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TMI Blog1939 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been found and it does not appear to be in doubt that the members of this family are grihastha. fakirs being at once Goshains and householders. The family comes from the Bijnore district "on the Dhampur side" and is a joint Hindu family of the usual type. At the time of the application to the District Judge members of the family had been continuously in occupation and control of the temple and a number of samadhs or tombs had been set up containing the ashes of Goshains who had belonged to the family. No interference with the management of the temple or the conduct of its worship whether on behalf of the public or otherwise had at any time taken place. It was not alleged in the application that the family had been guilty of any neglect or mismanagement and the contrary has now been held by the Courts in India. The District Judge gave to the five respondents before him an option to bring a suit for a declaration that the property was not subject to a trust for a public purpose of a charitable or religious nature but they did not take this course. Accordingly he threw upon them the burden of disproving this allegation and after hearing nine witnesses for the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents' family on behalf of whom it had been claimed. Both of these decisions were taken on appeal to the Chief Court at Lucknow and on 23rd October 1934, Nanavutty and Zia-ul-Hasan JJ. delivered one judgment covering the two appeals. They held that the temple property was not impressed with a public trust but was private property belonging to the joint family of the goshains. Hence the two appeals, which are now before the Board as a consolidated appeal. 3. The first question is whether the order of the District Judge made under the Charitable and Religious Trusts Act, 1920, precludes the respondents from disputing that the temple is the subject of a public religious trust. That order was made in the presence of five members only of the family and it is not shown that the other members are bound by it according to any principle of representation. Hence, it is difficult to see how these other members can be prevented from claiming the property as belonging to their joint family. The Chief Court have refused for other reasons also to regard the District Judge's order as conclusive. In this they have followed the decisions of a Bench of the Lahore High Court in AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prevent a similar contention being raised by a defendant to a suit under Section 92 of the Code. Upon the merits, it is desirable to consider first the documents. The main document of title has already been mentioned. It is Ex. 4 dated 2nd April 1781, whereby the Nawab of Oudh granted the property now in question to the respondents' ancestor, Daryao Gir. The grant runs as follows: The present and future state officials of Haveli Lucknow, suburbs and the province of Akhtarnagar, Oudh, should know that five pucca bighas waste land, free from Government revenue, mal and sewai, in the immediate vicinity of village Nawagaon, included in the said Haveli whereon lies the house of Bhairon, has been granted along with the said house, in the name of Daryao Gir Goshain the Mahant, free of all dues and shall not be shown in the record; that the said land shall, generation after generation and descent after descent, be left in the possession and enjoyment of the said person and his heirs and they (officials) should not interfere and meddle with the same for any reason so that the said person having remained in possession of the said land and constructed a house, etc., should with conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain that upon a review of the history of the temple they have established that it was held out to the public as a public temple and that the Courts in India should have applied to it the reasoning of the Board in the Madras case in 29 C W N 112. Lakshmana Goundan v. Subramania Ayyar (1924) 11 AIR PC 44 The facts which have been held by the Courts below to tell in favour of the respondents are that there had been no previous interference with the temple on behalf of the public, that the Goshains took the offerings for themselves; that they divided them according to their shares as members of different branches of the family; that they spent money on repairs; that they gave leases in their individual names and not in the name of the idol; that they closed the temple when they had occasion to go to their native village for family ceremonies, e.g. marriages; and that tombs to certain members of the family were put up though they could not claim to-be famous saints. 7. Their Lordships agree with the Chief Court in holding that the grant of 1781 is not a grant to the idol or an endowment of a temple or a gift made by way of trust for a public religious purpose. The grant is to Dary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the locality or 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 become 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 temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily 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 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 IA 405 Mundacheri Koman v. Achuthan Nair (1934) 21 AIR PC 230 the Board expressed itself as being slow to act on the mere fact of the public having been f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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