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PETITIONER: RADHAKANTA DEB & ANR.

       Vs.

RESPONDENT: COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS, ORISSA

DATE OF JUDGMENT13/02/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)

CITATION:  1981 AIR  798            1981 SCR  (2) 826  1981 SCC  (2) 226        1981 SCALE  (1)304  CITATOR INFO :  R          1987 SC2064  (5,15)

ACT:      Private v.  Public endowments-Tests to determine on the facts of  each case  whether an endowment is of a private or of a public nature, explained.

HEADNOTE:      Allowing the appeal by certificate, the Court ^      HELD: The  tests which provide sufficient guidelines to determine on  the facts of each case whether an endowment is of a private or of a public nature are: (1) Where the origin of the endowment cannot be ascertained, the question whether the user  of the  temple by  members of  the public is as of right; (2)  The fact  that the  control and management vests either in  a large  body of persons or in the members of the public and  the founder does not retain any control over the management. Allied  to this  may be a circumstance where the evidence shows  that there  is provision  for a scheme to be framed by  associating the  members of  the public at large; (3) Where,  however, a  document is  available to  prove the nature and  origin of  the endowment and the recitals of the document show  that the control and management of the temple is retained  with the  founder or  his descendants, and that extensive properties  are dedicated  for the  purpose of the maintenance of  the temple belonging to the founder himself, this will  be a  conclusive proof to show that the endowment was of  a private  nature; (4) Where the evidence shows that the founder  of the  endowment did  not make any stipulation for offerings  or contributions to be made by members of the public to  the temple,  this would be an important intrinsic circumstance  to   indicate  the   private  nature   of  the endowment. [833 A-E]      Deoki Nandan  v. Murlidhar,  [1956] SCR 756; Mahant Ram Saroop Dasji  v. S.P. Sahi, Special Officer-in-Charge of the Hindu Religious  Trusts &  Ors., [1959]  2  Supp.  SCR  583; Narayan  Bhagwantrao  Gosavi  Balajiwale  v.  Gopal  Vinayak Gosavi & Ors., [1960] 1 SCR 773; Bihar State Board Religious Trust, Patna  v. Mahant Sri Biseshwar Das, [1971] 3 SCR 680, Dhaneshwarbuwa Guru  Purshottambuwa  Owner  of  Shri  Vithal

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Rukhamai Sansthan  v. The  Charity  Commissioner,  State  of Bombay, [1976]  3 SCR 518; Gurpur Guni Venkataraya Narashima Prabhu &  Ors. v.  B.G. Achia,  Asistant Commissioner, Hindu Endowment Mangalore & Anr., [1977] 3 SCC 17, followed.      In the  instant case:  (i) Ex.  A, an  ancient document executed as  for back as February 18, 1895, the authenticity and the genuineness of which is beyond question, clearly and conclusively show that the endowment was of a private nature and the  intention of  the founder  was merely  to instal  a family deity  in the  temple. (ii)  The fact that the temple was of  a massive  structure of about 25 yards in height, by itself, divorced from other things, could not prove that the temple  was   a  public  one.  (iii)  The  Shebaits  or  the Marfatdars were  appointed by  the founders of the endowment and the  entire management  and control  of the  temple  was retained by the family. (iv) The fact that bhogs 827 were offered during the day which was in consonance with the rules observed  by the  public is  not of  much  consequence because bhogs  are offered  even  in  private  temples.  (v) Clause 15  merely provides  that if  in  future  the  family becomes extinct and no fit person could be found then any of the Baisnab  Sampraday or  any reputed  Hindu of the village could take action, namely, to perform the work of the deity. This was  a contingent  provision and here also the founders did not  confer the  duty of  performing all the work on the members of  the public  but they  chose or  selected only  a particular person  belonging to a particular community which also shows  that even  if the  family was to become extinct, the private  nature of  the endowment was not to be changed. Indeed if the intention was to instal the idol in the temple by way  of a  public endowment, clause 14 would have clearly provided that  in case the family become extinct the members of the  public or of the brotherhood or the Government could have taken  over the  management. On  the  other  hand,  the interpretation of  the  various  clauses  of  the  documents clearly shows  that sufficient  care has  been taken  by the Pani family  to see  that the dedication to the family deity is not  changed even  if the family becomes extinct. [833 H, 834 A, 838 G-H, 839 C, E-H, 840 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 318 of 1970.      From the  Judgment and  Decree dated  31-7-1969 of  the Orissa High Court in Appeal from Original Decree No. 78/58.      P.K. Chatterjee and Rathin Dass for the Appellant.      G.S. Chatterjee for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by certificate granted under Art. 133  of the Constitution is directed against a Division Bench judgment  dated July 31, 1969 of the Orissa High Court and arises in the following circumstances.      The appellants-plaintiffs  had instituted  a suit under s. 62(2)  of the  Orissa Religious  Endowment Act, 1939 (Act No. 4  of 1939) (hereinafter referred to as the ’Act’) (this Act applies  only to  public endowments)  to set  aside  the order dated  4-8-1950 of  the respondent  defendant by which the temple  of the  appellants, whose  deity was  Radhakanta Deb, was  declared to be a public temple and a trust and the endowment was  held to be of a public nature and, therefore, was to be governed by the Act. The Subordinate Judge decreed the  appellants-plaintiffs   suit  holding  that  the  deity

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installed in  the temple  was a  family deity  of  the  Pani family and  the endowment being of a private nature, the Act had no  application and  the Order  passed by the respondent regarding the management was set aside.      The  Respondent   (Commissioner  of   Hindu   Religious Endowments, Orissa)  filed  an  appeal  in  the  High  Court against the decision of the 828 Subordinate Judge  which was  heard by  the  Division  Bench referred to  above. The  High Court reversed the decision of the Subordinate Judge and held that the temple and the deity installed therein  being a  public endowment fell within the four corners  of  the  Act  and  the  respondent  was  fully entitled to  pass orders  for its  management.  Hence,  this appeal by certificate before us.      The sole  question that falls for determination in this appeal is  as to  whether or  not the appellant-temple was a public endowment  as alleged  by the  respondent or a family deity as alleged by the appellant.      The  learned   counsel   for   the   appellants,   P.K. Chatterjee, has submitted that the approach made by the High Court was  wholly incorrect  and  it  has  misconstrued  the evidence and documents produced in the case to show that the endowment was  a private  one and the deity installed in the temple was  purely a  family deity having nothing to do with the public. The learned counsel for the respondent. however, supported the  judgment of the High Court that the endowment was of a public nature      The concept  of a  private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature. Thus, under the English law  what is  a public  trust  is  only  a  form  of Charitable Trust.  Dr. Mukherjee  in his Tagore Law Lectures on the  Hindu Law  of Religious  and Charitable Trusts (1952 Edition) has  pointed out  that in  English law the Crown is the constitutional  protector of  all properties  subject to charitable trusts as these trusts are essentially matters of public concern.  The learned  author has further pointed out that one  fundamental distinction between English and Indian law lies  in the fact that there can be religious trust of a private character  under the Hindu law which is not possible in English law. It is well settled that under the Hindu law, however, it  is not only permissible but also very common to have  private   endowments  which   though  are   meant  for charitable  purposes  yet  the  dominant  intention  of  the founder is  to instal  a family  deity  in  the  temple  and worship the  same  in  order  to  effectuate  the  spiritual benefit to  the family  of the  founders and his descendants and to  perpetuate the memory of the founder. In such cases, the property  does not  vest in God but in the beneficiaries who  have   installed  the   deity.  In   other  words,  the beneficiaries in  a public trust are the general public or a section  of   the  same   and  not  a  determinate  body  of individuals  as   a  result   of  which   the  remedies  for enforcement of  charitable trust are somewhat different from those which  can be availed of by beneficiaries in a private trust. The members of the public may not be debarred 829 from entering the temple and worshipping the deity but their entry into the temple is not as of right. This is one of the cardinal tests  of a  private endowment. Similarly, even the Mahomedan law  recognises the  existence of  a private trust which is  also of a charitable nature and which is generally called  Waqf-allal-Aulad,  where  the  ultimate  benefit  is reserved to  God but the property vests in the beneficiaries

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and the income from the property is used for the maintenance and  support   of  the   family  of   the  founder  and  his descendants. In  case the  family becomes  extinct then  the Waqf becomes  a public  waqf, the property vesting in God. A public Waqf  under the Mahomedan law is called Waqf-fi-sabi- lil-lah.      The question  as to  whether the religious endowment is of a  private nature or of a public nature has to be decided with reference  to the  facts proved  in each case and it is difficult to  lay down  any test  or tests  which may  be of universal  application.   It  is  manifest  that  where  the endowment is lost in antiquity or shrouded in mystery, there being no  document or revenue entry to prove its origin, the task of  the court  becomes difficult  and it  has  to  rely merely on  circumstantial evidence  regarding the  nature of the user  of the  temple. In  the instant  case, however, as there are two documents which clearly show the nature of the endowment, our  task is  rendered easier. It is well settled that the  issue whether a religious endowment is a public or a private  one must  depend  on  the  application  of  legal concept of a deity and private endowment, as may appear from the facts  proved in  each case.  The essential  distinction between a  private and a public endowment is that whereas in the former  the beneficiaries  are specified individuals, in the  latter   they  are  the  general  public  or  class  of unascertained people.  This doctrine  is well-known  and has been accepted  by the Privy Council as also by this Court in a large  catena of  authorities. This  being  the  essential distinction between  the nature  of a  public or  a  private endowment, it  follows that  one of  the  crucial  tests  to determine the  nature of  the endowment would be to find out if the  management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants. Other factors that may be considered would  be the nature of right of the worshippers, that is  to say,  whether the right to worship in the temple is exercised  as of right and not as a matter of concession. This will be the strongest possible circumstance to indicate that the  endowment was  a public one and the beneficiaries; are the worshippers and not particular family. After all, an idol is  a juristic  person capable  of holding property and the property  dedicated to the temple vests in the deity. If the main  worshippers are  the members  of  the  public  who worship as  a matter  of right  then the  real purpose is to confer benefit on God. 830 Some of  the circumstances from which a public endowment can be inferred  may be whether an endowment is made by a person who has  no,  issue  and  who  after  installing  the  deity entrusts  the   management  to  members  of  the  public  or strangers which  is  a  clear  proof  of  the  intention  to dedicate the  temple to public and not to the members of the family. Where,  however, it  is proved that the intention of the testator  or the  founder was  to  dedicate  the  temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature.      The mere fact that members of the public are allowed to worship by  itself would not make an endowment public unless it is  proved that  the members of the public had a right to worship in  the temple.  In Deoki  Nandan v.  Murlidhar this Court observed as follows:-           "The distinction  between a  private and  a public      trust is  that whereas  in the former the beneficiaries      are specific  individuals, in  the latter  they are the      general public  or a class thereof. While in the former

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    the beneficiaries  are persons  who are  ascertained or      capable  of  being  ascertained,  in  the  latter  they      constitute a body which is incapable of ascertainment.                ..              ..            ..           The cardinal point to be decided is whether it was      the intention of the founder that specified individuals      are to  have the right of worship at the shrine, or the      general public  or any  specified portion  thereof.  In      accordance with this theory, it has been held that when      property is dedicated for the worship of a family idol,      it is  a private  and not  a public  endowment, as  the      persons who  are entitled  to worship  at the shrine of      the deity  can only  be the  members of the family, and      that is  an ascertained group of individuals. But where      the beneficiaries  are not  members of  a family  or  a      specified individual,  then the  endowment can  only be      regarded as  public, intended  to benefit  the  general      body of worshippers."           (Emphasis supplied)      This view  was reiterated  in a  later decision of this Court in  Mahant Ram  Saroop Dasji  v.  S.P.  Sahi,  Special Officer-In-Charge of the Hindu Religious Trusts & Ors. where S.K. Das,  J.  as  he  then  was,  speaking  for  the  Court clarified the law thus: 831           "But the  most  usual  and  commonest  form  of  a      private religious  trust is one created for the worship      of  a   family  idol   in  which  the  public  are  not      interested. Dealing with the distinction between public      and private  endowments in Hindu law, Sir Dinshah Mulla      has said  at p.  529 of  his principles  of  Hindu  Law      (11th edition)           ’Religious  endowments   are  either   public   or           private. In  a public  endowment the dedication is           for  the  use  or  benefit  of  the  public.  When           property is  set apart for the worship of a family           god in  which the  public are  not interested  the           endowments is a private one’."      In  Narayan  Bhagwantrao  Gosavi  Balajiwale  v.  Gopal Vinayak Gosavi  & Ors.  the same  principles were reiterated and it  was pointed  out that  the entries  made in the Inam Register showing  the nature  of the endowment were entitled to great  weight and  taken with the vastness of the temple, the mode of its construction, the long user by the public as of right  and grants  by Rulers and other persons were clear pointers to  the fact  that the  endowment was  of a  public nature.      In the case of Bihar State Board Religious Trust, Patna v. Mahant  Sri Biseshwar  Das,(2) this  Court laid down some important tests to determine the nature of the endowment. In this connection,  the fol  lowing observations need specific mention:-           "Therefore, evidence that sadhus and other persons      visiting the  temple are  given food and shelter is not      by itself  indicative of  the  temple  being  a  public      temple or  its proper  ties being  subject to  a public      trust.           Evidence that  the mahants used to celebrate Hindu      festivals when members of the public used to attend the      temple and  give offerings  and that  the  public  were      admitted to  the temple for darshan and worship is also      not indicative  of the temple being one for the benefit      of the  public....The fact  that members  of the public      used to  come to the temple with out any hindrance also      does not  necessarily mean  that the temple is a public

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    temple, for  members of  the public  do attend  private      temples...Yet, the  Privy Council held that the general      effect of  the evidence was that the family had treated      the temple  as family property and the mere fact of the      members of  the public  having come  to the  temple and      having made  offerings and  the mela  having been  held      which 832      gave popularity  to the temple and increased its esteem      in the  eyes of  the public and the fact that they were      never turned  away were  not enough  to hold the temple      and the properties as a public trust.           ..                  ..                     ..           Thus, the  mere fact  of the  public  having  been      freely admitted to that temple cannot mean that courtbs      should  readily   infer  therefrom  dedication  to  the      public. The  value of  such public  user as evidence of      dedication depends  on  the  circumstances  which  give      strength to  the inference  that the  user  was  as  of      right."      It may  thus be  noticed that this Court has invariably held that  the mere fact that the members of the public used to visit  the temple  for the purpose of worship without any hindrance or  freely admitted  therein would  not be a clear indication of  the nature  of the  endowment. It is manifest that whenever  a dedication  is made  for religious purposes and a  deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and  therefore,   the  mere  factum  of  worship  would  not determine the  nature of  the endowment.  Indeed  if  it  is proved that  the worship  by the members of the public is as of right  that may be a circumstance which may in some cases conclusively establish  that the  endowment was  of a public nature. In  Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai  Sansthan v.  The Charity Commissioner State of Bombay  all the  aforesaid cases  were summarised and the principles indicated above were reiterated.      In Gurpur  Guni Venkataraya  Narashima Prabhu & Ors. v. B.G.  Achia,   Assistant  Commissioner,   Hindu   Endowment, Mangalore &  Anr. Krishna  Iyer, J.,  reiterated these  very principles in the following words:           "The law  is now  well settled that ’the mere fact      of the public having been freely admitted to the temple      cannot mean  that courts should readily infer therefrom      dedication to the public. The value of such public user      as evidence  of dedication depends on the circumstances      which give  strength to the inference that the user was      as of  right’. (See  Bihar State Board Religious Trust,      Patna v.  Mahant Sri  Biseshwar Das-[1971]  3 SCR  680,      689)." 833      Thus, on  a conspectus  of  the  authorities  mentioned above, the  following tests  may be  laid down  as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature:      (1)  Where  the  origin  of  the  endowment  cannot  be           ascertained, the  question whether the user of the           temple by members of the public is as of right;      (2)   The fact  that the  control and  management vests           either in  a large  body  of  persons  or  in  the           members of  the public  and the  founder does  not           retain any  control over the management. Allied to           this may  be a  circumstance  where  the  evidence           shows that  there is  provision for a scheme to be           framed by associating the members of the public at

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         large;      (3)   Where, however,  a document is available to prove           the nature  and origin  of the  endowment and  the           recitals of the document show that the control and           management of  the temple  is  retained  with  the           founder or  his descendants,  and  that  extensive           properties are  dedicated for  the purpose  of the           maintenance of the temple belonging to the founder           himself, this  will be  a conclusive proof to show           that the endowment was of a private nature.      (4)   Where the  evidence shows that the founder of the           endowment  did   not  make   any  stipulation  for           offerings or  contributions to  be made by members           of the  public to  the temple,  this would  be  an           important intrinsic  circumstance to  indicate the           private nature of the endowment.      Fortunately, in  this  case  there  are  two  important documents Ext.  A and  Ext. 1-from  which the  nature of the endowment can  be clearly  spelt out  and we  would  examine these documents in the light of the tests and the principles enunciated above because after going through the judgment of the High  Court we are satisfied that the High Court has not properly construed  some of the important features contained in the documents and the evidence and has in fact overlooked certain important aspects which completely negative the fact that the endowment was of a public nature.      Ext. A  is an  ancient document executed as far back as February 18,  1895. The  authenticity and the genuineness of this document  is beyond  question and the High Court itself has described  this document as a document which has created the present  endowment. Even  though the document may not be treated as having itself. 834 created the endowment but it gives clear indication that the endowment was created near about the date when this document was executed.  Some of  the extracts  of this document which are undisputed,  in our  opinion, clearly  and  conclusively show that  the endowment  was of  a private  nature and  the intention of the founder was merely to instal a family deity in the  temple. In  order to fortify our conclusions, it may be necessary  to give  certain important  recitals from this document which may be extracted thus:-           "That I Gopinath Pani, my father Bhagyarathi Pani,      Alekha Pani,  father of  Dinabandhu Pani  and  father’s      brother of  Basudeo Pani  and Narsinha  Pani father  of      Balabhadra Pani-minor,  having made  the image  of  our      family deity  Sri Padhakanta  Deb  installed  it  in  a      temple which  was built by them in Depur Sasan in Pipli      Division and  they endowed  the Tanki  Bajyapati, Tanki      Baheli and  Kharida Swata  properties given  below from      the usufruct of which day-to-day Sibapuja and Janijatra      of the  deity was  managed by  them as  the Sebait  and      Marfatdar and we are also managing in the same way. For      the proper  management of  the deity’s property and the      Sebapuja of  the deity  in  future,  we  lay  down  the      following directions out of our own accord.           ..        ..        ..        ..      1.... we  hereby appoint  the said  Adwait  Charan  Das      Babaji,  Sutradhari   Gaudeswar  Sampraday  Baisnab  by      caste, worship  and Sebapuja of the deity by profession      as the  Tatwabadharak and  Sebait and  hereby (appoint)      him by  this trust  deed and we become aloof from those      duties vesting  in him  the following properties of the      deity...           2. From  this day  the said Babaji will manage all

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    the immovable  and movable  properties of  the deity as      the Sebait  and  Tatwabadharak.  He  will  realise  the      usufructs of  the property and after giving the rent of      the lands,  he will  manage the day-to-day Bhog and the      festivities of the deity well according to the previous      customs and rules and in the way we were doing and will      keep the surplus amount in the store of the deity.           3. The day-to-day Bhoga and the festivities of the      deity will  be done  according to  the  income  of  the      properties of  the deity and will never exceed the said      income.           4. The said Babaji cannot incur any loan on behalf      of he  deity nor  can he sell, mortgage, keep as surety      or trust 835      any of  the immovable  or movable properties nor can he      misappropriate any  cash kind  ornament or  utensils of      the deity.      ..                   ..                ..           6. If  the said  Babaji does  anything contrary to      the conditions  laid down  in items 4 & 5 written above      he will  be removed  from his  right of  Sebaitship and      Tatwabadharakship by  us or  cur heirs who will appoint      another fit man in his place and take the charge of all      the properties in the store of the deity      ..               ..                 ..           9. As  the properties  maintained herein have been      endowed to  the deity  before, we or our successors had      or will  have no claim on this and any such claim made,      shall be void.      ..                 ..                ..           11.  Now   or  in  future  the  man  appointed  as      Tatwabadharak  will   work  according   to  rules   and      directions mentioned herein and for the Sebapuja of the      deity the  directions and the menus are determined here      for all days to come.           12. .... All other necessary expenses of the Jatra      (festivals) repairing  of the  temple, utensils and the      ornaments of  the deity, etc. will be done according to      the income.      ..                  ..                ..           14. Any  pious man of our family at present and in      future will  see whether the work of the deity is being      performed according  to the  direction as  aforesaid by      the appointed Tatwabadharak and will take proper action      as mentioned above.           14. If  in future  there be  no  fit  man  in  our      family, any  of the  Baisnab Sampraday and any Hindu of      reputation of  the  village  and  of  the  locality  is      entitled to  take such  action, we have no objection to      this."           (Emphasis supplied)      The intention  which can be gathered from this document is placed  beyond doubt by a later document Ext. 1 which was executed on  17-11-1932 and is in the nature of a settlement Deed, the relevant portions of which may be quoted thus:-           "Our forefathers  for the  good of  our family  by      making the  family deity  Sri  Radhakanta  Deb  Thakur,      erecting a 836      temple  befitting.  His  installation,  installing  Him      therein and endowing the landed properties as described      in the  schedule below,  used  to  carry  out  all  the      Sebapuja work of the deity in orderly manner by meeting      the expenses  from out  of the  income and yield of the

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    said properties..  As the  said Lalit  Charan  Das  and      Raghunath  Pani   a  person   of  our  family  together      misappropriated by  utilising the  income and  yield of      the properties of the deity in illegal expenditures and      without carrying  on the Sebapuja work in proper manner      caused  heavy  damage  to  the  movable  and  immovable      properties of  the deity  in different unfair means, we      have removed  them from  Sebapuja work of the deity and      also  from   management  and  custody  of  the  deity’s      properties. .  . If the work of the deity is carried on      for some  time more  in the manner in which the work is      being managed  now then  the temple  established by our      forefathers as  a mark  of pride  of our family and all      the Debuttor  properties of the deity will be destroyed      in toto  and the  noble glory  of the  forefathers will      perish  ..   We  by   this  deed   of   trustee   order      determination appointed you as trustee for the Sebapuja      work of our family deity Shri Radhakanta Deb Thakur and      for the work of looking after His properties, according      to the  following conditions  and terms,  so that  from      today onwards  on the  strength of this deed of trustee      order determination  you from  Chela to  Bara chela  by      carrying  on   the   Sebapuja,   offerings,   religious      ceremonies and  festivals and by preserving and looking      after all  the debuttor  properties, realise the income      and yield therefrom according to convenience.      ..                  ..               ..           10. If  we or  any body  amongst us misappropriate      any money  or property  by  taking  secretly  from  the      tenants or  borrowers, we  and our  successors will  be      liable for punishment according to criminal law and you      can realise  any compensation you intend to take either      mutually or with the help of the court. We and our sons      and grandsons shall be bound and liable to pay.      ..                   ..               ..           22. But  if you might have obtained, any amount on      loan against  the income  of the  debuttor property and      anything that you might have spent from your own pocket      for the  improvement of  the deity  of the  muth and to      save the property, we will be bound and liable to repay      the said 837      amount alongwith  just and prescribed rate of interest,      and we  shall repay. If we do not repay voluntarily you      and your  successors will  realise from us and from our      and from  our son’s  and grandsons  existing and  to be      acquired movable  and immovable properties and from the      existing and  to be acquired debuttor properties of the      deity according to law."           (Emphasis supplied)      Considering the  two documents together the fundamental features, which  now from  the recitals extracted above, may be summarised as follows:-      (1)  That the  deity was installed in the temple purely           as a family deity and the dedication WAS made only           for a  group of  individuals who  may be connected           with the family of the Panis who were the founders           of the  deity. This  clearly establishes  that the           intention of  the founders  was to  dedicate their           properties and instal the deity in the temple only           for  purposes   of  the  Pani  family,  and  their           descendants. A  perusal of  the recitals extracted           above would unmistakably show that there can be no           two opinions on this question.      (2)  Extensive private properties belonging to the Pani

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         family alone were dedicated for the maintenance Of           the temple  and the  deity and there is nothing to           show that  any contribution  was called  for  from           members of the public nor is there any averment in           the deed  to show  that there  was any stipulation           for taking  offerings  from  the  members  of  the           public to worship in the temple.      (3)   There was  no provision for framing any scheme by           associating  the   members  of   the   public   or           consulting them.  In fact,  Ext. 1 shows that even           after the  descendants of  the founders had fallen           on evil days and were not in a position to provide           sufficient  funds  for  the  maintenance.  Of  the           temple yet  they appointed Udayanath Pattanayak to           manage  the   affairs  of   the  deity  and  bound           themselves personally to reimburse the Manager for           any out-of-pocket  expenses incurred in connection           with  the   maintenance  of   the   temple.   This           circumstance   manifestly    proves    that    the           endowment was  of a  purely private  nature  right           from the  time it  was created  till 1932 when the           management 838           was changed  and  continued  to  be  of  the  same           nature. Indeed, the personal undertaking contained           in Ext.  1 clearly  shows that there was never any           intention to  treat the temple as a public one but           the intention  was, if  at all,  to continue it in           the name  of the  family so  long  as  the  family           continued.      (4)   There is  no recital  in any  of the documents to           show that  the members  of the  public or  the vil           lagers of  the place where the temple was situated           were entitled to worship as of right. On the other           hand,  PWs  1  to  6  who  were  examined  by  the           appellants-plaintiffs  have  categorically  stated           that members  of the  public were  not allowed  to           worship  in  the  temple  as  of  right.  In  this           connection PW 1 stated as follows:-                "Members of  the public have no right to have           Darsan of,  or to  offer bhog  to the  deity.  The           villagers do  not make  Kirtan before the deity or           take any  part in  any festivity of the deity. The           deity has no Bahari Jatra. No member of the public           made any  gift to  the deity.  No khairat  is ever           given. The  properties of the Thakur are all (sic)           with rent."      PW. 5  stated that  the disputed deity was installed by the family  of the  other Panis and not by his ancestors and that the  deity was  not their  family  deity  and  was  not dedicated to  the public. As against this oral evidence, the defence examined  DW 1,  Raghunath Pani,  whose evidence has been rejected  both by  the Trial  court and the High Court. Thus, apart  from  the  unimpeachable  documentary  evidence discussed above,  even the  oral evidence  to prove that the endowment was  of a private nature is clear and has not been rebutted by  the defence.  In this  state of the evidence we are indeed  surprised to  find how the High Court could hold that the endowment was of a public nature.      The High  Court seems  to have  been  carried  away  by factors or  considerations which  are of a very minor nature and by  themselves do  not prove that the endowment was of a public nature.  For instance,  one of the circumstances that weighed with  the High  Court was  that  the  temple  was  a massive structure  of about  25 yards  in  height.  That  by

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itself, divorced from other things, could not prove that the temple was  a public  one. So  far as  the oral  evidence is concerned. the High Court observed thus: 839           "Apart from  the above  features disclosed  by the      oral evidence  which are  indicative of the institution      having been  treated as  a public  one. the recitals in      some of the clauses of the two documents.-(Exts. A & 1)      also unequivocally  indicate an intention of dedication      in favour of public."      These observations  are not  at all  borne out  by  the evidence of  PWs 1  to 5 which is the only oral evidence led in the  case, the  evidence of  DW 1 having been rejected by the trial  court as also the High Court. The High Court took into consideration  the fact  that certain  properties  were needed for  the maintenance  of the temple and Seba-puja and other ceremonies  were being  performed by  the Shebaits and Marfatdars. The  High Court overlooked the fact that Shebait or the  Marfatdars were  appointed by  the founders  of  the endowment and  the entire  management  and  control  of  the temple was retained by the family. We are unable to agree as to how  in these  circumstances could  it be  said that  the endowment was of a public nature.      Another circumstance  that weighed  with the High Court was that  bhogs were offered during the day which, according to the High Court, was in consonance with the rules observed by the  public.  This  circumstance  also  is  not  of  much consequence  because  bhogs  are  offered  even  in  private temples. The  High Court also seems to have relied on clause 15 of  Ext. A to come to its decision that the endowment was of a  public nature.  The High  Court was  of the  view that under this clause in certain contingencies any member of the Vaishnav  sect   or  Hindu   resident  of  the  village  was authorised to exercise the powers and functions mentioned in clause 7  of the deed. We are, however, unable to agree with the interpretation  placed by the High Court on clause 15 of Ext. A.  Clause 15  merely provides  that if  in future  the family becomes extinct and no fit person could be found then any of  the Baisnab  Sampraday or  any reputed  Hindu of the village could  take action,  namely, to  perform the work of the deity. This was a contingent provision and here also the founders did  not confer the duty of performing all the work on the members of the public but they chose or selected only a particular  person belonging  to  a  particular  community which also  shows that  even if  the family  was  to  become extinct, the  private nature  of the endowment was not to be changed. Indeed  if the  intention was to instal the idol in the temple  by way  of a  public endowment,  clause 15 would have clearly provided 840 that in  cast the  family became  extinct the members of the public or  of the  brotherhood or  the Government could have taken  over   the  management.   On  the   other  hand,  the interpretation of  the  various  clauses  of  the  documents clearly shows  that sufficient  care has  been taken  by the Pani family  to see  that the dedication to the family deity is not changed even if the family becomes extinct.      Having, therefore,  carefully perused  the oral and the documentary evidence  in the  case we are satisfied that the conclusions arrived  at by  the High Court are wrong and are based  on  misinterpretation  of  Ext.  A  and  Ext.  1  and misreading of  the oral  evidence led in the case, which, as we have shown, runs counter to the conclusions arrived at by the High  Court. For  the reasons given above, we allow this appeal, set aside the judgment of the High Court, decree the

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plaintiffs-appellants suit  and restore  the judgment of the trial court. In the peculiar circumstances of this case, the appellants will  be entitled  to costs of the appeal in this Court quantified at Rs. 4,000/- (Rupees four thousand only) S.R.      Appeal allowed. 841