Commissioner for Hindu Religious &
Charitable Endowments, My Vs. Ratnavarma Heggade [1976] INSC 252 (20 October
1976)
SHINGAL, P.N.
SHINGAL, P.N.
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 1848 1977 SCR (1) 889 1977
SCC (1) 525
ACT:
Hindu Law--Religious Endowment--Hindu temple
forming part of a Jain Institution--When may be treated as a Hindu religious
endowment.
HEADNOTE:
Section 9(12) of the Madras Hindu Religious
Endowments Act, 1926, defines 'temple' as a place, by whatever designation
known, used as a place of public 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 religious worship Section 9(11) provides that all property belonging
to, or given or endowed to the support of a temple or for the performance of
any service or charity connected with the temple will constitute its endowment,
including the premises of the temple. Section 2 provides that the Act applies
to all Hindu public religious endowments. The Section, the Explanation to the
section, and s. 3(b) shown that Hindu public religious endowments' do not
include private endowments and Jain religious endowments.
Dharmasthal, in which the temple in dispute
was situate has a number of institutions which were under the management of a
person known as Heggade who was a Jain. The Religious Endowments Board, after
an enquiry, held that the Act applied to the temple. On application made under
s. 84(2), the District Judge held that it was a private temple, and that,
therefore, the Act did not apply to it. On appeal, the High Court did not
.consider whether it was a private temple, but held that the temple was an
adjunct to the composite institution of Dharmasthal, that, according to the
customs and usages of the institution, the temple could not be separated from
the rest. of the institutions, that Dharmasthal was both a religious and
charitable institution, that the deity in the temple was worshipped both by
.the Hindus and the Jains in accordance with their respective faiths, that the
deity was .neither an exclusively Hindu deity not an exclusively Jain deity,
that the institution. of Dharmasthal was founded by the Jain, that its
administration remained exclusively Jam since its inception, that it could not
be inferred that there was an implied dedication to the Hindus exclusively, and
that therefore the temple, was not a temple as defined in the Act, and that the
Act did not apply to it.
The High Court also held that its property
was also an adjunct to the composite institution consisting of Hindu Gods, Jain
Gods and Daivas, worshipped by Hindus and Jains.
Dismissing the appeal by special leave to
this Court, HELD: (Per A.N. Ray, C.J., and P.N. Shinghal, J):
(1) Section 9(12) of the Act only requires
that the temple should be dedicated for public religious worship, as of right
by Hindus, but it would not detrace from its character of a temple as such if
Jains also worship there. The pro visions of the Act will however not be
attracted to it in the absence of and evidence to prove the existence of an
endowment for it, as the Act applies only to Hindu public religious endowments.
[899 H, 900 A] (2) The evidence in the case shows that the institution of
Dharmasthal was originally a Jain religious and charitable restitution to which
property was endowed by the ancestors of the present Heggade who was himself a
Jain. It was that endowment which spread and gained more and more importance
over the years because of the offerings made largely by Hindu and Jain devotees
and worshippers. A lingam was installed in the temple by a Hindu Sanyasi only
in the 16th century; but, it has not been established that there is any
endowment which could be said to belong exclusively to the temple. Even if any
such 890 endowment was made by someone in the name of the temple it was taken
to be an endowment for the entire institution known as Dharmasthal and was
treated as such. The temple cannot therefore be said, to be a Hindu religious
endowment within the meaning of s. 2 and the provisions of the Act are not
applicable to it. [896 F-H: 897 A] (3) The evidence also shows that the temple
is part and parcel of the composite institution known as Dharmasthal and is so
inseparably connected with it that it is its integral part, and it cannot
therefore be held to be an endowment within the meaning of s. 9(11). It has not
been proved that any property belongs to the temple or has been given or
endowed for its support or for the performance of any service or charity connected
therewith, or that it has any such premises of its own as could be said to form
its own endowment. The mere installation of the idol in the temple could not be
said to bring into existence any such property as could be said to belong to
the deity or given or endowed for the support of its temple or for the
performance of any service or charity connected therewith. The temple does not
have even a separate prakararn. The shrine of the adjacent shrine is in dose
proximity of the temple and within the same prakaram. The existence of other
shrines of Jain Daivas in the same prakaram as the temple, therefore, shows
that this temple cannot even claim to have any exclusive premises of its own so
as to constitute an endowment within the meaning of s. 9(11) of the Act. [897
A, F] (4) In a given case, it may be difficult to prove the original dedication
because of the lapse of considerable time and its user by Hindus as of right
may be enough to prove an initial dedication. But, in the present case, it
would not be possible to conclude that there was any such dedication because
there is nothing to show how the Hindu Sanyasi, who installed the lingam in the
temple in the 16th century, could be. said to be a donor when the property did
not belong to him. [900 ,F-G] (5) The facts that the temple was not shown to be
a Jain endowment, and hat it possesses the characteristics of a Hindu temple
will not make, any difference because, there is no evidence to show that there
is any endowment' to the temple, as such, and the temple is a part and parcel
of Dharmasthal. [900 A_B] Per Beg, J.
(1) In order to decide a dispute under s.
84(1)(a) it is necessary to. decide whether a particular place is a temple as
contemplated by the Act. But, that is not enough for the decision of the whole
issue to be decided. For that purpose attention has also to be directed towards
deciding the question whether the institution to be considered is a temple and
nothing more. If the temple, as a place of worship, is an integral part of an
institution so that it is not separable as an institution in itself, the mere
fact that there is a temple as defined by the Act, where Hindu members of the
public worship as a matter of right, will not go. In such a case, the
institution is not the temple, although a temple can by itself, be an
institution. There is thus a distinction between the meanings of temple' merely
as a place of worship as defined in s. 9(12) and a 'temple' as an institution.
It is therefore, necessary to consider the history, the beliefs underlying at
the inception and sought to be propagated the forms of worship meant to be kept
alive, the prevalent customs and practices, the exact nature and process of the
endowments connected with the institution, the established rules for its management,
the objects to be carried out by those in charge of the endowment, and whether
all these taken together justify the inference. that a particular temple, as
defined by the Act, is also a separate or separable institution by itself, or
is just an integral and organically inseparable part of an institution or an
organisation outside the Act, [903 A-B, 906E,H-907 A-C] (2) A consideration of
the property which belongs to or is endowed for the support of temples or for
performance of any service or charity connected therewith including the
premises of temples may also become necessary so as to determine the character
of an endowment as a part of the institution and the process by which it took
place.. [907 F-G] (3) The origin ,and process of dedication is not always found
embodied in document. Where the dedication itself is evidenced by a document,
its objects, 891 such as they may be, can be determined by interpreting the
document. There are, however, many cases in which dedication or endowment of
property for a particular purposes has to be inferred from immemorial or long
user of a property in a particular manner or from the conduct of a party.
Neither a document nor express words are essential for a dedication for a
religious or public purpose in our country. Although religious ceremonies of
Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are
not indispensable. [907 G-H; 908 A-B] Bholanath Nandi v. Midnapora Zamindary
Co.. Ltd. 31 I.A.
75, Lakshmidhar Misra & Ors. v. Rangalal
& Ors. AIR 1950 PC 56, Manohar Gandhi v. Lakhmiram, ILR 12 Bom. 247 @ 263,
Deoki Nandan v. Murlidhar, [1956] S.C.R. '756 and Puajri Lakshmana Goundan v.
Subramaniya 29 C.W.N. 112 (P.C.) referred to.
All that s. 9(12) requires is that the place
should be a place of worship either dedicated for the benefit of or used as of
right by the Hindu community or a section thereof as a place of religious
worship. The word 'exclusively' is not there at all so as to justify any
exclusion of a place of worship from the definition of a temple on the ground
that Jains worship together with Hindus of 'other sects. But, the issue to be
decided is whether the 'institution' is a temple as defined in the Act. It is
not whether a particular place is a temple, in the sense that it is set apart
for worship by the Hindu public in general or a section of it, but it is
whether an institution itself is a temple as defined by the Act. [905; D-G, 906
F-H, 907 A-D].
(5) In the present case, the findings of the
High Court show that the institution or organisation of which the temple is an
inseparable part, is predominantly Jain in character. In view of the well
established doctrine of implied endowment of property, by its long user for a
particular religious or public purpose, based on a presumed consent, it could
be said that the temple had become a separate institution with an endowment of
its own consisting at least of the land over which the temple had been built,
the building and the idol installed with free access to it by the Hindu public
in general which made offerings even though Jains also worship there. But, in
view of the general rule of practice under Art. 136 of the Constitution that
this Court does not disturb findings of the final court of fact where two views
are possible, this Court would not differ from the conclusion reached by the
High Court that the temple was not a separate institution. On such a finding it
would be exempt from the operation of the Act by reason of the Explanation to
s. 2 excluding Jain religious endowments from the benefits of the Act. [905
E-H, 907 D-F] (6)In the present case, neither the District Judge nor the High
Court had given any findings whether any endowment whatsoever of the temple
existed. The extent of property covered by an endowment was also not really
investigated as no issue was framed on it. At least the structure of the temple
with the idol installed and the ground upon which the temple stands must be
deemed to be dedicated even though these may not for purposes of management,
form separable units. When a religious institution becomes a means of obtaining
money or material benefits, in the form of offerings or donations or gifts, as
it generally does, from members of the public, a danger of its misuse can only
be effectively averted by appropriate supervision. The powers of the
Government, .under the relevant Act to extend the provisions of the Act to Jain
public religious institutions which are not affected by the dispute brought
before the Court, are however, adequate to deal with such situation.
[912 A-H, 913A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 111 of 1971.
(Appeal by Special Leave from the Judgment
and Decree dated 30-8-1968 of the Mysore High Court in Regular Appeal No.
165/57) Sachin Chaudhuri and Narayana Nettar, for the Appellant.
K. Sen, K.N. Bhatt and K.R.D. Karanath, for
the Respondent through L.RS. 338SCI/76 892 The Judgment of A.N. Ray, C.J. and
P.N. Shinghal, J. was delivered by Shinghal, J.M.H. Beg, J. gave a separate
Opinion.
SHINGHAL, J. --This appeal by special leave
arises out of the judgment of the High Court. of Mysore dated August 30, 1968,
upholding the order of District Judge, South Kanara, dated November 9, 1956. By
that order the District Judge set aside the decision. of the Board of Commissioners
for Hindu Religious Endowments, Madras, hereinafter referred to as the Board,
that the institution known as Sri Manjunatha temple at Dharmasthal, Puttur
Taluk, South Kanaka district, was a 'temple' as defined in clause (12) of section
9 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927),
hereinafter referred to as the Act.
The Commissioner under the Madras Hindu
Religious and Charitable Endowments Act feels aggrieved because the impugned
judgment has the effect of taking the temple out of the control provided by the
Act. The respondent in this appeal was the "supplemental" petitioner
before the District Judge and was brought on record on the death of Manjayya
Heggade who was the original petitioner in the petition under subsection (2) of
section 84 of the Act.
The controversy relates to the Manjunatha
temple, in Dharmasthal, which is now the name' of a village in Belthangady
taluk of South Kanara district of Tamil Nadu. The original name of the village
was Mallarmadi. The locality in which the temple is situated was called Kukya
Kudume, but it came to be known as Dharmasthal after the visit of Sri Vadiraja
Swamiar of Sode Mutt, Udipi, in the 16th century, to which reference will be
made in a while.
It is not in dispute that, even according to
the Heggade, Dharmasthal has a number of institutions including the following
main institutions,-
1. Nelleyadi Beedu,
2. Chandranatha Basthi,
3. Manjunatha temple,
4. Ammanvaru temple, and 5. Heggadeship.
These institutions have been shown in exhibit
A 59 which is said to be a rough sketch of the Dharmasthal. It is also not in
dispute before us that "Daivas" were first established in Nolleyadi
Beedu, by an ancestor of Heggade who was a Jain, and were worshiped there. Heggade
began to give charity to persons of all religions, and the institution became
well known and travellers began to visit it in large numbers. It is the common
case of the parties that Sri Vadiraja Swamjar of Sode Mutt, Udipi, who was a
Sanyasi, happened to pass that way and was invited by Heggade to stay there.
The Swamiar however refused to accept food there on the ground that it was
"Bhuta Kshetra". Heggade felt very sorry as the great Sanyasi was
starving in his house. It is said that Heggade thereupon arranged to instal the
idol of Sri Manjunatha in the "garbagriha." The Swamjar was appeased
and performed the first "pooja" in that temple, which thereafter came
to 893 be known as Dharmasthal. This is said to have happened in the sixteenth
century and is, at any rate, said to be the origin of the Manjunatha temple in
the Dharmasthal campus.
The Board started proceedings under section
84(1) of the Act to decide whether Sri Manjunatha temple was a temple as
defined in clause (2) of section 9 of the Act. Heggade urged before the Board,
inter alia, that all the institutions in Dharmasthal formed a single unit
representing a private institution, that it had been rounded by his ancestors
on their own private land, that there was no dedication to the Hindus and they
could not claim any right of worship, that Dharmasthal was Jain in character,
that it was a charitable but not a religious institution, that his status was
not akin to that of a mere trustee and that "Heggadeship" was
intimately and in separately connected with the Dharmasthal institution and
Manjunatha temple.
The Board made an enquiry and reached the
conclusion that Manjunatha temple was a separate entity and was the most
important institution and that it was not the private property of the Heggade.
I also held that it was not a Jain institution, but was a Hindu temple, and
that it was a religious and not merely a charitable institution for its charity
was connected with the temple. The Board also held that the public had used the
temple freely ever since its foundation. It accordingly decided that Manjunatha
was a temple as defined in the Act even though its trusteeship vested in
Heggades who were Jains.
As has been stated, an application was made
by Manjayya Hegde to the District Judge, under sub-section (2) of section 84 of
the Act for setting aside the Board's decision.
It was specifically pleaded in that
application that the entire institution known as Dharmasthal was a
"composite" institution and that his ancestors always claimed that the
Manjunatha Devaru, its properties and deities belonged to them personally and
that its 'patta' stood in their names from time immemorial. On that basis, it
was pleaded further that as the properties were outside the scope of the
enquiry under section 84 of the Act, the Act "did not apply and the Board
had no jurisdiction to hold an enquiry under section 84." A
counter-affidavit was flied on behalf of the Board in which it was pleased that
Manjunatha temple of Dharmasthal was "an independent entity being a
separate temple, owning its own property and having separate income." It
was pleaded further that there were properties in the name of the deity of the
Manjunatha in Mysore State and other places. The District Judge did not frame
any issued but formulated some points for determination including the points
whether Manjunatha Devaru was only a part of the institution known as
Dharmasthal, and not a separate institution in itself, and whether the
provisions of the Act did not apply to it ? He recorded the evidence and heId
that Manjunatha temple was one of the 3 or 4 shrines maintained from the income
of the institution known as Dharmasthal, Heggade was a component part of the
institution. the temple stood on the private land of Heggade, the Manjunatha shrine
was a Hindu institution but it was so mixed up and connected with other Jain
institutions that it was practically impossible to separate it, and that
Dharmasthal was a happy blending of charity and religion. The District Judge
held further that the Manjunatha shrine was the private 894 temple of the
Heggade, it had not been dedicated to the Hindu public, and it was not used by
the public as of right.
The District Judge did not decide whether the
shrine of Ammanvaru and other deities was a Jain institution. He accordingly
held that though the Manjunatha shrine may be a Hindu shrine, it was private
property of the Heggade and the provisions of the Act were not applicable to
it. The District Judge accordingly set aside the order of the Board dated March
9, 1949.
The Commissioner filed an appeal to the High
Court against that judgment of the District Judge dated November 9, 1956. One
of the main questions presented for determination before the High Court was
whether "all the institutions" of Dharmasthal formed a single
composite institution.
It was not in dispute before the High Court
that, apart from the question of Manjunatha temple being an adjunct to the
composite Dharmasthal institution, the temple was not an institution at all.
Even the Heggade did not deny the existence of Manjunatha temple as an
institution and took the specific plea in his affidavit dated July 22, 1949
that the Manjunatha Deity "is a private institution belonging to the
Heggade." The High Court examined the "crucial question" whether
Manjunatha was a temple within the definition of the Act and whether it was a
"Religious Endowment" under section 9(11). It held that the
Manjunatha temple was an adjunct to the composite institution of Dharmasthal
and according to the customs and usages of the institution that temple could
not be separated from the rest of the institution, that Dharmasthal was both a
religious and charitable institution, that Manjunatha was a deity worshipped
both by the Hindus and the Jains in accordance .with their respective faiths
and that it was neither an exclusively Hindu deity nor an exclusively Jain
deity. The High Court referred to the pleadings and the evidence and held that
the institution was rounded by a Jain, its administration remained exclusively
Jain since its inception, and that as Jains also worshipped along with Hindus,
it could not be inferred that there was an implied dedication to the Hindus
exclusively. The High Court thus hold that the temple was not a temple as
defined in the Act, and it was therefore not necessary to examine the question
whether it was a private temple of the Heggade.
In the result, the High Court took the view
that the Act did not apply to the institution and the Board had no jurisdiction
over it. It therefore dismissed the appeal with costs.
The Commissioner has obtained special leave,
and this is how the appeal has come up here for consideration.
As the controversy in this case relates to
the applicability of the Act to the Manjunatha temple, it will be convenient to
examine its relevant provisions.
The preamble of the Act states, inter alia,
that it is meant to provide for the better administration and governance of
"certain Hindu religious endowments" described in it. Section 2 makes
it clear that the Act applies "to all Hindu public religious
endowments". Private religious endowments are therefore outside its scope.
Then there is an Explanation to the following effect,-895
"Explanation,---for the purpose of this Act, Hindu public religious
endowments do not include Jain religious endowments." The effect of the
section therefore is to exclude not only private religious endowments, but also
Jain religious endowments and it is around the provisions of section 2 that the
controversy in this case has centred. The exclusion of Jain religious
endowments has been emphasised by section 3(b) which empowers the Local
Government to remove the exclusion and extend the provisions of the Act, and
the Rules framed there under, to Jain religious endowments, subject to such restrictions
and modifications as may be considered proper. As no such extension has been
notified, the Act does not cover Jain religious endowments. It is confined to
Hindu religious "endowments" and will not be applicable where there
is no such endowment at all.
The expression "Religious
endowment" or "Endowment" has been defined in clause (ii) of
section 9 as follows,-"(11) 'Religious endowment' or 'Endowment' means all
property belonging to, or given or endowed for the support of maths or temples
or for the performance of any service or charity connected therewith and
includes the premises of maths or temples but does not include gifts of
property made as personal gifts or offerings to the head of a math or to the
archaka or other employee of a temple." It follows that "all
property" belonging to, or given or endowed for the support of a temple or
for the performance of any service or charity connected with the temple will
constitute its endowment, including the premises of the temple. It would therefore
be necessary to examine whether there is evidence to prove any such endowment
in respect of Sri Manjunatha temple. In this connection it will be necessary to
examine which property, if any, was endowed to the temple, and by whom, and
which, if any, could be said to be the premises of the temple to the exclusion
of all other temples ? The expression "Temple" has been defined by
clause (12) of section 9 in these terms'"(12) 'Temple' means a place, by
whatever designation known, used as a place of public 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 religious worship." The definition thus
emphasises that only those temples will fall within the purview of the Act which
are places of "public religious worship" and are
"dedicated" to, or for the benefit of, or are used "as of
right" by the Hindu community.
It may be mentioned in this connection that,
as has been stated, the District Judge has held that although the Manjunatha
temple may be a Hindu temple, it is the private temple Of the Heggade and is
not a temple expressly dedicated to Hindus or a temple which could be 896 said
to have been used or resorted to by the Hindu public as of right. The High
Court has, on appeal, held on the other hand, that Manjunatha is neither an
exclusively Hindu deity nor an exclusively Jain deity and that it is not
therefore a temple as defined in the Act. It has therefore not examined the
other question whether it is a public or a private temple. As regards the
property of the temple, the High Court has held that it is an
"adjunct" to the composite institution consisting of Hindu and Jain
Gods and Daivas worshipped by Hindus and Jains.
Counsel for the parties have argued at length
on the questions whether Manjunatha temple is an exclusively Hindu temple and
whether it is a place of public religious worship dedicated to or used as of
right by the Hindu community as a place of religious worship. There is
considerable evidence for deciding these questions, but even if it were assumed
that the answer to these questions should be in the affirmative, that would not
be decisive, of the controversy, for the other question would still remain
whether it is an "endowment"? It will be recalled' that by virtue of
section 2, the Act applies only to Hindu public religious "endowments."
The definition of "Religious endowment" and "Endowment" in
clause (11) of section is common. Accordingly, the questions which arise for
consideration in this connection are whether the temple has property belonging
to, or given or endowed for its support or for the performance of any service
or charity connected therewith. It has not been disputed before us, and is in
fact beyond controversy, that there is considerable movable and immovable
property of the Dharmasthal as a whole i.e. the entire complex or campus
consisting of Nelleyadi Beedu, Chandranath Basthi, Manjunatha temple, Ammanvaru
temple and the Heggadeship. But the question is whether there is any such property
exclusively of the Manjunatha temple so as to constitute a Hindu religious
endowment for purposes of section 2 of the Act ? It will be recalled that it is
not in dispute here that it were the "Daivas" who were first
established in Nelleyadi Beedu and were worshipped there by an ancestor of
Heggade who was a Jain. The High Court has in fact found that it has been
clearly established by the evidence on the record that the institution was
rounded by a Jain and that ever since its inception its administration has
remained in the hands of a Jain, namely, the Heggade. So when Vadiraja Swamjar
of Sode Mutt, Udipi, came there as mentioned earlier, there was only worship of
Jain "Daivas" and of "no God".
This is to be found in the report (Ex. A 108)
of T. Narayan Nambiyar in the matter of the Manjunatha temple, which was taken
in evidence and has been relied upon by the High Court. It was at the instance
of the Swamiar that the idol of Manjunatha was brought and installed in the
"garbagriha" and it was he who performed the first 'pooja'. It was
therefore the Swamjar who was responsible for the installation of the
Manjunatha idol, which was a 'lingam', in a campus where there were shrines of
Devas like Nelleyadi Beedu, the Chandranatha Basthi and several other
buildings.
It could not therefore be said that the mere
installation of the idol of Manjunatha brought into existence any such property
as 897 could be said to belong to that deity or given or endowed for the
support of its temple or for the performance of any service or charity
connected therewith.
There is, on the other hand, evidence to show
that all the buildings and institutions of the Dharmasthal, which was the
composite name of the entire campus or complex consisting of the buildings
mentioned in plan Ex. A 59, were situated in the land belonging to the Heggade,
and of which he held a 'patta'. This is evident from Ex. A 103 which is a
certified copy of the statement of Kumara Heggade dated July 31, 1820, which
appears to have been read in evidence with the consent of the parties. To the
same effect is the statement of U. Seetharamayya dated October 12, 1954 who was
acquainted with Dharmasthal since 1908. As it is, the Manjunatha temple does
not have even a separate "prakaram".
The shrine of Ammanvaru is in close proximity
of the Manjunatha temple and within the same "prakaram". It has not
been disputed before us that, as has been stated by U. Seetharamayya, P.W. 2,
its important deities are Kalarahu, Kalarhayi, Kumaraswami and Kanya Kumari some
of which, at any rate, are the same as the Jain deities worshipped in Nelleyadi
Beedu and Badinade both of which are admittedly Jain institutions. Moreover,
Kanya Kumari in Ammanvaru shrine cannot be said to be Parvati, the consort of
Shiva, for M. Govinda Psi R.W. 12, who claims to have studied Hindu and Jain
religions and was examined on behalf of the Board, has stated that Parvati and
Kanya Kumari are "not identical". The shrine of Annappa Daiva is also
situated within the common "prakaram". The existence of the shrines
of Ammanvaru and Annappa Daiva in the same "prakaram" as the
Manjunatha temple therefore shows that Manjunatha temple cannot even claim to
have any exclusive premises of its own so as to constitute an endowment within
the meaning of clause (11 ) of section 9 of the Act.
The High Court has found it as a fact that
the shrine of Manjunatha is an "adjunct" to the composite institution
of Dharmasthal and according to the customs and usages of the said institution,
the shrine of Sri Manjunatha cannot be separated from the rest. In arriving at
this conclusion the High Court has taken into consideration those facts which
have been established by the evidence on the record. It will be sufficient to
make a brief reference to the following 14 facts 'which have been mentioned by
the High Court,-(i) All the shrines in Dharmasthal were rounded by the Heggade
who was a Jain.
(ii) All the shrines are situated in close
proximity on "wrag" lands of which the 'patta' is in the name of
Heggade.
(iii) The rituals of all the shrines are
interconnected.
(iv) All places of worship participate in the
installation of the Heggade (Exs. A 58 and A 108).
(v) The 'pooja' is reciprocal e.g. whenever
there is an important ceremony in Maniunatha shrine, special 'pooja' has to be
performed in Chandranatha Basthi which is a Jain institution (Ex. A 108).
898 (vi) All 'prasadam' is normally given
only from Ammanvarushrine and not from Manjunatha temple, (P. Ws. 3, 4 and 5).
(vii) The festivals, including that relating
to "makara shankranti", of all the shrines, are common (P.W.2 and
exhibits A 69 and A 70).
(viii) All offerings are made and received
for the entire institution and not for any particular deity (Exs. A 69, A 70
and A 108), and the public do not make any distinction in making the offerings
and whatever is given is for Dharmasthal as a whole (Ex. A 108).
(ix) On Heggade's death, 'pooja' is' stopped
in all institutions until' purification (Ex. A 108).
(x) "Hoilus" or complaints are made
to Dharmasthal as a whole' and 'prasadam' is given to the complainants from
Ammanvaru shrine Ex-A 72).
(xi) Chandranatha Basthi, which is a Jain
institution, is closely interlinked with aH the other institutions in
Dharmasthal.
(xii) The paraphernalia of "Daivas"
(who are Jain deities) is kept in Manjunatha and Ammanvaru shrines (Ex. A 108).
(xiii) There is-extraordinary unity of
interest between the Heggade and Dharmasthal (Exs. A 107 and A 103) and no
distinction is made between the office of Heggade and the deities (Ex. A 104).
(xiv)-The deities which had been installed
before the installation of the 'lingam' in the Manjunatha temple continued to
enjoy their previous importance (Ex. A 105) and Dharmasthal could not be said'
to have been dedicated to Manjunatha but to the earlier deities.
To the above may be added the following
further facts,-(i) The entire income of all the institutions constitutes one
common fund from which the expenses of all the shrines and the Heggade are: met
(Report Ex. B 2 of R.W. 3).
(ii) The vast charity which is undertaken was
in existence even before the installation of the 'lingam' in Manjunatha shrine
(P.W. 3).
(iii) While the 'lingam' was installed in
Manjunatha temple by Vadiraja Swamjar of Sode Mutt, Udipi, as an exclusively
Hindu God, in its present "garbagriha" which exclusively contains
that 'lingam' and has no non-Hindu God, the Jain Daivas have continued to be
worshipped side by side, in the adjacent Ammanvaru shrine. Even in the presence
of the Swamiar, the Heggade was present at the time of worship and offered
'Kanikam' (R.W. 9). Whosoever went to Dharmasthal, whether a Hindu or a Jain
worshipped Manjunatha and the other deities and Daivas alike (Ex. A 108).
(iv) It may be that Brahmins perform 'pooja'
in Manjunatha temple, but that is done in the presence of the Heggade (R.W. 11)
who also worships Manjunatha and controls all the institutions as one integral
Dharmasthal.
(v) The Jain shrine of Anna Daiva is also
within the same 'prakaram' in which the temples of Manjunatha and Ammanvaru
are' situated.
899 It therefore appears that the High Court
was justified in taking the view that Manjunatha temple is part and parcel of
the composite institution known as Dharmasthal and is so inseparably connected
with it that it is its integral part.
It cannot therefore be held that the
Manjunatha temple is an "endowment" within the meaning of clause (11
) of section 9 of the Act for it has not been proved that any property belongs
to it, or has been given or endowed for its support or for the performance of
any service or charity connected therewith, or that it has any such premises of
its own as could be said to form its own endowment.
It would follow from what has been said above
that even if 'the Manjunatha temple is assumed to be a place used, as of right,
for public religious worship by Hindus, it could come under the purview of the
Act only if it could be established that it was a 'religious endowment' within
the meaning of section 2, but this has not been proved to be so.
On the other hand it appears that the present
institution of Dharmasthal was originally a Jain religious and charitable
institution to which property was endowed by the ancestors of the present
Heggade who was himself a Jain. It was that endowment which spread and gained
more and more importance over the years because of the offerings made largely
by Hindu and Jain devotees and worshippers. But it has not been established
that there is any endowment which could be said to belong exclusively to
Manjunatha temple. Even if any such endowment was made by some one in the name
of Manjunatha temple, (as stated by K.C. Nambayar R.W. 3), it was taken to be
an endowment for the entire institution known as Dharmasthal and was treated as
such. The Manjunatha temple cannot therefore be said to be a Hindu religious
endowment within the meaning of section 2. The provisions of the Act are not
applicable to it, and the Board clearly erred in holding otherwise.
It has been argued by Mr. Chowdhary for the
appellant that generally speaking Hindus include Jains. According to him, the
underlying assumption in the Act is that Jains are also Hindus, and that the
fact that Jains also worship in a Hindu temple will not detract from the fact
that it is a Hindu temple as it is not necessary that a Hindu temple should be
a place exclusively for Hindu public religious worship. Reference in this
connection has been made to The All India Sai Samaj (Registered) by its
President D. Bhima Rao, Mylapore v. The Deputy Commissioner for Hindu Religious
and Charitable Endowments (Administration) Department, Madras-34, and others, (
1 ) The State of Madras by the Secretary, Revenue Department, Madras and
another v. The Urumu Seshachalam Chettiar Charities, Tiruchirapalli, by its Board
of Trustees and others,(2) and S. Kannan and others v. The All India Sai Samaj
(Registered) by its President, D. Bhima Rao, Mylapore(3). It will be sufficient
to say that what section 9(12) of the Act requires by way of definition of a
'temple' is that for purposes of the Act a 'temple' should be dedicated for
public religious worship, as of right, and it would not detract from its
character as such if Jains also worship there. The argument of Mr. Chowdhary
is, however, (1) (1967) 2 M.L.J. 618. (2) (1960) 2 M.L.J. 591.
(3) (1974) 1 M.L.J. 174.
900 futile because, as has been mentioned,
the provisions of the Act will not be attracted to the Manjunatha temple in the
absence of any evidence to prove the existence of an endowment for it.
It has next been argued by Mr. Chowdhary that
unless the temple of Manjunatha could be shown to be a Jain endowment it would
come within the definition of 'temle' in the Act. This argument has only to be
stated to be rejected because, as has been shown, there is no evidence to show
that there is any endowment for the Manjunatha temple as .such, and the temple
is a part and parcel of Dharmasthal which came to be endowed in the facts and
circumstances mentioned above.
An ancillary argument has been made that an
inference of Hindu endowment for the benefits of the public should be drawn
from the facts that the deity belongs to the Hindu Trinity, the architecture of
the temple is that of a Hindu temple, the rituals are performed by Brahmins according
to Hindu form of worship and honey is used for "abhisheka" which is
contrary to the Jain form of worship.
We have already assumed that the temple
possesses the characteristics which make it a Hindu temple, but even so there
is no justification for the argument that there is any endowment for it as
such.
Then it has been argued by Mr. Chowdhary that
Manjunatha temple is not an "adjunct" to the composite institution of
Dharmasthal for it is the most important temple in the campus. It has been
urged that mere common management .and control cannot justify the argument that
Manjunatha temple is an inseparable part of the Dharmasthal It is not necessary
to examine this argument once again, for we have given our reasons for taking a
contrary view.
Another argument of Mr. Chowdhary is that
formal dedication of the endowment to the temple of Manjunatha was not
necessary and that its user by the Hindus as of right would be enough to prove
the initial dedication. Reliance for the argument has been placed on B.K.
Mukherjee on the Hindu Law of Religious and Charitable Trusts. third edition,
page 27, which makes a mention of the rituals to be observed when a donor wants
to consecrate a temple and establish a deity in it. It may be that, in a given
case, it may be difficult to prove the original dedication because of the lapse
of considerable time but, in the present case it would not be possible to
conclude that there was any such dedication because there is nothing to show
how Vadiraja Swamiar, who installed the 'lingam' in Manjunatha temple, could be
said to be a donor when the property did not belong to him, In the view, we
have taken, we find no force in this appeal and it is hereby dismissed with
costs.
BEG, J.--I agree with the order proposed by
my learned brother Shinghal. But, I would like to indicate my own reasons in
this case for reaching this conclusion.
The following facts appear from the petition
filed on 22nd July, 1949, by the Heggade or trustee of the Manjunatha temple,
and from affidavits and other documents filed either in support or in
opposition to it, in the Court of the District Judge of South Kannara, in
proceed901 ings under Section 84(2) of the Madras Hindu Religious Endowments
Act of 1927, (hereinafter referred to as 'the Act'): In 1926, the Manjunatha temple
was exempted by a Government notification from the operation of the provisions
of the Madras Hindu Religious Endowments Act 1923. On 28th June, 1945, the
Board, which had been set up under Section 10 of the Act of 1927, informed the
Heggade that it was examining the position afresh whether the exemption which
had been granted in 1926 should be withdrawn. After due enquiry the Board had
moved the Government on 26th October, 1945, to cancel the exemption and it was
cancelled by the Government on both December, 1945, under the provisions of Act
2 of 1927. On 7th February, 1946, the Heggade had made an application to the
Government to review the cancellation.
Thereupon, the Government directed the Board
to enquire into the whole question again. That enquiry before the Board took
place on 27th July, 1946. The Board gave its decision on 9th March, 1949,
holding that the temple was covered by the provisions of the Act.
It was in circumstances stated above that the
Heggade had made an application before the District Judge after the coming into
force on May 15, 1946, of the amending of Act 10 of 1946. The whole proceeding
before the District Judge took place as a fresh and original trial in the
course of which detailed oral and documentary evidence was produced in support
of the respective cases by the two sides to the dispute which were: the Heggade
of the Jain Dharamasthala, of which the temple was said to be a part, and the
Board of Commissioners under the Act (probably substituted by the Commissioner
after the repeal of the Act and its substitution by other enactments on the
subject).
There was no argument before us on the
question whether the proceedings were governed by the provisions of the Act
before its amendment in 1946 or its provisions as they stood after the
amendment. But, it appears to me that the case proceeded on the footing that
the amended Act, which had come into force before the Heggade had petitioned to
the District Judge, governed the rights of the parties and the scope of the
enquiry. The question whether the Institution known as Dharmasthala included
the Manjunatha temple or whether Manjunatha temple could be said to have a
separate legal entity of its own as an Institution seems to me to be covered by
the provisions of Section 84 as they stood both before the amendment in 1946
and after it was amended in 1946. An appeal to the High Court, however, lay
under the amended provisions only, There was no objection to the appeal to the
High Court on the ground that the unamended provisions did not contain such a
right. Here, I may, for the purpose of clarifying the exact scope of the
enquiry out of which the case now before us by special leave has arisen,
reproduce the provisions of Section 84 of the Act both before and after its
amendment in 1946.
The unamended provisions of Section 84 read
as follows:
"84(1) If any dispute arises as to
whether an institution is a math or temple as defined in this Act or whether a
temple is an excepted temple, such dispute shall be decided by the Board.
902 (2) Any person affected by a decision
under sub-section (1) may, within one year, apply to the Court to modify or set
aside such decision, but, subject to the result of such application, the order
of the Board shall be final".
After the amendment by Act X of 1946, Section
84 reads as follows: "84(1) If any dispute arises as to-(a) whether an
institution is a math or temple as defined in this Act, (b) whether trustee is
a hereditary trustee as defined in this Act or not, or (c) whether any property
or money endowed is a specific endowment as' defined in this Act, or not.
Such dispute shall be decided by the Board
and no Court in the exercise of its original jurisdiction shall take cognizance
of any such dispute.
(2) Any person affected by a decision under sub-section
(1), may within six months apply to the Court to modify or set aside such
decision.
(3) From every order of a District Judge, on
an application under sub-section (2), an appeal shall lie to the High Court
within three months from the date of the order.
(4) Subject to the result of an application
under subsection (2) or of an appeal under Sub-section (3), the decision of the
Board shall be final. (Substituted by Madras Act X of 1946)".
The case of the Heggade or the managing
trustee was far from consistent. He took up the following positions: firstly,
that the temple was "private" and not a public temple and was exempt
from the provisions of the Act for that reason;
secondly, that the temple was a Jain
institution, or, an integral part of it, and, therefore, excluded from the
purview of the Act; and, thirdly, that the temple, even if it was to be deemed
to be a Hindu temple, as a place at which the Hindu public could worship as of
right, was really not separable from the larger Jain institution, so that,
irrespective of the character of worship or the beliefs of the worshippers at
the temple, it was not an institution which could be viewed separately from the
Dharamasthala or be held to be just a Hindu temple as an "institution'.
The Board considered the Heggade's case to be "that the Institution is a
unique institution where a Hindu temple was rounded and managed by a Jain
family". A subtle distinction was thus made between the temple as a place
of worship and as a part of a larger Jain institution. Although, I am doubtful
of the correctness of this distinction, on facts, yet, for the reasons given
below, I do not consider this to be a fit case for interference with the
findings of the High Court, accepting the correctness of this distinction, on
the particular facts of the case before us.
903 It seems to me that the question whether
the Manjunatha temple could be described as a Hindu temple as defined by the
Act, could be conclusively answered by a reference to a number of admissions of
the Heggade and his witnesses.
Indeed, the exemption of the temple from the
provisions of the Act by the State Government in exercise of its powers under
Section 3(1) of the Act, could be sought by the Heggade only on the assumption
that the temple constituted a Hindu religious endowment which ought to be
exempted from the operations of the provisions of the Act. If it was exempt by
virtue of a statutory provision from the provisions of the Act, as a Jain
institution, there was no need for an order to exempt it. The scope of
proceedings which have come up before us seems to go no further than resolution
of certain disputes. They may, however, involve making of certain declarations.
The origin of the temple was said to be given
in a document containing a statement of 1806, 'by the then Dharmasthala
Heggade, produced by the managing Heggade, which runs as follows:
"There was formerly a woman called Amoo
Devi Ballalthi placed there by the favour of God to perform the ceremonies. The
God's name was Durga Amba Kallarkie, but was subsequently changed to Kanya
Kumari. God appeared to the -woman in a dream and revealed himself to her
telling her he would remain in her house and 'she should therefore procure a
bed and a light for him to perform ceremonies, also that she should build
another house near to his to perform ceremonies in and that her children and
heirs should accordingly succeed her.
Under this arrangement, the temple shall ever
flourish. As related before, the God in the shape of a woman revealed himself
to Ballalthy and the Ballalthy acted accordingly. In the 1396 Sahvahanam, the
Peer of Udipi, Wadirajaswamy, arrived at Dharmasthala where the Ballalthy
ordered him to prepare his dinner and on the next day to leave the place. The
Peer replied: "This is the residence of Devil. I must establish God in it
before I eat my dinner". On this, the Ballalthy consulted he God in her
sleep, who appeared and encouraged her, desired her to give the Peer whatever
was required and told her he would establish the Kuddera God there saying 'you
will tell this to the Peer who on hearing it will eat his dinner'. When I bring
the God from Kuddera you will have a place prepared on the left hand side for
his residence and a Brahmin appointed to perform ceremonies. "On the same
evening the Manjunatha (Kudder God) was brought and a house built and he was
lodged in it on the next morning, this was all seen.
The Ballalthi informed the Peer of this. He
accordingly came and after dining departed.
Sometime afterwards the Ballalthy built a
house on the right hand side and made it the residence of the God and Brahmins
were appointed to perform ceremonies to both. The old God (viz., that of the
Ballalthy) some time afterwards told the Ballalthy he had appointed the devil
Kulataya to preside over the offerings and therefore she must build a house for
him, 904 to expend all the religious offerings properly, should any dispute
arise, proper investigations were to be made. 'Some delay being made in the
collection of the offerings by Kulataya, Annappa, another Devil was fixed, for
whom another residence was built and four people were chosen to superintend the
charities which the offerings admitted of...".
As the Board observed, it appeared that Sri
Manjunatha idol was installed on the occasion of Vadirajaswamy of Udipi's visit
to the Dharmasthala. This was taken to be the introduction of the worship of
God as opposed to that of the Devil. Sri Manjunatha was the installed God. It
was asserted that this was in accordance with Jain beliefs. It was said that
God spoke through the Heggade who acted as the oracle and used to answer
questions put to him by devotees at special sessions arranged for this purpose.
It was, however, clear that Hindus in general were not prohibited from worshipping
at this temple. They had worshipped here long enough freely and publicly to
acquire the right to worship as members of the Hindu public in general. This
right, I think, could not now be denied to them whatever be its origin.
After an elaborate discussion of the nature
of beliefs and worship, the Board had concluded: "... it is clear that
Shri Manjunatha Temple, Dharmasthala, Puttur Taluk, South Kanara District is a
'temple' as defined in Madras Act II of 1927 and we decide accordingly".
When the matter went up before the District
Judge under Section sub. s. (2) of the Act, the District Judge, after
discussing the evidence, recorded his conclusion as follows:
"Therefore it appears to me that taking
into consideration all these circumstances the claim of the petitioner that
this Shri Manjunatha Shrine though it may be a Hindu one in his private temple
seems to be well-founded and it is not a temple which is either expressly
dedicated to the Hindu public or which has been used or resorted to by the
Hindu public as of right".
It is difficult for me to understand where
the District Court found the law which requires "express" dedication
for use by the Hindu public or why he thought that the public had not acquired
a right to worship. Its findings, at any rate, carried with them the
implication that, although there was a dedication, it was for
"private" purposes. I find it difficult to conceive of such a
transaction. Dedication to a deity necessarily implies a cessation of
individual human ownership.
The dispute was then taken to the High Court
of Mysore, which reached the conclusion, after a detailed discussion of the
whole evidence:
"If, 'Sri Manjunatha' were a Hindu deity
exclusively and not a deity worshipped by the Jains as well, it is inconceivable
that the name 'Manaya' should be found among 9 Jains also. In our opinion, Sri
Manjunatha is a deity worshipped 905 both by the Hindus as well as the Jains in
accordance with their respective faiths and it is neither an exclusively Hindu
deity nor an exclusively Jain deity".
It then stated its views as follows:
"Since the institution is not a 'Temple'
as defined in the Act, the further question whether it is a private temple of
Nellyadi Beedu family as contended by the Neggade does not arise for determination.
The proceedings before the Board and the Court below are under the Act. In view
of our finding that the Institution is not a 'temple' under the Act, the Board
has no jurisdiction over the Institution. Having held that the Act has no
application to the Institution and the Board has no jurisdiction over it as
contended by the Heggade, the Court below should have desisted from giving any
finding on the question whether it is a private temple of Nellyadi Beedu
family. We express no opinion on the said issue".
The High Court's view seemed to be that there
was a "dedication" but for mixed purposes Outside the Act. Jain
beliefs, as distinct from generally held and accepted Hindu beliefs, the origin
and nature of the endowments, the established practices and customs relating to
management of the temple, the receipt and disbursement of income of what was
held to be a single institution called Dharmasthala, had been taken into
account by the High Court in order to decide whether "the institution"
is a "temple" as defined in the Act or something more. Its opinion
seemed to be that the real question to be decided here was not whether there
was a temple, as defined by the Act, but whether the temple, which existed
there, was an inseparable part and parcel of a Jain institution which was
outside the Act, or, it was an institution which, taken by itself, was covered
by the Act. If the temple was, so to speak, a mere appendage of the larger
multi purposed institution, all the parts of which were managed as a single
entity, the temple could not, in the opinion of the High Court, be "the
institution".
Although, I am prepared to accept the High
Court's findings on questions of fact, I do not find it possible to agree with
the High Court's view that, if a place of worship is open to both Jains and
Hindus in general, or, has a mixed character, it is not a temple within the
meaning of that term as defined in Section 9, sub. s. (12) of the Act. All that
Section 9, sub. s. (12) requires is that it should be a place of worship either
dedicated for the benefit of or used as of right by the Hindu community or a
section thereof as a place of religious worship. The word exclusively is not
there at all so as to justify any exclusion of a place of worship from the definition
of a temple on the ground that the place of worship is not confined to worship,
as a matter of right, to either Hindus as members of the general public or to
any section of Hindus.
The Act does not define the term
"Hindu". This word has had a fairly wide connotation. In origin, it
indicated people living in the Indus region. It is only by subsequent usage and
extension of meaning 906 that the word acquired a religious, and, therefore, in
this sense, a more limited significance. But, in some contexts, the term.
"Hindu", even today, stands for Indians in general. In foreign
countries all Indians are sometimes described as "Hindus". Even as a
term used for Indians professing a particular type of beliefs, which are
presumed to have an indigenous origin, it is wide enough to include Jains and
Sikhs. Hence, this is the meaning given to the term Hindu in the Hindu
Succession Act. In a statute dealing with religious endowments, the term, even
though not defined, may be presumed to stand for people of this country with
certain religious beliefs held or forms of religious worship practised by
people of this country originally.
But, this would also embrace a very wide
sector of the public. And, in any event, there is nothing whatsoever in the
definition of "temple" by the Act to justify the inference that Jains
or any other group of person must be excluded from worship before it can be a
"temple".
For reasons given above, I am unable to read
into the definition of the word, "temple", given in the Act, the idea
of excluding from the benefits of the Act temples open for worship to Hindus of
all sects and beliefs. This means that a place of worship where Jains, as a
section of Indian citizens, even when distinguished by their special doctrines
and practices from the rest of the Hindus, worship together with Hindus of
other sects, could not be a temple outside the Act. All that the Act requires
is that Hindus in general, or even a section of Hindus, should be able to
worship there as of fight. This requirement is, in my opinion, satisfied by
Shri Manjunatha temple on the findings of the High Court which I accept, not
without hesitation, as correct. The view I have taken above is, however, not
enough, in my opinion, to dispose of an issue under section 84(1)(a) of the
Act. It has to to borne in mind that the issue to be decided under Section
84(1)(a) of the Act is whether an "institution" is a math or temple
as defined in the Act. It is not whether a particular place is a temple, in the
sense that it is set apart for worship by the Hindu public in general or a
section of it. It is whether an "institution" itself is a temple as
defined by the Act.
The term temple has been defined in section
9(12) of the Act as follows :
"9(12) 'Temple' means a place, by whatever
designation known, 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 religious worship".
It, therefore, becomes necessary, in order to
decide a dispute under section 84(1)(a) whether a particular place is a temple
as contemplated by the Act. But, that is not enough for the decision of the
whole issue to be decided under Section 84(1)(a) of the Act. For that purpose,
attention has to be also directed towards deciding the question whether the
"institution" to be considered is a temple and nothing more. If the
temple, as a place of worship, is an integral part of an institution, so that
it is not separable as an institution, in itself, the mere fact that there is a
'temple', as defined by the Act, where 907 Hindu members of the public worship
as a matter of right, will not do, In such a case, the "institution"
is not the temple, although a temple can, by itself, be an institution.
The term "institution" is not
defined in the Act of 1927, although, in the more elaborate provisions of
Madras Hindu Religious and Charitable Endowments Act XXII of 1959, there is now
definition of the term "religious institution" as well showing that
this concept is wider than that of a temple.
If, therefore, there is a distinction between
the meanings of "temple" merely as a place of worship, as defined in
Section 9(12), and a "temple" as an institution, as there seems to me
to be, an authority deciding the issue whether it is an
"institution", as contemplated by Section 84(1)(a) of the Act, will
have to consider whether the history, the beliefs lying at the inception and
sought to he propagated, the forms of worship meant to be kept alive, the prevalent
customs and practices, the exact nature and process of the endowments connected
with the institution, the established rules for its management, the objects to
be carried out by those in charge of the endowment, taken together, would
justify the inference that a particular "temple", as defined by the
Act, is also a separate or separable institution by itself or is just an
integral and organically inseparable part of an institution or organisation
outside the Act.
These wider aspects, which may not appear to
be relevant at first sight, seem quite necessary to consider when we closely
examine the nature of the issue contemplated by Section 84(1)(a) of the Act and
decided by the High Court.
In the case before us, the findings of the
High Court show that the institution or organisation of which Manjunatha temple
is an inseparable part, is predominantly Jain in character. On such a finding,
it would be exempt from the operation of the Act by reason of the explanation
to section 2 excluding Jain "religious endowments" from the benefits
of the Act. It may be that very good grounds could be given for holding that
the temple is a separable or separate entity dedicated, by user, for worship by
Hindus in general, without restriction of worship by Jains only as a matter of
right. But, as two views seer, to be reasonably open on the question--whether
it is such a separate or separable institution or entity: I do not consider it
fit to be reopened by us under Article 136.
A consideration of the property which belongs
to or is "endowed for the support of maths or temples or for performance
of any service or charity connected therewith and includes the premises of
maths or temples" may also become necessary so as to determine the
character of an endowment as a part of the "institution" and the
process by which it took place. The institution endowed, on the findings of the
High Court, being more than or wider than the Manjunatha temple, is not just a
Hindu temple although a temple, by itself, could be such an institution if it
were a separable entity.
The origin and process of dedication is not
always found embodied in a document. Where the dedication itself is evidenced
by a document, its objects, such as they may be can be determined by
interpreting the document which makes the task of the authorities deciding the
question generally easier. There are, however, many cases in 8 --1338SCI/76 908
which dedication or endowment of property for a particular purpose has to be
inferred from immemorial user of a property in a particular manner or from the
conduct of a party, such as permission to build a road for use by the public or
permission to bury the dead on a piece of land.
The last. mentioned type of case may also
give rise sometimes to an estoppel against the owner of the land.
Cases where an inference of
"dedication" results from what may be considered immemorial user or a
kind of permissible user giving rise to an estoppel, because others have spent
money or done 'some act on the strength of 'a licence or permission to use the
land for a particular purpose, are not uncommon in our country. They should
not, as Lord Macnaghten hinted in Bholanath Nundi v. Midnapore Zemindary Co.
Ltd.,(1) be complicated by resorting to the peculiar English notions of
dedication, when he said:
"It appears to their Lordships that on
proof of the fact of enjoyment from time immemorial there could be no
difficulty in the way of the Court finding a legal origin for the right
claimed. Unfortunately however (in the lower Courts) the question was overlaid,
and in some measure obscured, by copious references to English authorities and
by the application of principles or doctrines, more or less refined, rounded on
legal conceptions not altogether in harmony with Eastern notions".
After quoting the passage, set out above,
Lord Radcliffe, in Lakshmindhar Misra & Ors. v. Rangalal & Ors.,(2)
pointed out (atp. 58) about such dedications in English law:
"But dedication is only known to English
law as something equivalent to an irrevocable licence granted by the owner of
soil to the use of the public. Dedication of a piece of land to a limited
section of the public, such as the inhabitants. of a village, is a claim
unknown in law, and evidence limited to such special user would not justify a
finding of dedication: see Poole v. Huskinson, (1843) 11 M. & W. 827: (63
R.R. 782), Hildrath v. Adamson, (1860) 8 C.B. (N.S.) 587; (125 R.R. 794).
Berrnondsey v. Brown, (1865) 1 Eq. 204:(147 R.R. 124)".
It was explained in Lakshmidhar Misra's case
(supra) that the doctrine of lost grant originated in English law "as a
technical device to enable title to be made by prescription despite the
impossibility of proving immemorial user". Prescription by a convention, was
deemed to start in 1189, when Normans conquered England. The real basis of such
rights in English law seemed to be prescription. In this very case, differences
were pointed out between a dedication and a customary right enjoyed by people
of a locality to use a particular piece of land on certain occasions. It was
indicated here that a. dedication, by presumed lost grant, in English law,
unlike. customary rights, which (1) 31 I.A. 75. (2) A.I.R. 1950. P.O. 56.
909 may become attached to land, postulates a
grantee and the creation of an estate.
Although certain essential or basic
prerequisites of a valid trust in English law, such as the three reasonable
certainties laid down by Lord Eldon in Knight v.
Knight(1)---that of the obligation to be
carried out, that of the subject matter or of property affected by it, and that
of the object to be served or the persons to be benefited--are required in this
country too for valid endowments no less than they are in England, yet, valid
dedications can be inferred, under our law__, without showing compliance with
at least some of the technical requirements of English law.
Dedications in Hindu law do not require
acceptance of property dedicated for a religious or a public purpose. In
Monohar Ganesh V. Lakhmiram(2), a rule of Hindu law coming down from ancient
times was thus stated:
"A Hindu who wishes to establish a
religious or charitable institution may, according to his law, express his
purpose and endow it, and the ruler will give effect to the bounty or at least
protect it so far, at any rate, as is consistent with his own Dharma or
conception of morality".
Neither a document nor express words are
essential for a dedication for a religious or public purpose in our country.
Such dedication may' be implied from user
permitted for public and religious purposes for sufficient length of time.
The conduct of those whose property is
presumed to be dedicated for a religious or public purpose and other.
circumstances are taken into account in
arriving at the inference of such a dedication. Although religious ceremonies
of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are
not indispensable (see: B.K.
Mukherjee on the "Hindu Law of
Religious. and Charitable Trusts"--Third Edn. 1970 p. 80).
The question of an implied dedication by user
by the public is particularly important in cases like the one before us where a
claim that a trust is private or sectarian in nature is set up against a wider
claim on behalf of the general public. In Deoki Nandan v. Murlidhar(3), this
Court said:
"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".
In B.K. Mukherjea's Tagore Law Lectures on
the Hindu Law of Religious and Charitable Trusts (1970)--(3rd edition), we find
the following passage at page 143:
(1) (1840) 3 Beav. 148. (2) 1. L.R. 12 Bom.
247, 263;
(3) [1956] S.C.R. 756.
910 "In cases where no express
dedication is proved, the character 'of the endowment must always be a legal
inference from proved facts.
As in the case of highways, long user is.
undoubtedly a material element from which an
inference of dedication may arise. If the public have been in the habit of
worshipping in the temple in an open and unconcealed manner, for a long period
of time, and were never denied any access to it, that would be a strong
evidence of dedication. With regard to period of user, no hard and fast rule
has been laid down. 'There is no minimum which must be fulfilled, and there is
no maximum which compels the inference'. Each case would depend upon its own
circumstances.. 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 temple, a very strong presumption of dedication would arise".
Cases are also cited there where reliance had
been placed upon circumstances such as the structure or the location of a
temple outside a private residence or dwelling so as to be exposed to public
view and' worship by members of the general public to infer dedication for the
public.
In Pujari Lakshmana Goundan v.
Subramaniya,(1) the question for determination was whether a Hindu temple rounded
between 1841 and 1856 had been dedicated for use by the public by its founder
who had executed no deed showing this.
But, the founder, Lakshmana Goundan, was
shown to have installed an idol at his house and allowed Brahmins and Hindus to
worship the idol as if it was a public place of worship.
The Hindu public was admitted free of charge,
though only on certain days in the week, in the greater part of the temple,
and, in one part only on payment of a fee, and, in the inner shrine, not at
all. It appears that the income from offerings and fees was spent by the Pujari
founder on the temple and the idol as well as on himself. Nevertheless their
Lordships of the Privy Council held that Lakshmans Goundan, having held out and
represented u:, the Hindu public that the temple was for their benefit, the
inference was irresistible that had dedicated the temple for use by the public.
In B.K. Mukharji's Lectures (supra), the facts of this case have been cited as
an example of an application of the principle of estoppel. Our law reports
abound with similar cases where dedication by founders or owners is inferred or
presumed, irrespective of their own religious persuasions, from' the purposes
for which a piece of property has been used for long enough. In some cases the
elements of an estoppel are present. But, the basis of such dedications seems,
in many cases of this type, to be, strictly speaking, nothing more than a
presumption from certain' facts. Perhaps we could describe it, in most cases of
this sort, as a "deemed dedication" although it must not be confused
with a fiction. It is, after all, an inference from facts which must exist and
lead to the conclusion deduced.
(1) 29 C.W.N. 112 (P.C.) 911 In view of tiffs
well established doctrine .of. implied endowment of property, by its long user
for a particular religious or public purpose., based on a presumed consent of
the owner, I do not think that the High Court could be held to have reached a
wrong conclusion even if it has inferred that, whatever be the origin of the
Manjunatha temple, it had become a separate institution with an endowment of
its own consisting at least of the land over which the temple had been built,
'the building, and the idol installed with free access to it by the Hindu
public in general which made offerings even though Jains also worship there.
Nevertheless, in view of the discussion of a good deal of evidence of the
peculiar composite character of the institution known as Dharmasthala, and,
bearing in mind our general rule of practice that we do not disturb findings of
the final Court of fact where two views are possible, I do not propose to
differ from the conclusion reached by the High Court that the temple was not a
separate institution. The Manjunatha temple, on the findings of the High Court,
which we are upholding, had become an accretion or growth on the body, if one
may so .out it, of the institution known as Dharmasthala, even though it could
be removed from that body by a surgical operation. It is not for us to say, on
the findings before us, whether a situation has arisen in which a surgical
operation may be called for. Such an opinion can only be given upon the results
of a more thorough investigation 'into the objects of the institution, its
properties, the sources of its income, and the manner in which they are
utilised than we have before us.
The question which troubles me, however, is
whether a religious 'institution or even that part of it to which members of
the public make .contributions, through their offering and gifts, is to be left
entirely uncontrolled by authorities specially appointed by the State in order
to see that such income or donations are not misused or are utilised for the
purposes for which they are meant. It seems to me that religious beliefs,
professions, and practices, which have a powerful hold over the minds and
feelings of the people, particularly in our country, should not be permitted to
become mere cloaks for exploiting the credulity of the simple minded and the
ignorant and unsophisticated. When a religious institution becomes a means of
obtaining money or material benefits, in the form of offerings or donations or
gifts, as it generally does, from members of the public, a danger of its misuse
can only be effectively averted. by appropriate supervision. It seems to me
that this is the whole purpose of the Act. 'The income from the -public,
through a religious institution, seems to me to bring in that secular aspect
which justifies interference by State authorities through adequate supervision.
However, these are matters which so far as religious endowments, such as the
one before us, held to be predominantly Jain, for the reasons given by the High
Court, are concerned, the State Government can take into account in deciding
whether it 912 should exercise its powers under Section 3(2) of the Act, to
extend the benefits of the Act to them, or, if necessary, to amend the Act.
The District Court did not specifically frame
or try any issue on the question whether any endowment existed at all.
It had framed the following points for
determination:
"( 1 ) Is the Sri Manjunatha 'Devaru
only a part of the institution known as Dharmasthala and not a separate
institution in itself?.
(2) Is the Dharmasthala a charitable
institution? (3) Is the Dharmasthala and in particular the Manjunatha Devaru
not an exclusively Hindu place of worship ? If not do not the provisions of the
Hindu Religious Endowments Act apply? (4) Is the Manjunatha Devaru a private
place of worship.
(5) Is the order of the Board dated 9th March
1949 liable to be set aside?" The High Court also did not give the finding
that no endowment whatsoever exists. The extent of property covered by any
endowment was also not really investigated as to issue was flamed on it at least
the structure of the temple with the idol installed and the ground upon which
the temple stands must be deemed to be dedicated even though these may not, for
purposes of management, form separable units. The High Court took the view that
the dispute falling under Section 84(2)(a) could be disposed of by deciding
issues or points numbered 1 and 3 only. The District Court had chosen to
resolve the principal dispute that arose by deciding issue No.4. Other
questions were treated as merely subsidiary or even unnecessary to decide.
I have tried to indicate above what seemed to
me to be the real nature of the proceedings in the course of which a dispute
covered by Section 84(1)(a)of the Act arose and also the principles on which
such a dispute should, in my opinion, be resolved, although I do not consider
it necessary, in exercise of the special powers of this Court under Art.
136 to interfere with the High Court's
findings of fact;
because I think that the powers of the
Government which is not even a party, acting under Section 3 of the Act, are
not restricted by decisions given by Courts in resolving a dispute covered by
Section 84(1) of the Act. All that the Government was bound to do under Section
3 of the Act was to consult the Board. The Madras Hindu Religious and Charitable
Endowments Act of 1959, which contains the law governing the subject today, has
section 2 relating to a general power to extend the provisions. of the Act to
Jain public religious institutions and endowments as a mater of policy,
irrespective of the. character of management, whether good or bad and Section
3, for the extension of the provisions of the Act to particular. Jain religious
913 and charitable institutions, in cases of mismanagement, after due inquiry.
These powers are not, in any way, affected by the dispute which has been
brought before us under the provisions of an Act repealed long ago.
For the reasons given above, I concur with
the order proposed by my learned brother Shinghal that this .appeal be
dismissed and parties be left to bear their own costs throughout.
V.P.S. Appeal dismissed.
Back
