TMI Blog1961 (12) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ilipuram, Chicacole, a longstanding institution, was started by one Malukdas 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. 3. 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and rejected the statements of the witnesses examined for the appellants. 9. The sole question for determination in this appeal is whether this institution is a 'temple' as define 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. 10. 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. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. 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 1698 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. 16. 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 regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords 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 (11) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion 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'. 20. 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. 21. This extract therefore supports the case of the appellants even though the name of the temple has been mentioned al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defraying charges to meet the object of the grant and that he is not mis-appropriating the proceeds of the Inam in any way. 25. 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. 26. 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. 27. Exhibit P-53 is the extract from the Register of Inams relating to village Ragolu in Chicacole 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 there 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 times. 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 full 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardhana 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. 34. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 37. 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 ground to discredit him. 38. The last witness is 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-examination 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. 42. 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 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 from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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