Deoki Nandan Vs. Murlidhar  INSC
53 (4 October 1956)
AIYYAR, T.L. VENKATARAMA JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 133 1956 SCR 756
Hindu Law-Religious endowment-Temple-Public
or private -Question of mixed fact and law-Gift to idol--Whether worshippers
are the beneficiaries-Dedication to public Construction of will -Ceremonies
relating to installation of idol-User of temple.
The issue whether a religious endowment is a
public or a private one is a mixed question of law and fact the decision of
which must depend on the application of legal concepts of a public and a
private endowment to the facts found and is open to consideration by the
Lakshmidhar Misra v. Bangalal ( L.R. 76
I.A. 271), referred to.
The distinction between a private and a
public endowment is that whereas in the former the beneficiaries are specific
individuals, in the latter they are the general public or a class thereof.
757 Though under Hindu law an idol is a
juristic person capable of holding property, and the properties endowed for the
temple vest in it, it can have no beneficial interest in the endowment, and the
true beneficiaries are the worshippers, as the real purpose of a gift of
properties to an idol is not to confer any benefit on God, but the acquisition
of spiritual benefit by providing opportunities and facilities for those who
desire to worship.
Prosunno Kumari Debya v. Golab Chand Baboo
( L.R. 2 I A. -145), Maharaja Jagadindra Nath Boy Bahadur v. Bani Hemanta
Kumari Debi ( L.R. 31 I.A. 203), Pramatha Nath Mullik v. Pradhyumna Kumar
Mullik ( L.R. 52 I.A. 245) and Bhupati Nath Smrititirtha v. Bam Lal
Maitra ( I.L.R. 37 Cal. 128), referred to.
A pious Hindu who was childless constructed a
temple and was in management of it till his death. He executed a will whereby
he bequeathed all his lands to the temple and made provision for its proper
management. The question was whether the provisions of the will disclosed an
intention on the part of the testator to dedicate the temple to the public or
merely to the members of the family.
Hold that the recital in the will that the
testator had no sons coupled with provisions for the management of the trust by
strangers was an indication that the dedication was to the public.
Nabi Shirazi v. Province of Bengal (I.L.R.
 1 Cal. 211), referred to.
Held further, that the performance of
ceremonies at the consecration of the temple (Prathista), the user of the
temple and other evidence in the case showed that the dedication was for
worship by the general public.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 250 of 1953, Appeal from the judgment and decree dated July 14, 1948 of the
Chief Court of Audh, Lucknow in Second Appeal No. 365 of 1945 arising out of
the decree dated May 30, 1945 of the Court of District Judge, Sitapur in Appeal
No. 4 of 1945 against the decree dated November 25, 1944 of the Court of
Additional Civil Judge, Sitapur in Regular Civil Suit No. 14 of 1944.
A. D. Mathur, for the appellant.
Jagdish, Chandra, for respondent No. 1.
758 1956. October 4. The Judgment of the
Court was delivered by VENKATARAMA AYYAR J.-The point for decision in this
appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of
Bhadesia in the District of Sitapur is a private temple or a public one in
which all the Hindus are entitled to worship.
One Sheo Ghulam, a pious Hindu and a resident
of the said village, had the Thakurdwara constructed during the years
1914-1916, and the idol of Shri Radhakrishnaji ceremoniously installed therein.
He was himself in management of the temple and its affairs till 1928 when he
died without any issue. On March 6, 1919, he had executed a will whereby he bequeathed
all his lands to the Thakur. The provisions of the will, in so far as they are
material, will presently be referred to. The testator had two wives one of whom
Ram Kuar, had predeceased him and the surviving widow, Raj Kuar, succeeded him
as Mutawalli in terms of the will and was in management. till her death in
1933. Then the first defendant who is the nephew of Sheo Ghulam, got into
possession of the properties as manager of the endowment in accordance with the
provisions of the will. The appellant is a distant agnate of Sheo Ghulam, and
on the allegation that the first defendant bad been mismanaging the temple and
denyinng the right of the public therein, he moved the District Court of
Sitapur for relief under the Religious and Charitable Endowments Act XIV of
1920, but the court declined to interfere on the ground that the endowment was
private. An application to the Advocate-General for sanction to institute a
suit under section'92 of the Code of Civil Procedure was also refused for the
same reason. The appellant then filed the suit, out of which the present appeal
arises, for a declaration that the Thakurdwara is a public temple in which all
the Hindus have a right to worship. The first defendant contested the suit, and
claimed that "the Thakurdwara an d the idols were private", and that
"the general public had no right to make any interference".
759 The Additional Civil Judge, Sitapur, who
tried the suit was of the opinion that the Thakurdwara had been built by Sheo
Ghulam "for worship by his family", and that it was a private temple.
He accordingly dismissed the suit. This judgment was affirmed on appeal by the
District Judge, Sitapur, whose decision again was affirmed by the Chief Court
of Oudh in second appeal. The learned Judges, however, granted a' certificate
under s. 109(c) of the Code of Civil Procedure that the question involved was
one of great importance, and that is how the appeal comes before Us.
The question that arises for decision in this
appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public
endowment or a private one is one of mixed law and fact. In Lakshmidhar Misra
v. Rang-alal(1), in which the question was whether certain lands had been
dedicated as cremation ground, it was observed by the Privy Council that it was
"essentially a mixed question of law and fact", and that while the
findings of fact of the lower appellate court must be accepted as binding, its
"actual conclusion that there has been a dedication or lost grant is more
properly regarded as a proposition of law derived from those facts than as a
finding of fact itself". In the present case, it was admitted that there
was a formal dedication; and the controversy is only as to the scope of the
dedication, and that is also a mixed question of law and fact, the decision of
which must depend on the application of legal concepts of a public and a
private endowment to the facts found, and that is open to consideration in this
It will be convenient first to consider the
principles of law applicable to a determination of the question whether an
endowment is public or private, and then to examine, in the light of those
principles, the facts found or established.
The distinction between a private and a
public trust is that whereas in the former the beneficiaries are specific
individuals, in the latter they are the general public or a class thereof.
While in the former the beneficiaries are persons who are (1)  L.R. 76
761 laid down in the Sanskrit Texts. Thus, in
his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sahara Swami has the
"Words such as 'village of the Gods'land
of the Gods' are used in a figurative sense. That is property which can be said
to belong to a person, which he can make use of as he desires. God however does
not make use of the village or lands, according to its desires. Therefore
nobody makes a gift (to Gods). Whatever property is abandoned for Gods, brings
prosperity to those who serve Gods".
Likewise, Medhathithi in commenting on the
expression "Devaswam" in Manu, Chapter XI, Verse 26 writes:
"Property of the Gods, Devaswam, means
whatever is abandoned for Gods, for purposes of sacrifice and the like, because
ownership in the primary sense, as showing the relationship between the owner and
the property owned, is impossible of application to Gods. For the Gods do not
make use of the property according to their desire nor are they seen' to act
for protecting the same".
Thus, according to the texts, the Gods have
no beneficial enjoyment of the properties, and they can be described as their
owners only in a figurative sense (Gainartha), and the true purpose of a gift
of properties to the idol is not to confer any benefit on God, but to acquire
spiritual benefit by providing opportunities and facilities for those who
desire to worship.
762 In Bhupati Nath Smritititha v. Ram Lal
Maitra(1), it was held on a consideration of these and other texts that a gift
to an idol was not to be judged by the rules applicable to a transfer to a
'sentient being', and that dedication of properties to an idol consisted in the
abandonment by the owner of his dominion over them for the purpose of their
being appropriated for the purposes which he intends. Thus, it was observed by
Sir Lawrence Jenkins C. J. at p. 138 that "the pious purpose is still the
legate, the establishment of the image is merely the mode in which the pious
purpose is to be effected" and that "the dedication to a deity"
may be "a compendious expression of the pious purposes for which the
dedication is designed". Vide also the observations of Sir Ashutosh
Mookerjee at p. 155. In Hindu Religious Endowments Board v.
Yeeraraghavachariar(2), Varadachariar J.
dealing with this question, referred to the
decision in Bhupati Nath Smrititirtha v. Ram Lal Maitra (supra) and observed:
"As explained in that case, the purpose
of making a gift to a temple is not to confer a benefit on God but to confer a
benefit on those who worship in that temple, by making it possible for them to
have the worship conducted in a proper and impressive manner. This is the sense
in which a temple and its endowments are regarded as a public trust".
When once it is understood that the true
beneficiaries of religious endowments are not the idols but the worshippers,
and that the purpose of the endowment is the maintenance of that worship for
the benefit of the worshippers, the question whether an endowment is private or
public presents no difficulty. The cardinal point to be decided is whether it
was the intention of the founder that specified individuals are to have the
right of worship at the shrine, or the general public or any specified portion
thereof. In accordance with this theory, it has been held that when property is
dedicated for the worship of a family idol, it is a private and not a public
endowment, as the persons who are entitled to worship at the shrine of the
deity can only be the members of the family, (1)  I.L.R. 37 Cal. 128.
(2) A.I.R. 1937 Macl. 750.
763 and that is an ascertained group of
individuals. But where the beneficiaries are not members of a family or a
specified individual, then the endowment can only be regarded as public,
intended to benefit the general body of worshippers.
In the light of these principles, we must
examine the facts of this case. The materials bearing on the question whether
the Thakurdwara is a public temple or a private one may be considered under
four heads:(1) the will of Sheo Ghulam, Exhibit A-1, (2) user of the temple by
the public, (3) ceremonies relating to the dedication of the Thakurdwara and
the installation of the idol with special reference to Sankalpa and Uthsarga,
and (4) other facts relating to the character of the temple.
(1) The will, Exhibit A-1, is the most
important evidence on record as to the intention of the testator and the scope
of the dedication. Its provisions, so far as they are material, may now be
noticed. The will begins with the recital that the testator has two wives and
no male issue, that he has constructed a Thakurdwara and installed the idol of
Sri Radhakrishnaji therein, and that he is making a disposition of the
properties with a view to avoid disputes.
Clause I of Exhibit A-1 provides that after
the death of the testator "in the absence of male issue, the entire
immovable property given below existing at present or which may come into being
hereafter shall stand endowed in the name of Sri Radhakrisbnan, and mutation of
names shall be effected in favour of Sri Radhakrishnan in the Government papers
and my wives Mst. Raj Kuer and Mst. Ram kuer shall be the Mutawallis of the
waqf". Half the income from the properties is to be taken by the two wives
for their maintenance during their lifetime, and the remaining half was to
"continue to be spent for the expenses of the Thakurdwara". It is
implicit in this provision that after the lifetime of the wives, the whole of
the income is to be utilised for the purpose of the Thakurdwara. Clause 4
provides that if a son is born to the testator, then the properties are to be
divided between the son and the Thakurdwara in a specified 764 proportion; but
as no son was born, this clause never came into operation. Clause 5 provides
that the Mutawallis are to have no power to sell or mortgage the property, that
they are to maintain accounts, that the surplus money after meeting the
expenses should be deposited in a safe bank and when funds permit, property
should be purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a
committee of four persons to look after the , management of the temple and its
properties, and of these, two are not relations of the testator and belong to a
different caste. It is further provided in that clause that after the death of
the two wives the committee "may appoint my nephew Murlidhar as Mutawalli
by their unanimous opinion". This Murlidhar is a divided nephew of the
testator and he is the first defendant in this action. Clause 3 provides for
filling up of vacancies in the committee. Then finally there is cl. 6, which
runs as follows:
"If any person alleging himself to be my
near or remote heir files a claim in respect of whole or part of the waqf
property his suit shall be improper on the face of this deed".
The question is whether the provisions of the
will disclose an intention on the part of the testator that the Thakurdwara
should be a private endowment, or that it should be public. The learned Judges
of the Chief Court in affirming the decisions of the courts below that the
temple was built for the benefit of the members of the family, observed that
there was nothing in the will pointing "to a conclusion that the trust was
a public one", and that its provisions were not "inconsistent with
the property being a private endowment". We are unable to endorse this
We think that the will read as a whole
indubitably reveals an intention on the part of the testator to dedicate the
Thakurdwara to the public and not merely to the members of his family.
The testator begins by stating that he had no
In Nabi Shirazi v. Province of Bengal
(supra), the question was whether a wakf created by a deed of the year 1806 was
a public or a private 765 endowment. Referring to a recital in the deed that
the settlor had no children, Khundkar J. observed at p. 217:
"The deed recites that the founder has
neither children nor grandchildren, a circumstance which in itself suggests
that the imambara was not to remain a private or family institution".
Vide also the observations of Mitter J. at p.
228. The reasoning on which the above view is based is, obviously, that the
word 'family' in its popular sense means children, and when the settlor recites
that he has no children, that is an indication that the dedication is not for
the benefit of the family but for the public.
Then we have clause 2, under which the
testator constitutes a committee of management consisting of four persons, two
of whom were wholly unrelated to him. Clause 3 confers on the committee power
to fill up vacancies; but there is no restriction therein on the persons who
could be appointed under that clause, and conceivably, even all the four
members might be strangers to the family. It is difficult to believe that if
Sheo Ghulam intended to restrict the right of worship in the temple to his
relations, he would have entrusted the management thereof to a body consisting
of strangers. Lastly, there is clause 6, which shows that the relationship
between Sheo Ghulam and his kinsmen was not particularly cordial, and it is
noteworthy that under clause 2, even the appointment of the first defendant as
manager of the endowment is left to the option of the committee. It is
inconceivable that with such scant solicitude for his relations, Sheo Ghulam
would have endowed a temple for their benefit. And if he did not intend them to
be beneficiaries under the endowment, who are the members of the, family who
could take the benefit thereunder after the lifetime of his two wives? If we
are to hold that the endowment was in favour of the members of the family, then
the result will be that on the death of the two wives, it must fail for want of
objects. But it is clear from the provisions of the will that the testator
contemplated the continuance 766 of the endowment beyond the lifetime of his
wives. He directed that the properties should be endowed in the name of the
deity, and that lands are to be purchased in future in the name of the deity.
He also provides for the management of the trust after the lifetime of his
And to effectuate this intention, it is
necessary to hold that the Thakurdwara was dedicated for worship by -members of
the public, and not merely of his family. In deciding that the endowment was a
-private one, the learned Judges of the Chief Court failed to advert to these
aspects, and we are unable to accept their decision as correct.
2. In the absence of a deed of endowment
constituting the Thakurdwara, the plaintiff sought to establish the true scope
of the dedication from the user of the temple by the public. The witnesses
examined on his behalf deposed that the villagers were worshipping in the
temple freely and without any interference, and indeed, it was even stated that
the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as
there was no temple in the village. The trial Judge did not discard this
evidence as unworthy of credence, but he held that the proper inference to be
drawn from the evidence of P.W. 2 was that the public were admitted into the
temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari
in the temple, and be deposed that while Sheo Ghulam's wife was doing puja
within the temple, he stopped outsiders in whose presence she used to observe
purdah, from going inside. We are of opinion that this fact does not afford
sufficient ground for the conclusion that the villagers did not worship at the
temple as a matter of right. It is nothing unusual even in well-known public
temples for the puja hall being cleared of the public when a high dignitary
comes for worship, and the act of the pujari in stopping the public is
expression of the regard which the entire villagers must have had for the wife
of the founder, who was a pardanashin lady, when she came in for worship, and
cannot be construed as a denial of their rights. The learned Judges of the
Chief Court also relied on the decision 767 of the Privy Council in Babu
Bhagwan Din v. Gir Har Saroon(1) as an authority for the position that
"the mere fact that the public is allowed to visit a temple or thakurdwara
cannot necessarily indicate that the trust is public as opposed to
private". In that case, certain properties were granted not in favour of
an idol or temple but in favour of one Daryao Gir, who was maintaining a temple
and to his heirs in perpetuity. The contention of the public was that
subsequent to the grant, the family of Daryao Gir must be held to have dedicated
the temple to the public for purpose of worship, and the circumstance that
members of the public were allowed to worship at the temple and make offerings
was relied on in proof of such dedication. In repelling this contention, the
Privy Council observed that as the grant was initially to an individual, a plea
that it was subsequently dedicated by the family to the public required to be
clearly made out, and it was not made out merely by showing that the public was
allowed to worship at the temple "since it would not in general be
consonant with Hindu sentiments or practice that worshippers should be turned
away". But, in the present case, the endowment was in favour of the idol
itself, and the point for decision iswhether it was a private or public
endowment. And in such circumstances, proof of user by the public without
interference would be cogent evidence that the dedication was in favour of the
public. In Mundancheri Koman v. Achuthan(2), which was referred to and followed
in Babu Bhagwan Din v Gir Har Saroon(1), the distinction between user in
respect of an institution which is initially proved to have been private and
one which is not, is thus expressed:
"Had there been any sufficient reason
for holding that these temples and their endowment were originally dedicated
for the tarwad, and so were private trusts, their Lordships would have been
slow to hold that the admission of the public in later times possibly owing to
altered conditions, would affect the private character of the trusts. As it is,
they are of (1)  L.R. 67 I.A. 1.
(2)  L.R. 61 I.A. 405.
768 opinion that the learned Judges of the
High Court were justified in presuming from the evidence as to public user
which is all one way that the temples and their endowment were public religious
We are accordingly of opinion that the user
of the temple such as is established by the evidence is more consistent with
its being a public endowment.
3. It is settled law that an endowment can
validly be created in favour of an idol or temple without the performance of
any particular ceremonies, provided the settlor has clearly and unambiguously
expressed his intention in that behalf. Where it is proved that ceremonies were
performed, that would be valuable evidence of endowment, but absence of such
proof would not be conclusive against it. In the present case, it is common
ground that the consecration of the temple and the installation of the idol of
Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras.
P. W. 10, who officiated as Acharya at the function has deposed that it lasted
for seven days, and that all the ceremonies commencing with Kalasa Puja and
ending with Sthapana or Prathista were duly performed and the idols of Sri
Radhakrishnaji, Sri Shivji and Sri Hanumanji were installed as ordained in the
Prathista Mayukha. Not much turns on this evidence, as the defendants admit
both the dedication and the ceremonies, but dispute only that the dedication
was to the public.
In the court below, the appellant raised the
contention that the performance of Uthsarga ceremony at the time of the
consecration was conclusive to show that the dedication was to the public, and
that as P. W. 10 stated that Prasadothsarga was performed, the endowment must be
held to be public. The learned Judges considered that this was a substantial
question calling for an authoritative decision, and for that reason granted a
certificate under section, 109(c) of the Code of Civil Procedure. We have
ourselves read the Sanskrit texts bearing on this question, and we are of
opinion that the contention of the appellant proceeds on a misapprehension. The
ceremonies relating to dedication are Sankalpa, Uthsarga and Pra769 thista.
Sankalpa means determination, and is really formal declaration by the settlor
of his intention to dedicate the property. Uthsarga is the formal renunciation
by the founder of his ownership in the property, the result whereof being that
it becomes impressed with the trust for which he dedicates it. Vide The Hindu
Law of Religious and Charitable Trust by B. K. Mukherea, 1952 Edition, p. 36.
The formulae to be adopted in Sankalpa and
Uthsarga are set out in Kane's History of Dharmasastras, Volume 11, p. 892.
It will be seen there from that while the
Sankalpa states the objects for the realisation of which the dedication is
made, it is the Uthsarga that in terms dedicates the properties to the public
(Sarvabhutebyah). It would therefore follow that if Uthsarga is proved to have
been performed, the dedication must be held to have been to the public. But the
difficulty in the way of the appellant is that the formula which according to
P. W.-IO was recited on the occasion of the foundation was not Uthsarga but
Prasadoasarga, which is something totally different. Prasada' is the 'mandira',
wherein the deity is placed before the final installation or Prathista takes
placer' and the Prathista Mayukha prescribes the ceremonies that have to be
performed when the idol is installed in the Prasada. Prasadothsarga is the formula
to be used on that occasion, and the text relating to it as given in the
Mayukha runs as follows:
It will be seen that this is merely the
Sankalpa without the Uthsarga, and there are no words therein showing that the
dedication is to the public. Indeed, according to the texts, Uthsarga is to be
performed only for charitable endowments, like construction of tanks, rearing
of gardens and the like, and not for religious foundations. It is observed by
Mr. Mandlik in the Vyavahara Mayukha, Part 11, Appendix II, II,p. 339 770 that
"there is no utsarga of a temple except in the case of repair of old
temples". In the, History of Dharmasastras, Volume II, Part II, p. 893, it
is pointed out by Mr. Kane that in the case of temples the proper word to use
is Prathista and not Uthsarga. Therefore, the question of inferring a
dedication to the public by reason of the performance of the Uthsarga ceremony
cannot arise in the case of temples. The appellant is correct in his contention
that if Uthsarga is performed the dedication is to the public, but the fallacy
in his argument lies in equating Prasadothsarga with Uthsarga. But it is also
clear from the texts that Prathista takes the place of Uthsarga in dedication
of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by
P.W. 10, is not in dispute.
In our opinion, this establishes that the
dedication was to the public.
(4)We may now refer to certain facts admitted
or established in the evidence, which indicate that the endowment is to the
public. Firstly, there is the fact that the idol was installed not within the
precincts of residential quarters but in. a separate building constructed for
that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum
v. Nawab Syud Ashgur Ally Khan(1), it is a factor to be taken into account in
deciding whether an endowment is private or public, whether the place of
worship is located inside a private house or a public building.
Secondly, it is admitted that some of the
idols are permanently installed on a pedestal within the temple precincts. That
is more consistent with the endowment being public rather than private.
Thirdly, the puja in the 'temple is performed by an archaka appointed from time
to time. And lastly, there is the fact that there was no temple in the village,
and there is evidence on the side of the plaintiff that the Thakurdwara was
built at the instance of the villagers for providing a place of worship for
This evidence has not been considered by the
courts below, and if it is true, that will be decisive to prove that the
endowment is public.
(1)  16 Ben. L.R. 167,186.
771 It should be observed in this connection
that though the plaintiff expressly pleaded that the temple was dedicated
"for the worship of the general public", the first defendant in his
written statement merely pleaded that the Thakurdwara and the idols were
'private. He did not aver that the temple was founded for the benefit of the
members of the family. At the trial, while the witnesses for the plaintiff
deposed that the temple was built with the object of providing a place of
worship for all the Hindus, the witnesses examined by the defendants merely
deposed that Sheo Ghulam built the Thakurdwara for his own use and "for
his puja only". The view of the lower court that the temple must be taken
to have been dedicated to the members of the family goes beyond the pleading,
and is not supported by the evidence in the case. Having considered all the
aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in
Bhadesia is a public temple.
In the result, the appeal is allowed, the
decrees of the courts below are set aside, and a declaration granted in terms
of para 17 (a) of the plaint. The costs of -the appellant in all the courts
will come out of the trust properties. The first defendant will himself bear
his own costs throughout.