Radhakanta Deb & ANR Vs.
Commissioner of Hindu Religious Endowments, Orissa [1981] INSC 33 (13 February
1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)
CITATION: 1981 AIR 798 1981 SCR (2) 826 1981
SCC (2) 226 1981 SCALE (1)304
CITATOR INFO :
R 1987 SC2064 (5,15)
ACT:
Private v. Public endowments-Tests to
determine on the facts of each case whether an endowment is of a private or of
a public nature, explained.
HEADNOTE:
Allowing the appeal by certificate, the Court
HELD: The tests which provide sufficient
guidelines to determine on the facts of each case whether an endowment is of a
private or of a public nature are: (1) Where the origin of the endowment cannot
be ascertained, the question whether the user of the temple by members of the
public is as of right; (2) The fact that the control and management vests
either in a large body of persons or in the members of the public and the
founder does not retain any control over the management. Allied to this may be
a circumstance where the evidence shows that there is provision for a scheme to
be framed by associating the members of the public at large;
(3) Where, however, a document is available
to prove the nature and origin of the endowment and the recitals of the
document show that the control and management of the temple is retained with
the founder or his descendants, and that extensive properties are dedicated for
the purpose of the maintenance of the temple belonging to the founder himself,
this will be a conclusive proof to show that the endowment was of a private
nature; (4) Where the evidence shows that the founder of the endowment did not
make any stipulation for offerings or contributions to be made by members of
the public to the temple, this would be an important intrinsic circumstance to
indicate the private nature of the endowment. [833 A-E] Deoki Nandan v.
Murlidhar, [1956] SCR 756; Mahant Ram Saroop Dasji v. S.P. Sahi, Special
Officer-in-Charge of the Hindu Religious Trusts & Ors., [1959] 2 Supp. SCR
583;
Narayan Bhagwantrao Gosavi Balajiwale v.
Gopal Vinayak Gosavi & Ors., [1960] 1 SCR 773; Bihar State Board Religious
Trust, Patna v. Mahant Sri Biseshwar Das, [1971] 3 SCR 680, Dhaneshwarbuwa Guru
Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan v. The Charity
Commissioner, State of Bombay, [1976] 3 SCR 518; Gurpur Guni Venkataraya
Narashima Prabhu & Ors. v. B.G. Achia, Asistant Commissioner, Hindu
Endowment Mangalore & Anr., [1977] 3 SCC 17, followed.
In the instant case: (i) Ex. A, an ancient
document executed as for back as February 18, 1895, the authenticity and the
genuineness of which is beyond question, clearly and conclusively show that the
endowment was of a private nature and the intention of the founder was merely
to instal a family deity in the temple. (ii) The fact that the temple was of a
massive structure of about 25 yards in height, by itself, divorced from other
things, could not prove that the temple was a public one. (iii) The Shebaits or
the Marfatdars were appointed by the founders of the endowment and the entire
management and control of the temple was retained by the family. (iv) The fact
that bhogs 827 were offered during the day which was in consonance with the
rules observed by the public is not of much consequence because bhogs are
offered even in private temples. (v) Clause 15 merely provides that if in
future the family becomes extinct and no fit person could be found then any of
the Baisnab Sampraday or any reputed Hindu of the village could take action,
namely, to perform the work of the deity.
This was a contingent provision and here also
the founders did not confer the duty of performing all the work on the members
of the public but they chose or selected only a particular person belonging to
a particular community which also shows that even if the family was to become
extinct, the private nature of the endowment was not to be changed.
Indeed if the intention was to instal the
idol in the temple by way of a public endowment, clause 14 would have clearly
provided that in case the family become extinct the members of the public or of
the brotherhood or the Government could have taken over the management. On the
other hand, the interpretation of the various clauses of the documents clearly
shows that sufficient care has been taken by the Pani family to see that the
dedication to the family deity is not changed even if the family becomes
extinct. [833 H, 834 A, 838 G-H, 839 C, E-H, 840 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 318 of 1970.
From the Judgment and Decree dated 31-7-1969
of the Orissa High Court in Appeal from Original Decree No. 78/58.
P.K. Chatterjee and Rathin Dass for the
Appellant.
G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by certificate granted under Art. 133 of the
Constitution is directed against a Division Bench judgment dated July 31, 1969
of the Orissa High Court and arises in the following circumstances.
The appellants-plaintiffs had instituted a
suit under s. 62(2) of the Orissa Religious Endowment Act, 1939 (Act No. 4 of
1939) (hereinafter referred to as the 'Act') (this Act applies only to public
endowments) to set aside the order dated 4-8-1950 of the respondent defendant
by which the temple of the appellants, whose deity was Radhakanta Deb, was
declared to be a public temple and a trust and the endowment was held to be of
a public nature and, therefore, was to be governed by the Act. The Subordinate
Judge decreed the appellants-plaintiffs suit holding that the deity installed
in the temple was a family deity of the Pani family and the endowment being of
a private nature, the Act had no application and the Order passed by the
respondent regarding the management was set aside.
The Respondent (Commissioner of Hindu
Religious Endowments, Orissa) filed an appeal in the High Court against the
decision of the 828 Subordinate Judge which was heard by the Division Bench
referred to above. The High Court reversed the decision of the Subordinate
Judge and held that the temple and the deity installed therein being a public
endowment fell within the four corners of the Act and the respondent was fully
entitled to pass orders for its management. Hence, this appeal by certificate
before us.
The sole question that falls for determination
in this appeal is as to whether or not the appellant-temple was a public
endowment as alleged by the respondent or a family deity as alleged by the
appellant.
The learned counsel for the appellants, P.K. Chatterjee,
has submitted that the approach made by the High Court was wholly incorrect and
it has misconstrued the evidence and documents produced in the case to show
that the endowment was a private one and the deity installed in the temple was
purely a family deity having nothing to do with the public. The learned counsel
for the respondent. however, supported the judgment of the High Court that the
endowment was of a public nature The concept of a private endowment or a
private trust is unknown to English law where all trusts are public trusts of a
purely charitable and religious nature. Thus, under the English law what is a
public trust is only a form of Charitable Trust. Dr. Mukherjee in his Tagore
Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition)
has pointed out that in English law the Crown is the constitutional protector
of all properties subject to charitable trusts as these trusts are essentially
matters of public concern. The learned author has further pointed out that one
fundamental distinction between English and Indian law lies in the fact that
there can be religious trust of a private character under the Hindu law which
is not possible in English law. It is well settled that under the Hindu law,
however, it is not only permissible but also very common to have private
endowments which though are meant for charitable purposes yet the dominant
intention of the founder is to install a family deity in the temple and worship
the same in order to effectuate the spiritual benefit to the family of the
founders and his descendants and to perpetuate the memory of the founder. In
such cases, the property does not vest in God but in the beneficiaries who have
installed the deity. In other words, the beneficiaries in a public trust are
the general public or a section of the same and not a determinate body of
individuals as a result of which the remedies for enforcement of charitable
trust are somewhat different from those which can be availed of by
beneficiaries in a private trust. The members of the public may not be debarred
829 from entering the temple and worshipping the deity but their entry into the
temple is not as of right. This is one of the cardinal tests of a private
endowment. Similarly, even the Mahomedan law recognises the existence of a
private trust which is also of a charitable nature and which is generally
called Waqf-allal-Aulad, where the ultimate benefit is reserved to God but the
property vests in the beneficiaries and the income from the property is used
for the maintenance and support of the family of the founder and his
descendants. In case the family becomes extinct then the Waqf becomes a public
waqf, the property vesting in God. A public Waqf under the Mahomedan law is
called Waqf-fi-sabi- lil-lah.
The question as to whether the religious
endowment is of a private nature or of a public nature has to be decided with
reference to the facts proved in each case and it is difficult to lay down any
test or tests which may be of universal application. It is manifest that where
the endowment is lost in antiquity or shrouded in mystery, there being no
document or revenue entry to prove its origin, the task of the court becomes
difficult and it has to rely merely on circumstantial evidence regarding the
nature of the user of the temple. In the instant case, however, as there are
two documents which clearly show the nature of the endowment, our task is
rendered easier. It is well settled that the issue whether a religious
endowment is a public or a private one must depend on the application of legal
concept of a deity and private endowment, as may appear from the facts proved
in each case. The essential distinction between a private and a public
endowment is that whereas in the former the beneficiaries are specified
individuals, in the latter they are the general public or class of
unascertained people. This doctrine is well-known and has been accepted by the
Privy Council as also by this Court in a large catena of authorities. This
being the essential distinction between the nature of a public or a private endowment,
it follows that one of the crucial tests to determine the nature of the
endowment would be to find out if the management of the property dedicated is
in the hands of the strangers or members of the public or in the hands of the
founders or their descendants. Other factors that may be considered would be
the nature of right of the worshippers, that is to say, whether the right to
worship in the temple is exercised as of right and not as a matter of
concession.
This will be the strongest possible circumstance
to indicate that the endowment was a public one and the beneficiaries;
are the worshippers and not particular
family. After all, an idol is a juristic person capable of holding property and
the property dedicated to the temple vests in the deity. If the main
worshippers are the members of the public who worship as a matter of right then
the real purpose is to confer benefit on God.
830 Some of the circumstances from which a
public endowment can be inferred may be whether an endowment is made by a
person who has no, issue and who after installing the deity entrusts the
management to members of the public or strangers which is a clear proof of the
intention to dedicate the temple to public and not to the members of the
family. Where, however, it is proved that the intention of the testator or the
founder was to dedicate the temple merely for the benefit of the members of the
family or their descendants, the endowment would be of a private nature.
The mere fact that members of the public are
allowed to worship by itself would not make an endowment public unless it is
proved that the members of the public had a right to worship in the temple. In
Deoki Nandan v. Murlidhar this Court observed 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.
.. .. ..
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." (Emphasis supplied)
This view was reiterated in a later decision of this Court in Mahant Ram Saroop
Dasji v. S.P. Sahi, Special Officer-In-Charge of the Hindu Religious Trusts
& Ors. where S.K. Das, J. as he then was, speaking for the Court clarified
the law thus:
831 "But the most usual and commonest
form of a private religious trust is one created for the worship of a family
idol in which the public are not interested. Dealing with the distinction
between public and private endowments in Hindu law, Sir Dinshah Mulla has said
at p. 529 of his principles of Hindu Law (11th edition) 'Religious endowments
are either public or private. In a public endowment the dedication is for the
use or benefit of the public. When property is set apart for the worship of a
family god in which the public are not interested the endowments is a private
one'." In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi
& Ors. the same principles were reiterated and it was pointed out that the
entries made in the Inam Register showing the nature of the endowment were
entitled to great weight and taken with the vastness of the temple, the mode of
its construction, the long user by the public as of right and grants by Rulers
and other persons were clear pointers to the fact that the endowment was of a
public nature.
In the case of Bihar State Board Religious
Trust, Patna v. Mahant Sri Biseshwar Das,(2) this Court laid down some
important tests to determine the nature of the endowment. In this connection, the
fol lowing observations need specific mention:- "Therefore, evidence that
sadhus and other persons visiting the temple are given food and shelter is not
by itself indicative of the temple being a public temple or its proper ties
being subject to a public trust.
Evidence that the mahants used to celebrate
Hindu festivals when members of the public used to attend the temple and give
offerings and that the public were admitted to the temple for darshan and
worship is also not indicative of the temple being one for the benefit of the
public....The fact that members of the public used to come to the temple without
any hindrance also does not necessarily mean that the temple is a public
temple, for members of the public do attend private temples...Yet, the Privy
Council held that the general effect of the evidence was that the family had
treated the temple as family property and the mere fact of the members of the
public having come to the temple and having made offerings and the mela having
been held which 832 gave popularity to the temple and increased its esteem in
the eyes of the public and the fact that they were never turned away were not
enough to hold the temple and the properties as a public trust.
.. .. ..
Thus, the mere fact of the public having been
freely admitted to that temple cannot mean that courtbs should readily infer
therefrom dedication to the public. The value of such public user as evidence
of dedication depends on the circumstances which give strength to the inference
that the user was as of right." It may thus be noticed that this Court has
invariably held that the mere fact that the members of the public used to visit
the temple for the purpose of worship without any hindrance or freely admitted
therein would not be a clear indication of the nature of the endowment. It is
manifest that whenever a dedication is made for religious purposes and a deity
installed in a temple, the worship of the deity is a necessary concomitant of
the installation of the deity, and therefore, the mere factum of worship would
not determine the nature of the endowment. Indeed if it is proved that the
worship by the members of the public is as of right that may be a circumstance
which may in some cases conclusively establish that the endowment was of a
public nature. In Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal
Rukhamai Sansthan v. The Charity Commissioner State of Bombay all the aforesaid
cases were summarised and the principles indicated above were reiterated.
In Gurpur Guni Venkataraya Narashima Prabhu
& Ors. v. B.G. Achia, Assistant Commissioner, Hindu Endowment, Mangalore
& Anr. Krishna Iyer, J., reiterated these very principles in the following
words:
"The law is now well settled that 'the
mere fact of the public having been freely admitted to the temple cannot mean
that courts should readily infer therefrom dedication to the public. The value
of such public user as evidence of dedication depends on the circumstances
which give strength to the inference that the user was as of right'. (See Bihar
State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das-[1971] 3 SCR
680, 689)." 833 Thus, on a conspectus of the authorities mentioned above,
the following tests may be laid down as providing sufficient guidelines to
determine on the facts of each case whether an endowment is of a private or of
a public nature:
(1) Where the origin of the endowment cannot
be ascertained, the question whether the user of the temple by members of the
public is as of right;
(2) The fact that the control and management
vests either in a large body of persons or in the members of the public and the
founder does not retain any control over the management. Allied to this may be
a circumstance where the evidence shows that there is provision for a scheme to
be framed by associating the members of the public at large;
(3) Where, however, a document is available
to prove the nature and origin of the endowment and the recitals of the
document show that the control and management of the temple is retained with
the founder or his descendants, and that extensive properties are dedicated for
the purpose of the maintenance of the temple belonging to the founder himself,
this will be a conclusive proof to show that the endowment was of a private
nature.
(4) Where the evidence shows that the founder
of the endowment did not make any stipulation for offerings or contributions to
be made by members of the public to the temple, this would be an important
intrinsic circumstance to indicate the private nature of the endowment.
Fortunately, in this case there are two
important documents Ext. A and Ext. 1-from which the nature of the endowment
can be clearly spelt out and we would examine these documents in the light of
the tests and the principles enunciated above because after going through the
judgment of the High Court we are satisfied that the High Court has not
properly construed some of the important features contained in the documents
and the evidence and has in fact overlooked certain important aspects which
completely negative the fact that the endowment was of a public nature.
Ext. A is an ancient document executed as far
back as February 18, 1895. The authenticity and the genuineness of this
document is beyond question and the High Court itself has described this
document as a document which has created the present endowment. Even though the
document may not be treated as having itself.
834 created the endowment but it gives clear
indication that the endowment was created near about the date when this
document was executed. Some of the extracts of this document which are
undisputed, in our opinion, clearly and conclusively show that the endowment
was of a private nature and the intention of the founder was merely to instal a
family deity in the temple. In order to fortify our conclusions, it may be
necessary to give certain important recitals from this document which may be
extracted thus:- "That I Gopinath Pani, my father Bhagyarathi Pani, Alekha
Pani, father of Dinabandhu Pani and father's brother of Basudeo Pani and Narsinha
Pani father of Balabhadra Pani-minor, having made the image of our family deity
Sri Padhakanta Deb installed it in a temple which was built by them in Depur
Sasan in Pipli Division and they endowed the Tanki Bajyapati, Tanki Baheli and
Kharida Swata properties given below from the usufruct of which day-to-day
Sibapuja and Janijatra of the deity was managed by them as the Sebait and
Marfatdar and we are also managing in the same way. For the proper management
of the deity's property and the Sebapuja of the deity in future, we lay down
the following directions out of our own accord.
.. .. .. ..
1.... we hereby appoint the said Adwait
Charan Das Babaji, Sutradhari Gaudeswar Sampraday Baisnab by caste, worship and
Sebapuja of the deity by profession as the Tatwabadharak and Sebait and hereby
(appoint) him by this trust deed and we become aloof from those duties vesting
in him the following properties of the deity...
2. From this day the said Babaji will manage
all the immovable and movable properties of the deity as the Sebait and
Tatwabadharak. He will realise the usufructs of the property and after giving
the rent of the lands, he will manage the day-to-day Bhog and the festivities
of the deity well according to the previous customs and rules and in the way we
were doing and will keep the surplus amount in the store of the deity.
3. The day-to-day Bhoga and the festivities
of the deity will be done according to the income of the properties of the
deity and will never exceed the said income.
4. The said Babaji cannot incur any loan on
behalf of he deity nor can he sell, mortgage, keep as surety or trust 835 any
of the immovable or movable properties nor can he misappropriate any cash kind
ornament or utensils of the deity.
.. .. ..
6. If the said Babaji does anything contrary
to the conditions laid down in items 4 & 5 written above he will be removed
from his right of Sebaitship and Tatwabadharakship by us or cur heirs who will
appoint another fit man in his place and take the charge of all the properties
in the store of the deity .. .. ..
9. As the properties maintained herein have
been endowed to the deity before, we or our successors had or will have no
claim on this and any such claim made, shall be void.
.. .. ..
11. Now or in future the man appointed as
Tatwabadharak will work according to rules and directions mentioned herein and
for the Sebapuja of the deity the directions and the menus are determined here
for all days to come.
12. .... All other necessary expenses of the
Jatra (festivals) repairing of the temple, utensils and the ornaments of the
deity, etc. will be done according to the income.
.. .. ..
14. Any pious man of our family at present
and in future will see whether the work of the deity is being performed
according to the direction as aforesaid by the appointed Tatwabadharak and will
take proper action as mentioned above.
14. If in future there be no fit man in our
family, any of the Baisnab Sampraday and any Hindu of reputation of the village
and of the locality is entitled to take such action, we have no objection to
this." (Emphasis supplied) The intention which can be gathered from this
document is placed beyond doubt by a later document Ext. 1 which was executed
on 17-11-1932 and is in the nature of a settlement Deed, the relevant portions
of which may be quoted thus:- "Our forefathers for the good of our family
by making the family deity Sri Radhakanta Deb Thakur, erecting a 836 temple
befitting. His installation, installing Him therein and endowing the landed
properties as described in the schedule below, used to carry out all the
Sebapuja work of the deity in orderly manner by meeting the expenses from out
of the income and yield of the said properties.. As the said Lalit Charan Das
and Raghunath Pani a person of our family together misappropriated by utilising
the income and yield of the properties of the deity in illegal expenditures and
without carrying on the Sebapuja work in proper manner caused heavy damage to
the movable and immovable properties of the deity in different unfair means, we
have removed them from Sebapuja work of the deity and also from management and
custody of the deity's properties. . . If the work of the deity is carried on
for some time more in the manner in which the work is being managed now then
the temple established by our forefathers as a mark of pride of our family and
all the Debuttor properties of the deity will be destroyed in toto and the
noble glory of the forefathers will perish .. We by this deed of trustee order
determination appointed you as trustee for the Sebapuja work of our family
deity Shri Radhakanta Deb Thakur and for the work of looking after His
properties, according to the following conditions and terms, so that from today
onwards on the strength of this deed of trustee order determination you from
Chela to Bara chela by carrying on the Sebapuja, offerings, religious
ceremonies and festivals and by preserving and looking after all the debuttor
properties, realise the income and yield therefrom according to convenience.
.. .. ..
10. If we or any body amongst us
misappropriate any money or property by taking secretly from the tenants or
borrowers, we and our successors will be liable for punishment according to
criminal law and you can realise any compensation you intend to take either
mutually or with the help of the court. We and our sons and grandsons shall be
bound and liable to pay.
.. .. ..
22. But if you might have obtained, any
amount on loan against the income of the debuttor property and anything that
you might have spent from your own pocket for the improvement of the deity of
the muth and to save the property, we will be bound and liable to repay the
said 837 amount alongwith just and prescribed rate of interest, and we shall
repay. If we do not repay voluntarily you and your successors will realise from
us and from our and from our son's and grandsons existing and to be acquired
movable and immovable properties and from the existing and to be acquired
debuttor properties of the deity according to law." (Emphasis supplied) Considering
the two documents together the fundamental features, which now from the
recitals extracted above, may be summarised as follows:- (1) That the deity was
installed in the temple purely as a family deity and the dedication WAS made
only for a group of individuals who may be connected with the family of the
Panis who were the founders of the deity. This clearly establishes that the
intention of the founders was to dedicate their properties and instal the deity
in the temple only for purposes of the Pani family, and their descendants. A
perusal of the recitals extracted above would unmistakably show that there can
be no two opinions on this question.
(2) Extensive private properties belonging to
the Pani family alone were dedicated for the maintenance Of the temple and the
deity and there is nothing to show that any contribution was called for from
members of the public nor is there any averment in the deed to show that there
was any stipulation for taking offerings from the members of the public to worship
in the temple.
(3) There was no provision for framing any
scheme by associating the members of the public or consulting them. In fact,
Ext. 1 shows that even after the descendants of the founders had fallen on evil
days and were not in a position to provide sufficient funds for the
maintenance. Of the temple yet they appointed Udayanath Pattanayak to manage
the affairs of the deity and bound themselves personally to reimburse the
Manager for any out-of-pocket expenses incurred in connection with the
maintenance of the temple. This circumstance manifestly proves that the
endowment was of a purely private nature right from the time it was created
till 1932 when the management 838 was changed and continued to be of the same
nature. Indeed, the personal undertaking contained in Ext. 1 clearly shows that
there was never any intention to treat the temple as a public one but the
intention was, if at all, to continue it in the name of the family so long as
the family continued.
(4) There is no recital in any of the
documents to show that the members of the public or the vil lagers of the place
where the temple was situated were entitled to worship as of right. On the
other hand, PWs 1 to 6 who were examined by the appellants-plaintiffs have
categorically stated that members of the public were not allowed to worship in
the temple as of right. In this connection PW 1 stated as follows:-
"Members of the public have no right to have Darsan of, or to offer bhog
to the deity. The villagers do not make Kirtan before the deity or take any
part in any festivity of the deity. The deity has no Bahari Jatra. No member of
the public made any gift to the deity. No khairat is ever given. The properties
of the Thakur are all (sic) with rent." PW. 5 stated that the disputed deity
was installed by the family of the other Panis and not by his ancestors and
that the deity was not their family deity and was not dedicated to the public.
As against this oral evidence, the defence examined DW 1, Raghunath Pani, whose
evidence has been rejected both by the Trial court and the High Court.
Thus, apart from the unimpeachable
documentary evidence discussed above, even the oral evidence to prove that the
endowment was of a private nature is clear and has not been rebutted by the
defence. In this state of the evidence we are indeed surprised to find how the
High Court could hold that the endowment was of a public nature.
The High Court seems to have been carried
away by factors or considerations which are of a very minor nature and by
themselves do not prove that the endowment was of a public nature. For
instance, one of the circumstances that weighed with the High Court was that
the temple was a massive structure of about 25 yards in height. That by itself,
divorced from other things, could not prove that the temple was a public one.
So far as the oral evidence is concerned. the High Court observed thus:
839 "Apart from the above features
disclosed by the oral evidence which are indicative of the institution having
been treated as a public one. the recitals in some of the clauses of the two
documents.-(Exts. A & 1) also unequivocally indicate an intention of
dedication in favour of public." These observations are not at all borne
out by the evidence of PWs 1 to 5 which is the only oral evidence led in the
case, the evidence of DW 1 having been rejected by the trial court as also the
High Court. The High Court took into consideration the fact that certain
properties were needed for the maintenance of the temple and Seba-puja and
other ceremonies were being performed by the Shebaits and Marfatdars. The High
Court overlooked the fact that Shebait or the Marfatdars were appointed by the
founders of the endowment and the entire management and control of the temple
was retained by the family. We are unable to agree as to how in these
circumstances could it be said that the endowment was of a public nature.
Another circumstance that weighed with the
High Court was that bhogs were offered during the day which, according to the
High Court, was in consonance with the rules observed by the public. This
circumstance also is not of much consequence because bhogs are offered even in
private temples. The High Court also seems to have relied on clause 15 of Ext.
A to come to its decision that the endowment was of a public nature. The High
Court was of the view that under this clause in certain contingencies any
member of the Vaishnav sector Hindu resident of the village was authorised to
exercise the powers and functions mentioned in clause 7 of the deed. We are,
however, unable to agree with the interpretation placed by the High Court on
clause 15 of Ext. A. Clause 15 merely provides that if in future the family
becomes extinct and no fit person could be found then any of the Baisnab
Sampraday or any reputed Hindu of the village could take action, namely, to
perform the work of the deity. This was a contingent provision and here also
the founders did not confer the duty of performing all the work on the members
of the public but they chose or selected only a particular person belonging to
a particular community which also shows that even if the family was to become
extinct, the private nature of the endowment was not to be changed. Indeed if
the intention was to instal the idol in the temple by way of a public endowment,
clause 15 would have clearly provided 840 that in cast the family became
extinct the members of the public or of the brotherhood or the Government could
have taken over the management. On the other hand, the interpretation of the
various clauses of the documents clearly shows that sufficient care has been
taken by the Pani family to see that the dedication to the family deity is not
changed even if the family becomes extinct.
Having, therefore, carefully perused the oral
and the documentary evidence in the case we are satisfied that the conclusions
arrived at by the High Court are wrong and are based on misinterpretation of
Ext. A and Ext. 1 and misreading of the oral evidence led in the case, which,
as we have shown, runs counter to the conclusions arrived at by the High Court.
For the reasons given above, we allow this appeal, set aside the judgment of
the High Court, decree the plaintiffs-appellants suit and restore the judgment
of the trial court. In the peculiar circumstances of this case, the appellants
will be entitled to costs of the appeal in this Court quantified at Rs. 4,000/-
(Rupees four thousand only) S.R. Appeal allowed.
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