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PETITIONER: DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER OF SHRI VITHALRUKHA

       Vs.

RESPONDENT: THE CHARITY COMMISSIONER, STATE OF BOMBAY

DATE OF JUDGMENT01/03/1976

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR  871            1976 SCR  (3) 518  1976 SCC  (2) 417  CITATOR INFO :  RF         1981 SC 798  (12)  R          1987 SC2064  (15)

ACT:      Bombay Public  Trust Act,  1950 (20  of 1950)-s.  2(13) Public or Private Trust-Tests for determination of.

HEADNOTE:      The principles of law for determination of the question whether an endowment is public or private are:      (1) In  a private trust, the beneficiaries are specific individuals  who   are  ascertained   or  capable  of  being ascertained; in a private trust, they are the general public or a  class thereof which is incapable of being ascertained. [526C]      (2)  The   intention  of  the  founder  as  to  whether specified individuals or the general public or any specified portion thereof could have the right of worship. [526E]      (3) When  property is  dedicated for  the worship  of a family idol,  it is  a private  and not  a public endowment. Where the  beneficiaries are  not specified individuals, the endowment can only be regarded as public. [526-F]      Devki Nandan  v. Murlidhar. [1956] S.C.R. 756 and State of Bihar & Ors. v. Smt. Charusila Dasi, [1959] Suppl. S.C.R. 601/613, referred to.      (4) Proof  of user  by the  public without interference would be cogent evidence that the dedication is in favour of the public. [527A]      Narayan Bhagwantrao  Gosavi Balajiwala v. Gopal Vinayak Gosavi and others, [1960] 1 S.C.R. 773, referred to.      (5) It is unusual for rulers to make grants to a family idol. [527B]      (6) Participation  of the  members of the public in the darshan in the temple and in the daily acts of worship or in the  celebrations  on  festival  occasions  may  be  a  very important factor to consider in determining the character of the temple. [527E]      Tilkayat Shri  Govindlalji  Maharaj  v.  The  State  of Rajasthan and others, [1964] 1 S.C.R. 561. referred to.      (7) The  origin of  the temple, the manner in which its affairs are  managed, the  nature and  extent of  the  gifts received by  it, rights  exercised by the devotees in regard

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to  worship,  the  consciousness  of  the  manager  and  the consciousness of  the devotees as to the public character of the temple  establish whether  a temple  is a  public  or  a private temple. [527F]      Goswami Shri  Mahalaxmi Vahuji  v. Rannchhoddas Kalidas and ors. [1970] 2 S.C.R. 275, referred to.      (8) It  is not always possible to have all the features of a  public trust  in a  given case: even some of the tests may be  sufficient to  conclude about  the character  of the trust. [528E]      Dismissing the appeal ^      HELD:      In the  instant case  from  the  documentary  and  oral evidence the following features are present:      (i) The  deity installed  in the temple was intended by the founder to be continually worshipped by an indeterminate multitude of the Hindu public.      (ii) In  order to facilitate worship by the public, the founder  also  intended  that  regular  bhajan,  kirtan  and worship  shall  be  maintained  and  annual  ceremonies  and processions for  pilgrimage shall be conducted by the saints in succession nominated by the reigning saint. 519      (iii) There  has been  no evidence  of any hindrance or restriction in  the matter  of  continuous  worship  by  the public extending over a long period.      (iv) More  than a  century ago  the temple,  in its own name, was  the recipient of land by Royal grant and the same has been managed by the saints in succession as manager, not as personal or private property.      (v) Gifts  of land  by members  of the  public from the Taluka and  outside it  in favour  of the  temple or  of the Sansthan were made for the purpose of worship.      (vi) Collection  of subscriptions  were made from house to house by taking Maharaj and also for ’Gulal’ ceremony.      (vii) Holding  out of  the Sansthan  to all intents and purposes as a public temple.      (viii) Treating  of  the  Sansthan  by  those  who  are connected with  the management  as intended  for user by the public without restrictions.      (ix) Absence of any evidence in the long history of the Sansthan to  warrant that  it had any appearance of, or that it was ever treated as, a private property. [530E-H; 531A-B]      The above  features lead  to the inescapable conclusion that Shri  Vithal Rukhamai Sansthan is a public trust within the meaning  of s.  2(13) of  the Bombay  Public Trust  Act. 1950.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1231 of 1968.      Appeal by  special leave  from the  judgment and  order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No. 151 of 1960.      B. D. Bal with A. G. Ratnaparkhi, for the appellant.      V. S.  Desai with  M. N.  Shroff for  S. P.  Nayar, for respondent.      The Judgment of the Court was delivered by      GOSWAMI, J.-The  question that arises in this appeal by special leave  is whether  Shri Vithal  Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.

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    There was  a saint endowed with spiritual powers by the name of  Sakharam Maharaj  at  Amalner.  The  deity  of  his worship was Shri Vithal Rukhamai. Although the origin of the Sansthan  is   dipped  somewhat   in  antiquity  and  direct testimony was  lacking, it  has  never  been  disputed  that Sakharam Maharaj  constructed a  temple in  the year 1817 at Amalner and  installed  the  aforesaid  deity  according  to religious rites. He also acquired certain properties and the said temple  with the  properties  constituted  Shri  Vithal Rukhamai Sansthan  of  Amalner.  The  sansthan  had  movable property  of   the  value  of  Rs.  19,164/-  and  immovable properties of  the value  of Rs.  1,06,000/- and the average gross  annual   income  as   well  as   the  average  annual expenditure was Rs. 11,000/-.      After the passing of the Bombay Public Trusts Act, 1950 (No. 29  of 1950)  (briefly the  Act) an  application  under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh,  Ramrao Sahebrao Deshmukh and Ramkrishna Tryambak Deshpande,  as constituted attorneys of Vasudeobuwa who was  described in  the application as the "owner" of the property. The  word ’Buwa’  means saint. The application was made on May 29, 1952, to the Assistant Charity Commissioner, Poona, under protest and without prejudice 520 to the claim made therein that the Sansthan was not a public trust. In  view of  the penal  provision under section 66 of the Act  in the case of non-compliance with section 18(1) of the Act  the said application was made ex abundanti cautela. The Assistant  Charity Commissioner  after requisite  notice made an  enquiry into  the matter  in  accordance  with  the provisions  of   the  Act.   On  behalf  of  the  applicants representing  the   Sansthan  evidence   of   the   attorney Ramkrishna Deshpande  was recorded and he was cross-examined by the  assessors  as  well  as  by  the  Assistant  Charity Commissioner. Some documents were also produced on behalf of the Sansthan. Three witnesses were examined on behalf of the Assistant  Charity   Commissioner  and   were  afforded   an opportunity  to   the   applicants’   pleader   for   cross- examination. At  the close  of  the  enquiry  the  Assistant Charity Commissioner  by his  order of August 25, 1956, held the  Sansthan   to  be   a  public  trust  and  ordered  its registration as a public trust under the Act.      The applicants  thereupon filed an appeal under section 70 of  the Act  before the Charity Commissioner, Bombay, who by his  order of  August 31,  1957, affirmed the decision of the Assistant Charity Commissioner.      That led  to an application under section 72 of the Act to the  District Judge  of West Khandesh at Dhulia which was duly  filed   on  behalf  of  Purshottambuwa  who  meanwhile succeeded Guru  Vasudeobuwa as  "owner" of the Sansthan. The learned District  Judge reversed the decision of the Charity Commissioner by  his order of October 16, 1959, and declared the Sansthan  to be  a private  property and  not  a  public trust.      The Charity  Commissioner then  appealed under  section 72(4) of the Act to the High Court of Bombay. The High Court by its  order of 19/20th December, 1962, set aside the order of the  District Judge  and held the Sansthan to be a public trust under  the Act  and restored  the order of the Charity Commissioner. Hence  this appeal  by special leave which was obtained on  March 29,  1968, after condonation of delay, in the peculiar  circumstances  of  the  case  arising  out  of revocation by  the High  Court of its earlier certificate in favour of  the appellant on account of default of deposit of security.

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    As noted  earlier there  was both  oral and documentary evidence adduced  in this  case. The  learned District Judge relied mostly on the documentary evidence for his conclusion in favour of the appellant. The High Court took note of both oral  as  well  as  documentary  evidence.  The  High  Court particularly relied  upon an  admission of  the  appellant’s witness, Ramkrishna  Deshpande,  when  he  stated  that  "we cannot prevent people from going to the temple as the temple is meant for the Darshan by the public".      It is  not disputed  by Mr.  Bal appearing on behalf of the appellant that the Sansthan in question is an endowment. His only  contention is  that  it  is  a  private  religious endowment and  not a public one. He submits that there is no evidence of long user of this temple by 521 the public  as a  matter of  right. Mr. Bal further contends that the  High Court  failed to  consider all  the  material documents filed  on behalf  of the appellant except only Ex. 35 and  that  the  conclusion  was  highly  erroneous  being contrary to  the one  that had  been reached by the District Judge on appraisal of the entire documentary evidence.      Before we  proceed further,  it may  be appropriate  to note the  definitions of  ’public  trust’  and  ’temple’  in section 2(13)  and section  2(17) respectively  of  the  Act which read as follows:-           s. 2(13):  "Public  trust’  means  an  express  or      constructive trust  for either  a public  religious  or      charitable purpose,  or both  and includes  a temple, a      math, a  wakf, church syna gogue, agiary or other place      of public  religious worship,  a dharmada  or any other      religious or charitable endowment...."           s. 2(17):  "Temple’  means  a  place  by  whatever      designation  known  and  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  public  religious      worship".      Relying upon the above definitions Mr. Bal submits that there  is   absolutely  no   evidence  in  this  case  about dedication to  the public  or public user of the temple as a matter of right.      Since  the  grievance  of  the  appellant  is  directed against the  High Court’s  absolute failure  to consider all the documentary  evidence, we  may  deal  with  that  aspect first.      The earliest  document  produced  in  this  case  is  a ’Sanad’ (Ex. 42) of November 1, 1863. This Sanad was granted by the  then British  Government during  the reign  of Queen Victoria in  favour of "Devasthan Shri Vithal Rukhamai’. The Sanad refers to the entry in the village accounts. The entry mentioned therein is in the village accounts in the Khandesh Collectorate for  the year  1860-61, field  Nos. 623 and 624 measuring 14.5  acres of  land in  the name of the holder as Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker.  There are  significant recitals in the Sanad to the following effect:           "It is hereby declared that the said land shall be      continued for  ever by  the British  Government as  the      endowment property  of Shri  Vithal Rukhamai  of Kasabe      Amalnair Talooka  Amalnir on  the following conditions,      that  is  to  say,  that  the  managers  thereof  shall      continue faithful  subjects of  the British Government,      and ..  the said  land shall  be continued  for ever as      endowment Inam  without increase  of land  tax over the      said fixed amount".

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         The amount fixed was Rs. 17/4/0 per annum. 522      It is true that the High Court has not referred to this Sanad but  the District  Judge did.  The District Judge held that-           "..... the  expression in  the Sanad  cannot be in      any way  determinative of  the nature  of the temple or      religious endowment as a public trust".      It is,  however, difficult  to accept the conclusion of the District  Judge. The  Sanad being an ancient Royal grant is a  very important piece of evidence to show that although Sakharam Maharaj,  the founder  of the  temple, had  already been  succeeded   by  Guru  Govindbuwa  and  the  latter  by Balkrishnabuwa, the  land had  been held in the year 1860-61 in the  name of  the Devasthan.  It is  in the  name of  the Devasthan  alone   that  the  grant  was  continued  by  the Government. This  would  go  to  show  that  the  Government recognised  the   Sansthan  with  the  temple  as  a  public religious endowment  and only  on that  basis the  grant was continued. Apart  from that  the temple  was shown to have a Manager and not an owner as such. In the absence of anything to the  contrary of  a convincing  nature, a  grant  by  the Government in  favour of  the temple describing the property to be  in charge of a manager leads to an unerring inference that the property is a public religious endowment.      From the  evidence of  Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows:-           "The originator  of this Sansthan is Sakharambuwa.      After Sakharam  there came  Gobindbuwa. He was followed      by Balkrishnabuwa.  Then came  Prahladbuwa.  Thereafter      Tukarambuwa came  to Gadi.  After him there was Krishna      buwa and  after him  there was  Balkrishna.  Then  came      Vasudeo. After  him the present Buwa Purshottam came to      Gadi. This Gadi goes to Shishya from the Guru".      This   evidence    of   Ramkrishna   Deshpande   stands corroborated by  the Sanad  which shows  in the year 1860-61 the  Manager   of  the   Sansthan  as   Balkrishnabuwa  Guru Govindbuwa. Guru  Govindbuwa was  the second  in the line of succession after  Sakharam, the  founder, and Balkrishnabuwa being the third in the line. It is clear from the Sanad that the Government  treated the  temple as  a  public  religious endowment.      The next  document  in  sequence  is  a  Varaspatra  of February  28,   1869  (Ex.   35)  executed  by  Guru  Govind Balkrishna buwa in favour of Prahladbuwa. This is a document which was  relied upon both by the District Judge as well as by the  High Court.  Varaspatra is  a deed  of nomination by which an Adhikari for the Sansthan was nominated in order to take charge  of the  property,  maintain  and  continue  the religious worship  of the  deity as per tradition as well as of the  celebration of  the festivals in accordance with the customary practice  of the Sansthan. The appellant draws our attention to the following recitals in the above deed:-           "I have  been  carrying  on  the  Malaki  of  Shri      Sansthan Amalner...." 523      According to  the appellant  this would go to show that the  executant  of  the  document  Balkrishnabuwa  described himself as  ’Malak’ (owner)  of the  Sansthan. It is further pointed out  that  while  nominating  Prahlad  as  Adhikari, Balkrishnabuwa stated in the said document as follows:-           "You are  entitled to  the ownership  of  all  the      incomes that  will come  before the Deity, Shri Samarth      and during the Swari (procession) as well as the income

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    of Inam Najrana and the income of movable and immovable      property".           x      x         x           x            x           "The entire  ownership of the Sansthan and all the      movable and  immovable property  etc. pertaining to the      Sansthan is  of yours.  That ownership  is of your own.      Your Bhauband  and others have no right whatsoever over      the same.  You are  free to  give and  take as  per the      Shishya-sampradaya as has been done previously".      From  the   above,  the  appellant  contends  that  the Sansthan was  a private property and it was also transferred to the  Shishya Adhikari to maintain it as his own property. We are  unable to  accept this  submission as  we find  some other  significant   recitals  in   the   documents   itself warranting a  contrary conclusion.  Although it is stated in the  document  that  Balkrishnabuwa  was  "carrying  on  the Malaki", he  at the  same time  states with  regard  to  the Sansthan thus:           "... the  same was  entrusted to  me by  Shri Guru      Maharaj".....           x     x           x         x             x           "I, therefore,  thought that  I should entrust the      work of  the Sansthan  to you and have appointed you to      the said Sansthan".      The nature  of devolution  is  explicit  in  the  above extract.      Although there  is use  of the words owner and ’Malaki’ in the above recitals, the entire tenor of the document read as a  whole goes  to show  that the property has always been treated as  trust property  even by  the Adhikari saints and the Adhikaris  or the  disciples who succeeded one after the other were  not owners  but trustees  of the  property. This ancient document read as a whole does not admit of any other interpretation consistent  with the  nature of  the property and the  avowed object  and purpose  of the  founder clearly revealed therein  which has  been  carried  into  effect  by successive loyal  and devoted  disciples. The words ’Malaki’ and ’owner’  in the context, are not used in the broad sense to indicate an absolute character of personal ownership.      The next  document is  Vyavasthapatra (Ex. 41) of April 25, 1897.  We find  from the evidence of Ramkrishna that the Shishya is  appointed by  the  Maharaj  who  happens  to  be holding the  Gadi at  the relevant  time. This fact is borne out by the recitals in Ex. 41. 524 This document  may be  described as  a deed of nomination or will whereby  it appears  Krishnabuwa whose Guru was Tukaram Maharaj nominated  Balkrishna  Gangadhar  Dhamurkar  as  the Devadhikari of  the  Gadi  to  succeed  him.  The  appellant submits that  Balkrishna was bestowed a ’Malaki’ as the term appears in this document.      Although  the  High  Court  has  not  dealt  with  this document, there  is a  reference  in  its  judgment  to  the contents of  the same  as  being  similar  to  Ex.  35.  The principal emphasis on both these documents Ex. 35 and Ex. 41 is that  the words  ’owner’ and  ’Malaki’ were  used in  the recitals. As  stated  above  we  are  unable  to  hold  that recitals in  these documents taken as a whole can reasonably lead to  the conclusion  that  the  Sansthan  is  a  private property.      After  the   turn  of   the  century,   coming  now  to comparatively recent  times, there  are four  documents  Ex. 40,37,39 and  38 dated  September 10,  1929, July  15, 1936, July 2,  1946 and  January 28, 1949, respectively. In Ex. 40 the party  taking the  gift is described as Vahiwatdar Panch

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of Shri Sakharam Maharaj, Sansthan, Vithalwadi, Amalner. The donor, an  old agriculturist  of  a  different  Taluka  viz. Erandole, writes:      "I give the gift deed in writing as follows:-           With the object of giving possible help through me      to  the  above  sansthan,  I  have  given  in  gift  my      ancestral immovable property......           x         x         x         x         x           I have  given in gift the above mentioned property      as aforesaid  of  my  free  will  for  the  purpose  of      religious work in order that my life may be of bliss as      I have no male issue and wife.           x         x         x         x         x           The said  field should  be used  for the  sansthan      from generation  to generation.  The above sansthan has      become full owner thereof".      In the  gift deed  Ex. 37 executed by three businessmen of Amalner there are recitals to the similar effect:           "When we were joint, the said field was given as a      gift to you for the service of the sansthan, viz., Shri      Vithal Rukhmai  Sansthan, Amalner and was given in your      possession. Now all our movable and immovable estate is      partitioned orally.  Hence the  gift deed  of the  said      field, which had remained unexecuted, has been executed      today......"      The said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru Balkrishnabuwa. Again, in the gift deed Ex. 39 the  donee  is  described  as  "Shri  Rukhmini  Pandurang Sansthan,  Sansthan  Amalner  Sakharam  Maharaj  at  present Vasudev Buwa Guru Bal- 525 krishna  Maharaj".   The  following  recitals  in  the  said document are eloquent:           "This land  is given  to you in charity as per the      order of  (my) mother with a religious view and with an      intention of  benefitting others  with  the  object  of      achieving happiness in this world and in the next world      according to  the shastras  and the above land is given      in your  possession this  day. Hence  you are  the full      owner of  the land  and you  are  free  as  full  owner      thereof to  manage and carry on the Vahiwat of the said      land by  right of ownership perpetually from generation      to generation on the strength of this writing.           x         x         x         x         x           The  Dindi  of  the  said  Sansthan  from  Amalner      remains at  Shivgaon on  the 30th of Jeshta vadya or on      the 1st  of Ashad  Shudha according  to practice  every      year.  You should spend the income of the said property      for the  purpose of Naivadya for the Deity Pandurang at      night that day."      The  beneficiaries   of  this   gift  are  clearly  the unascertained Hindu  public and  not ascertained individuals and the  donee is  a trustee accepting the gift on behalf of the Sansthan.      The last  deed of gift is Ex. 38 and the donee is "Shri Vasudev  Buwa   Guru  Balkrishna   Buwa"  described  as  the worshipper carrying  on the  "Vahiwat of Shri Vithal Rekhmai Sansthan". The deed goes on to say:           "I have full faith in Shri Sakharam Maharaj. Hence      with the  intention (object)  that some  service may be      rendered by  me for his Devasthan, I have given in gift      out of  love the below mentioned property valued at Rs.      600 (Six hundred) without taking any consideration from      you, for  the purpose of expenses of performing worship      and offering Naivadya food".

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    All the  above gifts  were donated to the Devasthan and for the maintenance of worship therein. These gifts were not made in  favour of  individuals as  such in  order that  the beneficiaries of  the gifts  will be only those individuals. It is  clear that  the beneficiaries  of the  deeds are  the deity and  the Sansthan  and the  gifts were  made with  the object of  maintenance of  the worship  of the deity for the benefit of  the Hindu  public as  a whole. The expression in the recital  that "you  are free  as the full owner thereof" does not  convert the  gift which  is expressly in favour of the deity  or Sansthan  into that in favour of an individual as private  property. The  appellant  relies  on  all  these documents for  the purpose  of showing that the endowment is private only  because ownership  of the donor is transferred to the  donee. We  are, however,  unable to  accede to  this submission. It  is very  significant that  in the  last gift deed Ex. 38 of January 28, 1949, there is a most reverential reference to Shri 526 Sakharam Maharaj and his Devasthan when Sakharam Maharaj had departed in the past century. Not much can be made therefore from the  expression "His Devasthan" to convert the property into a  private endowment. The reference to Sakharam Maharaj Sansthan, wherever  it appears,  is only  for the purpose of identification and  commemoration of  the hallowed saint who had admittedly founded the same.      The principles of law for determination of the question whether an  endowment is  public or private are fairly well- settled. This Court observed in Deoki Nandan v. Murlidhar as follows:-           "The distinction  between a  private and  a public      trust is  that whereas  in the former the beneficiaries      are specific  individuals, in  the latter, they are the      general public  or a class thereof. While in the former      the beneficiaries  are persons  who are  ascertained or      capable  of  being  ascertained,  in  the  latter  they      constitute a body which is incapable of ascertainment".      This Court further held:           "When  once   it  is   understood  that  the  true      beneficiaries of religious endowments are not the idols      but the  worshippers,  and  that  the  purpose  of  the      endowment is  the maintenance  of that  worship for the      benefit  of   worshippers,  the   question  whether  an      endowment is  private or public presents no difficulty.      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".           (See also  the  State  of  Bihar  &  ors.  v.  Sm. Charusila Dasi.      Distinguishing the  decision of  the Privy  Council  in Bahu Bhagwan  Din v.  Gir Har  Saroon on the ground that the properties in  that case  were granted  not in  favour of an idol or  temple but  in favour  of one  Daryao Gir  who  was maintaining a  temple and  to his  heirs in perpetuity, this

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Court further held in the above decision:           "But, in  the present  case, the  endowment was in      favour of  the idol  itself, and the point for decision      is whether it 527      was  private   or  public   endowment.  And   in   such      circumstances, proof  of user  by  the  public  without      interference  would   be  cogent   evidence  that   the      dedication was in favour of the public".      This  Court  also  distinguished  the  aforesaid  Privy Council decision  of Babu  Bhagwan  Din’s  case  (Supra)  in Narayan  Bhagwantrao  Gosavi  Balajiwale  v.  Gopal  Vinayak Gosavi and others.      This Court  also observed in Narayan Bhagwantrao Gosavi Balaji wale’s case (supra) that it is also unusual for rules to make grant to a family idol.      In Tilkayat  Shri Govindlji  Maharaj v.  The  State  of Rajasthan and  others this  Court had  to consider  about  a Hindu  temple  being  private  or  public  and  observed  as follows:-           "Where evidence in regard to the foundation of the      temple is  not clearly  available  sometimes,  judicial      decisions rely on certain other facts which are treated      as relevant.           Are the members of the public entitled to an entry      in the  temple ?  Are they  entitled to  take  part  in      offering service and taking Darshan in the temple ? Are      the members  of the public entitled to take part in the      festivals and  ceremonies arranged  in the temple ? Are      their offerings  accepted as  a matter  of  right.  The      participation of  the members  of  the  public  in  the      Darshan in  the temple and in the daily acts of worship      or in  the celebrations of festivals occasions may be a      very important  factor to  consider in deter mining the      character of the temple".      In Goswami Shri Mahalaxmi Vahuji v. Rannchhodds Kalidas and an Ors., this Court observed as follows:-           "In brief  the origin  of the temple the manner in      which its affairs are managed, the nature and extent of      gifts received  by it, rights exercised by the devotees      in regard  to worship therein, the consciousness of the      manager  and   the  consciousness   of   the   devotees      themselves as to the public character of the temple are      factors that  go to  establish whether  a temple  is  a      public temple or a private temple".      The learned  counsel for  the appellant relied upon the decision in  Bihar State  Board Religious  Trust,  Patna  v. Mahant Sri  Biseshwar Das  and drew  our  attention  to  the following observations therein:           "Thus, the  mere fact  of the  public having  been      freely admitted  to that temple cannot mean that courts      should  readily   infer  therefrom  dedication  to  the      public. The  value of  such public  user as evidence of      dedication depends on 528      the circumstances  which give strength to the inference      that the user was as of right".           "Examples do  occur where  the founder  may  grant      property to  his spiritual  preceptor and his disciples      in succession  with a  view to  maintain one particular      spiritual family and for perpetuation of certain rights      and ceremonies  which are deemed to be conducive to the      spiritual welfare  of the  founder and  his family.  In      such cases  it would be the grantor and his descendants      who are  the only persons interested in seeing that the

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    institution is kept up for their benefit. Even if a few      ascetics are  fed and  given shelter, such a purpose is      not to  be deemed  an independent  charity in which the      public or  a  section  of  it  has  an  interest.  Such      charities, as  already stated  earlier, appertain  to a      private debutter also".                *      *      *     *      *      We do  not find  that there  is any  difference in  the ratio of  the principles followed in the above decision. The case went  against the  Board in  the above  decision in the absence of  "evidence of  a reliable kind" of public user as "evidence of dedication".      It is not always possible to have all the features of a public trust  in a  given case.  Even some of the tests laid down by  this Court  may, in  a given case, be sufficient to enable the court to come to a conclusion about the character of the trust.      We cannot  agree that  the High  Court was not right in giving due  importance to  the admission  of the constituted attorney Ramkrishna  Deshpande  that  they  "cannot  prevent people from  going to  the temple as the temple is meant for the  Darshan  by  the  public".  The  consciousness  of  the constituted attorney about the nature of the property, which has been  held out  for more  than a  century  as  a  public religious endowment,  adds to  the effect of the documentary evidence produced by the appellant in this case in favour of the same  conclusion. It  has  to  be  remembered  that  the founder Sakharam  Maharaj was  a celibate and the successive disciples who  succeeded as  Adhikaris of the Gadi were also celibates. From Ex. 35, the first Varaspatra of February 28, 1869, one  gets  a  full  picture  of  the  working  of  the Sansthan:           "The service  and Bhajan etc. of the Deity have to      be made  as per  the order of the Guru according to the      Sampradaya".                *     *     *     *     *     *           "....you should  perform the  Bhajan as  was being      done as  per the  Shishya Sampradaya  and  perform  the      Bhajan in Chaturmas at Shrikshetra Pandharpur regularly      and there-after  you should come to Amalner and keep up      the practice  of celebrating the festivals etc. of Shri      Sakharam Maharaj  regularly  as  was  being  done.  You      should maintain the 529      Mandali (Committee)  of the  sansthan and  continue the      whole Mandali  (Committee) with  unanimous opinion. You      know the  Vahiwet of  the Sansthan  as is going on. You      should continue the same accordingly in future".....                *     *     *     *     *     *           "That ownership  is of your own. Your bhauband and      others have  no right whatsoever over the same. You are      free to  give and take as per the Shishya-sampradaya as      has been  done previously. The Deshmukhs and Deshpandes      at Kashev-Amalner  have been  rendering service  to the      said Sansthan  faithfully. You  should make arrangement      to accept  service from  them as being done accordingly      and go  on rendering service and performing Bhajan etc.      faithfully as  mentioned herein  as per  the  Vaishnava      sampradaya as being done from before".                x      x      x      x      x We have also seen from the evidence of Ramkrishna Deshpande:           "All the  Buwas are  saints. People go for darshan      because these  people were  saints.  This  Sansthan  is      based on  the principles  of  Shishya  parampara.  This      property goes from Guru to his Shishya.

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              *     *     *     *      *           "The residents  of the place where the Bhajans are      performed  attend   these  Bhajans.   In  the  days  of      Pandharpur fair  the Maharaj  remains present. He stays      there for about 4 months. During his stay at Pandharpur      Bhajans  are  performed  daily.  During  the  fair  his      Shishyas perform  the Bhajans. While returning from the      pilgrimage  also  he  performs  Bhajans.  Maharaj  also      attends other fairs at Nasik etc. At that time also his      Shishyas  accompany   him.  By   Shishyas  I  mean  the      disciples as  well as  followers. Shishyas  are few but      the followers  are in  large numbers.  In the utsava at      Amalner many  saints  of  other  places,  Shishyas  and      followers take  part. The  persons who attend this year      besides Shishyas  and followers are about ten thousand.      The  followers  and  saints  are  paid  their  cost  of      journey. All their expenses of boarding and lodging are      met  by   this  Sansthan.  The  Bhajans  at  Pandharpur      performed by Maharaj are attended by the public".      Ramkrishna Deshpande concludes his evidence by stating:           "I contend  that this  is a private temple because      others  cannot   perform  puja  without  permission  of      Maharaj".      The oral  and documentary  evidence leave  no room  for doubt whatsoever that the Sansthan and the temple are public religious endowments.  Even in  acknowledged public  temples any and  everybody cannot perform puja in the sense in which the head pujari daily performs 530 at various  stages. Public  is not and may not be allowed to the inner  most sanctum  where the deity is installed except under special  circumstances with  special permission.  That would, however,  not lead  to the conclusion that the temple is  a   private  temple.  Worshippers  are  not  merely  the accredited daily  pujaris but  also  the  multitude  of  the public who go to the temple for Darshan of the deity and for offerings. The  contention of  Ramkrishna Deshpande  in  his evidence, therefore, is without any force.      When the  origin of  an endowment  is  obscure  and  no direct oral  evidence is  available, the  Court will have to resolve the  controversy about the character of the trust on documentary evidence,  if any,  the object  and purpose  for which the  trust was created, the consistent manner in which the property  has been  dealt with  or managed  by those  in charge, the  manner in which the property has long been used by the  public, the  contribution  of  the  public,  to  all intents and purposes, as a matter of right without the least interference or  restriction from the temple authorities, to foster maintenance of the worship the accretion to the trust property by  way of  grants from  the state  of  gifts  from outsiders inconsistent with the private nature of the trust, the nature  of devolution of the property, are all important elements in determination of the question whether a property is a  private  or  a  public  religious  endowment.  We  are satisfied  that  in  this  case  all  the  above  tests  are fulfilled.      To sum  up  from  the  documentary  and  oral  evidence produced, the  following features are present in the present case:           (1)  The  deity   installed  in   the  temple  was                intended by  the Founder  to  be  continually                worshipped by  an indeterminate  multitude of                the Hindu public:           (2)  In order to facilitate worship by the public,                the  founder   also  intended   that  regular

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              Bhajan,   Kirtan   and   worship   shall   be                maintained   and    annual   ceremonies   and                processions for pilgrimage shall be conducted                by the  saints in succession nominated by the                reigning saint.           (3)  There has  been no  evidence of any hindrance                or restriction  in the  matter of  continuous                worship by  the public  extending over a long                period.           (4)  More than a century ago the temple in its own                name was recipient of land by Royal grant and                the same  has been  managed by  the saints in                succession as  Manager  not  as  personal  or                private property.           (5)  Gifts of  land by  members of the public from                the Taluka  and outside  it in  favour of the                temple or  of the Sansthan for the purpose of                maintenance of the worship.           (6)  Collection of  subscriptions were  made  from                house to house by taking Maharaj and also for                ’Gulal’ ceremony.           (7)  Holding out  of the  Sansthan to  all intents                and purpose as a public temple. 531           (8)  Treating of  the Sansthan  by those  who  are                connected with the management as intended for                user by the public without restriction.           (9)  Absence of  any evidence  in the long history                of the  Sansthan to  warrant that  it had any                appearance of, or that it was ever treated as                a private property.      While each  case  of  endowment  as  to  its  character depends on  the particular history. tradition and facts, the presence of  the above  features in the instant case lead to the  inescapable   conclusion  that   Shri  Vithal  Rukhamai Sansthan at  Amalner is a public trust within the meaning of section 2(13) of the Act.      In the  result the  appeal fails  and is  dismissed. We will, however, make no order as to costs. P.B.R.                                     Appeal dismissed. 532