TMI Blog1956 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... g widow, Raj Kuar, succeeded him as Mutawalli in terms of the will and was in management. till her death in 1933. Then the first defendant who is the nephew of Sheo Ghulam, got into possession of the properties as manager of the endowment in accordance with the provisions of the will. The appellant is a distant agnate of Sheo Ghulam, and on the allegation that the first defendant bad been mismanaging the temple and denyinng the rightg of the public therein, he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920, but the court declined to interfere on the ground that the endowment was private. An application to the Advocate-General for sanction to institute a suit under section 92 of the Code of Civil Procedure was also refused for the same reason. The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship. The first defendant contested the suit, and claimed that the Thakurdwara an - d the idols were private , and that the general public had no right to make any interference . The Additional Civil Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desires. God however does not make use of the village or lands, according to its desires. Therefore nobody makes a gift (to Gods). Whatever property is abandoned for Gods, brings prosperity to those who serve Gods . Likewise, Medhathithi in commenting on the expression Devaswam in Manu, Chapter XI, Verse 26 writes: Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods. For the Gods do not make use of the property according to their desire nor are they seen to act for protecting the same . Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gainartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who In Bhupati Nath Smritititha v. Ram Lal Maitra(1), it was held on a consideration of these and other texts that a gift to an idol was not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion whether the Thakurdwara is a public temple or a private one may be considered under four heads:(1) the will of Sheo Ghulam, Exhibit A-1, (2) user of the temple by the public, (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthsarga, and (4) other facts relating to the character of the temple. (1) The will, Exhibit A-1, is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its provisions, so far as they are material, may now be noticed. The will begins with the recital that the testator has two wives and no male issue, that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes. Clause I of Exhibit A-1 provides that after the death of the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9 testator in the absence of male issue, the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrisbnan, and mutation of names shall be effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family. The testator begins by stating that he had no male issue. In Nabi Shirazi v. Province of Bengal (supra), the question was whether a wakf created by a deed of the year 1806 was a public or a private endowment. Referring to a recital in the deed that the settlor had no children, Khundkar J. observed at p. 217: The deed recites that the founder has neither children nor grandchildren, a circumstance which in itself suggests that the imambara was not to remain a private or family institution . Vide also the observations of Mitter J. at p. 228. The reasoning on which the above view is based is, obviously, that the word family in its popular sense means children, http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9 and when the settlor recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public. Then we have clause 2, under which the testator constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him. Clause 3 confers on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P.W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and be deposed that while Sheo Ghulam s wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right. It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9 their rights. The learned Judges of the Chief Court also relied on the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroon [1939] L.R. 67 I.A. 1. as an authority for the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it. In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras. P. W. 10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9 Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public. In the court below, the appellant raised the contention that the performance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part 11, Appendix II, II,p. 339 that there is no utsarga of a temple except in the case of repair of old temples . In the, History of Dharmasastras, Volume II, Part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and not Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9 texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by P.W. 10, is not in dispute. In our opinion, this establishes that the dedication was to the public. (4)We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public. Firstly, there is the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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