Dhaneshwarbuwa Guru Purshottambuwa
Owner of Shri Vithalrukh Vs. The Charity Commissioner, State of Bombay [1976] INSC
37 (1 March 1976)
GOSWAMI, P.K.
GOSWAMI, P.K.
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 871 1976 SCR (3) 518 1976
SCC (2) 417
CITATOR INFO:
RF 1981 SC 798 (12) R 1987 SC2064 (15)
ACT:
Bombay Public Trust Act, 1950 (20 of 1950)-s.
2(13) Public or Private Trust-Tests for determination of.
HEADNOTE:
The principles of law for determination of
the question whether an endowment is public or private are:
(1) In a private trust, the beneficiaries are
specific individuals who are ascertained or capable of being ascertained; in a
private trust, they are the general public or a class thereof which is
incapable of being ascertained.
[526C] (2) The intention of the founder as to
whether specified individuals or the general public or any specified portion
thereof could have the right of worship. [526E] (3) When property is dedicated
for the worship of a family idol, it is a private and not a public endowment.
Where the beneficiaries are not specified
individuals, the endowment can only be regarded as public. [526-F] Devki Nandan
v. Murlidhar. [1956] S.C.R. 756 and State of Bihar & Ors. v. Smt. Charusila
Dasi, [1959] Suppl. S.C.R. 601/613, referred to.
(4) Proof of user by the public without
interference would be cogent evidence that the dedication is in favour of the
public. [527A] Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak Gosavi
and others, [1960] 1 S.C.R. 773, referred to.
(5) It is unusual for rulers to make grants
to a family idol. [527B] (6) Participation of the members of the public in the
darshan in the temple and in the daily acts of worship or in the celebrations
on festival occasions may be a very important factor to consider in determining
the character of the temple. [527E] Tilkayat Shri Govindlalji Maharaj v. The
State of Rajasthan and others, [1964] 1 S.C.R. 561. referred to.
(7) The origin of the temple, the manner in
which its affairs are managed, the nature and extent of the gifts received by
it, rights exercised by the devotees in regard to worship, the consciousness of
the manager and the consciousness of the devotees as to the public character of
the temple establish whether a temple is a public or a private temple. [527F]
Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas and ors. [1970] 2 S.C.R.
275, referred to.
(8) It is not always possible to have all the
features of a public trust in a given case: even some of the tests may be
sufficient to conclude about the character of the trust. [528E] Dismissing the
appeal HELD:
In the instant case from the documentary and
oral evidence the following features are present:
(i) The deity installed in the temple was
intended by the founder to be continually worshipped by an indeterminate
multitude of the Hindu public.
(ii) In order to facilitate worship by the
public, the founder also intended that regular bhajan, kirtan and worship shall
be maintained and annual ceremonies and processions for pilgrimage shall be conducted
by the saints in succession nominated by the reigning saint.
519 (iii) There has been no evidence of any
hindrance or restriction in the matter of continuous worship by the public
extending over a long period.
(iv) More than a century ago the temple, in
its own name, was the recipient of land by Royal grant and the same has been
managed by the saints in succession as manager, not as personal or private
property.
(v) Gifts of land by members of the public
from the Taluka and outside it in favour of the temple or of the Sansthan were
made for the purpose of worship.
(vi) Collection of subscriptions were made
from house to house by taking Maharaj and also for 'Gulal' ceremony.
(vii) Holding out of the Sansthan to all
intents and purposes as a public temple.
(viii) Treating of the Sansthan by those who
are connected with the management as intended for user by the public without
restrictions.
(ix) Absence of any evidence in the long
history of the Sansthan to warrant that it had any appearance of, or that it
was ever treated as, a private property. [530E-H; 531A-B] The above features
lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan is a
public trust within the meaning of s. 2(13) of the Bombay Public Trust Act.
1950.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1231 of 1968.
Appeal by special leave from the judgment and
order dated the 20th December 1962 of the High Court of Judicature at Bombay in
Civil Appeal No. 151 of 1960.
B. D. Bal with A. G. Ratnaparkhi, for the
appellant.
V. S. Desai with M. N. Shroff for S. P.
Nayar, for respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-The question that arises in this appeal by special leave is whether
Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private
Devasthan or a public religious trust.
There was a saint endowed with spiritual
powers by the name of Sakharam Maharaj at Amalner. The deity of his worship was
Shri Vithal Rukhamai. Although the origin of the Sansthan is dipped somewhat in
antiquity and direct testimony was lacking, it has never been disputed that
Sakharam Maharaj constructed a temple in the year 1817 at Amalner and installed
the aforesaid deity according to religious rites. He also acquired certain
properties and the said temple with the properties constituted Shri Vithal
Rukhamai Sansthan of Amalner. The sansthan had movable property of the value of
Rs. 19,164/- and immovable properties of the value of Rs. 1,06,000/- and the
average gross annual income as well as the average annual expenditure was Rs.
11,000/-.
After the passing of the Bombay Public Trusts
Act, 1950 (No. 29 of 1950) (briefly the Act) an application under section 18 of
that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh, Ramrao
Sahebrao Deshmukh and Ramkrishna Tryambak Deshpande, as constituted attorneys
of Vasudeobuwa who was described in the application as the "owner" of
the property. The word 'Buwa' means saint. The application was made on May 29,
1952, to the Assistant Charity Commissioner, Poona, under protest and without
prejudice 520 to the claim made therein that the Sansthan was not a public
trust. In view of the penal provision under section 66 of the Act in the case
of non-compliance with section 18(1) of the Act the said application was made
ex abundanti cautela.
The Assistant Charity Commissioner after
requisite notice made an enquiry into the matter in accordance with the
provisions of the Act. On behalf of the applicants representing the Sansthan
evidence of the attorney Ramkrishna Deshpande was recorded and he was
cross-examined by the assessors as well as by the Assistant Charity
Commissioner. Some documents were also produced on behalf of the Sansthan.
Three witnesses were examined on behalf of the Assistant Charity Commissioner
and were afforded an opportunity to the applicants' pleader for cross-
examination. At the close of the enquiry the Assistant Charity Commissioner by
his order of August 25, 1956, held the Sansthan to be a public trust and
ordered its registration as a public trust under the Act.
The applicants thereupon filed an appeal
under section 70 of the Act before the Charity Commissioner, Bombay, who by his
order of August 31, 1957, affirmed the decision of the Assistant Charity
Commissioner.
That led to an application under section 72
of the Act to the District Judge of West Khandesh at Dhulia which was duly
filed on behalf of Purshottambuwa who meanwhile succeeded Guru Vasudeobuwa as
"owner" of the Sansthan. The learned District Judge reversed the
decision of the Charity Commissioner by his order of October 16, 1959, and
declared the Sansthan to be a private property and not a public trust.
The Charity Commissioner then appealed under
section 72(4) of the Act to the High Court of Bombay. The High Court by its
order of 19/20th December, 1962, set aside the order of the District Judge and
held the Sansthan to be a public trust under the Act and restored the order of
the Charity Commissioner. Hence this appeal by special leave which was obtained
on March 29, 1968, after condonation of delay, in the peculiar circumstances of
the case arising out of revocation by the High Court of its earlier certificate
in favour of the appellant on account of default of deposit of security.
As noted earlier there was both oral and
documentary evidence adduced in this case. The learned District Judge relied
mostly on the documentary evidence for his conclusion in favour of the
appellant. The High Court took note of both oral as well as documentary
evidence. The High Court particularly relied upon an admission of the
appellant's witness, Ramkrishna Deshpande, when he stated that "we cannot
prevent people from going to the temple as the temple is meant for the Darshan
by the public".
It is not disputed by Mr. Bal appearing on
behalf of the appellant that the Sansthan in question is an endowment.
His only contention is that it is a private
religious endowment and not a public one. He submits that there is no evidence
of long user of this temple by 521 the public as a matter of right. Mr. Bal further
contends that the High Court failed to consider all the material documents
filed on behalf of the appellant except only Ex.
35 and that the conclusion was highly
erroneous being contrary to the one that had been reached by the District Judge
on appraisal of the entire documentary evidence.
Before we proceed further, it may be
appropriate to note the definitions of 'public trust' and 'temple' in section
2(13) and section 2(17) respectively of the Act which read as follows:- s.
2(13): "Public trust' means an express or constructive trust for either a
public religious or charitable purpose, or both and includes a temple, a math,
a wakf, church syna gogue, agiary or other place of public religious worship, a
dharmada or any other religious or charitable endowment...." s. 2(17):
"Temple' means a place by whatever designation known and used as a place
of public religious worship and 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".
Relying upon the above definitions Mr. Bal
submits that there is absolutely no evidence in this case about dedication to
the public or public user of the temple as a matter of right.
Since the grievance of the appellant is
directed against the High Court's absolute failure to consider all the
documentary evidence, we may deal with that aspect first.
The earliest document produced in this case
is a 'Sanad' (Ex. 42) of November 1, 1863. This Sanad was granted by the then
British Government during the reign of Queen Victoria in favour of
"Devasthan Shri Vithal Rukhamai'. The Sanad refers to the entry in the
village accounts. The entry mentioned therein is in the village accounts in the
Khandesh Collectorate for the year 1860-61, field Nos. 623 and 624 measuring
14.5 acres of land in the name of the holder as Devasthan Shri Vithal Rukhamai,
Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker. There are significant
recitals in the Sanad to the following effect:
"It is hereby declared that the said
land shall be continued for ever by the British Government as the endowment
property of Shri Vithal Rukhamai of Kasabe Amalnair Talooka Amalnir on the
following conditions, that is to say, that the managers thereof shall continue
faithful subjects of the British Government, and .. the said land shall be
continued for ever as endowment Inam without increase of land tax over the said
fixed amount".
The amount fixed was Rs. 17/4/0 per annum.
522 It is true that the High Court has not
referred to this Sanad but the District Judge did. The District Judge held
that- "..... the expression in the Sanad cannot be in any way
determinative of the nature of the temple or religious endowment as a public
trust".
It is, however, difficult to accept the
conclusion of the District Judge. The Sanad being an ancient Royal grant is a
very important piece of evidence to show that although Sakharam Maharaj, the
founder of the temple, had already been succeeded by Guru Govindbuwa and the
latter by Balkrishnabuwa, the land had been held in the year 1860-61 in the
name of the Devasthan. It is in the name of the Devasthan alone that the grant
was continued by the Government. This would go to show that the Government
recognised the Sansthan with the temple as a public religious endowment and
only on that basis the grant was continued. Apart from that the temple was
shown to have a Manager and not an owner as such. In the absence of anything to
the contrary of a convincing nature, a grant by the Government in favour of the
temple describing the property to be in charge of a manager leads to an
unerring inference that the property is a public religious endowment.
From the evidence of Ramkrishna Deshpande,
one of the constituted attornies, we find the origin and the devolution as follows:-
"The originator of this Sansthan is Sakharambuwa.
After Sakharam there came Gobindbuwa. He was
followed by Balkrishnabuwa. Then came Prahladbuwa. Thereafter Tukarambuwa came
to Gadi. After him there was Krishna buwa and after him there was Balkrishna.
Then came Vasudeo. After him the present Buwa Purshottam came to Gadi. This
Gadi goes to Shishya from the Guru".
This evidence of Ramkrishna Deshpande stands
corroborated by the Sanad which shows in the year 1860-61 the Manager of the
Sansthan as Balkrishnabuwa Guru Govindbuwa. Guru Govindbuwa was the second in
the line of succession after Sakharam, the founder, and Balkrishnabuwa being
the third in the line. It is clear from the Sanad that the Government treated
the temple as a public religious endowment.
The next document in sequence is a Varaspatra
of February 28, 1869 (Ex. 35) executed by Guru Govind Balkrishna buwa in favour
of Prahladbuwa. This is a document which was relied upon both by the District
Judge as well as by the High Court. Varaspatra is a deed of nomination by which
an Adhikari for the Sansthan was nominated in order to take charge of the
property, maintain and continue the religious worship of the deity as per
tradition as well as of the celebration of the festivals in accordance with the
customary practice of the Sansthan. The appellant draws our attention to the
following recitals in the above deed:- "I have been carrying on the Malaki
of Shri Sansthan Amalner...." 523 According to the appellant this would go
to show that the executant of the document Balkrishnabuwa described himself as
'Malak' (owner) of the Sansthan. It is further pointed out that while
nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as
follows:- "You are entitled to the ownership of all the incomes that will
come before the Deity, Shri Samarth and during the Swari (procession) as well
as the income of Inam Najrana and the income of movable and immovable
property".
x x x x x "The entire ownership of the
Sansthan and all the movable and immovable property etc. pertaining to the
Sansthan is of yours. That ownership is of your own.
Your Bhauband and others have no right
whatsoever over the same. You are free to give and take as per the
Shishya-sampradaya as has been done previously".
From the above, the appellant contends that
the Sansthan was a private property and it was also transferred to the Shishya
Adhikari to maintain it as his own property.
We are unable to accept this submission as we
find some other significant recitals in the documents itself warranting a
contrary conclusion. Although it is stated in the document that Balkrishnabuwa
was "carrying on the Malaki", he at the same time states with regard
to the Sansthan thus:
"... the same was entrusted to me by
Shri Guru Maharaj".....
x x x x x "I, therefore, thought that I
should entrust the work of the Sansthan to you and have appointed you to the
said Sansthan".
The nature of devolution is explicit in the
above extract.
Although there is use of the words owner and
'Malaki' in the above recitals, the entire tenor of the document read as a
whole goes to show that the property has always been treated as trust property
even by the Adhikari saints and the Adhikaris or the disciples who succeeded
one after the other were not owners but trustees of the property. This ancient
document read as a whole does not admit of any other interpretation consistent
with the nature of the property and the avowed object and purpose of the
founder clearly revealed therein which has been carried into effect by
successive loyal and devoted disciples. The words 'Malaki' and 'owner' in the
context, are not used in the broad sense to indicate an absolute character of
personal ownership.
The next document is Vyavasthapatra (Ex. 41)
of April 25, 1897. We find from the evidence of Ramkrishna that the Shishya is
appointed by the Maharaj who happens to be holding the Gadi at the relevant
time. This fact is borne out by the recitals in Ex. 41.
524 This document may be described as a deed
of nomination or will whereby it appears Krishnabuwa whose Guru was Tukaram
Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi
to succeed him. The appellant submits that Balkrishna was bestowed a 'Malaki'
as the term appears in this document.
Although the High Court has not dealt with
this document, there is a reference in its judgment to the contents of the same
as being similar to Ex. 35. The principal emphasis on both these documents Ex.
35 and Ex. 41 is that the words 'owner' and 'Malaki' were used in the recitals.
As stated above we are unable to hold that recitals in these documents taken as
a whole can reasonably lead to the conclusion that the Sansthan is a private
property.
After the turn of the century, coming now to
comparatively recent times, there are four documents Ex. 40,37,39 and 38 dated
September 10, 1929, July 15, 1936, July 2, 1946 and January 28, 1949,
respectively. In Ex. 40 the party taking the gift is described as Vahiwatdar
Panch of Shri Sakharam Maharaj, Sansthan, Vithalwadi, Amalner. The donor, an
old agriculturist of a different Taluka viz. Erandole, writes:
"I give the gift deed in writing as
follows:- With the object of giving possible help through me to the above
sansthan, I have given in gift my ancestral immovable property......
x x x x x I have given in gift the above
mentioned property as aforesaid of my free will for the purpose of religious
work in order that my life may be of bliss as I have no male issue and wife.
x x x x x The said field should be used for
the sansthan from generation to generation. The above sansthan has become full
owner thereof".
In the gift deed Ex. 37 executed by three
businessmen of Amalner there are recitals to the similar effect:
"When we were joint, the said field was
given as a gift to you for the service of the sansthan, viz., Shri Vithal
Rukhmai Sansthan, Amalner and was given in your possession. Now all our movable
and immovable estate is partitioned orally. Hence the gift deed of the said
field, which had remained unexecuted, has been executed today......" The
said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru
Balkrishnabuwa. Again, in the gift deed Ex.
39 the donee is described as "Shri
Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev
Buwa Guru Bal- 525 krishna Maharaj". The following recitals in the said
document are eloquent:
"This land is given to you in charity as
per the order of (my) mother with a religious view and with an intention of
benefitting others with the object of achieving happiness in this world and in
the next world according to the shastras and the above land is given in your
possession this day. Hence you are the full owner of the land and you are free
as full owner thereof to manage and carry on the Vahiwat of the said land by
right of ownership perpetually from generation to generation on the strength of
this writing.
x x x x x The Dindi of the said Sansthan from
Amalner remains at Shivgaon on the 30th of Jeshta vadya or on the 1st of Ashad
Shudha according to practice every year. You should spend the income of the
said property for the purpose of Naivadya for the Deity Pandurang at night that
day." The beneficiaries of this gift are clearly the unascertained Hindu
public and not ascertained individuals and the donee is a trustee accepting the
gift on behalf of the Sansthan.
The last deed of gift is Ex. 38 and the donee
is "Shri Vasudev Buwa Guru Balkrishna Buwa" described as the
worshipper carrying on the "Vahiwat of Shri Vithal Rekhmai Sansthan".
The deed goes on to say:
"I have full faith in Shri Sakharam
Maharaj. Hence with the intention (object) that some service may be rendered by
me for his Devasthan, I have given in gift out of love the below mentioned
property valued at Rs.
600 (Six hundred) without taking any
consideration from you, for the purpose of expenses of performing worship and
offering Naivadya food".
All the above gifts were donated to the
Devasthan and for the maintenance of worship therein. These gifts were not made
in favour of individuals as such in order that the beneficiaries of the gifts
will be only those individuals.
It is clear that the beneficiaries of the
deeds are the deity and the Sansthan and the gifts were made with the object of
maintenance of the worship of the deity for the benefit of the Hindu public as
a whole. The expression in the recital that "you are free as the full
owner thereof" does not convert the gift which is expressly in favour of
the deity or Sansthan into that in favour of an individual as private property.
The appellant relies on all these documents for the purpose of showing that the
endowment is private only because ownership of the donor is transferred to the
donee. We are, however, unable to accede to this submission. It is very
significant that in the last gift deed Ex. 38 of January 28, 1949, there is a
most reverential reference to Shri 526 Sakharam Maharaj and his Devasthan when
Sakharam Maharaj had departed in the past century. Not much can be made
therefore from the expression "His Devasthan" to convert the property
into a private endowment. The reference to Sakharam Maharaj Sansthan, wherever
it appears, is only for the purpose of identification and commemoration of the
hallowed saint who had admittedly founded the same.
The principles of law for determination of
the question whether an endowment is public or private are fairly well-
settled. This Court observed in Deoki Nandan v. Murlidhar as follows:-
"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 ascertained or capable of being ascertained, in the latter
they constitute a body which is incapable of ascertainment".
This Court further held:
"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 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, 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".
(See also the State of Bihar & ors. v. Smt.
Charusila Dasi.
Distinguishing the decision of the Privy
Council in Bahu Bhagwan Din v. Gir Har Saroon on the ground that the properties
in that case 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,
this Court further held in the above decision:
"But, in the present case, the endowment
was in favour of the idol itself, and the point for decision is whether it 527
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".
This Court also distinguished the aforesaid
Privy Council decision of Babu Bhagwan Din's case (Supra) in Narayan
Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others.
This Court also observed in Narayan
Bhagwantrao Gosavi Balaji wale's case (supra) that it is also unusual for rules
to make grant to a family idol.
In Tilkayat Shri Govindlji Maharaj v. The
State of Rajasthan and others this Court had to consider about a Hindu temple
being private or public and observed as follows:- "Where evidence in
regard to the foundation of the temple is not clearly available sometimes,
judicial decisions rely on certain other facts which are treated as relevant.
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 their
offerings accepted as a matter of right. 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 festivals occasions may be a very important factor to
consider in deter mining the character of the temple".
In Goswami Shri Mahalaxmi Vahuji v.
Rannchhodds Kalidas and an Ors., this Court observed as follows:- "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 consciousness
of the devotees themselves as to the public character of the temple are factors
that go to establish whether a temple is a public temple or a private
temple".
The learned counsel for the appellant relied
upon the decision in Bihar State Board Religious Trust, Patna v. Mahant Sri
Biseshwar Das and drew our attention to the following observations therein:
"Thus, the mere fact of the public
having been freely admitted to that temple cannot mean that courts should
readily infer there from dedication to the public. The value of such public
user as evidence of dedication depends on 528 the circumstances which give
strength to the inference that the user was as of right".
"Examples do occur where the founder may
grant property to his spiritual preceptor and his disciples in succession with
a view to maintain one particular spiritual family and for perpetuation of
certain rights and ceremonies which are deemed to be conducive to the spiritual
welfare of the founder and his family. In such cases it would be the grantor
and his descendants who are the only persons interested in seeing that the
institution is kept up for their benefit. Even if a few ascetics are fed and
given shelter, such a purpose is not to be deemed an independent charity in
which the public or a section of it has an interest. Such charities, as already
stated earlier, appertain to a private debutter also".
* * * * * We do not find that there is any
difference in the ratio of the principles followed in the above decision. The
case went against the Board in the above decision in the absence of
"evidence of a reliable kind" of public user as "evidence of
dedication".
It is not always possible to have all the
features of a public trust in a given case. Even some of the tests laid down by
this Court may, in a given case, be sufficient to enable the court to come to a
conclusion about the character of the trust.
We cannot agree that the High Court was not
right in giving due importance to the admission of the constituted attorney
Ramkrishna Deshpande that they "cannot prevent people from going to the
temple as the temple is meant for the Darshan by the public". The
consciousness of the constituted attorney about the nature of the property,
which has been held out for more than a century as a public religious
endowment, adds to the effect of the documentary evidence produced by the
appellant in this case in favour of the same conclusion. It has to be
remembered that the founder Sakharam Maharaj was a celibate and the successive
disciples who succeeded as Adhikaris of the Gadi were also celibates. From Ex.
35, the first Varaspatra of February 28, 1869, one gets a full picture of the
working of the Sansthan:
"The service and Bhajan etc. of the
Deity have to be made as per the order of the Guru according to the
Sampradaya".
* * * * * * "....you should perform the
Bhajan as was being done as per the Shishya Sampradaya and perform the Bhajan
in Chaturmas at Shrikshetra Pandharpur regularly and there-after you should
come to Amalner and keep up the practice of celebrating the festivals etc. of
Shri Sakharam Maharaj regularly as was being done. You should maintain the 529
Mandali (Committee) of the sansthan and continue the whole Mandali (Committee)
with unanimous opinion. You know the Vahiwet of the Sansthan as is going on.
You should continue the same accordingly in future".....
* * * * * * "That ownership is of your
own. Your bhauband and others have no right whatsoever over the same. You are
free to give and take as per the Shishya-sampradaya as has been done
previously. The Deshmukhs and Deshpandes at Kashev-Amalner have been rendering
service to the said Sansthan faithfully. You should make arrangement to accept
service from them as being done accordingly and go on rendering service and
performing Bhajan etc.
faithfully as mentioned herein as per the
Vaishnava sampradaya as being done from before".
x x x x x We have also seen from the evidence
of Ramkrishna Deshpande:
"All the Buwas are saints. People go for
darshan because these people were saints. This Sansthan is based on the
principles of Shishya parampara. This property goes from Guru to his Shishya.
* * * * * "The residents of the place
where the Bhajans are performed attend these Bhajans. In the days of Pandharpur
fair the Maharaj remains present. He stays there for about 4 months. During his
stay at Pandharpur Bhajans are performed daily. During the fair his Shishyas
perform the Bhajans. While returning from the pilgrimage also he performs
Bhajans. Maharaj also attends other fairs at Nasik etc. At that time also his
Shishyas accompany him. By Shishyas I mean the disciples as well as followers.
Shishyas are few but the followers are in large numbers. In the utsava at
Amalner many saints of other places, Shishyas and followers take part. The persons
who attend this year besides Shishyas and followers are about ten thousand.
The followers and saints are paid their cost
of journey. All their expenses of boarding and lodging are met by this
Sansthan. The Bhajans at Pandharpur performed by Maharaj are attended by the
public".
Ramkrishna Deshpande concludes his evidence
by stating:
"I contend that this is a private temple
because others cannot perform puja without permission of Maharaj".
The oral and documentary evidence leave no
room for doubt whatsoever that the Sansthan and the temple are public religious
endowments. Even in acknowledged public temples any and everybody cannot
perform puja in the sense in which the head pujari daily performs 530 at
various stages. Public is not and may not be allowed to the inner most sanctum
where the deity is installed except under special circumstances with special
permission. That would, however, not lead to the conclusion that the temple is
a private temple. Worshippers are not merely the accredited daily pujaris but
also the multitude of the public who go to the temple for Darshan of the deity
and for offerings. The contention of Ramkrishna Deshpande in his evidence,
therefore, is without any force.
When the origin of an endowment is obscure
and no direct oral evidence is available, the Court will have to resolve the
controversy about the character of the trust on documentary evidence, if any,
the object and purpose for which the trust was created, the consistent manner
in which the property has been dealt with or managed by those in charge, the
manner in which the property has long been used by the public, the contribution
of the public, to all intents and purposes, as a matter of right without the
least interference or restriction from the temple authorities, to foster
maintenance of the worship the accretion to the trust property by way of grants
from the state of gifts from outsiders inconsistent with the private nature of
the trust, the nature of devolution of the property, are all important elements
in determination of the question whether a property is a private or a public
religious endowment. We are satisfied that in this case all the above tests are
fulfilled.
To sum up from the documentary and oral
evidence produced; the following features are present in the present case:
(1) The deity installed in the temple was
intended by the Founder to be continually worshipped by an indeterminate
multitude of the Hindu public:
(2) In order to facilitate worship by the
public, the founder also intended that regular Bhajan, Kirtan and worship shall
be maintained and annual ceremonies and processions for pilgrimage shall be
conducted by the saints in succession nominated by the reigning saint.
(3) There has been no evidence of any
hindrance or restriction in the matter of continuous worship by the public
extending over a long period.
(4) More than a century ago the temple in its
own name was recipient of land by Royal grant and the same has been managed by
the saints in succession as Manager not as personal or private property.
(5) Gifts of land by members of the public
from the Taluka and outside it in favour of the temple or of the Sansthan for
the purpose of maintenance of the worship.
(6) Collection of subscriptions were made
from house to house by taking Maharaj and also for 'Gulal' ceremony.
(7) Holding out of the Sansthan to all
intents and purpose as a public temple.
531 (8) Treating of the Sansthan by those who
are connected with the management as intended for user by the public without
restriction.
(9) Absence of any evidence in the long
history of the Sansthan to warrant that it had any appearance of, or that it
was ever treated as a private property.
While each case of endowment as to its
character depends on the particular history. tradition and facts, the presence
of the above features in the instant case lead to the inescapable conclusion
that Shri Vithal Rukhamai Sansthan at Amalner is a public trust within the
meaning of section 2(13) of the Act.
In the result the appeal fails and is
dismissed. We will, however, make no order as to costs.
P.B.R. Appeal dismissed.
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