Supreme Court of India
SMT. MARUA DEI @ MAKU DEI AND ORS.versusMURALIDHAR NANDA AND ORS.
- Citation
- 1998 INSC 446
- Decided
- 30 November 1998
- Disposal
- Dismissed
- Bench
- K VENKATASWAMI
Holding
The High Court was right in holding that the institution is a public temple within the meaning of the Orissa Hindu Religious Endowments Act, 1951.
Summary
The appellants sought a declaration that their family shrine, which originated as samadhis, was a private spiritual institution and not a public temple under the Orissa Hindu Religious Endowments Act, 1951. The respondents contended that the shrine had evolved into a public temple where Hindu deities were regularly worshipped, festivals were celebrated and the public had free access. The Additional Assistant Commissioner and the Commissioner initially held the shrine to be private, but the Orissa High Court, on re‑appreciation of the evidence, declared it a public temple. The Supreme Court examined whether the High Court was entitled to reassess the facts under Section 44 and whether the High Court’s findings were perverse. Relying on established tests for public versus private temples and on adverse inference drawn from the appellants’ failure to produce key documents, the Court held that the High Court was correct in its conclusion. Consequently, the appeal was dismissed.
Issues considered
- Whether the institution qualifies as a public temple within the meaning of the Orissa Hindu Religious Endowments Act, 1951.
- Whether the High Court, exercising jurisdiction under Section 44 of the Act, may re‑appreciate evidence and overturn the findings of the Additional Assistant Commissioner and the Commissioner.
- Whether the burden of proof lies on the party claiming the institution is private and whether adverse inference can be drawn from non‑production of evidence.
- Whether the High Court's findings were perverse or unsupported by the evidence.
Legislation cited
- Constitution of Indias. Article 136
- Orissa Hindu Religious Endowments Act, 1951s. 3(xiii), s. 3(xv), s. 41, s. 44
Subjects
public templeprivate templereligious endowmentOrissa Hindu Religious Endowments ActSection 44burden of proofadverse inferenceArticle 136Supreme Court of Indiaappeal
Judgment
SMT. MARUA DEI @ MAKU DEI AND ORS. A
v.
MURALIDHAR NANDA AND ORS.
NOVEMBER 30, 1998
[K. VENKATASWAMI AND A.P. M~SRA, JJ.] B
Orissa Hindu Religious Endowments Act, 1951
Ss. 3 (Xlll), 3 (XI), 41 and 44-"Religious institution"-"Temple"-
Tests to find out whether a particular temple is a private or a public one- C
Institution originated as Samadhis-Later, idols of Hindu Mythology installed
and a pucca structure raised thereon-Deities regularly worshipped-Hindu
public had free access to temple-Common religious festivals celebrated and
public participated therein-Held, broadly speaking, features of constructions,
idols and festivals celebrated indicate that the institution falls within the D
definition of temple-High Court was right in taking adverse inference on
vital aspects such as donations raised for construction of temple and other
structures by holding that the institution was a public temple.
S.44(2)-Scope of-Appeal before High Court-High Court re-
appreciating the evidence and reversing the findings of Additional Assistant E
Commissioner and the Commissioner-Held, s.44 did not fetter jurisdiction
of High Court from going into facts and appreciating evidence-Conclusions
reached by High Court not perverse but supported by evidence and need no
interference while exercising jurisdiction under Article I 36 of ·the
Constitution-Constitution of India-Article 136.
F
Evidence-Ought to have been made available by applicant-Not
adduced-Effect of
Ari application under s.41 of the Orissa Hindu Religious Endowments
Act, 1951 in respect of an institution was filed by appellant no.2 (applicant
no.2) and another person (applicant no. 1, before the Additional Assistant G
Commissioner of Endowments for declaration that the institution was neither
a public temple nor a 'math' as defined in the Act and; that it was private
spiritual institution for the worship by applicants' family members only. It
was claimed that applicantsi.[incestors_were saints and exercised spiritual
_, headship over a body of disciples. ·The land belonged to them and they were
175 lI
176 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A given Samadhi within the premises. Later, idols of gods and goddess of Hindu
mythology, including those of Balabhadra, Jagannatha and Shubhadra were
installed on the Smadhis. The applicants also were said to have commanded
spiritual headship over a large number of disciples who offered 'Pranami'
to them. The said money was used in building the pucca structure and
B installing idols for worship by their family members. The public was generally
allowed to worship but not as of right.
The respondents contested the application contending that the institution
was a public religious institutipn; though the institution originated as
samadhis, it developed into a teni'ple where Hindu deities were regularly
C worshipped; the Hindu public had free access to the temple as of right,
common religious festivals like Rath Jatra, Dola Jatra; Jhoola Jatra etc.
were celebrated in the institution and Hindu public participated in those
functions. It was also stated that the main temple with its subsidiary temples
were built with the subscriptions raised from the public.
D The Additional Assistant Commissioner as also the Commissioner
held in favour of the applicants, but the High Court on re-appreciation of
pleadings and the evidence held that the institution fell within the definition
of temple. Aggrieved the applicants filed the present appeals.
E It was contended for the appellants that the institution whi~h originated
as private family Samadhis on the land belonging to their ancestors continued
to remain Samadhis and the character never changed; there was no document
to establish any endowment for any purpose nor the object of the founders
was to promote Hinduism; the 'pranami' was given to the persons and not
to idols; there was no proof of public construction, and access to the temple
F by the public was not as a matter of right.
Dismissing the appeal, this Court
HELD : I. I. The High Court was right in holding that the institution
G in question is a public temple within the meaning of the Orissa Hindu
Religious Endowments Act, 1951. The High Court has elaborately dealt with
the matter and had given reasons for not accepting the findings of the
authorities below. Broadly speaking, the features of constructions, idols and
the festivals held, as noticed by the authorities and the High Court, are
sufficient to hold that the institution in question falls within the definition
H of temple under the Act. [196-G-H; 197-A)
SMT. MARUA DEi v. M. NANDA 177
Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas and Ors., A
(1970] 2 SCR 275; Pujari Lakshmana Goundan and Anr. v. Subramania
Ayyar & Ors., AIR (1924) PC 44; Pratapsinhji N. Desai v. Deputy Charity
Commissioner, Gujarat and Ors., (1987] 3 SCR 909 and T.D. Gopalan v. The
Commissioner of Hindu Religious and Charitable Endownments, Madras,
[1973] 1 SCR 584, relied on.
B
Poohari Fakir Sadavarthy of Bondilipuram v. The Commissioner, Hindu
Religious and Charitable Endowments, [1962] Supp. 2 SCR 276; Bihar
State Board of Religious Trust v. Pa/at Lall and Anr., [1971) 2 SCR 650;
Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das,
[1971) 3 SCR 680; C. Ratnavelu Mudaliar v. Commissioner for Hindu C
Religious and Charitable Endowments, AIR (1954) Madras 398; Madras
Hindu Religious Endowments Board v. V.N. Deivanai Ammal by Power of
Attorney agent, T. V. Mahalinga Aiyar, AIR (1954) Madras 482 and Babu
Bhagwan Din and Ors. v. Gir Har Saroop and Ors., AIR (1940) PC 7,
referred to.
1.2. The best evidence that could have been made available through D
applicant no. l both documentary and oral, was not forthcoming on a lame
excuse. PW-7, appiicant no.2, in his deposition has also said that it was the
applicant no.I who was in the know of vital things. This leads one to take
an adverse inference and tlie High Court was right in taking such adverse
inference on vital aspects such as donations raised for the construction of E
the temple and other structures by holding out that the institution was a
public temple. [196-F-G)
2. The High Court was considering an appeal under Section 44 of the
Act and that Section did not, in any way, fetter the jurisdiction of the High
Court from going into the facts and appreciating the evidence. The conclusions F
reached by the High Court on re-appreciation the evidence are not perverse
but supported by evidence, and interference with the same while exercising
jurisdiction under Artide 136 of the Constitution could not be justified.
[196-B-C)
Svenska Handolsbankon v. Mis Indian Charge Chrome and Ors., [1994) G
1 SCC 502 and Kondamuri Anasuyamma v. Distt. Judge, WO.Dist. at Eluru
and Ors., AIR (1991) AP 47, cited.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1990 of
1986.
H
178 SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.
A From the Judgment and Order dated 28.11. 79 of the Orissa High Court
in M.A. No. 16of1977.
R.F. Nariman, P.K. Routray, P.K. Chakravarty and P.N. Mishra for the
Appellants.
B B.A. Mohanty, Ms. Mamta Tirpathi, A.K. Gupta and Farrukh Rashid for
the Respondents.
The Judgment of the Court was delivered by
K. VENKA T ASWAMI, J. This appeal by special leave arises out of
C proceedings taken by Harekrushana Das and Ram Chandra Das, predecessors-
in-interest of the appellants herein, under Section 41 of the Orissa Hindu
Religious endowments Act, 1951 (hereinafter called the "Act") for a declaration
that the institution in question is neither a public temple nor a math as defined
in the Act and that it is a private spiritual institution for the worship by the
D applicants' family members only. The application under Section 41 was
seriously contested by the respondents contending that the institution in
question was a public religious worship place. The Additional Assistant
Commissioner of Endowments, Orissa, Bhubaneswar, on the basis of the
pleadings, oral and documentary evidence, by his order dated 27 .5. 71 held
that the institution in question is neither a public temple nor a math as defined
E in the Act but it is a private institution of the petitioners. Aggrieved by the
order of the Additional Assistant Commissioner, the respondents preferred an
appeal to the Commissioner of Endowments, Orissa, Bhubaneswar, in F.A. No.
20/71. The appellate Authority by its order dated 21st December, 1976 held
that though the institution has developed all the external features of a Hindu
F temple, the deities therein are worshipped by the public alongwith the Samadhis
and though the members of the public have free access to the institutions,
the institution has been in possession control and management of the
petitioners and was not .used as of right by the Hindu community as a place
of public religious worship. Consequently, the Appellate Authority dismissed
the appeal.
G
Still aggrieved, the respondents preferred a further appeal to the High
Court ofOrissa at Cuttack under Section 44 of the Act in M.A. No. 16177. The
High Court in its detailed judgment dated 28.11.1979 after elaborate discussions
held that the institution satisfied all the essential features of a public temple; •
that the members of the public visit the place without restriction and are in
H the habit of offering worship as of right that the petitioners themselves held
SMT. MARUA DElv. M. NANDA [K. VENKATASWAMI, J.) 179
out and represented to the public that the institution is a public temple and A
that, therefore, the institution clearly falls within the definition of "temple" as
given in the Act.
Aggrieved by the said judgment of the High Court, the present appeal
by special leave has been filed by the appellants.
B
Brief facts leading to the filing of application under Section 41 of the
Act are as under :-
The gist of averment in the Application under Section 41 is given below.
According to the original applicants before the Additional Assistant C
Commissioner, their ancestor, by name Hadibandhu Das, was a great saint and
he exercised spiritual headship over a body of disciples. After his death, he
was given Samadhi within his own premises which was known as 'Samadhi
Gosain'. One Sadhubara Das, the son of Hadibandhu Das, was also given
Samadhi in the same premises. Thereafter, Raghubara Das son of Sadhubara
Das, installed two idols of Balabhadra and Jaganatha respectively on the D
Samadhis of Hadibandhu Das and Sadhubara Das. After his death he was
also given Samadhi in the same premises by his successors Harekrushana Das
and Ram Chandra Das, applicant nos. I and 2 before the Additional Assistant
Commissioner. These two applicants installed an idol of Subhadra on the
Samadhi of Raghubara Das. The first applicant, it was claimed commanded
spiritual headship over a large number of disciples who offered Pranami to E
him. Likewise applicant no. 2 was also respected and received Pranami from
the disciples. The applicants are said to have utilised the money received from
the disciples in building the pucca structures over the Samadhis. They also
installed a number of idols of Hindu mythology in these structures for worship
by their family members. The public have no right to come and worship as F
of right through they were generally allowed to worship without hindrance.
In the year 1948-49, the Inspector of Endowments called upon the first applicant
to render accounts treating the institution as a public religious institution. On
account of that, the applicants moved the Additional Assistant Commissioner
under Section 41 of the Act for a declaration as mentioned at the outset.
G
As against the above case of the original Applicants, the respondents
contended before the Additional Assistant Commissioner that the institution
is a public religious institution. It has developed into a temple where Hindu
deities are regularly worshipped. The Hindu public have free access to the
temple as of right by offering "bhog". According to the respondents, the main
temple with· its subsidiary temples have been built with the subscription H
180 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A raised from the public. The common religious festivals like Rath Jatra, Dola
Jatra, Joola Jatra etc. were celebrated in the institution and the Hindu public
participated in those functions. Inside the premises, the Hindu scriptures like
Gita, Bhagvat were recited before a large number of devotees. Therefore, the
case of the respondents was that the institution, which originated from
B Samadhis, ceased to be so and has developed all the characteristics of a
Hindu temple as defined in the Act.
Before the Additional Assistant Commissioner, number of documents
were filed on both sides and oral evidence also was let in by both sides. On
the basis of the oral and docu_mentary evidence and the pleadings, as noticed
C earlier, the Additional Assistant Commissioner and the Commissioner accepted
the case of the applicants, predecessors-in-interest of the appellants.
Before the High Court, the respective parties reiterated their respective
stand as noticed above. The High Court on a re-appreciation of the pleadings
and evidence came to•a different conclusion by accepting the case of the
D respondents. Aggrieved by that the present appeal has been filed.
Before going into the correctness or otherwise of the judgment under
appeal, it is necessary to. set out certain provisions of the Act.
"Religious institution" is defined in Section 3(xiii) as follows :-
E "religious institution" means a math, a temple and endowment attached
thereto or a specific endowment and includes an institution under
direct management of the State Government."
"Temple" is defined in Section 3(xv) as follows :-
"temple" means a place by whatever designation known, used as a
F place of public religious worship and dedicated to, or for the benefit
of, or used as of right by, the Hindu community, or (any class or
section thereof,) as a place of public religious worship and also
includes any cultural institution or mandap or library connected with
such a place of public religious worship."
G Sections 41 and 44 read as follows :-
"41. Assistant Commissioner to decide certain disputes and matters
- (I) In case ofa dispute the Assistant Commissioner shall have power
to enquire into and decide the following disputes and matters:-
H (a) whether an Institution is a public or religious institution;
SMT. MARUA DEi v. M. NANDA [K. VENKATASWAMI, J.) 181
(b) whether an institution is a temple or a math; A
(c) whether a trustee holds or held office as a hereditary trustee;
(d) whether any property or money is of a religious endowment or
specific endowment;
(e) whether any person is entitled, by custom or otherwise, to any
B
honour, emolument or perquisite in any religious institution and what
- the established usage of a religious institution is in regard to any
other matter;
(f) whether any institution or endowment is wholly or partly of a C
religious or secular character, and whether any property or money has
been given wholly or partly for religious or secular use and;
(g) where property or money has been given for the support of an
institution or the performance of a charity, which is partly of religious
and partly of a secular character or when any property or money given D
is appropriated partly to religious and partly to secular uses, as to
what portion thereof shall be allocated to religious uses :
Provided that the burden of proof in all disputes or matters covered
by Clauses {a) and (d) shall lie on the person claiming the institution
to be private or the property or money to be other than that of a E
religious endowment or specific endowment, as the case may be."
44. ( 1) Any person aggrieved by an order passed under Section 41,
or Sub-section {I) or (6) of Section 42, or Section 43 may, within thirty
days from the date of receipt of the order under Section. 41 or Section
43 nor from the date of publication of the order under Section 42, as F
the case may be, prefer an appeal to [the Commissioner].
(2) any party aggrieved by the order of [the commissioner) passed
under Sub-section (1), may, within thirty days from the date of the
order, prefer an appeal to the High Court."
G
The High Court, after carefully analysing the oral and documentary
evidence, ultimately summarised its findings as follows:
"23. Although di~ct evidence of.dedication is not forthcoming, yet
the evidence adduced in the case is sufficient to hold that the
dedication was for the benefit of the public and that the Hindu public H
182 SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.
A have been using the temple premises. as a place of religious worship
and offering bhog as of right. The cumulative effect of the following
facts and circumstances proved in the case clearly establish that the
dedication was for the benefit of the public and that the temple
premises are being used as of right by the public as a place of
religious worship :-
B
(!) The existence of idols, some of which have been permanently
installed and images of Minor deities in the temple.
(2) The institution has external features of a public temple.
...
c (3) Hindu religious festivals are celebrated in the temple and the
members of the public participate in the same.
(4) The members of the public visit the place without restriction and
are in the habit of offering worship as of right.
,,
\.;
(5) The land on which the temple stands has not been dedicated to
D any private individual or a family but to the 'Samadhi Gossain' through
an ancestor of the petitioners as the marfatdar and the land is held
rent free.
(6) That the temple was constructed with the aid of public
subscriptions.
E
(7) That Pujaris have been engaged to carry on sevapuja of the deities
and to offer bhog daily.
(8) Existence of a shop in the temple premises for sale of bhog articles
to the visitors.
F
(9) The devotees visiting the temples are given food and shelter in the
temple.
(10) The temple is located by the side ofa public road at a place quite
separate from the residential house of the petitioners.
G (11) Existence of a tank known as 'Chakratirtha' excavated on a land
recorded as Sarbasadharan.
(12) Existence of a Dharmasala in the temple premises for accommodation
of the visitors.
H ( 13) Absence of evidence that any member of public was denied
SMT. MARUA DEi v. M. NANDA [K. VENKATASW AMI, J.] 183
access to the temple at any time. A
(14) The petitioners have themselves held out and represented to the
public that the institution is a public temple.
24.In coming to the conclusion about the private nature of the
institution, the learned Commissioner of Endowments seems to have been B
influenced by the facts that the petitioners have ceased to hold the festivals
for the last 8 to 1O years and that they also closed the main gate of the temple
for about 3 years without any opposition by the public. He, however,
overlooked the fact that the petitioners stopped celebration of the festivals
and closed the main gate only after an attempt was made by the Endo\V""ment
Department to assume jurisdiction over the institution. The petitioners C
themselves admitted in their application under Section 41 that in the year
1948-49 an Inspector of Endowments called upon them to render accounts.
It also appears that subsequently there was a proposal for appointment of
trustees by the Endowment Department and the members of the public filed
se~eral complaints before the Commissioner regarding mismanagement of the D
institutfon and in reply to those complaints the petitioners filed counters in
Exts. H and J. The institution cannot be held to be a privak one merely
because the petitioners who are marfatdars stopped the festivals and closed
the main gate for some years, if it otherwise satisfies the definition of a temple
as given in the Act.
E
25. On a consideration of the facts and circumstan~es, as discussed
above I am satisfied that all the essential features of a public temple are found
in the institution and it, therefore, clearly falls within the definition of temple
as given in the Act."
Mr. R.F. Nariman, learned Senior counsel, challenged the above F
conclusions reached by the High Court contending that the institution, which
originated as Samadhis, continued as "Samadhis"; that the character never
changed; that the object of the founders was not to promote Hinduism; that
there was no document to establish any endowment for any purpose; that the
alleged temple was not an ancient one but constructed only recently in the G
year 1948-49; that the institution was only a private family Samadhi and the
appellants and their ancestors were living in the same premises; that there
was no daily rituals as usually carried on in public temples; that the Pranami
was given to the person and not to the idol; that no donation was collected
from the public for constructing structures; that there was no proof of public
construction; that the public could not worship as a matter of right; that the H
184 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A land measuring about 8 acres belonged to the ancestors of the appellants and
that the management was always in the hands of the family. According to the
learned Senior Counsel, in view of the above features, the findings and
conclusions reached by the High Court cannot be sustained. In support of
his argume11ts, he also pointed out relevant oral and documentary evidence
B and also cited a number of decisions which will be referred to at the appropriate
place.
On the other hand, Mr. B.A. Mohanty, learned Senior Counsel appearing
for the contesting respondents, invited our attention to the pleadings before
the Additional Assistant Commissioner and also to the oral and documentary
C evidence and then submitted that the High Court was absolutely right in
summarising the findings in paragraphs 23-25 after elaborate disGussion on
facts. He also cited a number of Judgments in support of his contention.
According to the learned Senior Counsel for the contesting respondents, the
Additional Assistant Commissioner and the Commissioner went wrong in
deciding against the respondents by wrongly throwing the burden of proof
D on them. He mainly relied on the evidence of PW-7, one cf the applicants
before the Additional. Assistant Commissioner, to support the findings reached
by the High Court.
We have considered the rival submissions.
E It would be advantageous to bear in mind the principles/tests laid down
by this Court and other High Courts in the matter of finding out whether an
institution is a private temple or a public temple. The decisions brought to
our notice at the bar may now be noted. As early as in 1924, the Privy Council
in Pujari Lakshmana Goundan & Anr. v. Subramania Ayyar & Ors., AIR
(1924) PC 44 took the view that even in a case where at the initial stage the
F temple is a private one by reason of the founder holding it out by representing
to the Hindu public that the temple was a public temple at which all Hindus
ni,ight worship, then the inference will be that he had dedicated the temple to
the public. This judgment of the Privy Council was noted and cited with
approval by this Court in Pratapsinhji N. Desai v. Deputy Charity
G Commissioner, Gujarat & Ors., [1987] 3 SCR 909. This Court observed as
follows:-
"We do not think that it would serve any purpose to refer to all the
,\\/ell-known decisions except a few. In Pujari lakshmana Goundan v. ·
Subramania Ayyar (supra), the temple was not an ancient one and
H there was no deed of endowment. The question was whether the
SMT. MJ\RUA DEi v. M. NANDA [K. VENKATASWAMI, J.] 185
temple was a public temple or a private temple, Although the temple A
was a private temple, the evidence disclosed that the Pujari Lakshmana
Goundan, the founder of the temple had held out and represented to
the Hindu public in general that the temple was a public temple at
which all Hindus might worship. Sir John Edge, in delivering the
judgment of the Privy Council held that on that evidence the Judicial
Committee had no hesitation in drawing the inference that the founder B
had dedicated the temple to the public, as it was found that he had
held out the temple as a public temple. Another Privy Council decision
to which we need to refer is that of Babu Bhagwan Din v. Gir Har
Swaroop, LR ( 1939) 67 IA I where the grant was made to one Daryao
Gir and his heirs in perpetuity and the evidence showed that the C
temple and the properties attached thereto had throughout been treated
by the members of the family as their private property appropriating
to themselves the rents and profits thereof. Sir George Rankin,
delivering the judgment of the Privy Council held that the fact that the
grant was made to an individual and his heirs in perpetuity was not
reconcilable with the view that the grantor was in effect making a wakf D
for aHindu religious purpose. That very distinguished Judge referred
to the earlier decisions in Pujari Lakshamana Goundan's case, and
observed;
"Their lordships do not consider that the case before them is in
general outline the same as the case of the Madras temple, 29 E
C.W.N. 112, in which it was held that the founder who had
enlarged the house in which the idol had been installed by him,
constructed, circular roads for processions, built a rest house in
the village for worshippers, and so forth, had held out and
represented to the Hindu public that it was a public temple." F
The true test as laid down by this Court speaking through
Venkalarama Ayyar. Jin Deoki Nandan v. Murlidhar, [1956] SCR 756
in detennining whether a temple is a private or a public temple, depends
on whether the public at large or a section thereof 'had an unrestricted
right of worship' and observed: G
"When once it is understood that the true beneficiaries of
religious endowments are not the idols but the worshippers, a1l,d
that the purpose of the endowment is the maintenance of that
.worship for the benefit of worshippers, the question whether an
endowment is private or public presents no difticulty. The cardinal H
186 SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.
A point to be decided is whether it was the intention of the tOunder
that specified individuals are to have the right of worship at the
shrine, or the general public or any 'specified portion thereof."
The learned Judge distinguished the decision of the Privy Council in
Babu Bhagwan Din v. Gir Har Saroop, (supra) on the ground that
B properties in that case were granted not in favour of an idol or temple
but in favour of the founder who was maintaining the temple and to
his heirs in perpetuity, and said:
"But, in the present case, the endowment was in favour of the
idol itself, and the point for decision is whether it was private
c or public endowment. And in such circumstances, proof of user
by the public without interference would be cogent evidence
that the dedication was in favour of the public."
It was also observed while distinguishing the Privy Council decision
in Babu Bhagwan Din's case that it was unusual for rulers to make
D grant to a family idol. In Deoki Nandan's case the Court referred to
several factors as an indicia of the temple being a public one viz the
fact that the idol is installed not within the precincts of residential
quarters but in a separate building constructed for that purpose on
a vacant site, the installation of the idols within the temple precincts,
the performance of pooja by an archaka appointed from time to time
E for the purpose, the construction of the temple by public contribution,
user of the temple by the public without interference, etc."
In Babu Bhagwan Din & Ors. v. Gir Har Saroop & Ors., AIR (1940)
PC 7, while distinguishing the case of Pujari Lakshmana Goundan' s case, the
F Court observed as follows: -
"In these circumstances, it is not enough in their Lordshpis 'opinion'
to deprive the family of their private property to show that Hindus
willing to worship have never been turned away or even that the deity
has acquired considerable popularity among Hindus of the locality or
G among persons resorting to the annual mela. Worshippers are naturally
welcome at a temple because of the offerings they bring and the
repute they give to the idol; they do not have to be turned away on
pain of forfeiture of the temple property as having bec.:ime property
belonging to a public trust. Facts and circumstances, in order to be·-' ·
accepted as sufficient proof of dedication of a temple as, a public
H' temple, must be considered in their historical setting in such a case
SMT. MARVA DEi v. M. NANDA [K. VENKATASWAMl,J.] 187
as the present; and dedication to the public is not to be readily A
inferred when it is known that the temple property was acquired by
grant to an individual or family. Such an inference if made from the
fact of user by the public is hazardous, since it would not in general
be consonant with Hindu sentiments or practice that worshippers
should be turned away; and as worship generally implies offerings of B
some kind it is not to be expected that the managers of a private
temple should in all circumstances desire to discourage popularity.
Thus, in 61 I A 405, the Board expressed itself as being shown to act
on the mere fact of the public having been freely admitted to a temple.
The value of public user as evidence of dedication depends on the
circumstances which give strength to the inference that the user was C
as of right. Their Lordships do not consider that the case before them
is in general outline the same as the case of the Madras temple 29 C
W N 112, in which it was held that the founder who had enlarged the
house in which the idol had beefl installed by him, constructed circular
roads for processions, built a rest house in the village for worshippers,
and so forth, had held out and represented to the Hindu public th.at D
it was a public temple."
In The Poohari Fakir Sadavarthy ofBondilipuram v. The Commissioner,
Hindu Religious and. Charitable Endowments, [1962] Supp. 2 SCR 276,
Raghubar Dayal, J., speaking for a three-Judge Bench, laid down the following E
tests to find out whether a particular temple is a private or a public one:-
"That an institution would be a public temple within the Hindu
Religious Endowments Act, 1926, if two conditions are satisfied; firstly,
that it was a place of public religious worship and secondly, that it
was dedicated to, or was for the benefit of, or was used as of right F
by the Hindu Community, or any section thereof, as a place of religious
worship.
When there be good evidence about the temple being a private one,
the mere fact that a number of people worship at the temple, is not
sufficient to come to the conclusion that the temple must be a public G
temple to which those people go as a matter of right as it is not usual
for the owner of the temple to disallow visitors to the temple even if
it be a private one."
In Bihar State Board of Religious Trust v. Pa/at Lall & Anr., [1971] 2
SCR 650, this Court, inter alia, observed that the fact that the worshippers H
188 SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.
A from the public were admitted to the temple was not a decisive fact, because
worshippers would not be turned away as they brought in offerings, and the
popularity of the idol among the public was not indicative of the fact that the
dedication of the properties was for public.
\
This Court in Bihar State Board Religious Trust, Patna v. Mahan/ Sri
B Biseshwar Das, [1971] 3 SCR 680, held that the evidence that Sadhus and
other persons visiting the temple were given food and shelter was not by
itself indicative of the temple being a public temple or its properties being
subject to a public trust; that the mere fact of the public having been freely
admitted to the temple cannot mean that courts should readily infer therefrom
C dedication to the public; that 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; that the fact that idols were installed permanently
on a pedestal and the temple was constructed on grounds separate from the
residential quarters of the mahant could not lead to inference of dedication
to the public.
D
In T.D. Gopalpn v. The Commissioner ofHindu Religious and Chairtable
Endowments, Madras, [1973] l SCR 584, this Court while considering a similar
question, observed as follows :
"Moreqver, if the origin of the temple had been proved to be private
E then according to the law laid down by the Privy Council itself in
Babu Bhagwan Din's case dedication to the public was not to be
readily inferred. Such an inference, if made, from the fact of user by
the public was hazardous since it should not, in general, be consonent
with Hindu sentiment or practice that worshippers should be turned
away; and, as worship generally implied offerings of some kind, it was
F not to be expected that the managers of a private temple should in all
circumstances desire to discourage popularity. It was further
emphasised by their Lordships that the value of public user as evidence
of dedication depends on the circumstances which give strength to
the inference that the user was as of right. In Goswami Shri Mahalaxmi
Vahuji v. Rannchoddas Kalidas & Others, it was pointed out that the
G
appearance though a relevant circumstance was by no means decisive.
The circumstance that the public or a section thereof had been regularly
worshipping in the temple as a matter of course and they could take
part in the festiva.ls and ceremonies conducted in that temple apparently .
as a matter of right was a strong piece of evidence to establish its
H public character. If votive offerings were being made by the public
SMT. MARUA DEi v. M. NANDA (K. VENKATASWAMI, J.] 189
and the expenses were being met by public contribution, it would be A
safe to presume that the temple was public. In short the origin of the
temple the manner in which its affairs were managed the nature and
extent of the gifts received by it, rights exercised by devotees in
regard to worship therein, the consciousness of the manager and the
consciousness of the devotees themselves as to the public character B
of the temple were factors that went to establish whether a temple was
public or private,"
In C. Ratnavelu Mudaliar v. Commissioner for Hindu Religious and
Charitable Endowments, AIR (1954) Madras 398 a Division Bench of that
High Court had occasion to consider a similar· question. Mr. Venkatarama C
Aiyar, J., as he then was, speaking for the Bench, held as follows:-
"In 1946, the Hindu Religious Endowments Board called for reports on
the structure and the constitution of the building. Exhibits R-2 and R-
3 are the reports submitted by the office. These reports show that the
building has got all the normal features of the temple, that it has got D
Prakaram, Dhwajastambam, Balipeetam and Nandikeswara, and there
are shrines for Bhairavar, Kasi Visalakshi, Chandikeswara, and other
deities. There is a 16 pillared mandapam and there are gopurams all
over the shrine. It also appears from the evidence now adduced that
festivals are being regularly performed, the deity is taken in procession,
and archanas are performed by the worshippers. On these materials E
the only conclusion possible is that the institution has for a long
period come to be regarded as a place of religious worship, which the
public are entitled to use as a matter of right, and this being so the
institution will be a temple as defined in S. 9(12), Madras Hindu
Religious Endowments Act." p
The very same Bench of the Madras High Court in Madras Hindu
Religious Endowments Board v. V.N. Deivanai Ammal by Power of Attorney
agent T. V. Mahalinga Aiyar, AIR (1954) Madras 482 held that in the case of
an old temple, such dedication might be presumed from long user by the
public as of right. On the facts, the learned Judges found that the worship G
was maintained and the expenses were met from out of private funds of the
respondents and in the absence of any property being dedicated for the
maintenance of worship in the temple, it was difficult to infer dedication of
the temple to the public.
In Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas & Ors., H
190 SUPREME COURT REPORTS (1998) SUPP. 3 S.C.R.
1 A [1970] 2 SCR 275, this Court, after considering the earlier decisions on this
aspect, held as follows:-
"Though most of the present day Hindu public temples have been
found as public temples, there are instances of private temples becoming
public temples in course of time. Some of the private temples have
B acquired great deal of religious reputation either because of the
eminence of its founder or because of other circumstances. They have
attracted large number of devotees. Gradually in course of time they
have become public temples. Public temples are generally built or
raised by the public and the deity installed to enable the members of
the public or a section thereof to offer worship. Jn such a case the
c temple would clearly be a public temple. If a temple is proved to have
originated as a public temple, nothing more is necessary to be proved
to show that it is a public temple but if a temple is proved to have
originated as a private temple or its origin is unknown or lost in
antiquity then there must be proof to show that it is being used as
D a public temple. In such cases the true character of the particular
temple is decided on the basis of various circumstances. In those
cases the courts have to address themselves to various qµestions
such as:-
(!) Is the temple built in such imposing manner that it may prima
E facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple
as of right?
(3) Are the temple expenses met from the contributions made by the
public?
F
(4) Whether the sevas end utsavas conducted in the temple are
those usually conducted in public temples?
(5) Have the management as well as the devotees been treating that
temple as a public temple?
G
Though the appearance of a temple is a relevant circumstance, it is
by no means a decisive one. The architecture of temples differs from
place to place. The circumstance that the public or a section thereof
have been regularly worshipping in the temple as a matter of course
and they can take part in the festivals and ceremonies conducted in
H that temple apparently as a matter of right is a strong piece of evidence
SMT. MARUA DE! v. M. NANDA [K. VENKATASWAMI, J.] 191
to establish the public character of the temple. If votive offerings are A
being made by the public in the usual course and if the expenses of
the temple are met by public contribution, it is safe to presume that
the temple in question is a public temple. In brief the origin of the
temple, the manner in which its affairs are managed, the nature and
extent of gifts received by it, rights exercised by the devotees in B
regard to worship thereiP., the consciousness of the manager and the
consciousness of the devotees themselves as to the public character
of the temple are factors that go to establish whether a temple is a
public temple or a private temple. In Lakshmana v. Subramania, the
Judicial Committee was dealing with a temple which was initially a
private temple. The Mahant of this temple opened it on certain days C
in each week to the Hindu public free to worship in the greater part
of the temple, and on payment of fees in one part only. The income
thus received by the Mahant was utilised by him primarily to meet the
expenses of the temple and the balance went to support the Mahant
and his family. The Privy Council held that the conduct of the Mahan!
showed that he had held out and represented to the Hindu public that D
the temple was a public temple at which all Hindus might worship and
the inference was, therefore, that he had dedicated it to the public. In
Mundancheri Koman v. Achutan Nair, the Judicial Committee again
observed that the decision of the case would depend on' the inferences
to be derived from the evidence as to the way in which the temple E
endowments had been dealt with and from the evidence as to the
public user of the temples. Their Lordships-were satisfied that the
documentary evidence in the case conclusively showed that the
properties standing in the name of the temples belonged to the temples
and that the position of the manager of the temples was that of a
trustee. Their Lordships further, added that if it had been shown that F
the temples had originally been private temples they would have been
slow to hold that the admission of the public in later times possibly
owing to altered conditions would affect the private character of the
trusts. In Deoki Nandan v. Murlidar, this Court observed that the
issue whether a religious endowment is a public or a private one is G
a mixed question of law and fact, the decision of which must depend
on the application of legal concepts of a public and private endowment
to the facts found. Therein it was furthe~ observed that the distinction
between a public and private endowment is that whereas in the former
the beneficiaries, which means the worshippers are specific individuals
and in the later the general public or class thereof. In that case the H
192 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A plaintiff sought to establish the true scope of the dedication from the
user of the temple by the public. In Narayan Bhagwant Rao Gosavi
Balajiwale v. Gopal. Vinayak Gosavi & Ors., this Court held that the
vastness of the temple, the mode of its construction, the long user of
the public as of right, grant of land and cash by the Rulers taken
along with other relevant factors in that case were consistent only
B with the public nature of the temple."
The above judgment was followed by this Court in Pratapsinhji N. Desai
(supra).
C Apart from the above decisions, learned senior counsel appearing for
the appellants also challenged the correctness of the judgment of the High
Court in interfering with the findings rendered by the Additional Assistant
Commissioner and the Commissioner of Endowments by citing a judgment of
this Court in Svenska Handelsbanken v. Mis. Indian Charge Chrome & Ors.,
[I994] I SCC 502, The passage relied on by the learned counsel reads as
D follows:-
"Whenever an appeal is heard it is the duty of the appellate court to
examine the finding of the trial court and if the findings of the trial
court are not correct, to deal, with it."
E
According to the learned counsel, the High Court failed to do its duty
as expected of it. For the same proposition he also placed reliance on a
judgment of the Andhra Pradesh High Court in Kondamuri Anasuyamma v.
Distt. Judge,, W.G. Dist at Eluru and Ors., AIR (1991) AP 47.
F After going through the facts in detail and the relevant tests laid down
by this Court in various judgments noted above, we find that on the basis
of the materials available in this case. It can fairly be stated that the authorities
(Additional Assistant Commissioner and Commissioner Endowments) had
considered the matter fairly and elaborately to come to a conclusion that the
G institution in question is a private one. Equally the High Court on appeal had
considered the evidence exhaustively and arrived at a conclusion that the
institution in question is a public religious institution. At this juncture, it must
be borne in mind that the High Court was not handicapped in considering the
oral and documentary evidence as an appellate court though the appeal
before the High Court was second appeal, having regard to the scope of
H Section 44 of the Act. It is also not argued before us that the High Court has
SMT. MARVA DEi v. M. NANDA [K. VENKATASWAMI, J.] 193
exceeded its jurisdiction in appreciating the oral and documentary evidence. A
With this background, let us deal with the factual aspects of the case.
As noticed earlier, the conclusion reached by the Addi. Assistant
Commissioner was affirmed on appeal, by the Commissioner. The Commissioner
had made a local inspection before giving his findings on the issues raised B
before him. Before the Commissioner, it was conceded that the institution in
question was not a math. The only question argued before the Commissioner
was whether the institution is a temple within the meaning of the Act or a
private institution. On the basis of the evidence and on the basis of his local
inspection, the Commissioner found that an extent of 1.04 acres was given by C
way of gift by Raja of Darpan to the first ancestor of the Petitioners and
another extent of 7.28 acres was given by the Collector, Cuttack; that the
structures have all the external signs of Hindu temple and in the subsidiary
temples within the premises there are installed different Gods and Goddesses
of Hindu mythology; that the main temple is about 30-40 ft. high; that within
the premises there is a jhulan mandap and snanan mandap, a Rosaghar for
D,
cooking food for feeding the sisyas and that the idols are of large size built
of either stone or cement'. The Commissioner also found that there was a
. bhog shop and bhog articles are supplied to sisyas on payment of cost within
the premises. It was suggested that there was auctioning of bhog shop but
the Commissioner found that in the absence of any evidence by auction E
purchaser the same cannot be taken for granted. The Commissioner also
found that there is no sufficient evidence to find that daily rituals are observed
in the institution as are commonly seen in any Hindu temple. On the basis
of the evidence, he also found that the car festival was being observed in the
institution at least upto 1960. As regards the resources utilized for the F
construction of the temple and installation of idols, the Commissioner was of
the view that the evidence available on record was not adequate to establish
that the petitioners were raising funds from the public by engaging Hundawallas
or by issuing appeals. He also found that the petitioners and their ancestors
were given pranamis out of reverence and that was utilized for the construction
of temple and installation of images. The Commissioner took note of the fact G
that the petitioners have stopped conducting the Rathyatra since 1960 and
have closed the temple gates for three years, which did not invoke any
protest from public and on that basis the Commissioner was of the view that
·. the public had visited, the temple not as of right though they had free access
to the premises to worship the deities installed therein. H
194 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A The Commissioner ultimately found that the institution originated from
a samadhi of a saint and had developed to a place of religious worship; that
the premises of the institution contained large pucca structures which are akin
to Hindu temples and bear all the external features of such temples including
the size and manner of constnJction of the building and that the temples
•
B accommodate various deities of Hindu mythology including Jagannatha,
Balabhadra and Subhadra idols installed on the samadhis of the ancestors of
the petitioners. Those deities are worshipped by the outsiders, who offer
bhog. The Commissioner found that the main source of income of the institution
was 'Pranami' and 'Dakhina' received from the sisyas of the petitioners; that
the institution used to hold different Hindu religious festivals like Rathajatra,
C Dola Jatra, Jhulan Jatra till 1960 and the members of the public used to
participate in such festivals; that the members of the public freely enter the
premises of the institution to have darshan of the petitioners and to worship
the deities in the temple and offer bhog to them. But no right of use by the
members of the public was established. That the control, regulation and
management of the institution had been with the petitioners and their ancestors
D since the time of the founder. The Commissioner further found that the temple
and other constructions were not made out of donations raised from the
public and that the members of the public had no control over the management
of the institution. On the basis of this, the Commissioner found, affirming the
conclusion of the Addi. Assistant Commissioner, that the institution was only
E a private one.
As against the above conclusions of the Commissioner, the High Court,
on a re-consideration of the evidence, reached just the opposite conclusion.
The High Court found mainly on the basis of the evidence of PW7, who is
Petitioner No.2, that the institution owns 8.50 acres of land out of which an
F area of 7 .28 acres was granted by 'Sarkar' and that the rest of the area
consisted of lands gifted by other people. For coming to this conclusion, the
High Court placed reliance on Exbt. B/l. By referring to R.O.R. (Exbt.2) the
High Court was of the view that the re,cording of the land in favour of the
Samadhi Gosain and description of Raghubar Das as a marfatdar, on the facts
G of the case, would show that the land had been dedicated for the benefit of
Hindu public and not of any private individual or family. Rent free character
of the land has continued upto date and that is a strong cirumstance which
is in favour of holding that the land was dedicated for the public benefit. To
strengthen the above conclusion, the High Court referred to Exbt.-A, a copy
of the objection filed by one of the predecessors of the petitioner in which .
H it was stated that many people used to visit Chhatia Bata (premises in
SMT. MARUA DEi v. M. NANDA [K. VENKATASWAMI, J.] 195
question) daily and more so on festive occasions and that as there was A
scarcity of water in the area, the people of the locality held a meeting and
passed resolutions for requesting the Government for permission to excavate
a tank on behalfofChhatia Bata. Only on the basis of the above representation,
the Government accorded permission for excavation of the tank over the
Government land. The High Court, with reference to Exbt.-E, a receipt book
for collection of subscription from the public for construction of temple at B
Chhatia Bata was of the view that the petitioners themselves held out and
represented to the public that the institution is a public temple. Though the
Commissioner was of the view that in the absence of individual concerned
with Exbt. E & F had not been examined and those document could not be
accepted as proof of facts contained therein, the High Court took the view C
that the evidence of O.P.W. -9 who spoke about those documents could not
be discarded especially petitioner no. I who was said to be in the know of
1
things, avoided the witness box. Though the petitioner no, 2, as PW-7, gave
evidence saying that petitioner no. I was suffering from blood pressure, that
was disproved by the evidence of PW- I who deposed that the petitioner no.I
. was not suffering from any physical infirmity. The High Court also took note D
of the fact that though it was admitted on behalf of the petitioners that they
were receiving money as 'Dakshina' from the devotees, but no account was
maintained to support the same .. As against the evidence of PWs, the High
Court preferred the evidence of OPWs to hold that the donations and
subscriptions were collected from the public for construction of the temple E
and though PW-3, one of the witnesses of petitioners, had stated that accounts
were maintained by Harekrushna Das for construction of the temple and the
accounts have not been produced. The High Court has taken note of the
important featur..:s of the temple such as that a lion's gate abutting the public
road and the words 'Chhatia Bata' had written on the gate. Again believing
the evidence of OPWs, the High Court came to the conclusion that the F
members of the public had free access to the temple. Again placing reliance
on the evidence of PW-7 (petitioner no.2) the High Court took note of the
fact that in the evening some religious discussions used to be held in the
temple and that the Brahmins have been engaged to carry out puja and to
offer bhog to the deities. The High Court was conscious of the fact that there G
was no direct evidence of dedication but the evidence adduced in the case
was sufficient to hold that the dedication was for the benefit of the public
and that the Hindu public have been using the temple premises as a place
of religious worship and offering bhog as of right. We have already set out
the conclusions reached by the High Court on the basis of the oral and
documentary evidence. H
196 SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A In the light of the diametrically opposite conclusion reached on the
main issue as regards the dedication and the right of the public to worship
the temple in question, the point for consideration will be whether the High
Court was justified in taking the view differing from the Commissioner that
the institution in question is a public temple within the meaning of the Act.
B We have already pointed out that the High Court was considering the
appeal under Section 44 of the Act and that Section did not, in any way, fetter
the jurisdiction of the High Court from going into the facts and appreciating
the evidence. That being the position, if we find as we do that the conclusions
reached by the High Court on re-appreciation of the evidence are not perverse
C but supported by evidence, then we feel that we may not be justified in
interfering with the conclusions reached by the High Court while exercising
jurisdiction under Article 136 of the Constitution. No doubt Mr. Nariman,
learned senior counsel appearing for the appellants vehemently argued that
the findings reached by the High Court are perverse and contrary to the
evidence available in the case. ·
D
However, on a careful reading of the judgment under appeal and after
perusing the evidence placed before us, we are unable to hold that the
findings. of the High Court are perverse.
E In the earlier portion of this judgment, we have set out the tests laid
down by this Court and other High Courts for considering whether an institution
is a temple as defined in the Act and bearing those tests in mind let us
consider whether the High Court has come to a right conclusion in holding
that the institution in question is a temple as defined in the Act. We must
also bear in mind that the best evidence that could have been made available
F through the first petitioner (late Shri Harekrushana Das}, both documentary
and oral, was not forthcoming on a lame excuse. PW-7, petitioner no.2, in h.is
deposition has also said that it was the first petitioner who was in the know
of vital things. This leads one to take an adverse inference and the High Court
was right in taking such adverse inference on vital aspects such as donations
G raised for the construction of the temple and other structures by holding out
that the institution was a public temple. We are not adverting to the various
tests laid down by this Court and other High Courts separately as we are
satisfied that broadly speaking, the features of constructions, idols and the
festivals held, a~ nQ,(iced by the authorities and the High Court, are sufficient
to hold thaI the institution in question falls within the definition of temple
H under the Act. We are also not agreeing with the contention of the learned
SMT. MARUA DEi v. M. NANDA [K. VENKATASWAMI, J.] 197
Senior Counsel, Mr. Narirnan, that the High Court failed to examine the findings A
of the authorities below before reversing their conclusions. We are satisfied
that the High Court has elaborately dealt with the matter and had given
reasons for not accepting the findings of the authorities below.
In the light of the tests laid down by this Court in several judgments
extracted above, we find that the High Court was right in holding that the B
institution in question is a public temple within the meaning of the Act.
In the result, the appeal fails and is accordingly dismissed. There will
be no order as to costs. '
RP. Appeal dismissed. C
.. I'
/
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public temple"Sign in to search