Supreme Court of India
RADHAKANTA DEB & ANR.versusCOMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS, ORISSA
- Citation
- 1981 INSC 33
- Decided
- 13 February 1981
- Disposal
- Appeal(s) allowed
- Bench
- S MURTAZA FAZAL ALI
Holding
The endowment is a private religious endowment; the appeal is allowed and the High Court judgment is set aside.
Summary
The appellants, members of the Pani family, owned a temple dedicated to the family deity Radhakanta Deb. They sued under s.62(2) of the Orissa Religious Endowment Act, 1939 to set aside a government order that declared the temple a public endowment governed by the Act. The trial court held the endowment to be private; the Orissa High Court reversed, treating it as public. On appeal, the Supreme Court examined the nature of private versus public endowments, laying down four tests: (1) whether public users have a right of worship when origin is unknown; (2) whether control rests with the public or the founder; (3) documentary proof that control and extensive property remain with the founder or descendants; (4) absence of any stipulation for public offerings. Applying these to two authentic documents (dated 1895 and 1932) showing the deity was installed as a family god, management was retained by the family, and no public right of worship existed, the Court held the endowment private. Consequently, the appeal was allowed, the High Court judgment set aside, and the trial court decree restored.
Issues considered
- Whether the temple of Radhakanta Deb is a private endowment or a public endowment within the meaning of the Orissa Religious Endowment Act, 1939.
Legislation cited
Subjects
private endowmentpublic endowmentHindu religious endowmentsfamily deityOrissa Religious Endowment Actcertificate of appealtrust lawmanagement control
Judgment
826
A RADHAKANTA DEB & ANR.
v.
COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS,
ORI SSA
B February 13, 1981
[S. MuRTAZA FAZAL Au, A. VARADARAJAN AND A. N. SnN, JJ.]
Private v. Public endowments-Tests to deiennine on the facts of cacfi ca5e
c
whether an endowment is of a private or oJ a public nature, explained.
Allowing the appeal by ce11ificate, the Court .r41
'
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 pubiic nature
are : ( 1) Where the origin of the endowment cannot be ascertained, the ques·
tion 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 lnrge body of persons
or in the members of the public and the founder does not retain any control over
D 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 t'he 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 ore dedicated for the purpose
of the maintenance of the temple belonging to the founder himself, this will
E 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-El
Deoki Nandan v. Murlidhar, [1956] SCR 756; Mahant Ram Saroop Dasji
v. S. P. Salli, Special Officer-in·Charge of the Hindu Religious Trusts & Ors.,
[1959] 2 Supp. SCR 583; Narayan Bhagwantrao Gosavi Ba/ajiwale 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
Com1nissioner, State of Bombay, [1976] 3 SCR 518; Gurpur Guni Venkataraya
Narasltima Prabhu & Ors. v. B. G. Achia, Assistant Commissioner, lli11du
Endowment Mangalore & Anr., [1977] 3 SCC 17, followed.
In the instant case : (i) Ex. A. an ancient document executed as far 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 inste.l a famtly 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
II 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 ten1ple \v<tS retained by the family. (iv) The fact t'hat b'1ogs
•
RADHAKANT v. COMMISSIONER (Fazal Ali, !.) 827
were offered during the day which \\-US in consonance with the rules observed A
by the public is not of much consequence because bhogs are offered even in
private temples. (v) aause 15 merely provides that if in future the family
becomes extinct and no fit person could be found then any of the Baisnab
Sarnpraday 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 1nem-
bers of the public but they chose or selected only a particular person belonging B
to a particular community which also shows that even if the fan1ily 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 cnse 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 suffi· C
cient 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-Bl
Cxv1L APPELLATE JURISDICTION: Civil Appeal No. 318 of 1970.
D
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 • E
FAZAL Ar.1, 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 F
.,-. 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
G
the endowment was held to be of a, public nature and, therefore, was
to be governed by the Act. The Subordinate Judge decreed the appel-
lants-plaintifis suit holding that the deity installed iu the temple was
a family deity of the Pani family and the endowment being of a private
nature, the Act had no application anrl the Order passed by the res-
pondent regarding the management was set aside. H
•
• The Respondent (Commissioner of Hindu Religious Endowments,
Orissa) filed an appeal in the High Court against the decision of the
828 SUPREME COURT REPORTS [1981] 2 S.C.R.
A 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.
B
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 sub-
c mitted 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 ins-
talled 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 thaf the endowment was of
D
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 Cla-itable Trust. Dr. Mukherjee in his Tagore
E
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 bet-
F ween 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 Iliw, however,
it is not only permissible but also very common to have private endow-
ments which though are meant for charitable purposes yet fhe domi-
nant intention of the founder is to instal a family deity in the temple
G 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
H 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
RADHAKANT v. COMMISSIONER (Fazal Ali, !.) 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 bene-
fit is reserved to God but the property vests in the beneficiaries and
the income from the property is used for the maintenance and support B
.,, 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 c
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 diilicult and it has to rely merely on circumstantial evidence D
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 E
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
F
essential distinction between the nature of a public or a private endow-
ment, 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 worship- G
pers, that is to say, whether the right to worship in the temple is exer-
cised 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 pro-
• perty and the property dedicated to the temple vests in the deity. If H
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 SUPREME COURT REPORTS (1981] 2 S.C.R.
Some of the circumstances from which a public endowment can be
inferred may be whether an endowment is made by a person who has
110 issue and who after installing the deity entrusts the management to
members of the public or strangers which is a clear proof of the inten-
tion to dedicate the temple to public and not to the members of the
8
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
c 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 beneciaries are specific indivi-
duals, in the latter they are the general public or a class
D 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 ascertain-
ment.
E 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
F 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 ascertainql 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
G
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.(2) where S. K. Das, J. as he then was, speak-
H ing for the Court clarified the law thus :
(1) [1956] S.C.R. 756.
(2) [1959] 2 Supp. S.C.R. 583.
RADHAKANT v. COMMISSIONER (Fazal Ali, !.) 831
"But the most usual and commonest fonn of a private A
religious trust is one created for the worship of a family idol
ln which the public are not interested ...... Dealing with
th(\ distinction between public and private endowments ln
Hindu law, Sir Dinshah Mulla has said at p. 529 of his
principles of Hindu Law (!Ith 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 Ba/ajiwale v. Gopal Vinayak
c
Gosavi & Ors.(') the same principles were reiterated and it was point-
ed 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 D
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,(') this Court laid down some important tests to
detennine the nature of the endowment. In this connection, the fol-
lowing observations need specific mention : - E
"Therefore, evidence that sadhus and other persons visit-
ing 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 Hlndn festi-
F
vals 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 !he temple with-
out any hindrance also does not necessarily mean that the G
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 lamily
had treated the temple as family property and !he mete fact
of the members of the public having come to the temple and
, having made offerings and the mela having been held which H
(I) [1960] 1 S.C.R. 773
(2) [1971]3 S.C.R.680
832 SUPREME COURT REPORTS [1981] 2 S.C.R.
A 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.
B 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."
c .\
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 endow-
ment. It is manifest that whenever a dedication is made for religious
I
D
purposes and a deity installed in a temple, the worship of the deity
is a necessary concomitant of the installation of the deity, and there-
fore, the mere factum of worship would not determine the nature of
I
the endowment. Indeed if it is proved that the worship by the mem-
bers of the public is as of right that may be a circumstance which may
E 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.
F
Achin, Assistant Commissioner, Hindu Endowment, Mangalore &
Anr.( 2 ) Krishna Iyer, J., reiterated these very principles in the
following words :
"The Jaw is now well settled that 'the mere fact of the
public having been freely admitted to the temple cannot
G 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)."
H
(!) [1976] 3 S.C.R. 518.
(2) [1977) 3 s.c.c. 17
.
'I
RADHAKANT v. COMMISSIONER (Fazal Ali, !.) 833
Thus, on a conspectus of the authorities mentioned above, the A
following tests may be !aid 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 :
( !) Where the origin of the endowment cannot be ascertained,
the question whether the user of the temple by members B
••· of the public is as of right;
(2) Tue 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 C
scheme to be framed by associating the members of the
pnbllc 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 D
temple is retained with the founder or his descendants,
and that extensive properties are dedicated for the pur-
pose 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 E
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 circumst-
ance to indicate the private nature of the endowment.
Fortunately, in this case there are two important documents Ext. F
,,; 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 G
important aspects which completely negative the fact that the endow-
ment 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 H
document as a document which has created the present endowment.
Even though the document may not be treated. as having itself
6-214 SCI/81
834 SUPREME COURT REPORTS [1981] 2 s.c.R.
A created the endowment bnt it gives clear indlcation that the endow
ment was created near about the date when this document was exe
cuted. Some of the extracts of this document which are nndisputed,
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 con-
B
clusions, 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 Bala-
c bhadra 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
u 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.
E :.-.
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
E 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 g.Ving the rent of the lands, he will
manage the day-to-day Bhog and the festivities of the deity
G
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. 'r
3. Tbe d~ay-to-day Bhoga and the festivities of the
deity will be done according to the income of the properties
H of the deity and will never exceed the said income.
4. The said Babaji cannot incur any loan on behalf of •
the deity nor can he sell, mortgage, keep as surety or trust
RADHAKANT v. COMMISSIONER (Fazal Ali, J.) 835
any of the immovable or movable properties iwr can he A
misappropriate any cash kind ornament or utensils of the
deity.
6. If the said Babaji does anything contrary to the con-
ditions laid down in items 4 & 5 written above he Will be- B
• removed from his right of Sebaitship and Tatwabadharak-
•
ship by us or our 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 en- c
dowed to the deity before, we or our successors had or will
have IW claim on this and any such claim made, shall be
void.
D
11. Now or in future the man appointed as Tatwaba-
dharak will work according to rules and directions men-
tioned herein and for the Sebapuja of the deity the direc-
tions 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 oma- E
ments 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 per-
formed according to the direction as aforesaid by the F
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 obiection to this." G
(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 rele-
• vant portions of whch may be quoted thus : - H
' "Our foref.1thers for the good of our family by making
the family deity Sri Radhakanta Deb Thakur, erecting a
836 SUPREME COURT REPORTS [1981] 2 S.C.R.
A temple befitting. His installation, installing Him therein
and endowing the landed properties as described in the
schedule below, used to carry out all the Sebap11ia 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
B our family together misappropriated by utilising the income
and yield of the properties of the deity in illegal expendi- •
tures and without carrying on the Sebapuja work in proper
manlier caused heavy damage to the movable and immova-
ble nroperties of the deity in different unfair means, we
have removed them from Sebapuja work of the deity and
c also from management and custody of the deity's proper-
ties. . . 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
D
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 pro-
perties, according to the following conditions and terms,
E 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.
F ..
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 punhh-
ment according to criminal Jaw and you can realise any
compensation you intend to -take either mutually or with
G 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
''
Joan against the income of the debuttor property and any-
H thing 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
RADHAKANT v. COMMISSIONER (Fazal Ali, J.) 837
amount alongwith just aud prescribed rate of interest, and A
we shall repay. If we do not repay voluntarily you and
JIPUr successors will realise from us and from our and from
our sou's and grandsons' existing and to be acquired mova-
ble and immovabb properties and from the existing and to
be acquired debuttor properties of the deity according to
law." B
(Emphasis supplied)
Considering the iwo documents together the fundamental features,
which fiow from the recitals extracted above, may be summarised as
follows:-
(1) That the deity was installed in the temple purely as c
a family deity and the dedication M.s 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 inten-
tion of the founders was to dedicate their properties
and instal the deity in the temple only for purposes D
of the Pani family, and their descendants. A peru-
ial of the recitals extracted above would unmistaka-
bly 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 E
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 auy 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. F
(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 G
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 endow- H
ment was of a purely private nature right from the
time it was created till 1932 when the management
838 SUPREME COURT REPORTS [1981) 2 s.c.R.
A was changed and continned to be of the same nature.
. Indeed, the personal undertaking contained in Ext. 1
clearly shows that there was never any intenlion
to treat the temple as a public one but the inten-
tion was, if at all, to continue it in the name of
the family so long as the family continued. ~
8
(4) Thero is no recital in any of the documents to '
1
show that the members of the public or the, vil-
lagers of the place where the temple was si(Uated
were entitled to worship as of right. On the other
hand, PWs 1 to 6 who were examined by ' the
c appellants-plaintiffs have categorically stated that
1
members of the public were not allowed to wotship
in the temple as of right. In this connection FW 1
stated as follows : -
"Members of the public have no right to have
1
Darsan of, or to offer bhog to the deity. The
D 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."
E
PW. 5 stated that the disputed deity was instailed 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
F and the High Court. Thus, apart frOlll the unimpeachable docu-
mentary evidence discussed above, even the oral evidence to prove -..-.._
that the endoWlllent 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 ho!P that the
endoWlllent was, of a public nature.
G
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
U 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 :
RADHAKANT v. COMMISSIONER (Fazal Ali, /.) 839
"Apart from the above features disclosed by the oral A
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 un-
equivocally indicate an intention of dedication in favour
of public."
B
• 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 n~eded for the maintenance of the c
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 circwnstances could it be said that the endowment wa~ D
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
E
public. 1 his circumstai;ce 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 sect or Hindu resident of the village was F
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, G
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 als0 shows that even if the family was to becomel
' extinct, the private nature of the endowment was not to be chang- H
ed. 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 SUPREME COURT REPORTS l1981] 2 s.c.R.
A that in case 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 sec that the dedication to the
family deity is not changed even if the family becomes extinct.
B
Having, therefore, carefully perused the oral and the documen-
tary evidence in the case we are satisfied that the COlllClusions
arrived at by the High Court are wrong and are based on misinter-
pretation 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
C 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 circums-
tances of this case, the appellants will be entitled to costs of the
appeal in this Court quantified at Rs. 4,000/- (Rupees four thou-
D
sand only).
S.R. Appeal Qllowed.
'
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