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PETITIONER: PRATAPSINHJI N. DESAI

       Vs.

RESPONDENT: DEPUTY CHARITY COMMISSIONER, GUJARAT & ORS.

DATE OF JUDGMENT11/08/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR 2064            1987 SCR  (3) 909  1987 SCC  Supl.  714     JT 1987 (3)   335  1987 SCALE  (2)311

ACT:     Hindu Law: Religious endowment--Temple-Whether public or private--Mixed  question  of--Fact  and  law--Dedication  to public-What is--Whether worshippers are the beneficiaries.     Bombay  Public  Trusts  Act, 1950:  Sections  2(13)  and 2(17)-Temples of Shri Dwarakadhishji and Shri Trikamrayji at Patadi-Whether ’temples"Public Trust’--Tests for determining whether temple is private or public.

HEADNOTE:     At  Patadi in the erstwhile State of Patadi in the  Sau- rashtra region of Gujarat State there were two temples known as  Sri  Dwarkadhishji Mandir and  Sri  Trikamrayji  Mandir, which  were constructed in the years 1872 and  1875  respec- tively by the then ruler with funds from the State Treasury. In the Gram Panchayat records the temples stood in the  name of  the deities, and the appellant, the former ruler of  the State, was shown as a Vahivatdar. The temples were  exempted from  payment  of municipal and other taxes  including  land revenue.     The  Bombay Public Trusts Act, 1950 was extended to  the Saurashtra region of Gujarat State in the year 1952.     The  Deputy Charity Commissioner, sometime in 1958,  suo motu  initiated proceedings under s. 19 of the  above  named Act, and issued show cause notice to the appellant, who  was Vahivatdar  of the temples. The appellant pleaded  that  the temples and the properties appurtenant thereto were  private properties of the ruler and the members of the royal family, and  were not public trusts. After examining witnesses,  the Deputy Charity Commissioner came to the conclusion that  the shrines  had  been dedicated as places of  public  religious worship  and were, therefore, temples within the meaning  of s. 2(17) of the Act, and that the temples together with  the properties appurtenant thereto constituted public  religious trust  within the meaning of s. 2(13). These  findings  were upheld by the Charity Commissioner. On an application under s. 72 of the Act, the District Judge held 910 that there was no clear, cogent or satisfactory evidence  of the  existence  of  a public endowment,  that  the  question

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whether  the  temples were dedicated to the  public  may  be inferred  from a long course of conduct of the founders  and the descendants, and that the mere fact that the public  was allowed  access to the temples was not conclusive as to  the nature  of the endowment and that the department had  failed to  discharge  the burden of showing that they  were  public endowments.     The  department  appealed to the High Court  which  held that the temples fell within the meaning of s. 2(17) of  the Act and were, therefore, within the ambit of the  expression "public trust" under s. 2(13).     In the appeal to this Court, it was contended that there was  no evidence to establish that there was  dedication  of the  temples  by the appellant’s ancestor for  the  use  and benefit of the public, that the findings reached by the High Court  and  the Charity Commissioner were  vitiated  due  to misplacing  of  the  burden to establish  the  existence  of public  endowment, and that the High Court was in  error  in holding that the temples were constructed by the appellant’s ancestor for the benefit of the community at large and  that the  general public or a particular section thereof, had  an unrestricted right of worship at the temples, merely because there was proof of long user by the members of the Vaishnava sect  without  any let or hinderance, that  in  the  revenue records and the register of the gram panchayat, the  temples were recorded in the names of the deities with the appellant shown as a mere Vahivatdar, and that separate accounts  were kept in respect of the temples. Dismissing the appeal, this Court,     HELD:  1. The findings arrived at by the High  Court  as well  as  the  Charity Commissioner that  the  temples  were ’public  temples’ and, therefore, ’public religious  trusts’ within  the  meaning of s. 2(17) read with s. 2(13)  of  the Bombay Public Trusts Act, 1950, and not the private  proper- ties  of  the  appellant or the members of  his  family  are unassailable. [927C]     1.2 The question whether the temples had been  dedicated or were the private property of the appellant was essential- ly a matter of inference to be drawn from the other facts on record. There is clear, consistent, reliable and unimpeacha- ble  evidence  to  establish that although  the  temples  in question  were constructed by the appellant’s  ancestor,  he had intended and meant that they were for the use and  bene- fit of the         911 public, that the public at large and members of the Vaishna- va sect had been worshipping at the temples as of right  for the  last over 100 years and that the temples had all  along been  primarily  maintained  by contributions  made  by  the public  particularly  devotees belonging  to  the  Vaishnava sect. [918C, 926G-H]     2.1  The essence of a public endowment consists  in  its being  dedicated  to the public; and in the absence  of  any document  creating the endowment, long user is the  material factor from which an inference of dedication may arise.  The distinction  between a private and public endowment is  that whereas  in the former the beneficiaries are specific  indi- viduals,  in  the latter they are the general  public  or  a class thereof. [921A-B]     2.2  When  property is dedicated for the  worship  of  a family idol, it is a private and not a public endowment,  as the members who are entitled to worship at the shrine of the deity  can  only  be members of the family.  But  where  the beneficiaries  are not the members of a family or  specified individuals  but the public at large or a specified  portion

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thereof,  then the endowment can only be regarded as  public intended to benefit the general body of worshippers. [921G]     2.3 Dedication need not always be in writing and can  be inferred from the facts and circumstances appearing. In  the absence  of a written grant, the question whether an  endow- ment made by a private individual is a public endowment or a private  one  is a mixed question of fact and  law  and  the scope of dedication must be determined on the application of legal  concepts of public and private endowment.  Facts  and circumstances,  in order to be accepted as proof of  dedica- tion must be considered in their historical setting viz. the origin  of the temple, the manner in which its  affairs  are managed,  the nature and extent of the gifts  received,  the rights exercised by the devotees in regard to worship there- in, etc. [919F, 920E-F]     In  the  instant case, the temples were  constructed  at public expenditure by meeting the cost of construction  from the public ex-chequer and the upkeep and maintenance of  the temples  was met by public subscription. The High Court  and the Charity Commissioner therefore, rightly inferred  exist- ence of a public endowment. Such an inference was  strength- ened by the fact of user by the public as of right for  over a  century.  The appellant as well as his  predecessors  al- though in management, have throughout treated the temples as public  temples  of which they were  mere  Vahivatdars.  The finding  reached by the High Court and the  Charity  Commis- sioner is based on a proper appreciation of the 912 evidence. All the circumstances clearly support the finding. [920G-H, C, 927B]     Shri  Mahalaxmi Vahuji v. Rannchhoddas Kalidas  &  Ors., [1970]  2 SCR 275; Nar Hari Sastri & Ors. v. Shri  Badrinath Temple  Committee,  [1952]  S.C.R. 849;  Bihar  State  Board Religious Trust, Patna v. Mahant Sri Biseshwar Das, [1971] 3 SCR  680;  Radhakanta Deb & Anr. v.  Commissioner  of  Hindu Religious  Endowments,  Orissa,  [1981] 2  SCR  826;  Pujari Lakashmana Goundan v. Subramania Ayyar, AIR 1924 PC 44; Babu Bhagwan Din v. Gir Har Saroop, LR 1939 67 IA 1; Deoki Nandan v.  Murlidhar,  [1956] SCR 756;  Tilkayat  Shri  Govindlalji Maharaj  v.  State of Rajasthan & Ors., [1964]  1  SCR  561; Bhaneshwarbuwa  Guru  Purshottambuwa, owner of  Shri  Vithal Rukhamai  Sansthan  v. The Charity  Commissioner,  State  of Bombay,  [1976] 3 SCR 518; Hari Bhanu Maharaj of  Baroda  v. Charity  Commissioner, Ahmedabad, [1986] 4 SCC 162; Heir  of deceased Maharaj Purshottamlalji Mahara], Junagad v. Collec- tor of Junagad District & Ors., [1986] 4 SCC 287 and Mulla’s Hindu  Law, 15th edn., para 424 at pp. 544-545,  Mukherjea’s Hindu  Law of Religious & Charitable Trusts, 5th edn.  paras 4.36 to 4.40 at pp. 185-190, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2041  of 1972.     From  the  Judgment and Decree dated  5.11.1971  of  the Gujarat High Court in First Appeal No. 693 of 1964.     Harish N. Salve, S.A. Shroff, S.S. Shardul and R.  Sasi- prabhu for the Appellant. S.T. Desai and M.N. Shroff for the Respondent. The Judgment of the Court was delivered by     SEN,  J.  This appeal on certificate  brought  from  the judgment  and order of the High Court of Gujarat dated  July 3, 1972 raises a question whether the High Court was  justi- fied in reversing the decision of the District Judge, Suren-

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dranagar dated March 19, 1964 and restoring the order of the Charity  Commissioner,  Ahmedabad, State  of  Gujarat  dated February  1, 1962 upholding that of the Deputy Charity  Com- missioner,  Ahmedabad  holding that the two temples  of  Sri Dwarkadhishji and Sri Trikamrayji at Patadi were temples  as defined  in s. 2(17) of the Bombay Public Trusts  Act,  1950 and therefore they fell within the purview of the expression ’public trust’ within the meaning of s. 2(13) of the Act.  913     The  facts  giving  rise to the appeal  may  be  shortly stated.  The appellant is a former ruler of the  semi-juris- dictional  State of Patadi, one of the 17 States  which  en- tered into a covenant for the formation of the United  State of  Kathiawad  which  on the reorganisation  of  the  States became part of the former State of Bombay and now forms part of the State of Gujarat. The Bombay Public Trusts Act,  1950 was  extended  to the Saurashtra region including  the  area that  formed  part of the erstwhile State of Patadi  in  the year 1952.     In Patadi, which was the seat of the former Ruler, there exist  two  temples  known as Sri  Dwarkadhishji  Mandir  or Haveli which is the main temple and adjacent to it there  is the  smaller  temple known as Sri Trikamrayji  Mandir.  Both these  temples were constructed in the years 1872  and  1875 respectively  by  the then ruler of Patadi and the  cost  of construction  was  met from the Patadi State  Treasury.  The temples  are situated on the main road in Patadi and do  not form part of the Darbargadh or the palace wherein the  ruler and the members of the royal family used to reside, although there exists a passage leading to the public road presumably meant for the use of the ladies of the royal family. In  the Gram  Panchayat records Sri Dwarkadhishji Mandir  or  Haveli stands  in  the  name of the deities and  the  appellant  is merely  shown  as a Vahivatdar. Similarly,  Sri  Trikamrayji Mandir  is  shown  as the property of the  deities  and  the appellant  as  a Vahivatdar. The two temples  were  exempted from  payment of municipal as well as other taxes  including the  land revenue presumably because they were  public  tem- ples.  This  is one of the decisive factors  in  determining whether a temple is a private or a public one.     It  appears that the management of the temples  remained throughout  with  the successive ruler of  Patadi  but  that circumstance would not afford an indicia of ownership of the temples  being  vested in the rulers. On the  contrary,  the evidence  shows that the temples were throughout treated  as places of public religious worship and the public in general and  members of the Vaishnava sect in particular were  regu- larly  worshipping in the temples as a matter of right  ever since  the installation of the deities and also taking  part in the ceremonial festivals like ’Hindola’ and ’Annakut’ and making cash offerings of bhends, gifts of ornaments etc. The evidence  also  discloses that nobody was required  to  take permission from the darbar before entering into the  temples for darshan and worship, nor was there any obstruction  made at  any  point of time except after the  initiation  of  the proceedings  from  the appellant or the manager  and/or  his servants  to  the  use of the temples by the  public  as  of right. The cash offerings or 914 bhents,  gifts or ornaments etc. made by the general  public and  members of the Vaishnava sect were kept in a  golak  at Sri Dwarkadhishji Mandir under the exclusive control of  the Vaishnava sect and remittances were made to Goswami Maharaj, Acharya of the Vaishnava sect at Ahmedabad.     Even  after the Act was extended to the erstwhile  State

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of  Patadi,  the public in general and the  members  of  the Vaishnava  sect  in  particular had  unrestricted  right  of worship at the temples. Sometime in the year 1958 the inhab- itants of Patadi made a complaint to the Charity Commission- er  that  there were several items of public  religious  and charitable  endowments under the possession and  control  of the appellant and he was appropriating the income and  prof- its  thereof. Thereupon the Deputy Charity Commissioner  suo motu initiated proceedings under s. 19 of the Act and issued show  cause notice to the appellant. In answer to  the  show cause  notice  the  appellant filed a  reply  admitting  the existence  of  some  public trusts and agreed  to  get  them registered  as  such under s. 18 of the Act  and  thereafter made an application. He however pleaded that the two temples in  question and the properties appurtenant thereto as  well as a public library were private properties of the ruler and the members of the royal family and were not public  trusts. After the initiation of the proceedings the appellant put up a  board  at both the temples that anybody  seeking  darshan must  seek his permission. During the inquiry, several  wit- nesses  were examined on behalf of the public as well as  by the  appellant.  The  appellant however did  not  enter  the witness box but examined his chief darbari NatwarIal  Ranch- hodlal.  The Deputy Charity Commissioner by his order  dated January 29, 1960 on the totality of the evidence came to the conclusion that the shrines had been dedicated as places  of public  religious worship and were therefore temples  within the meaning of s. 2(17) of the Act and these temples togeth- er with the properties appurtenant thereto have  constituted public religious trusts within the meaning of s. 2(13).  The appellant being dissatisfied carried an appeal to the Chari- ty  Commissioner  who by his order dated  February  1,  1962 upheld the finding reached by the Deputy Charity Commission- er. Aggrieved, the appellant made an application under s. 72 of  the  Act before the District  Judge,  Surendranagar  for setting  aside  the order of the Charity  Commissioner.  The learned District Judge disagreed with the finding reached by the  Charity Commissioner and held that there was no  clear, cogent or satisfactory evidence of the existence of a public endowment.  He  held  that the question as  to  whether  the temples  in  question were dedicated to the  public  depends upon inferences which could legitimately be drawn from facts not in 915 dispute and observed that a dedication to the public may  be inferred  from a long course of conduct of the founders  and descendants.  However,  it  was abundantly  clear  that  the temples which undoubtedly have been constructed by the  then ruler  of Patadi adjacent to the Darbargadh were  meant  for the  worship  of the family deities of the founder  and  his family.  The temples were constructed by the then  ruler  of Patadi,  the management of which exclusively  remained  with the ruler for the time being, and there was nothing  to-show that  they were intended for the use of the public at  large for  an indeterminate though restricted class of  the  Hindu community  in  general. According to  the  learned  District Judge,  the mere fact that the public was allowed access  to the  temples  was  not conclusive as to the  nature  of  the endowments  and that the Department had failed to  discharge the  burden  of showing that they  were  public  endowments. Thereupon,  the  Deputy Charity  Commissioner  preferred  an appeal  under s. 72(4) of the Act to the High  Court.  Disa- greeing  with the learned District Judge the High Court  has come to the conclusion following the decision of this  Court in  Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas  &

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Ors.,  [1970] 2 SCR 275 that the two temples were places  of public religious worship used as of right by the  Vaishnavas and observed:               "The circumstance that the public or a section               thereof have been regularly worshipping in the               temples  as a matter of course and they  could               take  part  in the  festivals  and  ceremonies               conducted  in that temple as appears from  the               record, apparently as a matter of right, is  a               strong  piece  of evidence  to  establish  the               public character of the temple."               **                                          **               **               "There  is nothing on record to indicate  that               in the long past in Patadi, any ruler had  put               any restriction on the use of the temples  for               Darshan over a fairly long period during which               the  members  of the public have  visited  the               temples as if they were their temples and this               establishes their right. Such a consistent and               unobstructed  user must be taken as of  right.               It  is well known that those who go for  ’Dar-               shan’ and/or ’Puja’ do not and generally  have               no  occasion to assert their right. It is  not               shown that the right was ever obstructed."               **                **                     **               "Although there was a sort of private  passage               running from               916               the  Darbargadh  leading to the  public  road,               presumably meant for the use of the  ’Pardana-               shin’  ladies of the royal family, this  would               not indicate that the temples were attached to               the Darbargadh or were reserved for the exclu-               sive  use of the ruler and the members of  the               royal family." The  High Court on a consideration of the  evidence  brought out  two circumstances, namely, (1) The general  public  and particularly  the  members of the Vaishnava sect  had  unre- stricted  right  of worship at the temples as  a  matter  of course  and participated in the festivals of  ’Hindola’  and ’Annakut’ functions and sewa at Sri Dwarkadhishji Temple and daily  darshan  and worship at the other  temple  which,  by itself,  was  a strong piece of evidence  to  establish  the public character of the temples. And (2) The cash  offerings or bhents, gifts of ornaments etc. were in the usual  course credited  in  the  two separate accounts kept  for  the  two temples, which were utilised for the upkeep and  maintenance of  the  temples, acquisition of immovable  properties,  ad- vancement of loans and mortgages etc., also lead to the same conclusion.  On consideration of the evidence in  the  case, particularly  the  two  circumstances adverted  to  read  in conjunction  with  the evidence as to the way in  which  the temple endowments had been dealt with and the evidence as to the  public user of the temples, the High Court came to  the conclusion  that they were temples within the meaning of  s. 2(17) of the Act which clearly fell within the ambit of  the expression  ’public trust’ under s. 2(13)- It  repelled  the contention  of the appellant that the temples were the  pri- vate  temples of the ruler and members of the royal  family, observing:               "These  two relevant circumstances go to  show               that  the  two temples which  were  places  of               public religious worship were used as of right               by the Vaishnavas. Such a view has been  taken

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             by  their  Lordships of the Supreme  Court  in               Goswami  Shri Mahalaxmi Vahuji v. Shah  Ranch-               hoddas Kalidas (dead) & Ors. (supra). There is               no evidence on record to show that the temples               were treated as private property and that  the               income from the offerings made at the  temples               was  merged  with the State funds,  much  less               treated  as the private income  of  respondent               no. 1 (ex-Ruler). There is also no evidence to               show that the temples were at any time  closed               down  on  any occasion so as  to  exclude  the               public  from worship when the members  of  the               Ruler’s  family visited the temple or  temples               on any other family occasion."               917               "The mere management of the temples being with               the  successive  rulers of  Patadi  would  not               afford  an  indicia to show the  ownership  of               temples  as having been vested in the  Rulers.               It is well known that in the princely regimes,               a citizen would not ordinarily interfere  with               the  management of such properties being  made               by the then Ruler."               **         **           **                   "The only evidence examined is of Darbar’s               Karbhari Natvarlal at Ex. 129 examined  before               the Deputy Charity Commissioner. His  evidence               that the darbar if it thinks fit can  obstruct               any  person  from entering  into  the  temples               introduced in the examination-in-chief is  not               dependable.  He has in  his  cross-examination               admitted  that prior to the  enquiry  proceed-               ings,  nobody was required to take  permission               before  entering the ’Haveli’ and  the  Mandir               for  ’Darshan’ and worship. This would  go  to               show that there was no obstruction made at any               point  of time by the Darbar and  his  manager               and/or his servants to the use of the  temples               by the public as of right."               **                                          **               **                   "Even  if it be assumed that  the  temples               had  originated as private  temples,  although               the  case as urged by Mr. Chhaya is  that  the               origin is unknown or lost in antiquity,  there               is good evidence to show that the temples were               being used as public temples. Taking an  inte-               grated view of the circumstances aforesaid, as               appear  from the relevant evidence on  record,               in  our  opinion,  it must be  held  that  the               Vaishnavas  were regularly worshipping in  the               temples  as a matter of course and  they  took               part in the festivals and ceremonies conducted               in  the  temples and outside apparently  as  a               matter of right."               **                 **                   **                   "The mere fact that the successive Darbars               of the rulers were the managers of the temples               would  not  go to show that the  temples  were               private  trust properties.  The  circumstances               aforesaid lead to a reasonable inference  that               although the origin of the temples was at  the               instance of               918               then  Ruler  of the Patadi  State,  the  funds

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             which went for the construction of the temples               were  the  funds of the State  and,  at  least               gradually in course of time, there was dedica-               tion  of  the temples for the benefit  of  the               Vaishnav  community as places of  public  wor-               ship." We thought that on the overwhelming evidence on record--both oral  and  dOcumentary---no other conclusion  than  the  one reached by the High Court was possible.     The  question whether the temples had been dedicated  to the public or were the private property of the appellant was essentially a matter of inference to be drawn from the other facts  on  record and the findings arrived at  by  the  High Court  as  well  as the Charity  Commissioner  were  clearly unassailable.     In support of the appeal, learned counsel for the appel- lant  has,  in substance, advanced three  main  contentions, namely: (1) There was no evidence whatever to establish that there  was  dedication  of the temples  by  the  appellant’s ancestor  for the benefit or use of the public. Where  in  a case like the present, the creation of the trust is not lost in  antiquity or shrouded in obscurity, the  temples  having admittedly  been  constructed by  the  appellant’s  ancestor must,  in the absence of a formal document of endowment,  be regarded  as  the  private temples of the  founder  and  the members  of the royal family, from the fact that the  appel- lant and his predecessors have throughout been in management of the same. (2) The burden was on the Charity  Commissioner to  establish the existence of a public endowment and  as  a matter of law there had to be very strong and clear evidence before such an inference could be raised and that burden the Charity  Commissioner has failed to discharge. The  findings reached by the High Court and the Charity Commissioner  that the temples were places of public religious worship and were temples  within the meaning of s. 2(17) of the Act and  fell within  the  purview  of the expression  ’public  trust’  as defined in s. 2(13), are therefore vitiated due to  misplac- ing  of  that  burden. (3) The High Court was  in  error  in holding that the temples were constructed by the appellant’s ancestor for the benefit of the community at large and  that the  general public or a particular section thereof, had  an unrestricted right of worship at the temples merely  because of the circumstance that there was proof of long user of the temples  by  the public particularly by the members  of  the Vaishnava  sect  without any let or hinderance or  the  fact that  in  the revenue records and the register of  the  gram panchayat the temples were recorded in the names of 919 the  deities with the appellant shown as a  mere  Vahivatdar and  that  separate  accounts were kept in  respect  of  the temples.  According  to the learned counsel,  these  circum- stances were non-sequitur. He relied upon Mulla’s Hindu Law, 15th edn., para 424 at pp. 544-545, Mukherjea’s Hindu Law of Religious & Charitable Trusts, 5th edn., paras 4.36 to  4.40 at  pp.  185-190, Nar Hari Sastri & Ors. v.  Shri  Badrinath Temple  Committee,  [1952] SCR 849; Goswami  Shri  Mahalaxmi Vahuji  v.  Rannchhoddas Kalidas & Ors., [1977] 2  SCR  275; Bihar  State  Board  Religious Trust, Patna  v.  Mahant  Sri Biseshwar Das, [1971] 3 SCR 680 and Radhakanta Deb & Anr. v. Commissioner of Hindu Religious Endowments, Orissa, [1981] 2 SCR 826.     We have no manner of doubt that there is no substance in any  of  these contentions. As to the first, there  is  very strong and clear evidence to establish that there was  dedi- cation  of the temples by the appellant’s ancestor  for  the

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use  or benefit of the public. "Endowment" is dedication  of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment.  It is  to be remembered that a trust in the sense in which  the expression  is used in English law is unknown in  the  Hindu system,  pure  and simple. Hindu piety found  expression  in gifts  to  idols  and images consecrated  and  installed  in temples, to religious institutions of every kind and for all purposes  considered  meritorious in the  Hindu  social  and religious  system. Under the Hindu law the image of a  deity of  the  Hindu  pantheon is, as has  been  aptly  called,  a ‘juristic  entity’,  vested with the capacity  of  receiving gifts and holding property. The Hindu law recognises dedica- tions for the establishment of the image of a deity and  for maintenance  and worship thereof. The property so  dedicated to  a pious purpose is placed extra-commercium and is  enti- tled  to  special protection at the hands of  the  Sovereign whose duty it is to intervene to prevent fraud and waste  in dealing  with  religious  endowments.  Dedication  need  not always be in writing and can be inferred from the facts  and circumstances appearing. It would be a legitimate  inference to  draw that the founder of the temple had dedicated it  to the public if it is found that he had held out the temple to be  a  public one: Pujari Lakshmana  Goundan  v.  Subramania Ayyar, AIR 1924 PC 44.     In  view’ of this, the contention that there is no  evi- dence to establish that there was dedication of the  temples by  the appellant’s ancestor for the benefit or use  of  the public  or a section thereof, cannot therefore  prevail.  On the  contrary,  the  evidence discloses  that  although  the temples  had been constructed by the  appellant’s  ancestor, the  cost  of  their construction was met from  out  of  the public 920 exchequer and that the income from the offerings made by the worshippers at the shrine in the form of bhents and gifts of ornaments  etc. as also the income from properties  acquired for the temple from out of such income were utilised for the upkeep and maintenance of the temples. That evidence clearly establishes that the temples were intended and meant by  the founder  for  the benefit and use of the public. As  to  the second,  undoubtedly the burden was on the  Charity  Commis- sioner to establish the existence of a public endowment  and that  burden  the  Charity Commissioner  has  discharged  by unimpeachable evidence of long and uninterrupted user of the temples by the general public and particularly by members of the  Vaishnava sect. The finding reached by the  High  Court and the Charity Commissioner that the temples were places of public religious worship within the meaning of s. 2(17) read with  s. 2(13) of the Act is not vitiated by  displacing  of that  burden but the finding reached by them is based  on  a proper appreciation of the evidence. As to the third conten- tion, we would presently deal with the circumstances brought out  in the evidence which lead to no other conclusion  than the one arrived at by the Charity Commissioner and the  High Court,  that  the temples constructed  ’by  the  appellant’s ancestor were for the benefit of the community at large  and the  members  of the Vaishnava sect in particular  and  that they had an unrestricted right of worship.     In the absence of a written grant, the question  whether an endowment made by a private individual is a public endow- ment  or a private one is a mixed question of fact  and  law and the scope of dedication must be determined on the appli- cation  of legal concepts of a public and private  endowment to  the facts found in each particular case. Facts and  cir-

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cumstances,  in order to be accepted as proof of  dedication of a temple as a public temple, must be considered in  their historical setting viz. the origin of the temple, the manner in  which its affairs are managed, the nature and extent  of the gifts received, the rights exercised by the devotees  in regard  to  worship therein, etc. In the present  case,  the temples  were constructed at public expenditure  by  meeting the  cost of construction from the public exchequer and  the upkeep  and  maintenance of the temples was  met  by  public subscription  and therefore the High Court and  the  Charity Commissioner  rightly inferred existence of a public  endow- ment. Such an inference was strengthened by the fact of user of  the  temples by the public or a section thereof,  as  of right for over a century. The general effect of the evidence is  that the appellant as well as his predecessors  although in management, had throughout treated the temples as  public temples of which they were mere Vahivatdars. 921     The essence of a public endowment consists in its  being dedicated to the public; and in the absence of any  document creating  the  endowment, long user is the  material  factor from  which an inference of dedication may arise.  The  dis- tinction  between  a private and public  endowment  is  that whereas  in the former the beneficiaries are specific  indi- viduals,  in  the latter they are the general  public  or  a class thereof. The distinction is succinctly brought out  in Mula’s Hindu Law in para 424 at pp. 544-545 in these words:               "Religious  endowments  are either  public  or               private. In a public endowment the  dedication               is  for the use or benefit of the public.  The               essential  distinction between a public and  a               private  endowment is that in the  former  the               beneficial interest is vested in an  uncertain               and a fluctuating body of persons, either  the               public  at large or some considerable  portion               of it answering a particular description; in a               private endowment the beneficiaries are  defi-               nite and ascertained individuals or who within               a definite time can be definitely ascertained.               The  fact that the fluctuating  and  uncertain               body  of  persons is a section of  the  public               following  a particular religious faith or  is               only a sect of persons of a certain  religious               persuasion would not make it a private  endow-               ment.  The essence of a public endowment  con-               sists  in its being dedicated to  the  public;               and  in the absence of any  document  creating               the  endowment,  long  user  is  the  material               factor  from which an inference of  dedication               may arise. Besides user by the public, conduct               of  the  founder and his descendants  is  also               relevant,  and  if they in fact held  out  the               temple  to be a public one a very strong  pre-               sumption  of  dedication  would  arise.   When               property  is  set apart for the worship  of  a               family god in which the public are not  inter-               ested, the endowment is a private one." It  therefore follows that the principles are  well-settled. When property is dedicated for the worship of a family idol, it  is a private and not a public endowment, as the  members who  are entitled to worship at the shrine of the deity  can only be the members of the family i.e. an ascertained  group of  individuals.  But where the beneficiaries  are  not  the members of a family or specified individuals but the  public at large of a specified portion thereof, then the  endowment

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can  only  be  regarded as public intended  to  benefit  the general body of worshippers. We do not think that it would serve any purpose to refer  to all the 922 well-known  decisions  except  a few.  In  Pujari  Lakshmana Goundan  v. Subramania Ayyar (supra), the temple was not  an ancient one and there was no deed of endowment. The question was  whether  the temple was a public temple  or  a  private temple.  Although the temple was a private temple, the  evi- dence  disclosed  that  the Pujari  Lakshmana  Goundan,  the founder  of the temple had held out and represented  to  the Hindu public in general that the temple was a public  temple at which all Hindus might worship. Sir John Edge, in  deliv- ering  the judgment of the Privy Council held that  on  that evidence the Judicial Committee had no hesitation in drawing the  inference that the founder had dedicated the temple  to the public, as it was found that he had held out the  temple as a public temple. Another Privy Council decision to  which we need refer is that of Babu Bhagwan Din v. Gir Har Saroop, LR  1939 67 IA 1 where the grant was made to one Daryao  Gir and his heirs in perpetuity and the evidence showed that the temple  and the properties attached thereto  had  throughout been  treated by the members of the family as their  private property  appropriating to themselves the rents and  profits thereof.  Sir George Rankin, delivering the judgment of  the Privy Council held that the fact that the grant was made  to an individual and his heirs in perpetuity was not reconcila- ble  with the view that the grantor was in effect  making  a wakf for a Hindu religious purpose. That very  distinguished Judge  referred to the earlier decisions in Pujari  Lakshar- nana Goundan’s case, and observed:               "Their Lordships do not consider that the case               before them is in general outline the same  as               the case of the Madras temple, 29 C.W.N.  112,               in which it was held that the founder who  had               enlarged the house in which the idol had  been               installed  by him, constructed circular  roads               for  processions,  built a rest house  in  the               village  for  worshippers, and so  forth,  had               held  out and represented to the Hindu  public               that it was a public temple." The  true test as laid down by this Court  speaking  through Venkatarama  Ayyar, J. in Deoki Nandan v. Murlidhar,  [1956] SCR  756 in determining whether a temple is a private  or  a public  temple, depends on whether the public at large or  a section thereof, ’had an unrestricted right of worship’  and observed:               "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               923               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  indi-               viduals  are to have the right of  worship  at               the  shrine,  or  the general  public  or  any               specified portion thereof." The  learned Judge distinguished the decision of  the  Privy Council  in Babu Bhagwan Din v. Gir Har Saroop,  (supra)  on the ground that properties in that case were granted not  in

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favour of an idol or temple but in favour of the founder who was  maintaining the temple and to his heirs in  perpetuity, and said:               "But,  in the present case. the endowment  was               in  favour of the idol itself, and  the  point               for  decision  is whether it  was  private  or               public  endowment. And in such  circumstances,               proof of user by the public without  interfer-               ence would be cogent evidence that the dedica-               tion was in favour of the public." It was also observed while distinguishing the Privy  Council decision in Babu Bhagwan Din’s case that it was unusual  for rulers  to  make grant to a family idol. In  Deoki  Nandan’s case the Court referred to several factors as an indicia  of the temple being a public one viz. the fact that the idol is installed  not within the precincts of residential  quarters but in a separate building constructed for that purpose on a vacant site, the installation of the idols within the temple precincts, the performance of pooja by an archaka  appointed from  time to time for the purpose, the construction of  the temple  by  public contribution, user of the temple  by  the public without interference, etc.     The  next  important decision is that of  Tilkayat  Shri Govindlalji  Maharaj v. State of Rajasthan & Ors., [1964]  1 SCR  561  where a Constitution Bench of this  Court  had  to consider  whether the famous Nathdwara Temple which is  held in  great reverence by the Hindus in general and members  of the  Vaishnava followers of the Vallabha Sampradaya in  par- ticular  was a public temple. It was held that  neither  the tenets  nor  the religious practice at the  Vallabha  School necessarily postulate that the followers of the denomination must  worship in a private temple. The Court  observed  that the  question  whether a Hindu temple is private  or  public must necessarily be considered in the light of the  relevant facts relating to it as well as the accepted principles laid down by several judicial decisions, and it was said: 924               "A  temple  belonging to a family which  is  a               private temple is not unknown to Hindu law. In               the  case of a private temple it is  also  not               unlikely that the religious reputation of  the               founder  may be of such a high order that  the               private  temple  rounded by  him  may  attract               devotees  in  large number and the  mere  fact               that a large number of devotees are allowed to               worship  in the temple would  not  necessarily               make  the private temple a public  temple.  On               the  other hand, a public temple can be  built               by  subscriptions raised by the public  and  a               deity  installed to enable all the members  of               the  public to offer worship. In such a  case,               the temple would clearly be a public temple."                         "Where  evidence  in regard  to  the               foundation of the temple is not clearly avail-               able,  sometimes, judicial decisions  rely  on               certain  other  facts  which  are  treated  as               relevant.  Is  the  temple built  in  such  an               imposing manner that it may prima facie appear               to  be a public temple? The appearance of  the               temple of course cannot be a decisive  factor;               at  best it may be a relevant factor. 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

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             to  take part in the festivals and  ceremonies               arranged  in the temple? Are  their  offerings               accepted as a matter of right?" It was then laid down that 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 festival occasions would  be a very strong factor in determining the  character of the temple.     Another  significant  decision is that of  Goswami  Shri Mahalaxmi  Vahuji  v. Rannchhoddas Kalidas  &  Ors.  (supra) where the question arose whether the Haveli of Nadiad  where the  idol  of Sri Gokulnathji was installed  which  is  wor- shipped by the Vaishnava devotees of the Vallabha cult is  a private or public temple on the ground of dedication, and it was laid down:               "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                925               character of the temple are factors that go to               establish whether a temple is a public  temple               or a private temple." See also: Bihar State Board Religious Trust, Patna v. Mahant Sri  Biseshwar  Das, [1971] 3 SCR 680;  Dhaneshwarbuwa  Guru Purshottambuwa owner of Shri Vithal Rukhamai Sansthan v. The Charity Commissioner, State of Bombay, [1976] 3 SCR 5 18 and Radhakanta  Deb  & Anr. v. Commissioner of  Hindu  Religious Endowments,  Orissa,  [1981] 2 SCR 826; Hari  Bhanu  Maharaj ofBaroda  v.  Charity  Commissioner,  Ahmedabad,  [1986]   4 SCC .162 and Heir of deceased Maharaj Purshottamlalji  Maha- raj, Junagad v. Collector of Junagad District & Ors., [1986] 4 SCC 287.     We  have  carefully  gone through the  evidence  of  the witnesses  examined  by the Deputy Charity  Commissioner  as also  the finding reached by him as well as by  the  Charity Commissioner which finding has been upheld by the High Court while reversing the decision of the learned District  Judge. The  Charity Commissioner with infinite care has  marshalled the  entire  evidence in coming to the conclusion  that  the temples were public temples. Learned counsel for the  appel- lant however relied on the judgment of the learned  District Judge for the submission that the burden lay on the  Charity Commissioner to prove that the endowment was a public endow- ment and not a private one and that burden he has failed  to discharge. We find no substance in the contention  advanced. There  are  overwhelming circumstances brought  out  in  the order of the Charity Commissioner as well as in the judgment of  the High Court and no other conclusion is possible  than the  one reached by them that the temples in  question  were public religious trusts within the meaning of s. 2(17)  read with  s.  2(13) of the Act. The learned  District  Judge  in interfering  with  the order was largely influenced  by  the fact that the management of the temples throughout  remained with the ruler for the time being and while adverting to the other circumstances held that there was no evidence that the temples  were dedicated to the public at large or to a  sec- tion thereof and that the other circumstances brought out in the  evidence viz. public user for the past over  100  years without any let or hinderance, the fact that the members  of the Hindu community in general and members of the  Vaishnava sect  in  particular were allowed to visit the  temples  for

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worship and make their offerings, or that the temples  stand recorded in the names of the deities in the revenue  records and the register of the gram panchayat with appellant  shown as  a Vahivatdar, were not sufficient to draw  an  inference that the temples were places of public religious worship. In coming to that conclusion he relied upon the decision 926 of  the Privy Council in Babu Bhagwan Din’s case (supra)  as also of this Court in Goswami Shri Mahalaxmi Vahuji’s case.     The  underlying fallacy in the judgment of  the  learned District  Judge is that he proceeds on the  assumption  that there   was  no  dedication  of  the   temples--express   or implied--by  the founder for the benefit or use of the  pub- lic.  Several circumstances are brought out by  the  Charity Commissioner  and  the High Court showing that  the  temples were  public temples, namely: (1) Although the temples  were constructed by the appellant’s ancestor way back in 1872 and 1875,  there was positive evidence showing that  the  entire cost of construction was met from the public exchequer  i.e. Patadi  State Treasury. (2) The general public and  particu- larly the members of the Vaishnava sect had an  unrestricted right  of  worship at the temples and  participated  in  the festivals and ceremonies conducted in the temples right from the very inception, as it appears from the record, apparent- ly as a matter of right without any let or hinderance on the part  of  the appellant or his predecessors. (3)  The  Hindu worshippers  at  the temples in general and members  of  the Vaishnava  sect in particular made cash offerings of  bhents into  the golak kept at Sri Dwarkadhishji Mandir  or  Haveli which was under the exclusive control of the members of  the Vaishnava sect and the remittances of it used to be made  to Goswami Maharaj, Acharya of Vaishnava sect at Ahmedabad. (4) The public records showed that the temples stand recorded in the names of the deities, the appellant and his predecessors shown  as mere Vahivatdars. It was an undisputed  fact  that separate accounts being maintained in respect of the  income and  expenditure  of the temples i.e.  the  cash  offerings, gifts  of  ornaments  etc. were not  intermingled  with  the monies  belonging  to the appellant or the  members  of  the royal family and the incomes from the temples were  utilised for their upkeep and maintenance and also for acquisition of properties  attached  to the temples (5) The State  used  to keep apart a share of vaje i.e. Darbar’s share of the  crops grown by the cultivators and also used to impose and collect tola, a cess from the cultivators for the upkeep and mainte- nance of the temples. There is therefore clear,  consistent, reliable  and unimpeachable evidence to establish  that  al- though  the  temples  in question were  constructed  by  the appellant’s  ancestor  but he intended and meant  that  they were  meant  for  the use and benefit of  the  public.  That evidence  shows that the public at large and members of  the Vaishnava  sect  had been worshipping at the temples  as  of right  for the last over 100 years and that the temples  had all  along  been primarily maintained by  the  contributions made by the public particularly by the devotees belonging to the Vaishnava sect. In course of time the tem- 927 ples  particularly  Sri Dwarkadhishji Mandir or  HaveIi  at- tracted  a  large  number of worshippers and  they  used  to participate  in the religious festivals and ceremonies  per- formed there. The evidence of the witnesses also shows  that the deities were taken out in a palanquin by members of  the Vaishnava sect and it was joined by the general public.  The temples  though adjacent to the Darbargadh were not  in  the precincts of the palace but were constructed facing a public

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road  allowing access to the general public. All these  cir- cumstances clearly support the finding reached by the Chari- ty  Commissioner  and the High Court that the  temples  were public temples and therefore public religious trusts  within the  meaning  of s. 2(17) read with s. 2(13) of  the  Bombay Public Trusts Act, 1950 and the temples with the  properties attached  thereto  were not the private  properties  of  the appellant  or  the members of his family.  The  only  factor relied  upon  by  the learned District Judge  was  that  the management  of the temples remained with the ruler  for  the time  being but then the Court has to come a conclusion  not on  one single factor alone but on a conspectus of  all  the relevant factors i.e.1 upon an appreciation of all the facts and circumstances appearing. In  the result, the appeal must fail and is  dismissed  with costs. N.P.V.                                         Appeal   dis- missed. 928