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TMI Blog1981 (2) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants-plaintiffs suit holding that the deity installed in the temple was a family deity of the Pani family and the endowment being of a private nature, the Act had no application and the Order passed by the respondent regarding the management was set aside. The Respondent (Commissioner of Hindu Religious Endowments, Orissa) filed an appeal in the High Court against the decision of the Subordinate Judge which was heard by the Division Bench referred to above. The High Court reversed the decision of the Subordinate Judge and held that the temple and the deity installed therein being a public endowment fell within the four corners of the Act and the respondent was fully entitled to pass orders for its management. Hence, this appeal by certificate before us. The sole question that falls for determination in this appeal is as to whether or not the appellant-temple was a public endowment as alleged by the respondent or a family deity as alleged by the appellant. The learned counsel for the appellants, P.K. Chatterjee, has submitted that the approach made by the High Court was wholly incorrect and it has misconstrued the evidence and documents produced in the case to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance and support of the family of the founder and his descendants. In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting in God. A public Waqf under the Mahomedan law is called Waqf-fi-sabilil- lah. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment, as may appear from the facts proved in each case. The essential distinction between a private and a public e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained, in the latter they constitute a body which is incapable of ascertainment. .. .. .. .. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers. (Emphasis supplied) This view was reiterated in a later decision of this Court in Mahant Ram Saroop Dasji v. S.P. Sahi, Special Officer-In-Charge of the Hindu Religious Trusts Ors. where S.K. Das, J. as he then was, speak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. .. .. .. Thus, the mere fact of the public having been freely admitted to that temple cannot mean that courtbs should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. It may thus be noticed that this Court has invariably held that the mere fact that the members of the public used to visit the temple for the purpose of worship without any hindrance or freely admitted therein would not be a clear indication of the nature of the endowment. It is manifest that whenever a dedication is made for religious purposes and a deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment. Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from which the nature of the endowment can be clearly spelt out and we would examine these documents in the light of the tests and the principles enunciated above because after going through the judgment of the High Court we are satisfied that the High Court has not properly construed some of the important features contained in the documents and the evidence and has in fact overlooked certain important aspects which completely negative the fact that the endowment was of a public nature. Ext. A is an ancient document executed as far back as February 18, 1895. The authenticity and the genuineness of this document is beyond question and the High Court itself has described this document as a document which has created the present endowment. Even though the document may not be treated as having itself. created the endowment but it gives clear indication that the endowment was created near about the date when this document was executed. Some of the extracts of this document which are undisputed, in our opinion, clearly and conclusively show that the endowment was of a private nature and the intention of the founder was merely to instal a family deity in the temple. In order to fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in have been endowed to the deity before, we or our successors had or will have no claim on this and any such claim made, shall be void. .. .. .. 11. Now or in future the man appointed as Tatwabadharak will work according to rules and directions mentioned herein and for the Sebapuja of the deity the directions and the menus are determined here for all days to come. 12. .... All other necessary expenses of the Jatra (festivals) repairing of the temple, utensils and the ornaments of the deity, etc. will be done according to the income. .. .. .. 14. Any pious man of our family at present and in future will see whether the work of the deity is being performed according to the direction as aforesaid by the appointed Tatwabadharak and will take proper action as mentioned above. 14. If in future there be no fit man in our family, any of the Baisnab Sampraday and any Hindu of reputation of the village and of the locality is entitled to take such action, we have no objection to this. (Emphasis supplied) The intention which can be gathered from this document is placed beyond doubt by a later document Ext. 1 which was executed on 17-11-1932 and is in the nature of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to save the property, we will be bound and liable to repay the said amount alongwith just and prescribed rate of interest, and we shall repay. If we do not repay voluntarily you and your successors will realise from us and from our and from our son s and grandsons existing and to be acquired movable and immovable properties and from the existing and to be acquired debuttor properties of the deity according to law. (Emphasis supplied) Considering the two documents together the fundamental features, which now from the recitals extracted above, may be summarised as follows:- (1) That the deity was installed in the temple purely as a family deity and the dedication WAS made only for a group of individuals who may be connected with the family of the Panis who were the founders of the deity. This clearly establishes that the intention of the founders was to dedicate their properties and instal the deity in the temple only for purposes of the Pani family, and their descendants. A perusal of the recitals extracted above would unmistakably show that there can be no two opinions on this question. (2) Extensive private properties belonging to the Pani family alone were dedica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the unimpeachable documentary evidence discussed above, even the oral evidence to prove that the endowment was of a private nature is clear and has not been rebutted by the defence. In this state of the evidence we are indeed surprised to find how the High Court could hold that the endowment was of a public nature. The High Court seems to have been carried away by factors or considerations which are of a very minor nature and by themselves do not prove that the endowment was of a public nature. For instance, one of the circumstances that weighed with the High Court was that the temple was a massive structure of about 25 yards in height. That by itself, divorced from other things, could not prove that the temple was a public one. So far as the oral evidence is concerned. the High Court observed thus: Apart from the above features disclosed by the oral evidence which are indicative of the institution having been treated as a public one. the recitals in some of the clauses of the two documents.-(Exts. A 1) also unequivocally indicate an intention of dedication in favour of public. These observations are not at all borne out by the evidence of PWs 1 to 5 which is the onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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