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PETITIONER: GOSWAMI SHRI MAHALAXMI VAHUJI

       Vs.

RESPONDENT: RANNCHHODDAS KALIDAS AND ORS.

DATE OF JUDGMENT: 09/09/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. BHARGAVA, VISHISHTHA RAY, A.N.

CITATION:  1970 AIR 2025            1970 SCR  (2) 275  1969 SCC  (2) 853  CITATOR INFO :  RF         1972 SC1716  (11)  R          1976 SC 871  (36)  R          1986 SC2094  (10,12,14)  R          1986 SC2139  (10)  RF         1987 SC2064  (7,15,16)

ACT: Temples--Tests  for  determining  whether  the   Temple   is public  or private--Vallabh Sampradayees--If  followers   of the school must worship in a private Temple.

HEADNOTE: In  deciding whether a temple is private or  public,  Courts have to address themselves to various questions such as:-                  (1)  Is the temple built in  such  imposing               manner that it  may prima facie appear to be a               public temple ?                 (2)  Are the members of the public  entitled               to worship in that temple as of right ?                  (3)  Are the temple expenses met from  the.               contributions made by the public ?                  (4) Whether the sevas and utsavas conducted               in  the temple are those usually conducted  in               public temples ?                  (5)  Have  the management as  well  as  the               devotees been  treating the temple as a public               temple.     Though  the  appearance  of  a  temple  is  a   relevant circumstance,   it  is  by no means ’a  decisive  one.   The architecture  of temples differs from place to  place.   The circumstance that the public or a section thereof have  been regularly   worshiping in the. temple as a matter of  course and  they  can take part in the  festivals  ’and  ceremonies conducted in that temple apparently as a matter of right  is a strong piece of evidence to establish the public character of  the temple.  If votive offerings are being made  by  the public in the usual course and if the expenses of the temple are  met by public contribution, it is safe to presume  that the temple question is a public temple.  In brief the origin of the temple., the manner in which its affairs are managed,

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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  public temple or a private temple. [286 H-H] Tilkayat Shri Govindlalji Mahraj v. The  State of  Rajasthan and  Ors.,[1964]  1  S.C.R. 561;  Lakshmana  v.  Subramania, (1923)   A.I.R.  1924 P.C. 44; Mundancheri Koman v.  Achutan Nair   (1934) 61 I.A. 405; Deoki Nandan v. Murlidar,  [1956] S.C.R. 756; Narayan Bhagwant  Rao Gosavi Balajiwle v.  Gopal Vinayak Gosavi  and Ors. [1960] I  S.C.R. 773; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Of 1966. Civil Appeal No. 1784 of 1966.     Appeal from the judgment and decree dated March 17, 1952 of  the  Bombay High Court in Appeal No. 385 of  1948   from original decree. 276     D.  Narsaraju, .4. K. Sen, Balkrishan Acharya  and  S.S. Shukla, for respondents Nos. 3 and 4.     K.  K,  Jain, M.K. Garg and H.K. Puri,  for  respondents Nos. 13(a) to 13(f). The judgment of the Court was delivered by     Hegde J.  The main question for decision in this  appeal is  whether the Haveli at Nadiad in which the idol of  Shree Gokulnathji  is  installed as well as the  other  properties detailed  in plaint schedules A & B are the properties of  a public  religious  trust created by the followers of Vallabh cult, residing at Nadiad.     The  history of the suit institution and its  management as  also  the various pleas taken by the parties  have  been elaborately  set out by the High Court in a well  considered judgment.   Hence we shall refer only to such pleas  as  are necessary to decide the contentions advanced before us.     The  plaintiffs are the residents of Nadiad.   They  are Vaishnavites.  They belong to the Vallabh Sampradaya.   They sued  for  a declaration that the  properties  mentioned  in S.chs.  A & B of the plaint are properties oF the  ownership of  the trust ,mentioned earlier.  They are suing on  behalf of the Vallabha Sampradayees residing at Nadiad.   According to their case as finally  evolved that even during the  last quarter  of the 18th century, the Mandir of the  Gokulnathji existed at Nagarwad in Nadiad Prant but  in about 1821 a new Mandir  was  constructed by the followers  of  the  Vallabha School  at Santh Pipli, Nadiad and the idol of   Gokulnathji which  was  previously worshiped at Nagarwad was  taken  and consecrated  there.   In about 1831 they   invited   Goswami Mathuranathji,  a direct descendant of Shree  Vallabhacharya to  come  over to Nadiad and take up the management  of  the Mandir as its Maha Prabhu.  According to the plaintiffs  the Mandir   in  question  was  constructed  by   the   Vallabha Sampradayees  and the expenses of the sevas as well  as  the utsavas  performed  in the Mandir were contributed by  them. They  ,further  say  that  the properties belonging  to  the trust  were  purchased from the  contributions made  by  the devotees  of  that  temple.  They assert  that  the  persons belonging  to the Vallabha Sampradaya have a  right to  have darshan of the deities in the Mandir, according to usage, as of  right.   In  short  their case is  that  the  Mandir  in question  is  a  place of public religious  worship  by  the persons   belonging  to  Vallabh  Sampradaya  and  the  Maha

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’Prabhuji  is’ only a trustee. He has a right to  reside  in the upstair portion of the Mandir and further he can utilise a  reasonable  portion  of the income of  the  trust,  after meeting the requirements of the trust for his maintenance as well as the maintenance of the members of his family.   They contend  that  the suit properties were  dedicated  to  Shri Gokulgathji 277 and the Maha Prabhu has no independent right of his  own  in those properties.  It is further said that the management of the  temple was carried on efficiently by Mathuranathji  and his  descendants till about the time  Annirudhalalji  became the  Maha  Prabhu in Samy 1955.  Annirudhalalji  under  evil advice  sought  to. secure the Jamnagar Gadi  and  for  that purpose  spent enormous sums of money from out of the  funds belonging to the suit temple.  He also incurred considerable debts in that connection. He died in Samy. 1992.  Thereafter defendant  No.  1,  his  widow took over the  management  of the  suit temple and its  properties. During her  management she  began to. assert that  she  was  the absolute owner  of the   suit  properties  including  the  suit   temple.   She alienated  several items out of the suit properties.   Hence they were constrained to bring the suit under appeal for the declaration  mentioned  earlier  and  also  for  a   further declaration   that   the  alienations effected  by  her  are illegal,  improper and unauthorised and not binding  on  the deity.   They  also sought a  mandatory  injunction  against defendants Nos. 2, 7 to 14 to restore lot No. 2 property  in Sch. A to defendant No. 1 for the benefit of the deity Shree Gokulnathji  after declaring that the sale deed dated   19th April 1953 passed by defendant No.. 1 to defendant No. 2  in respect of it is illegal, improper, unauthorised and without consideration  and  the same is not binding  on  the  deity. They  have   also asked for a permanent  injunction  against defendants 3, 4, 5 and 6 restraining them from enforcing the mortgages  dated 4-3-1939, 27-1-1942, 12-1-1942  and  17-12- 1941  passed by defendant No. 1 in their favour.   The  suit was mainly  contested  by  defendant No. 1  According to her Goswami Mathuranathji Maharaj was the owner of the idol Shri Gokulnathji.  It is he who established the Haveli at  Nadiad and rounded his Gadi there; he was not only the owner of the Haveli but he. was also the owner of the  deities that  were being worshiped in that Haveli.  She further pleaded that as per the tenets ,and usages of the Vallabha school, it is not possible  for the members of that cult to found  a   temple. They can only worship through the Acharya (Maha Prabhu)   in his  house  known as Haveli.  According to. their  cult  the Goswami Maharaj otherwise known as Maha Prabhu is the emblem of God head and the living representative of divinity.   She went  further  and took up the plea that according  to  the. Vallabha  Sampradaya  no  deity can own  any  property.  She further   averred   that  Mathuranathji  Maharaj   and   his descendants  received from time to time presents  and  gifts made by his followers.  Those presents  were made to them as a mark of reverence and respect to  them  and with a view to receive  their grace. They were the absolute owners  of  the idols  they worshiped, the presents and gifts made  to  them and  of the properties acquired by them.  She  denied   that the  Haveli  in which Shree Gokulnathji is  worshiped  is  a public   temple.    She  also  denied   that   the   Vallabh Sampradayees were entitled L2Sup. CI/70--6 278 to  have  the Darshana of that deity in that Haveli  as   of right.  She  denied  the plaint averments that  all  or  any

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portion of the suit properties were acquired from the  funds raised  by the devotees or that the sevas or festivals  were conducted  from out of the contributions made by them.   She justified  the  impugned  alienations mainly on  the  ground that she had absolute right to deal with the suit properties as she pleased.  The other defendants supported the  defence taken  by the Ist defendant.  They further pleaded that  the alienations  effected  in their favour were   supported   by consideration  and  they were bona  fide   alienees      and therefore those alienations they are not open to challenge.     The   trial   court  dismissed  the   plaintiffs’   suit principally on the ground that as per the tenets and  usages of   Vallabha  School  it  is  impermissible   for   Vallabh Sampradayees  to found a public temple and therefore, it  is not  possible to uphold the pleas advanced on behalf of  the plaintiffs.  In appeal the High Court reversed the  judgment and  decree of the trial court.  It accepted the  plaintiffs case  that suit properties were the properties of  a  public religious trust and the alienations impeached were not valid and  binding on the trust.  This appeal has been brought  by the  I st defendant. The alienees have not appealed  against the  decree  of the High Court.  In this Court  they  merely supported the pleas taken by the Ist defendant. In this case voluminous evidence both oral and documentary has  been  led  by the  parties.   Fiftyone  witnesses  were examined  in  court  and  two  on  commission.   The    oral evidence   mainly relates to the tenets and beliefs  of  the devotees of the Vallabh Cult and the usages that prevail  in their places of worship. Before   proceeding  to  examine  the  issues  arising   for decision  in  the case it is necessary  to  mention  certain circumstances which have a bearing on those issues.  At  the stage of pleadings it was common ground between the  parties that Mathuranathji was the first person to be recognised  as their  Mahraj by  the  Vallabh Sampradayees of Nadiad.   The plaintiffs’  case  as  mentioned earlier, was that there was a  temple  of Shree Gokulnathji at Nagarwad in  Nadiad  even before  Mathuranathji arrived ,at that  place and  according to  them  Mathuranathji  had in fact  been  invited  by  the Vallabh  Sampradayees  of Nadiad to take over  the   manage- ment  of  the  temple that was  already  existing.   In  her written statement defendant No.1 admitted that Mathuranathji was  the  first  descendant of Vallabha to  settle  down  in Nadiad.   According to her he brought with him the  idol  of Shree  Gokulnathji and started worshiping that idol  in  his Haveli.   At  a later stage the 1st  defendant  changed  her version  and put forward  the  theory that the ancestors  of Mathuranathji had brought the idol of Shree 279 Gokulnathji  to  Nadiad and installed the  same  there  long before  Mathuranathji came to that place.  This  significant deviation  in  the Ist defendant’s case has  evidently  been introduced  to  meet  the  evidence led  on  behalf  of  the plaintiffs about  the  existence  of Gokulnathji temple even before Mathuranathji was born in 1806.     Yet another circumstance that has to be borne in mind in appreciating the evidence adduced by the parties  is   about the  manner in which Mathuranathji and his descendants  were managing  the  Haveli.   They had  maintained  regular   and systematic accounts.  It is obvious they  were   maintaining two   sets   of accounts, one relating to.  the  income  and expenses  of the deity and another relating to the  personal income  ’and  expenses  of  the Maharaj.  But when the I  st defendant  was  summoned  to  produce  those  accounts,  the accounts  relating to  certain  important periods  were  not

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produced  and no  satisfactory  explanation  is  forthcoming for  their  non-production.  From this  omission   the  High Court  has  drawn the inference that   those   account-books have  been  kept back  as  the  evidence which  those  books would   have  afforded  was  not  favorable  to   the    1st defendant’s case.  We agree with that conclusion.  Similarly certain  important documents have been kept back by the  1st defendant.  Some  of those documents were available  at  the time  of  the   inventory but when the I  st  defendant  was summoned  to  produce  them  she  failed  to  do  so.   This circumstance  has  again led the High Court  to  infer  that those  documents  were deliberately kept back  in  order  to suppress material evidence supporting the plaintiffs’  case. Two  of the important documents produced into court   namely Exhs.  501  and 503 were found to have been  tampered  with. Exh.  501 appears to be a register of the temple  properties but the title page of that book has been mutilated.  The top portion of that page had been clearly cut and removed. It is reasonable to assume that the portion that has been  removed contained the title of the register.  Possibly it  mentioned that  it is the  property  register of  Shree  Gokulnathji’s temple.  It  is reasonable to draw this inference  from  the surrounding   circumstances.   Exh.  503  is  the   register relating  to  the  expenses incurred for  repairs  of  Shree Gokulnathji’s temple.  That register was also tampered with. The  original  book  was  not  made  available  to  us   for examination but the High Court which had the opportunity  of examining  that book has made the following remarks. in  its judgment:                   "a new slip was affixed to this  document,               and   the  heading  which  showed   that   the               properties  belonged  to  Shree  Gokulnathji’s               temple was torn out." The High Court has also held that Exh. 633, which  evidences the  sale  of  S. No. 1840, was torn in such  a  way  as  to justify  the plaintiffs complaint that in the  torn  portion was the description 280 of  the  Maharaj as the Vahiwatdar of the temple.  The  High Court observed:                   "We  have  looked  at  all   these   three               documents  (Exhs. 501,503 and 633) and we  are               satisfied  that  the  complaint  made  by  the               plaintiffs  against the advisers of  defendant               No.. 1 cannot be said to be without substance.               It  seems  to  us clear,  on  examining  these               documents that the advisers of defendant No. 1               have    unscrupulously   tampered   with   the               documents.   This  conduct  naturally   raises               suspicion against the defence, and we would be               justified  in  drawing  an  inference  against               defendant No. 1 by holding that, if the  books               of  account which have been kept back  by  her               had  been produced they would  have  supported               the plaintiffs’ case. We agree with these observations.     We may now proceed to examine the material on record for finding out ’the true character of the suit properties  viz. whether  they are properties of a public trust arising  from their dedication of those properties in favour of the  deity Shree Gokulnathji  or whether  the  deity  as  well  as  the suit  properties  are the  private  properties  of   Goswami Maharaj.  In her written  statement  as  noticed,   earlier, the  Ist  defendant  took up the  specific  plea  that   the idol  of Shree  Gokulnathji is the private  property  of the

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Maharaj   the  Vallabh  Cult does not permit any  dedication in favour of  an  idol  and  in fact there was no dedication in  favour of that idol.  She emphatically denied  that  the suit properties were the properties of the deity Gokulnathji but  in  this  Court evidently because of  the  enormity  of evidence  adduced by the plaintiffs, a totally new plea  was taken namely that several items of the  suit properties  had been  dedicated  to   Gokulnathii but the  deity  being  the family  deity of the Maharaj, the resulting trust is only  a private trust. In other words the plea taken in the  written statement  is  that  the suit properties  were  the  private properties  of  the  Maharaj and that there  was  no  trust, private or public.  But the case argued before this Court is a wholly different one viz. the suit properties were  partly the  properties  of a private trust and partly  the  private properties  of  the Maharaj.  The Ist  defendant  cannot  be permitted  to  take up a case which is  wholly  inconsistent with  that  pleaded.  This belated  attempt  to  bypass  the evidence  adduced appears to be more a manor than a  genuine explanation  of  the  documentary evidence adduced.   It  is amply  proved  that ever since Mathuranathji took  over  the management  of  the shrine, two sets of account  books  have been maintained, one relating to the income and expenses  of the  shrine and the other relating to that of  the  Maharaj. These account books and other documents show that 281 presents and gifts used to. be made to the deity as well  as to the Maharaj.  The two were quite separate and   distinct. Maharaj himself has been making gifts to the deity.  He  has been,  at times utilising the funds belonging to. the  deity and  thereafter  reimbursing the same.   The  account  books which   have   been produced clearly go. to  show  that  the deity  and  the Maharaj were treated as  two  different  and distinct  legal  entities.  The evidence  afforded  "by  the account  books  is  tell-tale.  In the trial  court  it  was contended on behalf of the I st defendant that none of   the account books produced relate exclusively to the  affairs of the   temple.  They  all  record  the  transactions  of  the Maharaj,  whether  pertaining to. his personal  dealings  or dealings  in  connection   with   the  deity.   This  is  an obviously  untenable contention.  That contention was  given up  in the High Court.  In the High Court it was urged  that two  sets  of account books were kept, one relating  to  the income  and  expenditure of the deity and the other  of  the Maharai,   so.  that the Maharai could easily  find  out-his financial commitments relating to the affairs of the  deity. But  in this Court Mr. Narasaraju, learned Counsel  for  the appellant  realising  the  untenability  of  the  contention advanced in the courts below presented for our consideration a  totally new case and that is that Gokulnathji   undoubtly is  a legal    personality; in the  past the properties  had been    dedicated  in     favour  of  that    deity;   those properties  are  the   properties of a   private   trust  of which  the  Maharaj was the trustee.  On the basis  of  this newly evolved theory he wanted to explain away the effect of the   evidence  afforded  by  the  account  books  and   the documents.  We are  unable to accept this new plea.  It runs counter to the case pleaded in the written statement.   This is  not a purely legal contention.  The I st defendant  must have  known  whether there was any dedication in  favour  of Shri  Gokulnathji  and  whether  any  portion  of  the  suit properties were the properties of a  private trust.  She and her adviser’s must have known at all relevant times the true nature of the  accounts  maintained.  Mr. Narasaraju is  not right  in his contention that the plea taken by him in  this

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Court  is  a purely legal plea.  It essentially  relates  to questions of fact.  Hence we informed Mr. Narasaraju that we will not entertain the plea in question.     We  shall now proceed to assess the evidence adduced  in this  case to find whether the plaintiffs have succeeded  in establishing that the suit temple and the properties annexed thereto  constitute a public trust. Before doing so,  it  is necessary  to examine certain basic contentions advanced  on behalf  of the appellant.  It is the case of  the  appellant that Vallabh Sampardaees cannot worship in a public  temple; according  to their cult  they  can have the Darshan of  one or  the  other  swaroops of Lord  Krishna in  the  house  of their Maharaj.  In Other words their cult prohibits public 282 worship.   They can only worship through their  Maharaj  and that  too  in his Haveli.  In  support of  this   contention great deal of reliance was placed in the High Court and  the trial court on the views expressed by Dr. Bhandarkar in  his Works on ’Vaishnavism, S’aivism and Minor Religous systems’. The  views expressed by Dr. Bhandarkar had  greatly  weighed with the trial court and it is mainly o.n the basis of those views, the trial court  rejected the plaintiff’s suit.   The High Court after examining the doctrines of Vallabha School, its  tenants  and usages as well as the views  expressed  by eminent  writers like Dr. Radhakrishanan and  Dasgupta  came to. the conclusion that it would not be correct to. say that worship. in public temple is prohibited by the Vallabh  cult though  in  the absence of any positive evidence it  may  be taken  that  the  place  where  the  Vallabha    Sampardaees worship is a private temple.  It is not necessary for us  to go  into  that controversy in view of the decision  of  this Court  in Tilkavat Shri Govindlalji Maharaj v. The State  of Rajasthan  and ors.(1)  In that case this Court was.  called upon  to  consider whether Nathdwara Temple  in  Udaipur,  a temple  rounded  by  the Vallabha Sampardaees  is  a  public temple or not.  After examining the various treatises on the subject  including  Dr. Bhandarkar’s book  on  ’Vaishnavism, S’aivism and Minor  Religious Systems’, this Court  observed (at p.585):                   "Therefore, we are satisfied that  neither               the tenets nor the religious  practices of the               Vallabha   school necessarily  postulate  that               the followers of the school must worship in  a               private  temple.  Some  temples of  this  cult               may have been private even today.  Whether  or               not a  particular temple is a  public   temple               must necessarily be considered in the light of               the relevant facts relating to it.  There  can               be  no. general rule that a public  temple  is               prohibited in Vallabha School."     In view of this decision Mr. Narasaraju, learned Counsel for  the  appellant did not press forward   the   contention that   the  Vallabha  School  prohibits  worship  in  public temple.     Yet another contention taken on behalf of the  appellant is   that  the  architecture  of  the   building  in   which Gokulnathji  is  housed and the nature of that  building  is such  as  to show that it is not a public  temple.   It  was urged   that   building  does  not  possess   any   of   the characteristics of a Hindu temple.  It has not even a  dome. This contention again has lost much of its force in view  of the decision of this  Court  referred to earlier.   Evidence establishes that Ballabha’s son and his immediate  successor Vithaleshwar  had laid down a plan for the  construction  of temples

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(1) [1964] 1 S.C.R. 561. 283 by the Vallabha Sampardaees.  He did not approve the idea of constructing   rich  and  costly  buildings.  for   temples. Evidently  he realised that religious temple buildings  were not  safe  under the Mohommedan rule.  For  this  reason  he advised  his  followers to construct  temples  of  extremely simple  type..  The external view of those temples gave  the appearance  of  dwelling houses.  It appears to be a  common feature of the temples belonging to the Vallabha Sampardaees that  the ground-floor is used as the place of  worship  and the  first  floor as the  residence   of   Goswami  Maharaj, therefore  the fact that Gokulnathji temple at   Nadiad  had the  appearance  of  a residential house does  not  in  ’any manner  militate against the contention that the  temple  in question  is  a public temple.     It was said that according to the  usage  prevailing  in that temple, the public are asked to enter the  temple  only after   the   Maharaj  had  finished  his   worship.    This circumstance  again  is of no  consequence.  Each  sect  nay each  temple has its own customs.  The usage pleaded by  the appellant  is  not  inconsistent with that  temple  being  a public temple.  The appellant attempted to prove that on two occasions  certain individuals were forbidden from  entering the  temple.   In  the first place this plea  has  not  been satisfactorily   established.   Further  according  to   the evidence   adduced   on  behalf  of  the   appellant   those individuals were kept out of the temple because of some  act of   indiscipline  on  their part.  The power  to  manage  a temple   includes  within  itself  the  power  to   maintain discipline within the precincts of that temple.     The  only other circumstance relied on by the  appellant to  establish that the temple in  question is not a   public temple  is  that the sale proceeds of Nagarwad  Haveli  were credited to the account of the Maharaj.  The learned  judges of  the High Court have carefully looked into  that  aspect. After   examining   the  relevant evidence  on  record  they arrived at the conclusion that though initially the   amount in question was  credited to the account of the Maharaj,  at a subsequent stage it was transferred to the account of  the temple by means of  adjustment entries. The learned  Counsel for  the  appellant  was  unable to  satisfy  us  that  this conclusion of the High Court was incorrect.     We  shall now see how far the plaintiffs have  succeeded in establishing that Gokulnathji Mandir is a public  Mandir. The burden of establishing that fact is undoubtedly on them.       Though  most of the present day Hindu  public  temples have  been found as public temples, there are  instances  of private  temples becoming public temples in course of  time. Some  of  the private temples have acquired  great  deal  of religious  reputation 284 either because of the eminence of its founder or because  of other  circumstances.  They have attracted large  number  of devotees.  Gradually  in  course of time  they  have  become public   temples.  Public  temples are  generally  built  or raised  by the public and the deity installed to enable  the members  of  the  public  or a  section  thereof  to.  offer Worship.   In  such a  case  the  temple would clearly be  a public temple.  If a temple is proved to have originated  as a .public temple, nothing more is necessary to be proved  to show  that it is a public temple but if a temple is   proved to  have  originated as a private temple or  its  origin  is unknown  or  lost in antiquity then there must be  proof  to show  that  it is being used as a public  temple.   In  such

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cases the true character of the particular temple is decided on  the basis of various circumstances.  In those cases  the courts  have  to. address  themselves to  various  questions such as :--               (1  )  Is the temple built  in  such  imposing               manner that it may prima facie appear to be  a               public temple?               (2) Are the members of the public entitled  to               worship in that temple as of right ?               (3  )  Are the temple expenses  met  from  the               contributions made by the public ?               (4) Whether the sevas and utsavas conducted in               the  temple  are those usually   conducted  in               public temples ?                    (5)  Have the management as well  as  the               devotees        been treating that temple as a               public temple ?    Though the appearance of a temple is a  relevant  circum- stance,   it   is  by  no  means.  a  decisive   one.    The architecture   of temples differs from place to place.   The circumstance that the public or a section thereof have  been regularly  worshiping  in the temple as a matter  of  course and  they  can  take part in the  festivals  and  ceremonies conducted in that temple apparently as a matter of fight  is a  strong  piece  of  evidence  to   establish   the  public character  of the temple.  If votive offerings   are   being made  by the public in the usual course and if the  expenses of the temple are met by public contribution, it is safe  to presume that the temple in question is a public temple.   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.   In 285 Lakshmana  v.  Subramania(1)  the  Judicial  Committee   was dealing  with  a  temple which   was  initially  a   private temple.   The  Mahant of this, temple opened it  on  certain days in each week to the Hindu public free to worship in the greater  part of  the temple, and on payment of fees in  one part     only.  The income thus received by the Mahant   was utilised    by  him  primarily to meet the  expenses of  the temple  and the  balance went to support the Mahant and  his family.   The  Privy Council held that the  conduct  of  the Mahant  showed that he had held out and represented  to  the Hindu  public that the  temple was a public temple at  which all  Hindus might worship and the inference was,  therefore, that  he  had dedicated it to the  public.   In  Mundancheri Koman  v.  Achutan  Nair,(2) the  Judicial  Committee  again observed  that the decision of the case would depend on  the inferences to be derived from the evidence as to the way  in which the temple endowments had been dealt with and from the evidence  as  to  the  public user of  the  temples.   Their Lordships  were satisfied that the documentary  evidence  in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position  of  the  manager  of the temples  was  that  of  a trustee.  Their Lordships further, added that if it had been shown that the temples had  originally been private  temples they  would have been  slow to  hold that the  admission  of the  public  in  later  times  possibly  owing  to   altered conditions would affect the private character of the trusts.

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In  Deoki Nandan v. Murlidar(3), this Court  observed   that the  issue whether a religious endowment is a public.  or  a private  one  is  a  mixed question of  law  and  fact,  the decision  of which must depend on the  application of  legal concepts  of  a  public and private endowment to  the  facts found.  Therein it was further observed that the distinction between  a public and private endowment is that  whereas  in the  former the beneficiaries, which means  the   worshipers are   specific  individuals and in the   later  the  general public or class thereof.  In that case the plaintiff  sought to establish the true scope of the dedication from the  user of  the temple by the  public.  In  Narayan   Bhagwant   Rao Gosavi  Balajiwale   v.  Gopal Vinayak Gosavi  and  Ors.(4), this Court held that the vastness of the temple, the mode of its  construction, the long user of the public as of  right, grant of land and cash by the Rulers taken along with  other relevant factors in that case were consistent only with  the public nature of the temple.     In  examining the evidence adduced by the plaintiffs  in proof  of the fact that the temple in question is a  public. temple  we have to bear in mind the tests laid down  by  the courts  for determining whether a given temple is  a  public temple or not. (1) [1923] A.I.R. 1924 PC. 44    (2) [1934] 61 G.A. 405 (3) [1956] S.C.R. 756.          (4) [1960] 1 S.C.R. 773. 286     The  case  for  the  plaintiffs  is  that  this   temple originated  as  a public temple.  According to them  it  was rounded  long  before Mathuranathji was born;  the  idol  of Gokulnathji  was originally worshiped at Nagarwad and  later on  the  suit  temple  was built  and  that  idol  installed therein.   We  have earlier seen that the case of the  I  st defendant on  this  point was that the  idol of  Gokulnathji was  the private property of  Mathuranathiji.  Mathuranathji brought  that idol alongwith him when he came to Nadiad  and worshiped  the same as his private deity.  This part of  her case  was given up at a later stage, and she put  forward  a new case to the effect that the idol Gokulnathji was brought by  the  ancestors of  Mathuranathii to:  Nadiad and  it  is they  who started worshiping that idol at Nadiad.  From this it  is clear  that  the appellant has no consistent case  as to the origin of the worship of Gokulnathji at  Nadiad.  The new  plea put  forward by her was evidently intended to meet the  evidence adduced to show that the idol  of  Gokulnathji was being worshiped at Nadiad even before Mathuranathji  was born.   In  order to show that the idol of  Gokulnathji  was being  worshiped  in Nadiad even in the 18th  century,  oral evidence of local repute has been adduced by the plaintiffs. In  the very nature of things that evidence cannot,  but  be inconclusive.  In this connection the plaintiffs have   also placed  reliance on  Exh.791, an  extract  showing the  list of Devasthans in the Pargana of Nadiad to. which the  former Baroda State was making contributions, one of such Devasthan is  the "Shree Gokulnathji".  This extract relates to  Fasli Samvat  1833  (i.e.  1781-82 A.D.).  On the  basis  of  this exhibit,  we are asked to conclude that the suit temple  was in   existence  even  before  1781-82  A.D.   The.  evidence afforded  by  this  document  undoubtedly  probabilises  the version  of  the plaintiffs but it cannot be said  with  any definiteness that the entry in question relates to the  suit temple.  Therefore it is not possible to come to a  positive conclusion  that  the  suit temple originated  as  a  public temple  nor  there is any conclusive evidence before  us  to determine  the  date of its origin. All that we can  say  is that  the  origin  of  this temple  is  lost  in  antiquity.

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Therefore  for determining whether it is a public temple  or not we must depend on other circumstances.     It  is  established  by  the  evidence  on  record  that Gokulnathji  is neither the Nidhi Swaroop nor Seva   Swaroop of   Mathuranathji’s  branch.  Therefore   it  is   unlikely that  Mathuranathji branch would have installed the idol  of Shree Gokulnathji for their private worship though the  idol of Shree Gokulnathji is one of the Swaroops of Lord Krishna. The plea taken by the appellant that Gokulnathji was one  of the  Nidhi  Swaroop given to the branch of  Mamuranathji  by Vallabha is opposed to the documentary evidence produced  by herself.   That  plea  has  not  been pressed before us  for our acceptance.         287     From  the  account books produced in this  case,  it  is clear  that  ever since 1965 two sets of accounts  had  been maintained  by the Maharai, one relating to the  temple  and another relating to him. The temple accounts are referred to as   "Nichena   Khata"  and Maharaj’s  accounts  as  "Uparna Khata".   At this stage we  may emphasize that the  evidence discloses that the entire ground floor is being used as  the place of worship of Gokulnathji and upstairs portion as  the residence  of the Maharaj.  For the years 187’7 to 1892,  no books  of  account have been produced.   The  appellant  has stated that these books are not with her.  But this is not a satisfactory  explanation  for  their   disappearance.   The temple  accounts  for  the  years 1892  to  1894  have  been produced but the personal accounts of the Maharaj for  those years  have not been produced.  Again for the years 1900  to 1907,  only the  temple accounts have been produced but  for the  period  from  1908 and 1934 both  the  sets  have  been produced.   Again  for  the period 1935 to  1943,  only  the temple account books have been produced and not the personal account  books of the Maharaj.  This pick and choose  method adopted   in   the  matter  of   producing   account   books unmistakably  indicate that the appellant  was  deliberately keeping  back  unfavorable  evidence.   Evidence  on  record establishes that some of the documents. which were there  at the time of the inventory were not produced  when  summoned. Under  those circumstances the High Court was  justified  in drawing an adverse inference against the appellant.     The  existence of two sets of accounts’ clearly goes  to indicate that the Maharajas had always considered the temple as  an entity different from themselves.  That  circumstance goes  to  negative the contention of the appellant that  the deity  was owned by the Maharaj and therefore the  deity  as well as the suit properties are his private properties.     Right  back  in  1861 under a gift deed  executed  by  a devotee  by name Bai Jasubai, two fields and a  house   were gifted   in favour of the temple of Gokulnathji  Maharaj  at Nadiad.  The properties gifted by Jasubai were sold in  1865 and  the sale proceeds credited in the ’Nichen  Khata’.   In 1865  when  Sri   Vrairatna Maharaj left Nadiad  he  made  a present of Rs. 5 to the idol of Shree Gokulnathii.  This was also. credited in  the  ’Nichen Khata’.     Then we come to Exh. 593, an application made by several merchants  and other residents of  Nadiad to the   Collector of  Kaira in the year 1866.  That application  recites  that the  ancestors  of the applicants had voluntarily  levied  a cess known as Laga on several articles four the benefit   of the  suit  temple.   Originally  this  Laga  was  separately recovered  from the  devotees  by  the Maharaj but later  on at the request of the merchants the  same 288 used to be recovered by the Government alongwith the  custom

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duty  and  made  over to Maharaj for  the   benefit  of  the temple.  Therein it was prayed that the  newly   established municipality   should  be  directed  to  collect  the   Laga alongwith its  dues  and make up over to the Maharaj.   That application  was signed by a large number of persons.   That application inter alia states :--                   "There is a temple of Shree Gokulnathji at               Nadiad. A son of our preceptor, Shree  Goswami               Mathuranathji  performs the seva in  the  said               temple.   Our  ancestors have granted for  his               expenses  from  the  town a  laga  on  several               articles which may be received, a list whereof               is enclosed herewith." The signatories to that application must have been  familiar with  the  history of the suit temple.   We  can  reasonably assume  that  the facts stated therein are  correct.   Those facts support the case ,of the plaintiffs.     We next go to the  entries in the account books.  In the temple  accounts for the year 1870, there is a credit  entry of  Rs.  27/4/It is in respect of the fine  imposed  by  the Mahajan   on   three  persons  who  appear  to  have  played mischief  at   the  time  of darshan.   This  entry  clearly shows  that  the supervision of  the ’temple, in  a  general sense,  vested in the Mahajan of the place. It appears  from the accounts that in 1874, the Mahajan examined the  account books  of  the temple--see Exh. 308.  This  conduct  on  the part   of  the  Mahajan  would  be  inconsistent  with   the appellant’s  claim  that Gokulnath’s shrine is  her  private property.   In  1881  one Bai Harkore under  her  will  made certain bequests  in the name of the Gokulnathji Maharaj  at Nadiad  for  providing Samagri for Shree Gokulnathii.   This is  a  bequest  to.  the  idol.  ’Therein  the.there  is  no refere.nce to the Maharaj.  Then we come to Exh. 534,  under which  a  substantial  portion of lot No.  1  of  the  :suit properties  wherein the temple is situated was purchased  on April  4,  1885.  The sale deed was taken in  the   name  of Pari  Pranvallabh  Vrajlal  and others on  behalf  of  Shree Gokulnathji of Nadiad.  This is a clear indication that  the deity  of  Gokulnathji was treated by the  devotees  as   an independent   legal entity. Further the importance  of  this document   is  that  it  is  taken  in  the  name   of   the representatives  of  the public and not in the name  of  the Maharaj.   Under  Exh. 691, a gift was made in 1888  in  the name   of  Vrajratnalalji  for  and  on  behalf  of    Shree Gokulnathji  temple.  The donor paid Rs. 1,200  and  desired that a meal of six breads every day should be given till the temple exists  to the person whom the Mabaraj would name and if the person named by the Maharai does not come to take the meal the same should be given to any visitor to the  temple. Still more significant is the bequest contained in Exh. 512, the will executed by one Bai 289 Vasant.   Under  this will two bequests were  made,  one  in favour  of the temple of Shree Gokulnathji and the other  in favour  of  the Maharani Vahuji who was then  the   Maharani of  .the   temple. This will was executed on  September  20, 1897.  Under a prior will executed by the same devotee (Exh. 189),  the  same  distinction between the  Maharaj  and  the temple is to. be found.  That document was executed in 1888. Similarly  when bhets  (presents) were made by .the devotees to the idol as well as to  the Maharaj, they were separately credited   in   the  respective  account   books.    As   an illustration, we may refer to entries in the accounts  books for  the  year 1896.  Therein Rs. 22 was  credited  to   the temple  accounts  and  Rs.  5  to  the  Maharaj’s   personal

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account. The account books clearly show the various presents made to the temple as well as to the Maharaj.     It  is  established by evidence that in  1896  when  the question  of  taxing the income of the Maharaj came  up  for consideration,  the Maharaj pleaded that the income  of  the temple   cannot   be  treated as his  income.   The  balance sheets prepared in that connection showed the income of  the temple   separately   from  that  of   the   Maharaj.    The correspondence   that  passed  between  the Maharaj and  the authorities in that connection establishes beyond doubt that the  Maharaj did not treat the income of the temple  as  his income.   The contention that the admission in question  was made  under  wrong  advice receives  no.  support  from  the evidence on record.  Similarly with regard to the payment of the  municipal tax, the properties of the Maharaj  had  been treated  separately from that of the temple.     In 1907 one Shah Chaganlal made a gift of some  property to  the temple.  That property  was subject to a   mortgage. The  donor  directed that the Maharaj of the  temple  should divide the annual income of the mortgaged property into nine shares,  out  of  which one share should be  given  for  the samagri  of  Shree Gokulnathji Maharaj on posh  vad  3rd  of every  year and eight shares of the income should  be  given for  the  samagri  of the said  Gokulnathji  every  year  on Vaishakh  Sud 8th.  In that document  the Maharai was  shown as   the   agent  of  the  temple.   This.    property   was subsequently  sold and the sale proceeds were  credited  to. the  temple  accounts.  The: accounts  show  numerous  other instances of receipts and expenses relating to the temple as distinguished from that of the Maharaj.  The High Court  has enumerated  those  receipts  and  expenses  with   elaborate fullness.   It would be superfluous to. refer to them.   The above-mentioned  instances go to falsify the  contension  of the  appellant  that the idol of Shree Gokulnathji  was  the private  property of the. Maharaj.  On  the other hand  they establish  that  the temple in question was treated  by  all concerned as a public temple. 290     In  proof  of  her case that the  suit  temple  and  the properties  are  individual properties of the  Maharaj,  the appellant  relied on the wills executed  by   Vrajratanlalji in   1882  and  Maharani Vahuji in 1898.  Under  the  former the  testator provided for the management of the  properties mentioned therein after Iris death. Therein he asserted  his right to make vahivat  according to  his pleasure of movable and immovable properties shown in the will during his.  life time.   One of the stipulations in the will was that  if  he dies leaving no son, natural or adopted,  those   properties should  go  to his wife, as owner subject to  the  condition that  the  expenses  of  worship  of  "his  Shree  Thakorji" according  to  usage should come out of its  income.   There are  similar  assertion  in the will  executed  by  Maharani Vahuji  .in   1898.   These  statements  are  at  best  self serving  statements.  They have little   evidentiary  value. They  are  likely to. have been made by  the  executants  of those wills under a misconception as to their rights. If the account books for the years 1877 to 1892 had  been  produced we  would  have been able to find  out  how   Vrajratanlalji himself dealt with the properties of the temple.     There is clear, consistent and reliable evidence to show that  Vallabha Sampardaees have been worshiping in the  suit temple  as of right.  There is also  evidence to  show  that the temple has all along been primarily maintained from  the contributions   made  by  the  devotees  belonging  to   the Vallabha   School.   The   suit  temple  appears  to  be  an

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important  temple  attracting a large  number  of  devotees. Utsavas and other festivals are performed  in that temple in a  reasonably  grand  scale.  The devotees as  well  as  the Maharaj were treating that  temple as a  public temple. From the  facts proved we have no hesitation in   agreeing   with the  High  Court that the temple in question  is  a  public. temple.     This takes us to the question whether all or any of  the properties detailed in the plaint schedule are proved to. be that of the temple.  We have earlier come to the  conclusion that  the temple has been getting substantial  contributions from  its  devotees  in diverse ways..   It  was  also.  the recipient  of  several gifts. It had adequate  resources  to make  the acquisitions with which we are concerned  in  this case.   The temple is exclusively managed by  the  Goswamiji Maharaj.   It   maintains  regular  accounts.  Maharaj  also maintains his separate accounts.  Therefore it was easy  for the   appellant  to.  prove  the  source  from   which   the acquisitions in question were made and how their income  was treated. The appellant has led no evidence to show that they were her own properties.  She has failed to produce some  of the  accounts  relating to the relevant  periods.   In  this background  let us proceed to examine the title to the  suit properties. 291     Lot  No.  1  is. the site in which the  suit  temple  is situate.  It was conceded on behalf of the appellant that if we come to  the conclusion that the suit temple is a  public temple that item of property will have to. be considered  as the property of the temple. Lot No. 2 is. the garden land in Survey No. 2031.  It is used for raising flowers for worship in  the temple.  That land appears to have been  granted  to Mathuranathji  but the appellant admitted in her  deposition that  that item of  property  was at  all  time  managed  by the  Haveli  and whoever is the owner of the Haveli  is  the owner  of  the garden.  This admission  is  corroborated  by considerable other evidence.  Vaishnav merchants  of  Nadiad contributed for the expenses of installation of an  electric pump  in  that garden and for its subsequent  repairs.   All expenses  incurred for that garden have always been  debited and  all  income received therefrom credited to  the  temple accounts.   That  garden is included in the Patriks  of  the temple  property, prepared long before the  present  dispute arose.   When  a  part of  that  property  was  compulsorily acquired  on three  different  occasions,  the  compensation received   was  credited  to.  the  temple  account.   These circumstances.  conclusively  establish that lot  No.  2  is temple property. Lot  No. 3 is the building  known as  Goshala.   Its  Survay survey No. is 994.  It is used for the purpose of  tethering the   cows  reared  for supplying milk and  butter  for  the worship   of  Balkrishnalalji, one of the deities  installed in  the temple.  This property is included in Exh.  500  and 501.   It is shown in the property register as the  property belonging  to  the  Devasthan  Charity.  The  balance  sheet prepared in 1896 treats the rent of the shops and houses  in that  site as the income from temple properties--  see  Exh. 1048.   We think the High Court was right in  concluding  on the  basis of this evidence that that item belongs  to   the temple.     Lot No. 4 is a shop bearing  city survey No. 720.   This property  was gifted by Kuber Jetha Vashram as per his  will Exh. 673 for the samagri of the temple.  The bequest is made in  favour  of  Shree Gokulnathji Maharai.   Hence  this  is clearly an item of property belonging to the suit temple.

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   Lot  No. 5 is survey No. 121.  It is gifted  under  Exh. 610 dated June 29, 1868.  The gift is purported to have been made  in  favour  of the Maharaj but the  income  from  this property  has always been credited to the  temple  accounts, the  earliest  entry being that of the year  1870.   In  the property register, this property is shown as temple property and  the  rent  note Exh. 535 is taken in the  name  of  the Vahivatdar   of  Shree  Gokulnathji. Hence this item of  the property should also be held to be that of the temple. 292     Lot No. 6 consists of 14 small items. of property.  They are  all agricultural fields.  They have been shown in   the property register as the  properties of the temple.  Out  of 14  items  in  this lot, items No.s. 6, 9,  11,  12  and  14 originally  belonged to  the Maharaj but they have been  all along  dealt with by the Maharaj as temple  property.   Item No. 1 in lot No. 6 belongs to the temple.  The mortgage Exh. 608 relates to this item and the same was executed in favour of  the, temple on May 17, 1897. A rent note in  respect  of this property was taken on April 22, 1915 in the name of the Vahivatdar of the temple.  Items 2, 3 and 4 of that lot  are shown  in the record of rights in the name of   the  Maharaj but  the  income  from those  properties  and  the  expenses incurred  for  the  same have always been  entered  in   the temple accounts.  Item 5 of this lot had been gifted to  the temple  under  Exh.  1049.  Item 8 of  this  lot  had  bee.n purchased  in the name of the Maharani Vahuji on   June;  2, 1897  for  Rs. 1150.  The income of this property  has  been shown  in  the  temple  accounts. So. far  as  item  10  is. concerned  though the record of rights stands in  the   name of  the.  Maharaj   personally,  its sale p.rice (Rs. 800-0- 6) has been credited to the temple accounts.  From all  this it is clear that the temple is the owner of lot No.. 6.     Now  coming  to. lot No. 7, the entries in  the  account books  clearly  show  that this  is  temple  property.   The consideration  for the purchase of a portion of it was  paid from  the temple funds. A portion of that property had  been gifted to  the  temple  under Exh. 461.     Lot  No. 8 was purchased in 1877 from the  temple  funds and  lot  No. 13 was gifted to the temple.  Lo.t No.  9  was received by the temple under will Exh. 512 and lot  No.   10 was   always  treated  as temple  property  in  the  account books. So  also  lot Nos. 11 and 12.  Similarly lots Nos. 13 and 14 were  always being treated as temple properties.   We are  in agreement with the learned judges of the High  Court that the properties detailed in the plaint schedule are  all temple properties.     For  the reasons mentioned above this appeal must  fail. But before we conclude we should like to clarify one  aspect which  undoubtedly is implicit in the judgment of  the  High Court.   The  Goswami Maharais o.r Maharanis  are  not  mere managers.   In the temples belonging to the Vallabha  School they  have  an  important place.  The Maharaj  is  the  Maha Prabhu.   The Vallabh devotees worship their  deity  through him.  It is true that the income from temple properties. has to  be  primarily  used for the expenses of  the  sevas  and utsavas   in  the  temple,  the   upkeep    renovation   and improvements  of  the temple premises but subject  to  these demands,  the  Maharaj  has a right to  utilise  the  temple income in 293 maintaining   himself   and  his  family  in  a   reasonably comfortable manner.  The learned Counsel for the  plaintiffs conceded  this position.  This suit has been brought by  the plaintiffs with the sole purpose of preserving the   temples

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assets  and  maintaining its dignity.  They do not  want  to undermine the position or prestige of their Maha Prabhu. In the circumstances of the case we see no useful purpose in directing the: appellant to pay the costs  of the plaintiffs in   this  appeal.  She can only pay the  same  from  temple funds.    The  alienees  have  not  appealed   against   the judgment of the   High Court.  When we mentioned this aspect to  Mr.  S.T.  Desai, learned Counsel for the plaintiffs  he indicated  that  the parties may be left to bear  their  own costs in this appeal.     For the reasons mentioned above this appeal is dismissed but we make no order as to costs. R.K.P.S.                               Appeal dismissed L2 Sup C1/70--7 294