PETITIONER:
THE POOHARI FAKIR SADAVARTHY OF BONDILIPURAM
Vs.
RESPONDENT:
THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLEENDOWMENTS
DATE OF JUDGMENT:
22/12/1961
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
CITATION:
1963 AIR 510 1962 SCR Supl. (2) 276
CITATOR INFO :
R 1979 SC1147 (2)
RF 1992 SC1110 (21)
ACT:
Hindu Law-Endowment-Temple-Public Temple-
Conditions of-Inam Register-Entries-If could be
accepted at their face value-Hindu Religious
Endowments Act, 1926 (Mad. 2 of 1927), s. 9. cl.
12.
HEADNOTE:
The Emperor Aurangazeb made certain grants to
one Mukuldas Babajee, founder of the institution
Poohari Fakir Sadavarthy, for the purpose of his
maintenance and to carry on the distribution of
Sadavarthy to Fakirs etc. The sixth head of the
institution built a shrine for his private
worship. It was adjunct to the aforesaid
institution, and the public had no access to it
without the permission of Mahant. The income from
various properties granted to the founder and his
disciples had been regularly utilised for the
maintenance of the head of the institution and for
distributing charities for the Sadhus and
pilgrims; a part was spent on the expenses of the
worship in the temple. The Board of Commissioners
for Hindu Religious and Charitable Endowments,
Madras held that the temple in suit was a public
temple. The sole question for determination was
whether this institution was a public temple as
defined in the Act.
^
Held, 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 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 to the temple must be a
public temple to which those people as a matter of
right as it is not usual for the owner of together
temple to disallow visitors to the temple, even if
it be private one.
In the present case the description of the
temple with respect to its construction,
equipment, practices, observances
277
and the form of worship are not inconsistent with
the inference from the other evidence that the
temple is not a public temple. The temple is not a
temple as defined in the Act and it is not used as
of right by Hindu Community, or any section
thereof, as a place of religious worship.
Held, further that the Inam Register is of
great evidentiary value, but that does not mean
that the entry or entries in any particular column
or columns be accepted at their face value without
giving due consideration to other matters recorded
in the entry itself.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 87 of 1959.
Appeal from the judgment and decree dated
April 6, 1955, of the former Andhra High Court in
A.S.O. No. 134/50.
T. V. R. Tatachari, for the appellants.
Bhimasankaram, K. R. Choudhuri and T. M. Sen,
for the respondent.
1961. December 21. The Judgment of the Court
was delivered by:
RAGHUBAR DAYAL, J.-This is an appeal on a
certificate granted by the High Court of Andhra
Pradesh, against the judgment and order of the
High Court reversing the judgment and order of the
District Judge, Vizagapatam, holding that the
place of worship in suit was not a temple as
defined in the Madras Hindu Religious Endowments
Act, 1926 (Madras Act II of 1927), hereinafter
called the Act.
On March 28, 1947, the Board of Commissioners
for Hindu Religious & Charitable Endowments,
Madras, held the institution in suit to be a
temple as defined in the Act. The appellants,
thereafter filed a petition under s. 84(2) of the
Act, in the Court of the District Judge,
Vizagapatam, and prayed for the setting aside of
the order of the Board. They alleged that the
institution, known as the Poohari Fakir
Sadavarthy, at Bondilipuram, Chicacole, a
ongstanding institution, was started by one
Malukdas
278
Bavajee, some time during the reign of the Moghul
Emperor, Aurangazeb. The Emperor, in recognition
of the Bavajee’s piety and devotion to God, made
certain grants to him with the object and purpose
of enabling him to maintain himself and carry on
the distribution of Sadavarthy to Fakirs and
Sadhus and to pray to God for the prosperity of
the Empire and Emperor, according to what was
stated in the well-known historical works like
Bhakthamala by Maharaja Raghunandha Singh Deo of
Rewa.
The institution flourished and continues up
to this day. The original plaintiff No. 2, Rajaram
Das Bavajee, was the ninth in succession from the
founder Malukdas Bavajee. He died during the
pendency of the proceedings and is now represented
by appellant No. 2, Mahant Gangaram Das Bavajee.
Sithaldas Bavajee, the sixth head of the
institution, who lived in the first half of the
Nineteenth Century built a temple and installed
therein certain idols for his private worship. The
shrine was an adjunct of the institution Poohari
Fakir Sadavarthy. It is alleged to be a private
temple known as Jagannadhaswami temple, Balaga,
and is meant for the worship of the Mahant and his
disciples, one of whom conducts the daily worship.
The income from the various properties
granted to Malukdas Bavajee or his successors had
been regularly utilised for the maintenance of the
head of the institution and for distributing
charities to the sadhus and pilgrims passing
through Balaga. A part of the income was, however
spent on the expenses of the worship in the temple
and the incidental expenses connected with it.
The respondent Board denied that
Jagannadhaswami temple was a private place of
worship, that the public had no access to it
without the permission of the Bavajee and alleged
that the temple possessed all the features of a
place of public
279
religious worship and was dedicated to or for the
benefit of or used as of right by the Hindu
community as a place of religious worship.
The appellants examined five witnesses,
including plaintiff No. 2, in support of their
case. The respondent examined one witness. The
plaintiffs also filed a number of documents. The
respondent filed a few documents which included
the Board’s order dated March 28, 1947, and its
enclosure.
The learned District Judge concluded, from
the evidence, that Jagannadhaswami temple was not
a temple as defined in the Act, it being a private
temple existing for the benefit of the appellants
only. He therefore set aside the impugned order of
the Board. On appeal, the High Court came to a
different conclusion and allowed the appeal. It
mainly relied on the entries in the Inam registers
with respect to the institution and on the
following facts which it considered to be
established :
(i) the temple is a very old temple
constructed in or about the year 1750;
(ii) the temple has the structure and
polity of a public temple;
(iii) there are utsava vigrahams and
vahanams;
(iv) it has a big compound wall with the
gate opening into the Chinna Bazaar Road;
(v) regular worship is performed every
day at the scheduled time;
(vi) there is an archaka who performs
worship;
(vii) a large number of pilgrims attend
every day and partake in the food given after
naivedyam to the God;
280
(viii) there are utsavams and the
rathotsavam which is particularly conducted
on large scale and is attended by members of
the public.
The High Court relied on the statement of the
solitary witness examined for the Board and
rejected the statements of the witnesses examined
for the appellants.
The sole question for determination in this
appeal is whether this institution is a ‘temple’
as defined in the Act. Clause (12) of s. 9 of the
Act reads:
“‘Temple’ means a place, by whatever
designation known, used as a place of public
religious worship and dedicated to, or for
the benefit of, or used as of right by, the
Hindu community, or any section thereof, as a
place of religious worship.”
The institution in suit will be a temple if two
conditions are satisfied. One is that is a place
of public religious worship and the other is that
it is dedicated to or is for the benefit of, or is
used as of right by, the Hindu community, or any
section thereof, as a place of religious worship.
We are of opinion that the oral and documentary
evidence fully establish the appellants’ case that
it is not a temple as defined in the Act.
The documents on record and bearing dates
from 1698 to 1803 A. D. mention the grants to be
for the purposes of the Bavajee, i.e., the head of
the institution. The first document, Exhibit P-1,
(is of the Hizri year 1117, corresponding to 1698
A.D., and purports to be executed by Ibrahim Khan,
Bahadur, a humble servant of Badshah Alamgir
Ghazi., i.e., Emperor Aurangazeb. This order says:
“The village of Cheedivalasa, Boonamali
Pargana Haveli (town) towards Kaling of the
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said Sirkar, has been fixed and continued as
a complete inam in favour of Poohari
(Poojari) Fakir Sadabarty in accordance with
the Sanads of the previous rulers. Meanwhile,
in view of the claims of the said person it
has been confirmed as per endorsement in
accordance with momooli (usage) and mustamir
(continuing, lasting long). It is necessary
that the said village be placed in the
enjoyment of the said person so that,
utilising the incomes thereof for his own
maintenance, he may engage himself in praying
for the stability of the State till
eternity.”
The purpose of the other grants is stated in
practically similar terms aud it is necessary to
quote them. None of the grants of land or other
property on record bears a date subsequent to that
of the year 1803 A.D. The documents, Exhibits P-
47, P-48 and P-49 are orders of the Collectors and
refer to the villages of Cheedivalasa and
Thallavalasa, and the last two state that the
income of these two villages was given for
sadavarty (feeding) for the respective year to
Phalari (Phulhari) Bavaji. There is no mention in
any of these two documents that any grant was
being made for the purposes of the temple or for
the purposes of the Bavaji as well as for those of
a temple.
The only reference to the construction of the
temple is in Exhibit P-52, an extract from the
Register of Inams dated May 22, 1865, with respect
to village Vanzangi. The name of the village,
however, does not appear in the document itself.
It is stated in this document:
“About century ago, the trustees built a
temple of Jagannadhaswamy.”
According to this note, the temple may be said to
have been built in about 1760 A.D. The documents
of the period from 1761 to 1803 A.D. Exhibits P-31
282
to P-49, do not record that the grants under them
were for the expenses of the temple as well. The
grants simply mention them to be for the expenses
of Fakirs, in the name of Poohari Fakir
Sadavarthy, and not for the temple. The non-
reference to the temple in the various documents
is consistent with the temple being for the
private worship of the head of the Sadavarti
Institution and being an adjunct to that
institution, as in that case there was to be no
grant to the temple and the grant had to be to the
Sadavarti institution or to its head.
It is also a matter for surprise that no
independent grant to this temple was made
subsequent to its coming into existence. Some one
religiously and charitably disposed could have
thought of endowing some property to this public
temple erected by the Head of a well-known
institution in that part of the country, where, it
has been held judicially, there is a presumption
of a temple being a public temple. We may make it
clear that among the documents referred to, we are
not at the moment including entries in the Inam
registers. It follows from an examination of the
various documents of the period between 1608 and
1803 A.D., that the various endowments were for
the Fakir or Bavajee who ran the Sadavarti
institution and that none of the grants was for
the temple or even for the Sadavarti institution
itself, it being always in the name of the Bavajee
in charge of that institution.
Before discussing the entries in the inam
registers which carry great weight, we may first
refer to the Rules in pursuance of which the
entries in the Inam registers were made, after due
investigation. The various extracts from the Inam
registers which have been filed show that the
proposals for the grant were confirmed under rule
3, clause (1), tax free. This makes it of
importance to consider the rule
283
thus referred to. It is one of the rules for the
adjudication and settlement of the inam lands of
the Madras Presidency and is quoted at page 219 in
the case reported as Arunachellam Chetty v.
Venkatachalapathi Guruswamigal (1)
“If the inam was given for religious or
charitable objects, such as for the support
of temples, mosques, colleges, choultries,
and other public buildings or institutions,
or for services therein, whether held in the
names of the institutions or of the persons
rendering the services; it will be continued
to the present holders and their successors,
and will not be subject to further
interference, so long as the buildings or
institutions are maintained in an efficient
state, and the services continue to be
performed according to the conditions of the
grant.”
It was also said at page 217:
“But the Inam Register for the year 1864
has been produced, and to it their Lordships
attach importance. It is true that the making
of this Register was for the ultimate purpose
of determining whether or not the lands were
tax free. But it must not be forgotten that
the preparation of this Register was a great
act of state, and its preparation and
contents were the subject of much
consideration under elaborately detailed
reports and minutes. It is to be remembered
that the Inam Commissioners through their
officials made inquiry on the spot, heard
evidence and examined documents, and with
regard to each individual property the
Government was put in possession not only of
the conclusion come to as to whether the land
was tax free, but of a statement of the
history and tenure of the property itself.
While their Lordships do not doubt that such
a report would not displace actual
284
and authentic evidence in individual cases;
yet the Board, when such is not available,
cannot fail to attach the utmost importance,
as part of the history of the property, to
the information set forth in the Inam
Register.”
Exhibit P-50 is the extract from the Inam
Register No. 48 relating to village Tallavalasa in
the Taluk of Chicacole in the district of Ganjam.
The note of the Deputy Collector, Inam
Commissioner, records inter alia the following
particulars:
(1) The village was granted originally
by the Nawab Mafuz Khan in Hiziri 1155
corresponding with A.D. 1739 to one Inamdar
Bairagi; as the original sanad is not
forthcoming it is impossible to mention here
without entering into details, the object of
the grant and the tenure of the village. This
mokhasa jahagiri is in possession of the
person in column (II) who is known by the
name of Palahara Mahant Bartudoss Bavaji, ‘a
Bairagi’.
(2) This Bartudoss Bavaji pleaded that
this village and three other villages were
granted in the district by the former Rulers
for Sadavarti and for certain other Divine
Service, and that the proceeds of them were
appropriated to the expenses attendant on the
temple of Sri Jagannadhaswami to some extent
and to distributing Sadavarti or supplying
victuals, fire-wood, etc., or dressed food to
Bairagis and others resorting to Rameswaram
from Benaras and vice versa.
(3) This Bartudoss Bavaji produced a
sanad of Sri Seetaram Ranzi Maharaja, the
former zamindar of Vizianagaram in
Vizagapatam district, granted to one
Gopaladass Palahari Bavaji, dated Subhakrutu
year, corresponding with A.D. 1782. This
Sanad
285
showed that the said Gopaladass was then a
manager of the branch of charity and that
this village was granted free from any tax in
lieu of the income in the villages of Balaza,
Petranivalasa and Serumohannadpuram which
were granted originally by the authorities
for the support of the charity and which were
resumed and incorporated with circar lands.
The sanad explicitly stated that the proceeds
of the village were to be appropriated for
Sadavarti.
(4) On the whole it appears that this
mokhasa was granted for ‘Sadavarti’ and for
the support of the temple of Sri
Jagannadhaswami in Balaga. There is a Bairagi
Mattam in Balaga and a temple of Sri
Jagannadhaswami…. This is therefore a
charitable grant. To keep up the object of
grant, I think the village may be confirmed
on its present tenure.
(5) Column 8, meant for noting the
description of the inam, mentioned:
‘Granted for the support for the
Sadavarti Bairagi mattam in Balaga and of the
temple of Sri Jagannadhaswami in the same
village now efficiently kept up.’
(6) In column 10, under the heading
‘hereditary, unconditional for life only or
for two or yihre lives’ is mentioned
‘hereditary’.
(7) Column 11 meant for recording the
name of the grantor and the year of the
grant, mentions, under it, Mafusu Khan Nawab,
dated Hijiri 1155.
(8) In column 13, Mandasa Palahari
Bairagi is mentioned as the original grantee.
(9) Under column 18, referring to
relationship to original grantee or
subsequent registered holders, is written
‘Sadavarti
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Bairagi mattam and the temple of Sri
Jagannadhaswami in Balaga Trustee Palahara
Mahant Barta Dasu Bavaji’.
It is clear from the fact that the grant was
considered ‘a charitable grant’ that the grant was
not taken to be for the purposes of the temple,
but was taken to be a grant for the purposes
Sadavarti. This is also clear from the Statement
of Bartudoss Bavaji that it is only a part of the
proceeds which is spent on the temple and not a
major portion of the proceeds, as his statement is
to the effect that the proceeds are appropriated
to the expenses attendant on the temple ‘to some
extent’. There is no suggestion that the temple
was in existence in 1739 A. D. when the grant was
made. This makes it clear that no grant could have
been made for the expenses of the temple and that
a small portion of the proceeds was naturally
spend on the temple by the Bavaji after the temple
had been constructed. Any statement in these
entries about the grant being both for Sadavarti
and for the expenses of the temple appears to be
due to the wrong inference of the person making
the enquiry. He could easily commit such an error
on account of the existence of a temple at the
time of the enquiry and on account of the
expression ‘divine service’. The ‘divine service’
really meant, as would appear from the expression
in the other documents of the period 1698 to 1802
A.D., service by way of prayers for the stability
and continuity of the State’.
The expression that the grant was
‘hereditary’ also supports the conclusion that the
grant was to the Bavajee personally and not to the
temple even if the temple existed at the time of
the original grant. In fact, the sanad granted by
Seetaram Ranzi Maharaja and produced before the
enquiry officers explicitly stated that the
proceeds of the village were to be appropriated
for Sadavarti.
287
This extract therefore supports the case of
the appellants even though the name of the temple
has been mentioned along with Sadavarti Bairagi.
The confirmation of the grant, tax free, was
recommended by the Deputy Collector, Inam
Commissioner, under Rule 3, Clause (1). The order
of the Officiating Inam Commissioner dated July
1864 is: ‘Confirmed on present tenure’, and column
9 described the tenure as ‘tax free’.
Exhibit P-51 is the extract from the Inam
Register in the Zamindari estate of Tekkaly in the
Chicacole Taluk, Ganjam District, and relates to
the village Chinna Zavanapalli. The report of the
Deputy Collector shows that the claim of the then
Bavajee was that the village was granted in the
name of Gopaladass, trustee and priest of the
mattam in Hijari 1165, corresponding to 1752 A.D.
It further records:
“It is explained by the Zamindar’s
shiristadar on behalf of the Zamindar that
this was granted for the support of the
mattam and this is not a personal grant. This
was entered in the permanent settlement
account as an agrahar. The object of the
grant is to feed Bairagis and etc., who
travel between Benaras and Rameswaram or
supply victuals clothes and etc. This branch
of charity is known by the name of
‘sadavarti’. The proceeds of this village
with the other villages, which granted for
the support of the charity are appropriated
to sadavarti and to worship the idols in the
temple of the mattam.. As this is granted on
the whole for the support of the charity
branch, it should, I think, be confirmed on
its present tenure.”
The entries under the various columns are
practically on the lines of the entries in Exhibit
P-50. The entries in this register also support
the case of the appellants to the extent that the
original grant
288
in 1752 A. D., was to the then Bavajee and was for
the purposes of the charity.
Exhibit P-52 is the extract from the Register
of Inams with respect to village Vanzangi. It
records very clearly:
“The object of this grant is to give
‘sadavarti’ to travellers, that is,
distributing alms and supplying victuals to
travellers. This grant was made during the
reign of ‘Alangir Padsha’. Ever since the
Inam is continued undisturbed. About century
ago, the trustees built a temple of
Jagannadhaswamy. Now in addition to
distributing alms and giving Sadavarti to
Bairagis and others, the idol in the temple
is worshipped and annual festivals are made.
It appears that the Trustee is defraying
charges to meet the object of the grant and
that he is not mis-appropriating the proceeds
of the Inam in any way.”
The inam was confirmed as a charity grant to
Mandasu Sadavarty Charity according to the terms
of the grant. This extract is of great importance
as it, in clear terms, mentions that the object of
the grant was to give sadavarti to travellers and
that it was confirmed as a charity grant to this
charity. It speaks of the erection of the temple
and still states that the Trustee was defraying
the charges to meet the object of the grant. This
indicates that the expenses of the temple were
taken to be incidental to the expenses of the
entire sadavarti and that the temple was just an
adjunct to the sadavarti institution.
Exhibit P-7, Parwana dated November 15, 1722,
corresponding to 14th day of Rabial Awwal, 1135
Hijiri, refers to the grant of this village to
Poohari Fakir Sadavarti.
Exhibit P-53 is the extract from the Register
of Inams relating to village Ragolu in Chicacole
289
Taluk. It records: ‘In the sanad it was mentioned
that the inam was given for the support of fakirs
to the original grantee about a century ago. The
other notes in this extract are practically
identical with those in Exhibit P-52. The final
order of the Inam Commissioner was also in terms
similar, and was ‘confirmed to the fakirs the
sadavarti charity according to the grant, free,
there being no excess. It is interesting to note
that in column 2 (general class to which inam
belongs) is noted ‘Dewadayam’, i.e., dedicated to
God; that in column 8 meant for the description of
the inam is noted: ‘for the support of Pagoda of
Sri Jagannadhaswami in Bondilipuram’, and that the
entry in column 11 indicates that Anavaruddin Khan
Bahadur made the grant in Hijiri 1171
corresponding to 1754-55 A. D. It is clear that
the note about the land being dedicated to God is
wrong in view of the definite statement that the
Sanad mentioned that the inam was given for the
support of fakirs to the original grantee (Mandasa
Palahari Bairagi in Column 13) about a century ago
and that it was the trustees of the institution
who constructed the temple. When the temple was
constructed by the trustees of the institution,
viz., the Sadavarti institution, the original
grant could not have been to the temple or to God.
The entries in this extract confirm the
construction we have placed on similar entries in
Exhibit P-52 and other extracts indicating the
grant to the temple.
Exhibit P-54 is the extract from the Inam
Register of No. 85 ‘Tallavalasa in the Taluk of
Chicacole in the District of Ganjam. It is
mentioned in this that Pratapa Rudra Narayana Devu
granted this village to Falar Gosayi for the
support of the ‘Bavajee’ or Swami, in Hiziri 1141
which would correspond to about 1747 A. D. It is
also noted in the report that the object of the
grant was that the proceeds should be appropriated
for divine purpose and that the proceeds were
appropriated to the temple and sadavarti. The note
‘for the support
290
of the pagoda of Jagannadhaswami’ in column 8
meant for the description of the inam, again,
appears to be an entry made under an erroneous
impression. There was no temple in existence when
the grant was made in about 1747 A. D.
Exhibit P-55 is an extract from the Register
of Inams in the village of Balaga of Chicacole
taluk dated August 13, 1881. It mentions, under
the heading ‘by whom granted and in what year,
“the grant was made by Rajah Narayana Gazapati raz
Bahadur under orders of Alamgir Padsha on 14th May
of Hiziri 1171 corresponding with English years
1754-55. It is also noted: the Sanad granted is in
existence.’ It is stated therein that as these
lands appear from a former firman to have been
granted to Sadavarti Mandass Bavaji for planting
topes and raising buildings; they should be
restored to him in pursuance of the long standing
right. This means that the firman, which was not
forth coming during the inam enquiry, dated from
very early time. It must be noted again that this
extract also describes the inam as Devadayam, i.
e., dedicated to God. Again, clearly, this entry
is wrong in view of the sanad which was in
existence clearly stating that the lands were
granted under a firman to Sadavarti Mandass Bavaji
for planting topes and raising buildings and also
in view of what is recorded in Exhibit P-12, a
parvana of 1742 A.D., under the seal of Nawab
Jafer Ali Khan. It records:
“It has been proved that Mandas, the
successor of Poohari (Poojari) Faqir
Sadabarti has, per endorsement six kattis of
land, free from assessment, in the village of
Balaga and etc., villages of the said Haveli
Sircar, fixed for the expenses of the coming
and going Fakirs in accordance with the
sanads of the previous rulers. Therefore in
consideration
291
of the blessings to follow, it has been
confirmed as of yore.”
It was the result of this wrong view of the
enquiry officer that the Inam Commissioner
confirmed the grant free of quit rent so long as
the service was kept up, presumably the service of
the deity, as the distribution of charity would
not be properly described as ‘service.’
The fact that the Inam Commissioner treated
the grant relating to Exhibit P-50 to be in
support of Sadavarti and for support of the temple
of Sri Jagannadhaswami, would not make the grant
for the purposes of the temple when the temple was
itself not in existence at the time the grant was
made and when a later sanad referring to it
definitely stated that the original villages were
granted for the purposes of charity. The
observations of the Privy Council in
Arunachellam’s Case (1) that in the absence of the
original grant the Inam Register is of great
evidentiary value, does not mean that the entry or
entries in any particular column or columns be
accepted at their face value without giving due
consideration to other matters recorded in the
entry itself. We have already stated that the
‘divine service’ referred to in this entry does
not refer to any religious worship but to the
prayers to be offered by the grantee for the
preservation of the State.
We do not find anything on record to support
the observations in the High Court judgment that
the Bavajee, with the consent of the Ruler for the
time being, constructed a temple and appropriated
the income for carrying out the worship of the
temple. No document states that the temple was
constructed by the Bavajee after obtaining the
consent of the ruler for the time being. Exhibits
P-52 and P-55 just mentioned that the trustees
built a temple of Sri Jagannadhaswami. The
292
expression ‘trustees’ refers to the trustees of
the Sadavarti institution and not to the trustees
of the temple as such. There is nothing in these
documents to support the view that the temple was
built with the consent of the ruler for the time
being.
The appellants examined five witnesses to support
their case that the Hindu public have no right to
offer worship in the temple which is a private
temple. The learned Judges described the statement
of Janardhana Prasad Bhatt, P.W. 4, as worthless.
No particular reliance is placed on his statement
by the appellants in this Court. The appellants,
however contend that the statements of the other
witnesses have been rejected by the High Court for
inadequate reasons.
The first witness is Iswara Satyanarayana
Sarma, P.W. 1. He was aged 63 at the time of his
deposition in 1949. He was a Sanskrit and Telugu
Pandit in the Municipal High School and practised
as an Ayurvedic Doctor. He has given reasons for
the view that the temple is not a public temple.
It is not necessary to refer to them. His
statement, has been rejected as he was considered
to be interested in the Mahant who had been his
patient and as the statement made by him that
people including the sishyas, i.e., the disciples,
take permission of the Mahant for worshipping, was
considered artificial. This witness did not state
that even disciples had to take permission of the
Mahant for worship and so the latter reason was
based on an erroneous impression of his statement,
The mere fact that the Mahant consults him for his
ailments and the ailments of other sadhus is no
ground for him to make false statements. He is not
under obligation to the Mahant. It may be that the
Mahant is under obligation to him.
The next witness is P. Kameswara Rao, P.W. 2.
He is aged about 30 years. He was the
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Additional Public Prosecutor of Vizagapatam, had
been Municipal Councillor for a decade, President
of the Co-operative Central Bank and resided close
to the temple. He was in a very good position to
know about the public worshipping at the temple as
a matter of right. He stated that he never found
the public using the temple and that he himself
might have visited the temple roughly about
hundred times. He was put a direct question in
cross-examination and gave a clear-cut answer. He
denied from personal knowledge that the place was
used as a place of public religious worship and
that members of the public who were Hindus had a
right of access to the temple for purposes of
religious worship. It may be mentioned that the
question also referred to the temple being built
as a place of public religious worship and the
answer would include a denial of this fact. It is
obvious that the witness could not have known
anything about it. He seemed to have overlooked
the significance of this part of the question. We
do not consider that his denying this fact on
personal knowledge affects his veracity in any
way, and especially, when he further stated that
his personal knowledge consisted of three facts:
(i) his attending the Rathayatra and seeing that
no offerings of harati and dakshina were made;
(ii) his not seeing any member of the public
entering the temple whenever he entered into the
temple; and (iii) whenever he entered the temple,
he took the permission of the mahant. The learned
Judges rejected his testimony with this
observation:
“The evidence of this witness is more
like an advocate supporting the case of
mahant than that of a witness, who has come
into the witness box to speak of facts. The
aforesaid facts based on his personal
knowledge afford a very slender foundation
for the conclusion which this witness has so
boldly asserted in the witness box.”
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The expression ‘the aforesaid facts’ had
reference to the facts on which his personal
knowledge was based. These facts, in our opinion,
afford good ground for the view expressed by him
that the temple was not a public temple. He
visited the temple so many times, and never saw
any member of the public visit it. He himself took
permission from the Mahant when he entered the
temple. Nothing could be better corroboration of
his own statement than his own personal conduct in
seeking permission from the Mahant. We do not see
any good reason for discrediting his testimony.
The next witness is G. Venkata Rao, P.W. 3,
aged 48 years. He is a chairman of the Municipal
Council, Chicacole, Secretary & Vice-President of
the Co-operative Central Bank. His statement has
been considered to be very artificial. His
statement that whenever he visited the temple he
asked the permission of the Mahant is good
corroboration of his statement that he considered
the temple to be a private temple and not a public
one. The facts that the Mahant is also a Municipal
Commissioner and consults him occasionally as a
doctor, are no good grounds to discredit him.
The last witness the plaintiff No. 2, the
predecessor of the appellant No. 2. He is
undoubtedly interested in the success of the
proceedings started by him. But that alone is no
reason to ignore his statement altogether. In
fact, his statement should be accepted in view of
the support it gets from the statements of the
other three witnesses just referred to.
It is very significant, as pointed out by
learned counsel for the appellants, that none from
the Hindu public of the place has been examined
for the respondent in support of its contention
that the Hindu public go to this temple for
worship as a matter of right. Quite a good number
of people
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should have been available for the purpose if it
was a fact.
The respondent, on the other hand, examined
only M. Adinarayana Rao, who had been Inspector of
Hindu Religious Endowments Board of the Chicacole
division from 1946 to 1948. He certainly states
that the temple in suit is a public temple in
which all people can go as a matter of right for
worship. It is a moot question as to how he can
make such a statement even if he had seen a number
of people entering the temple and worshipping
there, which itself is not a fact. 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 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. He stated that there were several
festivals like Nethroshasevam, the car festival
and kalyanam. In cross-examination he had to admit
that he had not visited the kalyan festival and
did not know when it was celebrated. This is
sufficient to indicate that he is a zealous
witness. He stated that there was an archak, but
he could not give the archak’s name. Ordinarily,
it need not have been expected of him to have
known the archak’s name. But, considering that he
was an Inspector of the Board and had visited the
temple officially also and had to submit a report,
it is rather difficult to believe that if he had
really found an archak, a priest other than the
Mahant and his disciples, he would not have
considered it essential for the purposes of his
enquiry to know his name. We see no reason to
prefer his shaky statement to the statements of
the witnesses examined for the appellants.
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We need not consider the statements of the
witnesses with respect to the features associated
with the public temple and which are said to be
absent in the temple in suit. It is admitted by
the respondent’s witness that there is a Tulsi
plant before the shrine. It is strenuously urged
for the appellants that no public has a Tulsi
Kotta, and this contention seems to find support
from the statement made by the respondent’s
witness in reexamination that generally, in Oriya
temples no flag-staffs are located and Tulsi
plants are grown instead. The description of the
temple with respect to its construction,
equipment, practices, observances and the forms of
worship are not inconsistent with the inference
from the other evidence that the temple is not a
public temple.
The statement of the respondent’s witness
that generally Oriya temples have no flag-staffs
and have Tulsi plants has significance in one
other connection also. It was said in Mundancheri
Koman v. Achuthan Nair (1) at page 408 that in the
greater part of the Madras Presidency, where
private temples were practically unknown, the
presumption is that temples and their endowments
form public charitable trusts. The presumption is
certainly rebuttable. The evidence in this case
sufficiently rebuts it. The temple is situate at a
place which was practically at the boundary of the
Madras Presidency, and close to the common
boundary between that Presidency and Orissa. The
presumption with respect to the temple in the
Madras Presidency, therefore, will be a very weak
one with respect to the temple so situated.
We are therefore of opinion that the temple
in suit is not a temple as defined in the Act as
it is not used as of right by the Hindu community,
or any section thereof, as a place of religious
worship. We therefore allow the appeal with costs
throughout, set aside the order of the Court below
and
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restore the order of the District Judge,
Vizagapatam, setting aside the order of the Board
dated March 28, 1947.
Appeal allowed.