Supreme Court of India
PRATAPSINHJI N. DESAIversusDEPUTY CHARITY COMMISSIONER, GUJARAT & ORS.
- Citation
- 1987 INSC 206
- Decided
- 11 August 1987
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The Supreme Court held that the temples are public religious trusts under the Bombay Public Trusts Act, 1950, as the evidence established dedication to the public and the burden of proof was satisfied.
Summary
The appellant, a former ruler of Patadi, claimed that two temples he managed were private family property, not public trusts. The Deputy Charity Commissioner, under the Bombay Public Trusts Act, 1950, deemed them public temples and public religious trusts, a finding upheld by the Charity Commissioner and the Gujarat High Court. The appellant challenged this, arguing lack of documentary dedication, that the burden of proof lay with the Commissioner, and that long public use did not prove a public endowment. The Supreme Court examined the nature of dedication, noting that in Hindu law dedication can be inferred from facts such as public construction costs, uninterrupted public worship for over a century, and separate accounting of temple revenues. It held that the evidence clearly showed the temples were dedicated to the public, satisfying the statutory criteria of sections 2(13) and 2(17) of the Act, and that the burden of proof had been discharged. Consequently, the Court dismissed the appeal, confirming the temples as public religious trusts.
Issues considered
- Whether the two temples qualify as 'public temples' under s.2(17) of the Bombay Public Trusts Act, 1950.
- Whether the temples constitute 'public religious trusts' under s.2(13) of the Act.
- Who bears the burden of proving a public endowment under the Act.
- Whether dedication to the public can be inferred from long usage and public contributions in the absence of a written instrument.
Legislation cited
- Bombay Public Trusts Act, 1950s. 19, s. 2(13), s. 2(17), s. 72, s. 72(4)
Subjects
Hindu lawReligious endowmentPublic trustTemple dedicationBombay Public Trusts ActBurden of proofInference from long usagePublic vs private endowment
Judgment
PRATAPSINHJI N. DESAI
A
v.
DEPUTY CHARITY COMMISSIONER, GUJARAT & ORS.
AUGUST 11, 1987
[A.P. SEN AND B.C. RAY, JJ.] B
Hindu Law: Religious endowment-Temple-Whether pu/>lic or
private-Mixed question of-Fact and law-Dedication to public-
What is-Whether worshippers are the beneficiaries.
- Bombay Public Trusts Act, 1950: Sections 2(13) and 2(17)-
'y Temples of Shri Dwarakadhishji and Shri Trikamrayji at Patadi- C
Whether 'temples' 'Public Trust'-Tests for determining whether temple
is private or public.
At Patadi in the erstwhile State of Patadi in the Saurashtra region
of Gujarat State there were two temples known as Sri Dwarkadhishji D
Mandir and Sri Trikamrayji Mandir, which were constructed in the
years 1872 and 1875 respectively by the then ruler with funds from the
State Treasury. In the Gram Panchayat records the temples stood in the
name of the deities, and the appellant, the former ruler orthe State, was
shown as a Vahivatdar. The temples were exempted from payment of
municipal and other taxes including land revenue. E
The Bombay Public Trusts Act, 1950 was extended to the
Saurashtra region of Gujarat State in the year 1952.
The Deputy Charity Commissioner, sometime in 1958, suo motu
initiated proceedings under s. 19 of the above named Act, and issued F
show cause notice to the appellant, who was Vahivatdar of the temples.
The appellant pleaded that the temples and the properties appurtenant
thereto were private properties of the ruler and the members of the
royal family, and were not public trusts. After txamlning witnesses, the
• -v Deputy Charity Commissioner came to the conclusion that the shrines
r had been dedicated as places of public religious worship and were, G
therefore, temples within the meaning of s. 2(17) of the Act, and that
the temples together with the properties appurtenant thereto consti·
luted public religious trust within the meaning of s. 2(13). These find·
ings were upheld by the Charity Commissioner.
On an application under s. 72 of the Act, the District Judge held H
909
910 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
that there was no clear, cogent or satisfactory evidence of the existence
A
of a public endowment, that the question whether the temples were
dedicated to the public may be inferred from a long course of conduct of
the founders and the descendants, and that the mere fact that the public
was allowed access to the temples was not conclusive as to the nature of
the endowment and that the department had failed to discharge the . ~
B burden of showing that they were public endowments. -4!1
The department appealed to the High Court which held that the
1
temples fell within the meaning of s. 2(17) of the Act and were, there ..
fore, within ihe ambit of the expression "public trust" under s. 2(13).
In the appeal to this Court, it was contended that there was no
c evidence
-
to establish that there was dedication of the temples by the y
appellant's ancestor for the use and benefit of the public, that the
findings reached by the High Court and the Charity Commissioner
were vitiated due to misplacing of the burden to establish the existence
of public endowment, and that the High Court was in error in holdin1:
D that the temples were constructed by the appellant's ancestor for the
benefit of the community at large and that the general public or a
particular section thereof, had an unrestricted right of worship at the
temples, merely because there was proof of long user by the members of
the Vaishnava sect without any let or hinderance, that in the revenue
records and the register of the gram panchayat, the temples were re-
E corded in the names of the deities with the appellant shown as a mere
'
Vahivatdar, and that separate accounts were kept in respect of the
temples.
Dismissing the appeal, this Court,
F HELD: I. The findings arrived at by the High Court as well as
the Charity Commissioner that the temples were 'public temples' and,
therefore, 'public religious trusts' within the meaning of s. 2(17) read
with s. 2(13) of the Bombay Public Trusts Act, 1950, and not the private
properties of the appellant or the members of his family are un-
assailable. [927C]
G
1.2 The question whether the temples had been dedicated or were
the private property of the appellant was essentially a matter of infer-
ence to be drawn from the other facts on record. There is clear, consis-
tent, reliable and unimpeachable evidence to establish that although the
temples in question were constructed by the appellant's ancestor, he
H had intended and meant that they were for the use and benefit of the
P.N. DESAI v. CHARITY COMMR. GUJARAT 911
public, that the public at large and members of the Vaishnava sect had A
been worshipping at the temples as of right for the last over 100 years
and that the temples had all along been primarily maintained by con·
tributions made by the public particularly devotees belonging to the
Vaishnava sect. [918C, 926G·H]
2.1 The essence of a public endowment consists in its being dedi· B
cated to the public; and in the absence of any document creating the
endowment, long user is the material factor from which an inference of
dedication may arise. The distinction between a private and public
-· endowment is that whereas in the former the beneficiaries are specific indi-
viduals, in the latter they are the general public or a class thereof. [921A·B]
c
2.2 When property is dedicated for the worship of a family idol, it
is a private and not a public endowment, as the members who are
entitled to worship at the shrine of the deity can only be members of the
family. But where the beneficiaries are not the members of a family or
specified individuals but the public at large or a specified portion
thereof, then the endowment can only be regarded as public intended to D
benefit the general body ofworsbippers. [92IG]
2.3 Dedication need not always be in writing and can be inferred
from the facts and circumstances appearing. In the absence of a written
grant, the question whether an endowment made by a private indi·
vidual is a public endowment or a private one is a mixed question of fact E
and law and the scope of dedication must be determined on the applica·
lion of legal concepts of public and private endowment. Facts and
circumstances, in order to be accepted as proof of dedication must be
considered in their historical setting viz. the origin of the temple, the
manner in which its affairs are managed, the nature and extent of the
gifts received, the rights exercised by the devotees in regard to worship F
therein, etc. [919F, 920E·F]
In the instant case, the temples were constructed at public expen-
diture by meeting the cost of construction from the public ex-chequer
~ yand the upkeep and maintenance of the temples was met by public
subscription. The High Court and the Charity Commissioner therefore, G
rightly inferred existence of a public endowment. Such an inference was
strengthened by the fact of user by the public as of right for over a
century. The appellant as well as his predecessors although in manage-
ment, have throughout treated the temples as public temples of which
they were mere Vahivatdars. The finding reached by the High Court
and the Charity Commissioner is based on a proper appreciation of the H
912 SUPREME COURT REPORTS [ 1987] 3 S.C.R/ i . ._
evidence. All the circumstances clearly support the finding. [920G-H,
A C, 927B]
Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas & Ors., [1970]
2 SCR 275; Nar Hari Sastri & Ors. v. Shri Badrinath Temple Commit·
tee, [1952] S.C.R. 849; Bihar State Board Religious Trust, Patna v.
Mahant Sri Biseshwar Das, [1971] 3 SCR 680; Radhakanta Deb & Anr. ~
B v. Commissioner of Hindu Religious Endowments, Orissa, [1981] 2
SCR 826; Pujari Lakashmana Goundan v. Subramania Ayyar, AIR 1924
PC 44; Babu Bhagwan Din v. Gir Har Saroop, LR 1939 67 IA 1; Deoki
Nandan v. Murlidhar, [1956] SCR 756; Tilkayat Shri Govindlalji
Maharaj v. State of Rajasthan & Ors., [1964] 1 SCR 561; Bhanesh-
warbuwa Guru Purshottambuwa, owner of Shri Vithal Rukhamai San-
sthan v. The Charity Commissioner, State of Bombay, [1976] 3 SCR y
C SIS; Hari Bhanu Maharaj of Baroda v. Charity Commissioner,
Ahmedabad, [1986] 4 SCC 162; Heir of deceased Maharaj Purshot-
tamlalji Maharaj, Junagad v. Collector of Junagad District & Ors.,
[1986] 4 SCC 287 and Mulla's Hindu Law, 15th edn., para 424 at pp.
544-545, Mukherjea's Hindu Law of Religious & Charitable Trusts, 5th
D edn. paras 4.36 to 4.40 at pp. 185-190, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2041
of 1972.
From the Judgment and Decree dated 5.11.1971 of the Gujarat
High Court in First Appeal No. 693 of 1964.
E
Harish N. Salve, S.A. Shroff, S.S. Shardul and R. Sasiprabhu for
the Appellant.
S.T. Desai and M.N. Shroff for the Respondent.
F The Judgment of the Court was delivered by
SEN, J. This appeal on certificate brought from the judgment
and order of the High Court of Gujarat dated July 3, 1972 raises, a
question whether the High Court was justified in reversing the deci- '..( _
sion of the District Judge, Surendranagar dated March 19, 1964 and
G restoring the order of the Charity Commissioner, Ahmedabad, State
of Gujarat dated February 1, 1962 upholding that of the Deputy
Charity Commissioner, Ahmedabad holding that the two temples of
Sri Dwarkadhishji and Sri Trikamrayji at Patadi were temples as
defined ins. 2(17) of the Bombay Public Trusts Act, 1950 and there-
fore they fell within the purview of the expression 'public trust' within
H the meaning of s. 2( 13) of the Act.
P.N. DESAI v. CHARITY COMMR. GUJARAT [SEN, J.) 913
~
;,
The facts giving rise to the appeal may be shortly stated. The A
appellant is a former ruler of the semi-jurisdictional State of Patadi,
one of the 17 States which entered into a covenant for the formation of
the United State of Kathiawad which on the reorganisation of the
States became part of the former State of Bombay and now forms part
of the State of Gujarat. The Bombay Public Trusts Act, 1950 was
f extended to the Saurashtra region including the area that formed part B
,,. ..,. of the erstwhile State of Patadi in the year 1952 .
In Patadi, which was the seat of the former Ruler, there exist two
- temples known as Sri Dwarkadhishji Mandir or Haveli which is the
main temple and adjacent to it there is the smaller temple known as Sri
Trikamrayji Mandir. Both these temples were constructed in the years
c
"r 1872 and 1875 respectively by the then ruler of Patadi and the cost of
construction was met from the Patadi State Treasury. The temples are
situated on the main road in Patadi and do not form part of the Dar-
bargadh or the palace wherein the ruler and the members of the royal
. ~
family used to reside, although there exists a passage leading to the
public road presumably meant for the use of the ladies of the royal D
family. In the Gram Panchayat records Sri Dwarkadhishji Mandir or
Haveli stands in the name of the deities and the appellant is merely
shown as a Vahivatdar. Similarly, Sri Trikamrayji Mandir is shown as
the property of the deities and the appellant as a Vahivatdar. The two
temples were exempted from payment of municipal as well as other
r taxes including the land revenue presumably because they were public E
""" temples. This is one of the decisive factors in determining whether a
temple is a private or a public one.
- ' 'Y It appears that the management of the temples remained
throughout with the successive ruler of Patadi but that circumstance
would not afford an indicia of ownership of the temples being vested in F
the rulers. On the contrary, the evidence shows that the temples were
throughout treated as places of public religious worship and the public
in general and members of the Vaishnava sect in particular were regu-
larly worshipping in the temples as a matter of right ever since the
installation of the deities and also taking part in the ceremonial festi-
~ )'
vals like 'Hindola' and 'Annakut' and making cash offerings of G
bhends, gifts of ornaments etc. The evidence also discloses that
nobody was required to take permission from the darbar before enter-
ing into the temples for darshan and worship, nor was there any
obstruction made at any point of time except after the initiation of the
proceedings from the appellant or the manager and/or his servants to
the use of the temples by the public as of right. The cash offerings or H
914 SUPREME COURT REPORTS [!987] 3 S.C.R.
A bhents, gifts or ornaments etc. made by the general public and mem-
bers of the Vaishnava sect were kept in a golak at Sri Dwarkadhish ji
Mandir under the exclusive control of th" Vaishnava sect and remitt-
ances were made to Goswami Maharaj. Acharya of the Vaishnava sect
at Ahmedabad.
B Even after the Act was extended to the erstwhile State of Patadi,
the public in general and the members of the Vaishnava sect in particu-
lar bad unrestricted right of worship at the temples. Sometime in the
year 1958 the inhabitants of Patadi made a complaint to the Charity
C
Commissioner that there were several items of public religious and
charitable endowments under the possession and control of the appel-
!ant and he was appropriating the income and profits thereof. There-
y
-
upon the Deputy Charity Commissioner suo motu initiated proceed-
ings under s. 19 of the Act and issued show cause notice to the appel-
lant. In answer to the show cause notice the appellant filed a reply
admitting the existence of some public trusts and agreed to get them
registered as such under s. 18 of the Act and thereafter made an
D application. He however pleaded that the two temples in question and
the properties appurtenant thereto as well as a public library were
private properties of the ruler and the members of the royal family and
were not public trusts. After the initiation of the proceedings the
appellant put up a board at both the temples that anybody seeking
darsban must seek his permission. During the inquiry, several witnes-
E ses were examined on behalf of the public as well as by the appellant.
The appellant however did not enter the witness box but examined his
chief darbari Natwarlal Ranchhodlal. The Deputy Charity Commis-
sioner by his order dated January 29, 1960 on the totality of the evi-
dence came to the conclusion that the shrines had been dedicated as
places of public religious worship and were therefore temples within
F the meaning of s. 2( 17) of the Act and these temples together with the
properties appurtenant thereto have constituted public religious trusts
within the meaning of s. 2( 13). The appellant being dissatisfied carried
an appeal to the Charity Commissioner who by his order dated
February l, 1962 upheld the finding reached by the Deputy Charity
Commissioner. Aggrieved, the appellant made an application under
G s. 72 of the Act before the District Judge, Surendranagar for setting
aside the order of the Charity Commissioner. The learned District
Judge disagreed with the finding reached by the Charity Commissioner
and held that there was no clear, cogent or satisfactory evidence of the
existence of a public endowment. He held that the question as to
whether the temples in question were dedicated to the public depends
H upon inferences which could legitimately be drawn from facts not in
P.N. DESAI v. CHARITY COMMR. GUJARAT !SEN, J.l 915
dispute and observed that a dedication to the public may be inferred A
from a long course of conduct of the founders and descendants. How-
ever, it was abundantly clear that the temples which undoubtedly have
been constructed by the then ruler of Pataai adjacent to the Dar-
bargadh were meant for the worship of the family deities of the founder
and his family. The temples were constructed by the then ruler of
Patadi, the management of which exclusively remained with the ruler B
for the time being, and there was nothing to show that they were
intended for the use of the public at large for an indeterminate though
restricted class of the Hindu community in general. According to the
- learned District Judge, the mere fact that the public was allowed
access to the temples was not conclusive as to the nature of the endow-
ments and that the Department had failed to discharge the burden of
showing that they were public endowments. Thereupon, the Deputy
C
Charity Commissioner preferred an appeal under s. 72( 4) of the Act to
the High Court. Disagreeing with the learned District Judge the High
Court has come to the conclusion following the decision of this Court
in Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas & Ors.,
[ 1970] 2 SCR 275 that the two temples were places of public religious D
worship used as of right by the Vaishnavas and observed:
"The circumstance that the public or a section thereof have
been regularly worshipping in the temples as a matter of
course and they could take part in the festivals and cere-
monies conducted in that temple as appears from the re- E
cord, apparently as a matter of right, is a strong piece of
evidence to establish the public character of the temple."
** .. '*
"There is nothing on record to indicate that in the long past F
in Patadi, any ruler had put any restriction on the use of the
temples for Darshan over a fairly long period during which
the members of the public have visited the temples as if
they were their temples and this establishes their right.
Such a consistent and unobstructed user must be taken as
of right. It is well known that those who go for 'Darshan' G
and/or 'Puja' do not and generally have no occasion to
assert their right. It is not shown that the right was ever
obstructed."
** ** **
"Although there was a sort of private passage running from H
916 SUPREME COURT REPORTS [1987] 3 S.C.R.
A the Darbargadh leading to the public road, presumably
meant for the use of the 'Pardanashin' ladies of the royal
family, this . would not indicate that the temples were
attached to the Darbargadh or were reserved for the exclu-
sive use of the ruler and the members of the royal family."
B
The High Court on a consideration of the evidence brought out two
circumstances, namely, ( 1) The general public and particularly the
members of the Vaishnava sect had unrestricted right of worship at the
temples as a matter of course and participated in the festivals of
'Hindola' and 'Annakut' functions and sewa at Sri Dwarkadhishji
Temple and daily darshan and worship at the other temple which, by -
c itself, was a strong piece of evidence to establish the public character
of the temples. And (2) The cash offerings or bhents, gifts of
ornaments etc. were in the usual course credited in the two separate
accounts kept for the two temples, which were utilised for the upkeep
and maintenance of the temples, acquisition of immovable properties,
D advancement of loans and mortgages etc., also lead to the same con-
clusion. On consideration of the evidence in the case, particularly the
two circumstances adverted to read in conjunction with the evidence
as to the way in which the temple endowments had been dealt with and
the evidence as to the public user of the temples, the High Court came
to the conclusion that they were temples within the meaning of s. 2( 17)
of the Act which clearly fell within the ambit of the expression 'public
E
trust' under s. 2( l3). It repelled the contention of the appellant that
the temples were the private temples of the ruler and members of the
royal family, observing:
''These two relevant circumstances go to show that the two
F temples which were places of public religious worship were
used as of right by the Vaishnavas. Such a view has been
taken by their Lordships of the Supreme Court in Goswami
Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas
(dead) & Ors. (supra). There is no evidence on record to
show that the temples were treated as private property and '-( ,
G that the income from the offerings made at the temples was
merged with the State funds, much less treated as the pri-
vate income of respondent no. 1 (ex-Ruler). There is also
no evidence to show that the temples were at any time
closed down on any occasion so as to exclude the public
from worship when the members of the Ruler's family vis-
H ited the temple or temples on any other family occasion."
P.N. DESAI v. CHARITY COMMR. GUJARAT [SEN. J.J 917
"The mere management of the temples being with the A
successive rulers of Patadi would not afford an indicia to
show the ownership of temples as having been vested in the
Rulers. It is well known that in the princely regimes, a
citizen would not ordinarily interfore with the management
of such properties being made by the then Ruler."
B
•• •• ••
"The only evidence examined is of Darbar's Karbhari
-- Natvarlal at Ex. 129 examined before the Deputy Charity
Commissioner. His evidence that the darbar if it thinks fit
can obstruct any person from entering into the temples
introduced in the examination·in·chief is not dependable. C
He nas in his cross-examination admitted that prior to the
enquiry proceedings, nobody was required to take permis-
sion before entering the 'Haveli' and the Mandir for
'Darshan' and worship. This would go to show that there
was no obstruction made at any point of time by the Darbar D
and his manager and/or his servants to the use of the
temples by the public as of right."
•• •• ••
"Even if it be assumed that the temples had origi· E
nated as private temples, although the case as urged by Mr.
Chhaya is that the origin is unknown or lost in antiquity,
there is good evidence to show that the temples were being
used as public temples. Taking an integrated view of the
circumstances aforesaid, as appear from the relevant evi-
dence on record, in our opinion, it must be held that the F
Vaishnavas were regularly worshipping in the temples as a
matter of course and they took part in the festivals and
ceremonies conducted in the temples and outside apparen-
tly as a matter of right."
** .. ** G
"The mere fact that the successive Darbars of the
rulers were the managers of the temples would not go to
show that the temples were private trust properties. The
circumstances aforesaid lead to a reasonable inference that
although the origin of the temples was at the instance of 1-1
918 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
A then Ruler of the Patadi State, the funds which went for the
construction of the temples were the funds of the State and,
at least gradually in course of time. there was dedication of
the temples for the benefit of the Vaishnav community as
places of public worship."
B We thought that on the overwhelming evidence on record-both oral
and documentary-no other conclusion than the one reached by the
High Court was possible.
The question whether the temples had been dedicated to the
public or were the private property of the appellant was essentially a
matter of inference to be drawn from the other facts on record and the
-
c findings arrived at by the High Court as well as the Charity Commis-
sioner were clearly unassailable.
In support of the appeal, learned counsel for the appellant has,
in substance, advanced three main contentions, namely: (1) There was
D no evidence whatever to establish that there was dedication of the
temples by the appellant's ancestor for the benefit or use of the public.
Where in a case like the present, the creation of the trust is not lost in
antiquity or shrouded in obscurity. the temples having admittedly been
constructed by the appellant's ancestor must, in the absence of a for-
mal document of endowment, be regarded as the private temples of
E the founder and the members of the royal family, from the fact that the
appellant and his predecessors have throughout been in management
of the same. (2) The burden was OR the Charity Commissioner to
establish the existence of a public endowment and as a matter of law
there had to be very strong and clear evidence before such an inference
could be raised and that burden the Charity Commissioner has failed
F to discharge. The findings reached by the High Court and the Charity
Commissioner that the temples were places of public religous worship
and were temples within the meaning of s. 2( 17) of the Act and fell
within the purview of the expression 'public trust' as defined in s.
2(13), are therefore vitiated due to misplacing of that burden. (3) The
High Court was in error in holding that the temples were constructed
G by the appellant's ancestor for the benefit of the community at large
and that the general public or a particular section thereof, had an
unrestricted right of worship at the temples merely because of the
circumstance that there was proof of long user of the temples by the
public particularly by the members of the Vaishnava sect without any
. let or hinderance or the fact that in the revenue records and the regis-
H ter of the gram panchayat the temples were recorded in the names of
P.N. DESAI v. CHARITY COMMR. GUJARAT [SEN, J.J 919
the d~ities with the appellant shown as a mere Vahivatdar and that A
separate accounts were kept in respect of the temples. According to
the learned counsel, these circumstances were non-sequitur. He relied
upon Mulla's Hindu Law, 15th edn., para 424 at pp. 544-545, Mukher-
jea's Hindu Law of Religious & Charitable Trusts, 5th edn., paras 4.36
to 4.40 at pp. 185-190, Nar Hari Sastri & Ors. v. Shri Badrinath Temple
Committee, (1952] SCR 849; Goswami Shri Mahalaxmi Vahuji v. B
Rannchhoddas Kalidas & Ors., (1977] 2 SCR 275; Bihar State Board
t Religious Trust, Patna v. Mahant Sri Biseshwar Das, [1971] 3 SCR 680
and Radhakanta Deb & Anr. v. Commissioner of Hindu Religious
Endowments, Orissa, [ 1981] 2 SCR 826.
We have no manner of doubt that there is no substance in any of C
these contentions. As to the first, there is very strong and clear evi-
dence to establish that there was dedication of the temples by the
appellant's ancestor for the use or benefit of the public. "Endowment"
is dedication of property for purposes of religion or charity having
both the subject and object certain and capable of ascertainment. It is
to be remembered that a trust in the sense in which the expression is D
used in English law is unknown in the Hindu system, pure and simple.
Hindu piety found expression in gifts to idols and images consecrated
and installed in temples, to religious institutions of every kind and for
all purposes considered meritorious in the Hindu social and religious
system. Under the Hindu law the image of a deity of the Hindu pan-
theon is, as has been aptly called, a 'juristic entity', vested with the E
t capacity of receiving gifts and holding property. The Hindu law recog-
nises dedications for the establishment of the image of a deity and for
maintenance and worship thereof. The property so dedicated to a
pious purpose is placed extra-commercium and is entitled to special
protection at the hands of the Sovereign whose duty it is to intervene
to prevent fraud and waste in dealing with religious endowments. F
Dedication need not always be in writing and can be inferred from the
facts and circumstances appearing. It would be a legitimate inference
to draw that the founder of the temple had dedicated it to the public if
it is found that he had held out the temple to be a public one: Pujari
Lakshmana Goundan v. Subramania Ayyar, AIR 1924 PC 44.
G
In view of this, the contention that there is no evidence to
establish that there was dedication of the temples by the appellant's
ancestor for the benefit or use of the public or a section thereof,
cannot therefore prevail. On the contrary, the evidence discloses that
although the temples had been constructed by the appellant's
ancestor, the cost of their construction was met from out of the public H
920 SUPREME COURT REPORTS [1987] 3 S.C.R.
A exchequer and that the income from the offerings m:y:le by the wor-
shippers at the shrine in the form of bhents and gifts of ornaments etc.
as also the income from pi:operties acquired for' the temple from out of
such income were utilised for the upkeep and maintenance of the
temples. That evidence clearly establishes that the temples were in- ~
tended and meant by the founder for the benefit and use of the public.
B As to the second, undoubtedly the burden was on the Charity Com- ·
missioner to establish the existence of a public endowment and that
burden the Charity Commissioner has discharged by unimpeachable
evidence of long and uninterrupted user of the temples by the general
public and particularly by members of the Vaishnava sect. The finding
reached by the High Court and the Charity Commissioner that the
temples were places of public religious worship within the meaning of
c s. 2( 17) read withs. 2( 13) of the Act is not vitiated by displacing of that
burden but the finding reached by them is based on a proper apprecia-
tion of the evidence. As to the third contention, we would presently
deal with the circumstances brought out in the evidence which lead to ·
no other conclusion than the one arrived at by the Charity Commis-
D sioner and the High Court, that the temples constructed by the appel·
!ant's ancestor were for the benefit of the community at large and the
members of the Vaishnava sect in particular and that they had an
unrestricted right of worship.
In the absence of a written grant, the question whether an en-
E dowment made by a private individual is a public endowment or a
private one is a mixed question of fact and Jaw and the scope of
dedication must be determined on the application of legal concepts of
a public and private endowment to the facts found in each particular
case. Facts and circumstances, in order to be accepted as proof 01[
dedication of a temple as a public temple, must be considered in their
F historical setting viz. the origin of the temple, the manner in which its
affairs are managed, the nature and extent of the gifts received, the
rights exercised by the devotees in regard to worship therein, etc. In
the present case, the temples were constructed at public expenditure
by meeting the cost of construction from the public exchequer and the
upkeep and maintenance of the temples was met by public subscription
G and therefore the High Court and the Charity Commissioner rightly )"
inferred existence of a public endowment. Such an inference was
strengthened by the fact of user of the temples by the public or a
section thereof, as ofright for over a century. The general effect of the
evidence is that the appellant as well as his predecessors although irn
management, had throughout treated the temples as public temples of
H which they were mere Vahivatdars.
P.N. DESAI v. CHARITY COMMR. GUJARAT [SEN, J.I 921
The essence of a public endowment consists in its being dedi- A
cated to the public; and in the absence of any document creating the
endowment, long user is the material factor from which an inference of
dedication may arise. The distinction between a private and public
endowment is that whereas in the former the beneficiaries are specific
l. individuals, in the latter they are the general public or a class thereof.
( The distinction is succinctly brought out in Mula's Hindu Law in para B
424 at pp. 544-545 in these words:
"Religious endowments are either public or private. In a
public endowment the dedication is for the use or benefit of
• the public. The essential distinction between a public and a
private endowment is that in the former the beneficial in- C
terest is vested in an uncertain and a fluctuating body of
persons, either the public at large or some considerable
portion of it answering a particular description; in a private
endowment the beneficiaries are definite and ascertained
individuals or who within a definite time can be definitely
ascertained. The fact that the fluctuating and uncertain D
bo'dy of persons is a section of the public following a parti-
cular religious faith or is only a' sect of persons of a certain
religious persuasion would not make it a private endow-
ment. The essence of a public endowment consists in its
being dedicated to the public; and in the absence of any
. ,..
document creating the endowment, long user is the mate- E
' rial factor from which an inference of dedication may arise .
Besides user by the public, conduct of the founder and his
descendants is also relevant, and if they in fact held out the
temple to be a public one a very strong presumption of
dedication would arise. When property is set apart for the
worship of a family god in which the public are not in- F
terested, the endowment is a private one."
It therefore follows that the principles are well-settled. When property
. is dedicated for the worship of a family idol, it is a private and not a
public endowment, as the members who are entitled to worship at the
'{ shrine of the deity can only be the members of the family i.e. an G
ascertained group of individuals. But where the beneficiaries are not
the members of a family or specified individuals but the public at large
of a specified portion thereof, then the endowment can only be re-
garded as public intended to benefit the general body of worshippers.
We do not think that it would serve any purpose to refer to all the H
922 SUPREME COURT REPORTS [1987] 3 S.C.R.
A well-known decisions except a few. In Pujari Lakshmana Goundan v.
Subramania Ayyar (supra), the temple was not an ancient one and
there was no deed of endowment. The question was whether the
temple was a public temple or a private temple. Although the temple
was a private temple, the evidence disclosed that the Pujari
Lakshmana Goundan, the founder of the temple had held out and ---4.
B represented to the Hindu public in general that the temple was a public \
temple at which all Hindus might worship. Sir John Edge, in delivering ..;-,
the judgment of the Privy Council held that on that evidence the 1
Judicial Committee had no hesitation in drawing the inference that the
founder had dedicated the temple to the public, as it was found that he
had held out the temple as a public temple. Another Privy Council
C decision to which we need refer is that of Babu Bhagwan Din v. Gir .
Har Saroop, LR 1939 67 IA 1 where the grant was made to one Daryao Y
Gir and his heirs in perpetuity and the evidence showed that the tem-
ple and the properties attached thereto had throughout been treated
by the members of the family as their private property appropriating to
themselves the rents and profits thereof. Sir George Rankin, deliver-
D ing the judgment of the Privy Council held that the fact that the grant ).-
was made to an individual.and his heirs in perpetuity was not reconcil-
able with the view that the grantor was in effect making a wakf for a
Hindu religious purpose. That very distinguished Judge referred to the
earlier decisions in Pujari Lakshamana Goundan's case, and observed:
E "Their Lordships do not consider that the case before
them is in general outline the same as the case of the
Madras temple, 29 C.W.N. 112, in which it was held that
the founder who had enlarged the house in which the idol
had been installed by him, constructed circular roads for
processions, built a rest house in the village for worship-
F pers, and so forth, had held out and represented to the
Hindu public that it was a public temple."
The true test as laid down by this Court speaking through Venka-
tarama Ayyar, J. in Deoki Nandan v. Murlidhar, [1956] SCR 756 in
determining whether a temple is a private or a public temple, depends y _,
G on whether the public at large or a section thereof, 'had an un-
restricted right of worship' and observed:
"When once it is understood that the true beneficiaries of
religious endowments are not the idols but the worship-
pers, and that the purpose of the endowment is the mainte-
H nance of that worship for the benefit of worshippers, the
•
P.N. DESAI v. CHARITY COMMk. GUJARAT (SEN, J.l 923
question whether an endowment is private or public pre- A
sen ts 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."
! The learned Judge distinguished the decision of the Privy Council in B
It properties
Babu Bhagwan Din v. Gir Har Saroop, (supra) on the ground that
in that case were granted not in favour of an idol or temple
but in favour of the founder who was maintaining the temple and to his
heirs in perpetuity, and said:
•
"But, in the present case, the endowment was in favour of C
the idol itself, and the point for decision is whether it was
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."
D
It was also observed while distinguishing the Privy Council decision in
Babu Bhagwan Din's case that it was unusual for rulers to make grant
to a family idol. In Deoki Nandan's case the Court referred to several
factors as an indicia of the temple being a public one viz. the fact that
~··
the idol is installed not within the precincts of residential quarters but
E
in a separate building constructed for that purpose on a vacant site, the
installation of the idols within the temple precincts, the performance
of pooja by an archaka appointed from time to time for the purpose,
, the construction of the temple by public contribution, user of the
temple by the public without interference, etc.
The next important decision is that of Tilkayat Shri Govindlalji
Maharaj v. State of Rajasthan & Ors., [1964] 1 SCR 561 where a
Constitution Bench of this Court had to consider whether the famous
F
N athdwara Temple which is held in great reverence by the Hindus in
general and members of the Vaishnava followers of the Vallabha
Sampradaya in particular was a public temple. It was held that neither
G
the tenets nor the religious practlce at the Vallabha School necessarily
postulate that the followers of the denomination must worship in a
private temple. The Court observed that the question whether a Hindu
temple is private or public must necessarily be considered in the light
of the relevant facts relating to it as well as the accepted principles laid
down by several judicial decisions, and it was said: H
924 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
"A temple belonging to a family which is a private temple
A
is not unknown to Hindu law. In the case of a private
temple it is also not unlikely that the religious reputation of
the founder may be of such a high order that the private
temple founded by him may attract devotees in large
number and the mere fact that a large number of devotees -\
B are allowed to worship in the temple would not necessarily ·
make the private temple a public temple. On the other -I
hand, a public temple can be built by subscriptions raised !
by the public and a deity installed to enable all the mem-
bers of the public to offer worship. In such a case, the
temple would clearly be a public temple."
c "Where evidence1 in regard to the foundation of the 'I'
temple is not clearly available, sometimes, judicial deci-
sions rely on certain other facts which are treated as rele-
vant. Is the temple built in such an imposing manner that it
may prim a facie appear to be a public temple? The appear-
D ance of the temple of course cannot be a decisive factor; at ~
best it may be a relevant factor. Are the members of the
public entitled to an entry in the temple? Are they entitled
to take part in offering service and taking Darshan in the
temple? Are the members of the public entitled to take part
in the festivals and ceremonies arranged in the temple? Are
E their offerings accepted as a matter of right?" ~
It was then laid down that the participation of the members of the
public in the Darshan in the temple and in the daily acts of worship or
in the celebrations of festival occasions would be a very strong factor in l
determining the character of the temple. ~
F
Another significant decision is that of Goswami Shri Mahalaxmi
Vahuji v. Rannchhoddas Kalidas & Ors. (supra) where the question
arose whether the Haveli of Nadiad where the idol of Sri Gokulnathji
was installed which is worshipped by the Vaishnava devotees of the
Vallabha cult is a private or public temple on the ground of dedication,
G and it was laid down:
"In brief 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
therein, the consciousness of the manager and the
H consciousness of the devotees themselves as to the public
P.N. DESAI v. CHARITY COMMR. GUJARAT [SEN, J.] 925
character of the temple are factors that go to establish A
whether a temple is a public temple or a private temple."
See also: Bihar State Board Religious Trust, Patna v. Mahant Sri
Biseshwar Das, [1971) 3 SCR 680; Dhaneshwarbuwa Guru Purshot-
tambuwa owner of Shri Vithal Rukhamai Sansthan v. The Charity
f Commissioner, State of Bomaby, [1976) 3 SCR 518 and Radhakanta B
-·\. I
Deb & Anr. v. Commissioner of Hindu Religious Endowments, Orissa,
(1981) 2 SCR 826; Hari Bhanu Maharaj of Baroda v. Charity Commis-
sioner, Ahmedabad, [ 1986) 4 SCC 162 and Heir of deceased Maharaj
-
Purshottamlalji Maharaj, Junagad v. Collector of Junagad District &
Ors., [198614sec287.
We have carefully gone through the evidence of the witnesses
c
examined by the Deputy Charity Commissioner as also the finding
reached by him as well as by the Charity Commissioner which finding
has been upheld by the High Court while reversing the decision of the
learned District Judge. The Charity Commissioner with infinite care
has marshalled the entire evidence in coming to the conclusion that the D
temples were public temples. Learned counsel for the appellant how-
ever relied on the judgment of the learned District Judge for the sub-
mission that the burden lay on the Charity Commissioner to prove that
the endowment was a public endowment and not a private one and
that burden he has failed to discharge. We find no substance in the
.. )· contention advanced. There are overwhelming circumstances brought
out in the order of the Charity Commissioner as well as in the judg-
E
ment of the High Court and no other conclusion is possible than the
one reached by them that the temples in question were public religious
trusts within the meaning of s. 2(17) read with s. 2( 13) of the Act. The
learned District Judge in interfering with the order was largely in-
fluenced by the fact that the management of the temples throughout F
remained with the ruler for the time being and while adverting to the
other circumstances held that there was no evidence that the temples
were dedicated to the public at large or to a section thereof and that
the other circumstances brought out in the evidence viz. public user for
the past over 100 years without any let or hinderance, the fact that the
members of the Hindu community in general and members of the G
Vaishnava sect in particular were allowed to visit the temples for wor-
ship and make their offerings, or that the temples stand recorded in
the names of the deities in the revenue records and the register of the
gram panchayat with appellant shown as a Vahivatdar, were not suffi-
cient to draw an inference that the temples were places of public religi-
ous worship. In coming to that conclusion he relied upon the decision H
926 SUPREME COURT REPORTS [ 1987] 3 S. C.R.
A of the Privy Council in Babu BhaKwan Din's case (supra) as also of this
Court in Goswami Shri Mahalaxmi Vahuji's case.
The underlying fallacy in the judgment of the learned District
Judge is that he proceeds on the assumption that there was no dedica-
tion of the temples-express or implied-by the founder for the j
B benefit or use of the public. Several circumstances are brought out by -",
the Charity Commissioner and the High Court showing that the ~- -
temples were public temples, name!~: ( 1) Although the temples were 7!
constructed by the appellant's ancestor way back in 1872 and 1875,
there was positive evidence showing that the entire cost of construc-
tion was met from the public exchequer i.e. Patadi State Treasury. (2)
C The general public and particularly the members of the Vaishriava sect
-
had an unrestricted right of worship at the temples and participated in
the festivals and ceremonies conducted in the temples right from the
very inception, as it appears from the, record, apparently as a matter of
right without any let or hinderance on the part of the appellant or his
predecessors. (3) The Hindu worshippers at the temples in general and
D members of the _Vaishnava sect in particular made cash offerings of
bhents into the golak kept at Sri Dwarkadhishji Mandir or Haveli
which was under the exclusive conttol of the members of the Vaish-
nava sect and the remittances of it used to be made to Goswami
Maharaj, Acharya of Vaishnava sect at Ahmedabad. (4) The public
records showed that the temples stand recorded in the names of the
E deities, the appellant and his predecessors shown as mere Vahivatdars.
It was an undisputed fact that separate accounts being maintained in
respect of the income and expenditure of the temples i.e. the cash
offerings, gifts of ornaments etc. were not intermingled with the
monies belonging to the appellant or the members of the royal family
and the incomes from the temples were utilised for their upkeep and
F maintenance and also for acquisition of properties attached to the
temples (5) The State used to keep !'Part a share of vaje i.e. Darbar's
share of the crops grown by the cultivators and also used to impose and
collect tola, a cess from the cultivators for the upkeep and mainte-
nance of the temples. There is therefore clear, consistent, reliable and
unimpeachable evidence to establish that although the temples in
G question were constructed by the appellant's ancestor but he intended
and meant that they were meant for the use and benefit of the public.
That evidence shows that the public at large and members of the
Vaishnava sect had been worshipping at the temples as of right for the
last over 100 years and that the temples had all along been primarily
maintained by the contributions made by the public particularly by the -
H devotees belonging to the Vaishnava sect. In course of time the tern-
P.N. DESAI v. CHARITY COMMR. GUJARAT (SEN, J.] 927
pies particularly Sri Dwarkadhishji Mandir or Haveli attracted a large A
number of worshippers and they used to participate in the religious
festivals and ceremonies performed there. The evidence of the witnes-
ses also shows that the deities were taken out in a palanquin by mem-
bers of the Vaishnava sect and it was joined by the general public. The
' temples though adjacent to the Darbargadh were not in the precincts B
} of the palace but were constructed facing a public road allowing access
to the general public. All these circumstances clearly support the find-
r ing reached by the Charity Commissioner and the High Court that the
temples were public temples and therefore public religious trusts
within the meaning of s. 2( 17) read withs. 2(13) of the Bombay Public
Trusts Act, 1950 and the temples with the properties attached thereto
were not the private properties of the appellant or the members of his C
family. The only factor relied upon by the learned District Judge was
that the management of the temples remained with the ruler for the
time being but then the Court has to come a conclusion not on one
single factor alone but on a conspectus of all the relevant factors i.e.
upon an appreciation of all the facts and circumstances appearing.
D
In t~e resu1t, the appeal must fail and is dismissed with costs.
N.P.V. Appeal dismissed.
r
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