or tests which can be universal application.
Where the origin of the endowment is lost in antiquity or shrouded in
mystery, there being no document or reliable entries to prove its origin, the    D
task of the Court becomes difficult and it has to rely merely on the
circumstantial e'idence regarding the nature of the user of the temple. It
was also further held that allowing the public to worship by itself would
not make an endowment public unless it is proved that the members of the
public had a right to worship in the temple: On the facts, in that case, it
was held that the temple, in question was a public temple.                       E

      In Hari Blra1111 Maharaj of Baroda v. Charity Commissioner, (1986] 4
sec 162, the triumph card of the appellant renders little assistance to
them Laxman Maharaj Math, build in 1835 A.D. was considered whether
to be public or private trust. In view of the size of the building, existence    F
of Samadhi on Mandir in a small extent of land, location of the Mandir,
using a portion of it for residents were held to be important factors. In view
of the unimpeachable evidence of use of the Mandir for long period and
the absence of maths and tomb under the Samadhi was considered to be
a private temple.
                                                                                 G
       ln!ammi Raja Rao v. Sri Anjaneyaswami Temple Valu & Ors., (1992]
3 SCC 14, the question whether Sri Anjaneyaswami temple at V'puram in
Andhra Pradesh is at private or a public temple. The appellant's father
claimed it to be private temple and that he was an hereditary trustee. The
trial court and the High Court held the temple to be a public temple. this       H
    700                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   Court dismissed the appeal confirming the decree of the High Court and
    ci,·il court and held that the entities in the Inam Fair Register and the oral
    C\'idence establish the temple to be a public temple. Proof of user by the
    public without interference would be cogent that its dedication was in
    farnur of rhe public. The finding that the temple is public temple is a
    tinding of fact. It is not open to further scrutiny by this court unless it
B   suffers from errors of law.

          In Kapoor Chand v. Ganesh Dwr, 11993] Suppl. 4 SCC 432 this court
    held that dedication of private property for religious and charitable pur-
    pose may be prol'ed by oral e\·idence or may be inferred from the conduct
c   of the parties. In a suit to set aside alienation of the temple property by its
    manager, this court held that the High Court committed error of law in not
    drawing proper inference from the proved e'idence or admissions. An
    inference of, aedication of a property to the deity was drawn from the
    conduct of the parties.

D         From the aforesaid discussion the following principles of law would
    emerge.

          A place in order to be a temple, must be a place for public religious
    worship used as such place and must be either dedicated to the Community
    at large or any section thereof a place of public religious worship. The
E   distinction between a private temple and public temple is now well settled.
    In the case of former the beneficiaries are specific individuals; in the latter
    they are indeterminate .or fluctuating general .public or a class thereof.
    Burden of proof would mean that a party has to prove an allegation before
    he is entitled to a judgment in his favour. The one or the other of the
F   contending parties has to introduce evidence on a contested issue. The
    question of onus is material only where the party on which it is placed
    would eventually lose if he failed to discharge the same. Where, however,
    parties joined the issue, led evidence, such evidence can be weighed in
    order to determine the issue. The question of burden becomes academic.
G         An idol is a juristic person capable of holding property. The property
    endowed to it vests in it but the idol has no beneficial interest in the
    endowment. The beneficiaries are the worshipers. Dedication may be made
    orally or can be inferred from the conduct or from a given set of facts and
    circumstances. There need not be a document to evidence dedication to
H   the public. The consciousness of the manager of the temple or the devotees
     BALASHANKAR v. CHARITY COMMNR. [K. RAMASWAMY, J.]                   701

as to the public character of the temple; gift of properties by the public or A
             •
grant by the ruler or Govt.; and long use by the public as of right to worship
in the temple are relevant facts drawing a presumption strongly in favour
of the view that the temple is a public· temple. The true character of the
temple may be decided by taking into consideration diverse circumstances.
Though the management of a temple by the members of the family for a
                                                                                B
long time, is a factor in favour of the view that the temple is a private
temple it is not conclusive. It requires to be considered in the light of other
facts or circumstances. Internal management of the temple is a mode of
orderly discipline or the devotees are allowed to enter into the temple to
worship at particular time or after some duration or after the head man
leaves, the temple are not conclusive. The nature of the temple and· its c
location are also relevant facts. The right of the public to worship in the
temple is ·a matter of inference.                                            '

        Dedication to the public may be proved by evidence or circumstances
 obtainable in given facts and circumstances. In given set of facts, .it is not D
 possible to prove actual dedication which may be inferred on the proved
 facts that place of public religious worship has been used as of right by the
general public or a section thereof as such place without let or hindrance:
In a public debutter or endowment, the dedication is for the use or benefit
of the public. But in a private endowment when property is see apart for
the worship of the family idol, the public are not interested. The mere fact E
that the management has been in the hands of the members of the family
itself is not a circumstance to conclude that the temple is private trust. In
a given case management by the members of the family may give rise to an
inference that the temple is impressed with the character of a private
temple and assumes importance in the absence of an express dedication F
through a document. As stated earlier, consciousness of the manager or
the devotees in the user by the public must be as of right. If the general
public have always made use of the temple for the public worship and
devotion in the same way as they do in other temples, it is a strong
circumstance in favour of the conclusiveness of public temple. The origin
of the temple, when lost in antiquity, it is difficult to prove dedication to' G
public worship. It must be inferred only from the proved facts and cir-
cumstances of a given case. No set of general principles could be laid.

    The contention of Sri Yogeshwar Prasad that the Asstt. Charity
Commissioner has failed to ·prove that Kalika Mataji temple is a public H
    702                    SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A  trust; contrarily the evidence on records, namely the 'Will' of Bai Diwali,
   widow of N. Girjashankar, establishes that the temple and its properties
  _were always treated as private properties. It would gel fortified and gels
   corroborated by decrees in civil suit No. 439/1985, one of the legatees
   sought to annual the Will in Exhibits W, 59 and the decree in that behalf.
   The Civil Suits Nos. 353/93, Ex. 24 and the Ci\'il Suit No. 439 of 1885, Ex.26
B and the Civil Suit Nos. 904 of 1903 and 910 of 1903, Ex.52 and Ex. 54, Civil
   Suit No. 912 of 1903, Ex.55 would establish that the appellant's family had
   always treated the temple and the lands attached to temple as private
   properties. It has also been further contended that the entry into the temple
  was subject to permission and the devotees were not allowed to have pooja,
C but have darshan Only. These circumstances have duly been taken into
   consideration by the District Judge while the High Court had not con-
   sidered them in proper perspective. We find no force in the contention. It
   is seen that the Gazette of the Bombay Presidency, Vol. III published in
   1879 is admissible under s.35 read with s.81 of the Evidence Act, 1872. The
   Gazette is admissible being official record evidencing public affairs and the · ·
D court may presume their contents as genuine. The statement ·contained
   therein can be taken into account to discover the historical material con-
   tained therein and the facts stated therein is evidence under s.45 and the
    court may inconjunction with other evidence and circumstance take into
    consideration in adjuding the dispute in question though may not be
    treated as conclusive evidence. The recitals in the Gazette do establish that
E   Kalika Mataji is on the top of the hill. Mahakali temple and Bachra Mataji
    on the right and left to the Kalika Mataji. During Moughal rule another
    Syed Sadar Peer was also installed there, but Kalika Mataji was the chief
    temple. Hollies and Bills are the main worshipers. On full Moon of Chaitra
    (April) and Dussehra (in the month of October), large number of Hindus
    of all classes gather there and worship Kalika Mataji, Mahakali, etc. After
F
    the downfall of Moughal empire, Marathas took over and His Highness
    Scindias att~ched great importance to the temple. One of the devotees in
    1700 offered silver doors. The British annexed the territory pursuant to the
    treaty between Her Majesty's Government of India and His Highness
    Scindia on the 12th December, 1860. A condition was imposed in the treaty
G   for continued payment of fixed cash grants to all the temples from the
    Treasury and that" British emperors accepted the condition. Regular cash
    grants of fixed sums were given to all the temples by Scindias and British
    rulers, as evidence by exhibits 27, 29 and 30. The historical statement of
    noted historian, stated by the High Court, by name M.S. Commissionaria
    in his Vol. I of 1938 Edition corroborates the Gazette on the material
H
     BALA SHANKAR v. CHARITY COMMNR. [K. RAMASWAMY J.]                703

 particulars, which would established that the temple was constructed on A
 the top of the hill around 14th century and the people congregate in
 thousands and worship, as of right, to Kalika Malaji and other deities. R.N.
 Jogelkar's Alienation manual brought up in 1921 in the Chapter 5 Devas-
 thana also corroborates the historical evidence. It is true that Bai Diwali
 in her Will, Ex.22 treated the temple and the properties to be private
 property and bequeathed to her brother and the litigation ensued in that B
 behalf. At that time, as rightly pointed out by the High Court, the concept
 of public trust and public temple was not very much in vogue. Therefore,
 the treatment meted out to these properties at that time is not conclusive.
 On the other hand the fixed cash grants given by a Rulers Scindias and the
 successor British emperors, the large endowment of lands given to Kalika
         •                                                                  c
 Mataji temple by the devotees do indicate that the temple was treated as
 public temple. The appropriation of the income and the inter se disputes
 in that behalf are self serving evidence without any probative value. Admit-
 tedly, at no point of time, the character of the temple was an issue in any
 civil proceedings. All the lands gifted to the deity stand in the name of the
 deities, in particular large extent of agricultural lands belong to Kalika D
 Mataji. The entries in Revenue records corroborated it. The Gazette and
 the historical evidence of the temple .would show that the village is the
 pilgrimage centre. Situation of the temples on the top of the hill away from
 the village and worshiped by the people of Hindus Community at large
 congregated in thousand without any let or hindrance and as of right, E
 devotees giving their offerings in large sums in discharge of their vows, do
 establish that it is a public temple. It is true that there is no proof of
 dedication to the public. It is seen that it was lost in antiquity and no
 documentary evidence in that behalf is available. Therefore, from the
 treatment meted out to the temple and aforesaid evidence in our con-
sidered view an irresistible inference would be drawn that the temple was F
dedicated to the Hindu public or a section thereof and the public treat the
temple as public temple and worship thereat as of right. It is true that there
is evidence on record to show that there was a board with inscription
thereon that "no entry without permission" and that only Darshan was being
had and inside pooja was no permitted. But that is only internal regulation G
 arranged for the orderly Darshan and that is not a circumstance to go
against the conclusion that it is a public temple. Enjoyment of the proper-
ties and non- interference by the public in the management are not suffi-
cient to conclude that the temple is a private temple. It is found by the
District Court and the High Court that the appellants are hereditary priests
 and when the public found that they are in the management of the proper- H

                                                 '
    704                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A ties, they obviously felt it not expedient to interfere with the management
    of the temples. It is seen that the High Court considered the evidence
    placed on record and has drawn the necessary conclusions and inferences
    from the proved facts that kalika Mataji temple is a public temple. It is a
    finding of fact. As regard the oral evidence the High Court rightly ap-
    preciated the evidence and it being a question of fact, we find no error in
B   the assessment of the evidence by the High Court.

          Thus, we are of th considered view that Kalika Mataji temple is a
    public trust within .the meaning of s.2(i3); and public temple under s.2(17)
    of the Act and the High Court rightly relegated the enquiry in respect of
C   other teniple and· we feel it not expedient to record any finding in that
    behalf. The appeal is accordingly dismissed with costs quantified at Rs.
    20,000.

    A.G.                                                     Appeal dismissed.