http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

CASE NO.: Appeal (civil)  7210 of 2000

PETITIONER: Sri Gedela Satchidananda Murthy (D) By LRs

RESPONDENT: Dy. Commnr., Endowments Deptt., A.P. & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :           1.     One Gedela Appala Swamy Naidu was owner of a piece of land  measuring 81 x 70 sq. yards situated in a secluded locality on the hills  situated at village Simhachalam.  He died leaving behind him his wife  Atchamamba and son G. Satchidananda Murthy (Plaintiff No. 1).  He was  buried in the same property.  A Samadhi was constructed thereon by his son.   Plaintiff No. 1 shifted his residence at the said property.  In or about 1976,  he installed statutes of Appala Swamy Naidu and Shri Veera Bhoja Vasantha  Rayalu who was the guru of his father.  The Guru of Appala Swamy Naidu  and Appala Swamy Naidu himself had a large number of disciples.  The idol  of Godess Gayatri Devi was also installed.  It was named as "Sri Simha Saila  Puri Virat Guru Mandiram" and "Sri Simha Saila Puri Gayatri Peetam".

2.      Allegedly, after the death of Appala Swamy Naidu, the said property  was being managed by his brother Suryanarayana Naidu.  When Smt.  Atchamamba, wife of Appala Swamy Naidu died in the year 1979, her dead  body was buried by the side of her husband in the same compound.  A tomb  was also constructed.   

3.     A notice was issued by Respondent No. 1 as to why the plaintiffs  should not apply for registration of the temple/ institution as a public  institution within the meaning of Sections 38 and 39 of the A.P. Charitable  and Hindu Religious Institutions and Endowments Act, 1966 (for short "the  Act").

4.      An application was filed before Respondent No. 1 for deletion of the  said institution from the list of Charitable and Hindu Religious Institutions  and Endowment.  The said application was dismissed by an order dated  14.12.1982.  In arriving at the said decision, a large number of documents as  also a report of the Assistant Commissioner Endowments, Anakapalli and  statements of some persons including one Satyanarayana, the first cousin of  the original Plaintiff No. 1, were taken into consideration.

5.      A suit was filed by the appellant in terms of the provisions of Section  78 of the Act.  By a judgment and order dated 31.12.1984, the said suit was  decreed.  Respondents filed a first appeal before the High Court of Andhra  Pradesh.  The said appeal has been allowed by reason of the impugned  judgment.

6.      Mr. M.N. Rao, learned senior counsel appearing on behalf of the  appellant, in support of the appeal raised the following contentions:

(i)     The term "religious institution" as defined in Section 2(22) of the  Act would not bring within its purview a place where burial had  taken place and tombs were constructed. (ii)    The order of the Deputy Commissioner is a nullity being violative

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

of the principles of natural justice. (iii)   In view of the fact that the District Judge had inspected the  property personally and recorded his observations, the High Court  should not have interfered therewith.   (iv)    No member of the public having been examined by the  respondents to prove public participation in the affairs of the trust  nor the public character thereof having been proved, the High  Court committed an error in arriving at its findings. (v)     Plaintiff No. 1 having not undertaken preaching of any religious  tenets to disciples and the suit property being not a place of  worship for the general public but one for the family, it should  have been held to be a private institution.   (vi)    The purported admission of G. Satyanarayana, at whose instance  the litigation had started, could not have been relied upon by the  High Court.

7.      Mr. Manoj Saxena, learned counsel appearing on behalf of the State,  however, would support the impugned judgment.

8.     Before embarking upon the rival contentions of the parties as noticed  hereinbefore, we may notice some of the relevant provisions of the Act.

9.      The terms "religious institution" and "temple" as defined in Sections  2(22) and 2(26) of the Act read as under:

"(22) ’religious institution’ means a math, temple  or specific endowment and includes a Brindavan,  Samadhi or any other institution established or  maintained for a religious purpose;

(26) ’temple’ means a place by whatever  designation known, used as a place of public  religious worship, and dedicated to, or for the  benefit of, or used as of right by, the Hindu  community or any section thereof as place of  public religious worship and includes sub-shrines,  utsava mantapas, tanks and other necessary  appurtenant structures and land;"                                                 [Emphasis supplied]

10.     Section 77 of the Act provides for the jurisdiction of the Deputy  Commissioner to decide the dispute inter alia in regard to the nature of  endowment, viz., whether it is private or public.  The decision of the Deputy  Commissioner is required to be published.  A suit may be filed in a civil  court by a person who is aggrieved by the decision of the Deputy  Commissioner.

11.     The dedication was made in the year 1976.  Not only the plaintiffs, as  would appear from the evidences brought on record but also the public had  also made contributions for construction of the property in question.  For the  purpose of entering into the temple, tickets used to be sold.  A Hundi meant  for public donation was also installed.  A Medical Unit meant for the visiting  public was found to have been set up there.  A hall was constructed within  the premises of the institution known as Gita Bhawan.   

12.     While applying for water connection, admittedly, the plaintiffs  categorically declared that the same was necessary for the visiting public and  not for any domestic purpose.  An inspection was made and it was found that  the temple used to be visited regularly and the average number of visitors  per day was about 30 to 40.  Regular pujas are also held in the said temple.

13.     Before entering into the factual controversy, we may notice the legal  position.  Mr. Rao raised a contention that Hindu Law does not recognize  dedication of any property for construction of Samadhi or tomb as charitable  or religious purpose.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

14.     In Saraswathi Ammal and Another v. Rajagopal Ammal [1954 SCR  277] the question as to whether worship at the Samadhi of a person would be  valid under Hindu Law came up for consideration.  It was held that  dedication must have a Shastraic basis.  While, however, saying so, it was  noticed that there are instances where Hindu Saints had been worshipped  and entombed.  The Court proceeded on the basis that "Their Lordships were  aware about the dedication of property on such tombs amongst Hindus".  It  was, however, observed:

"\005Such cases, if they arise, may conceivably  stand on a different footing from the case of an  ordinary private individual who is entombed and  worshipped thereat. The case reported as The  Board of Commissioners for the Hindu Religious  Endowments, Madras v. Pidugu Narasimham and  others has also been referred to. It is a somewhat  curious case furnishing an instance where images  of as many as 66 heroes who were said to have  been killed in a war between two neighbouring  kingdoms in the 13th century were installed in a  regular temple and systematically worshipped by  the public for several centuries and inam grants  therefor made during the Moghul period. With  reference to the facts of that case, the learned  Judges were inclined to hold that the worship was  religious. This, however, is a case of a grant from a  sovereign authority and in any case is not an  endowment for worship of a tomb. In the three  Madras cases in which it was held that the  perpetual dedication of property by a Hindu for  performance of worship at a tomb was not valid,  there was no suggestion that there was any widely  accepted practice of raising tombs and  worshipping thereat and making endowments  therefor in the belief as to the religious merit  acquired thereby\005"

Therein a specific averment had been made in the plaint that institution of  the Samadhi and ceremonies connected with it were not usual in the  community to which the parties belonged.  

15.     In Malayammal and Others v. A. Malayalam Pillai and Others [1991  Supp (2) SCC 579], a three-Judge Bench of this Court opined:   "12. The perpetual dedication of property for  construction of a samadhi or a tomb over the  mortal remains of an ordinary person and the  making of provisions for its maintenance and for  performing ceremonies in connection thereto  however, has not been recognised as charitable or  religious purpose among the Hindus. But the  samadhi of a saint stands on a different footing.  This was the consistent view taken by the Madras  High Court in several cases, namely, C.  Kunhamutty v. T. Ahmad Musaliar A.  Draiviasundaram Pillai v. N. Subramania Pillai ,  Veluswami Goundan v. Dandapani 6 . This Court  in Saraswathi Ammal v. Rajagopal Ammal has  approved those decisions of the Madras High  Court. Jagannatha Das, J., who spoke for the court  said (at p. 289) : "We see no reason to think that  the Madras decisions are erroneous in holding that  perpetual dedication of property for worship at a  tomb is not valid amongst Hindus.""

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

                                               [Emphasis supplied] 16.     In Committee of Management of Institution known as  Bodendraswami Mutt by its managing member N. Ganesa Iyer v. President  of Board of Commrs. for Hindu Religious endowments [AIR 1954 Madras  1027], whereupon Mr. Rao relied upon, the High Court stated:

"5. Sri Ramachandran on behalf of the  Commissioner for Religious Endowments supports  the lower Court on the strength of -- ’Ratnavelu  Mudaliar v. Commr. for Hindu Religious and  Charitable Endowments’, AIR 1954 Mad 398 (G).  That was indeed the case of an ancient institution  which originated in a samadhi. Though it  continued to retain traces of its origin and guru- pooja was performed in the precincts the same  learned Bench Rajmannar C. J. and Venkatarama  Aiyar J. confirming a judgment of Krishnaswami  Naydu J. also on the original side of the High  Court, held it to be a temple within the scope of  Section 9(12). The facts of that case were however  peculiar and different from those in the present  case. So long ago as 7-8-1860 the Government  made a grant in favour of Chidambaraswami, who  founded that institution. He was described as the  founder of the "Apparswami pagoda" and not of  the "Apparswami Samadhi". Since then, it was  treated admittedly in various proceedings as a  temple. The facts of that case can easily be  differentiated from the present one in which a  claim is made for the first time that this admitted  samadhi has now evolved into a temple. In that  decision, the following observations of Varada- chariar J. in -- ’Board of Commrs. for the Hindu  Religious Endowments v. P. Narasimham, AIR  1939 Mad 134 (H) were quoted with approval.  "That what the evidence in this case describes as  taking place in connection with the institution is  public worship can admit of no doubt. We think it  is also religious. The test is not whether it  conforms to any particular school of Agama  Sastras; we think that the question must be decided  with reference to the view of the class of people  who take part in the worship. If they believe in its  religious efficacy, in the sense that by such  worship, they are making themselves the object of  the bounty of some superhuman power, it must be  regarded as a religious worship." Even if this very broad test were to be applied to  the present case, I am not prepared to hold that the  mere presence of some idols and the festivals,  which have grown round the samadhi of  Bodendra-swami, inevitable in the case of all  tombs of saints and great men in this country,  would bring it within the definition of a temple as  defined in Section 9 (12). For these reasons, I  would set aside the order of the District Judge and  hold that this institution is not a public temple as  defined in Section 9(12) of the Act."

17.     Religious practices vary from State to State, region to region, place to  place and sect to sect.  When the legislature makes a legislation, the existing  state of affairs and the basis on which such legislation has been made would  be presumed to have been known to it.  Whereas the property for  construction of a Samadhi or tomb by itself may not amount to a permanent  dedication involving public character of such institution, a distinction must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

be borne in mind about a tomb constructed on the Samadhi of an ordinary  man and a saintly person.  In a case falling within the latter category, the  answer to the question, in our opinion, should be rendered in the affirmative.

18.     Ordinarily, even the body of an ordinary Hindu would not be buried.   It would be cremated.  The very fact that the brother of the appellant  Suryanarayana Naidu was not buried there is itself a pointer to show that the  same was not a family custom.  Plaintiffs themselves while referring to  burial of Smt. Acthamamba stated that she was an illiterate and had no  religious inclination at all.  No such statement had been made in respect of  her husband and others who have been buried.  Plaintiffs were, therefore,  aware of the said distinction.

19.     In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and  Others [(1964) 1 SCR 561], Gajendragadkar, J. speaking for a Constitution  Bench, in a matter relating to the famous Nathdwara Temple where the  denomination in question did not recognize the existence of ’Sadhus’ or  ’Swamis’ other than the descendants of ’Vallabha’, and no other ritualistic  practices were adopted and where the cult did not believe in celibacy as well  as did not regard that giving up worldly pleasures and the ordinary mode of  a house-holder’s life were essential for spiritual progress, opined:

 "The question as to whether a Hindu temple is  private or public has often been considered by  judicial decisions. 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  founded by him may attract devotees in large  numbers 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 available, 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 to the take part in the festivals and  ceremonies arranged in the temple? Are their  offerings accepted as a matter of right? The  participation of the member of the public in the  Darshan in the temple and in the daily acts of  worship or in the celebrations of festival occasions.  may be a very important factor to consider in  determining, the character of the temple. In the  present proceedings, no such evidence has been led  and it is, therefore, not shown that admission to the  temple is controlled or regulated or that there are  other factors present which indicate clearly that the  temple is a private temple. Therefore, the case for  the Tilkayat cannot rest on, any such  considerations which, if proved, may have helped

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

to establish either that the temple is private or is  public."  

20.     It was, therefore, clearly not a case where Shastraic basis was held to  be the sine qua non for the purpose of arriving at a decision that the  institution in question would fall within the purview of the terms ’religious  and charitable institution’ or not.

21.     In Dhaneshwarbuwa Guru Purshottambuwa, owner of Shri Vithal  Rukhamai Sansthan v. The Charity Commissioner, State of Bombay [(1976)  2 SCC 417], this Court opined that while each case of endowment as to the  character of temple would depend on the history, tradition and facts, the  presence of the features enumerated therein may be held to be sufficient to  hold that the same satisfies the tests which were required to be fulfilled in  arriving at a decision that the temple in question was a public trust.

22.     We are not, however, oblivious of the fact that only because members  of the public are freely admitted to the temple, that by itself would not be  sufficient to come to the conclusion that the temple was a public institution.

23.     In Hari Bhanu Maharaj of Baroda v. Charity Commissioner,  Ahmedabad [(1986) 4 SCC 162], upon which again Mr. Rao relied upon, the  question as to whether the members of the public had visited the Mandir as  invitees and nothing more was held to be dependant upon the facts and  circumstances of each case.

24.     In view of the fact that members of the public could visit the temple  only on payment of some amount is itself indicative of the fact that they  could do so as of right.  It has been found as of fact that there used to be  regular visitors in the temple.  They would not only pay their obeisance to  the great men who had been buried there but also offer pujas at the temple.   It has also been found as of fact that various types of pujas were being  performed by the public at the temple on payment.  Pamphlets had been  issued by the plaintiffs themselves for the aforementioned purpose.  The said  pamphlets were marked as Exs. B-7 and B-8.

25.     We have noticed hereinbefore that the Act itself recognizes Samadhi.   A religious institution, thus, includes a Samadhi.  When it is established or  maintained for public purpose together with a temple, it would indisputably  come within the purview of the said definition of the said terms.

26.     The learned District Judge in his judgment had observed that no single  member of public was examined as a witness.  We fail to understand the said  approach of the learned Judge as the plaintiffs in the suit were questioning a  quasi - judicial order passed by a statutory authority, and, thus, nothing  prevented them from doing so to prove the contrary.  The learned District  Judge has also found that the evidences clearly establish that the institution,  to some extent, has appearance of a temple and in addition to the temple,  there is Samadhi of the father of Plaintiff No. 1.   

27.     The conduct of the appellant cannot also be lost sight of.  Shri Gedela  Suryanarayana had written a letter dated 14.01.1972 (Ex. B-16) wherein,  while asking for water connection, it was categorically stated:

"\005Moreover, this Mathalayam is purely being  maintained as per the Hindu Religious mythology  for the devotees of God but not for the use of any  domestic purposes. Therefore, I earnestly request  that free water supply through water tap may  kindly be accorded and sanctioned without the  question of any water reading meter to this  Mathalayam"

28.     He reiterated the aforementioned stand in his letter dated 22.05.1975.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

29.     Yet again by a letter dated 25.01.1978, Plaintiff No. 2 stated:

"The above named Matalayam was established  long ago on the Up-hill, Simhachalam with the  kind help extended by the disciples and devotees  for preaching philosophical teachings according to  Hindu Mythology.

Due to non-availability of drinking water in the  above Mathalayam, the devotees attending there  are undergoing lot of inconvenience."

        30.     These admissions on the part of the plaintiffs had rightly been held to  be relevant by the High Court for determining the question.  The temple,  therefore, was not established as a private place of worship by the plaintiffs  or their family members but it had been established with the help extended  by the disciples and members of the public.  The factum of issuance of  pamphlets or entry tickets, as noticed by the High Court, had not been  denied or disputed by Plaintiff No. 2 in his reply dated 26.12.1978 in  response to the notice issued by the Deputy Commissioner.  The conduct of  the parties in not even denying the said letters containing certain vital  admissions on their part would, thus, clearly go to show that the judgment of  the High Court does not suffer from any infirmity.  Rule of estoppel in a  case of this nature would be clearly applicable. 31.     In Hodgson & Ors v. Toray Textiles Europe Ltd & Ors [2006] EWHC  2612 (Ch), it was stated:  "The essential ingredients of estoppel by representation are that:  i) A has made a clear and unequivocal representation to B about  his legal rights, intending it to be acted upon; ii) B has acted in reliance on that representation and iii) It would be inequitable for A to resile from the  representation he has made."    32.     In Trustee Solutions Ltd & Ors v Dubery & Anor [2007 (1) All ER  308 : [2006] EWHC 1426 (Ch)], it was stated:   "Group estoppel binds all beneficiaries under the  trust, as well as the trustees and the company. The principle The principle on which Miss Rich relies is that  formulated by Lord Denning MR in Amalgamated  Investment & Property Co Ltd v Texas-Commerce  International Bank Ltd [1982] 1 QB 84, 121:   "If parties to a contract, by their course of dealing,  put a particular interpretation on the terms of it --  on the faith of which each of them -- to the  knowledge of the other -- acts and conducts their  mutual affairs -- they are bound by that  interpretation just as much as if they had written it  down as being a variation of the contract. There is  no need to inquire whether their particular  interpretation is correct or not -- or whether  they were mistaken or not -- or whether they  had in mind the original terms or not. Suffice it  that they have, by their course of dealing, put  their own interpretation on their contract, and  cannot be allowed to go back on it.""

33.     In Mukherjee on Indian Trust Act, page 177, it is stated:

"The essential conditions to attract the application  of the cy pres doctrine are:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

(i)     the donor (rather the testator) must clearly  evidence a general intention of charity \026 when the  particular charitable disposition cannot be carried  into effect, the Court, in order that the general  charitable intention may not be disappointed,  makes a cy pres application of the fund and applies  it to a purpose which coincides as nearly as  possible with the object that has failed; (ii)    there must be a failure of the particular  object of charity as specified by the testator, or  there must be a surplus left after satisfying the  particular purpose; (iii)   the court should choose such objects as are  akin to the object that had failed; (iv)    the gift or trust must be by Will and not by a  deed inter vivos (by case law)."

34.     In State of W.B. v. Sri Sri Lakshmi Janardan Thakur [(2006) 7 SCC  490], this Court opined:

"15. In order to ascertain whether a trust is private,  the following factors are relevant:  (1) If the beneficiaries are ascertained individuals.   (2) If the grant has been made in favour of an  individual and not in favour of a deity.   (3) The temple is situated within the campus of the  residence of the donor.   (4) If the revenue records or entries suggest the  land being in possession of an individual and not  in the deity. On the other hand an inference can be  drawn that the temple along with the properties  attached to it is a public trust:  (1) If the public visit the temple as of right.   (2) If the endowment is in the name of the deity.   (3) The beneficiaries are the public.   (4) If the management is made through the agency  of the public or the accounts of the temple are  being scrutinised by the public."

35.     Even otherwise, the principle of estoppel shall apply in this case.

36.     The question, however, which remains is as to whether the idol having  been installed in the residential premises should be held to be a part of the  charitable and religious institution.  Each case, as is well-known, will  depend upon the factual matrix obtaining therein.  We may in this behalf  notice some decisions which are operating in the field.

37.     In Deoki Nandan v. Murlidhar [1956 SCR 756], this Court opined:

"Firstly, there is the fact that the idol was installed  not within the precincts of residential quarters but  in a separate building constructed for that very  purpose on a vacant site. And as pointed out in  Delroos Banoo Begum v. Nawab Syud Ashgur Ally  Khan it is a factor to be taken into account in  deciding whether an endowment is private or  public, whether the place of worship is located  inside a private house or a public building.  Secondly, it is admitted that some of the idols are  permanently installed on a pedestal within the  temple precincts. That is more consistent with the  endowment being public rather than private.  Thirdly, the puja in the temple is performed by an  archaka appointed from time to time."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

       [See also Bihar State Board of Religious Trusts v. Bhubneshwar  Prasad Choudhary (1974) 2 SCC 288] 38.     In State of Bihar v. Charusila Dasi [1959 Supp (2) SCR 601], while  referring to Deoki Nandan (supra), it was observed: "In Deoki Nandan v. Murlidhar this Court  considered the principles of law applicable to a  determination of the question whether an  endowment is public or private, and observed:  "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 en dowment can only  be regarded as public, intended to benefit the  general body of worshippers."  One of the facts which was held in that case to  indicate that the endowment was public was that  the idol was installed not within the precincts of  residential quarters but in a separate building  constructed for that very purpose on a vacant site.  We do not suggest that such a fact is by itself  decisive of the question. The fact that the temple is  outside the dwelling house is only a circumstance  in favour of it being regarded a public temple,  particularly in Madras (except Malabar); there are,  however, private temples in Bengal which are built  outside the residential houses of donors (see the  Hindu Law of Religious and Charitable Trust,  Tagore Law Lectures by the late Dr B.K.  Mukherjea, 1952 Edn., p. 188). In the case before  us, the two temples were constructed outside the  residential quarters, but that is only one of the  relevant circumstances. We must construe the deed  of trust with reference to all its clauses and so  construed, we have no doubt that the trusts  imposed constitute a public endowment. There is  one other point to be noticed in this connection.  The deed of trust in the present case is in the  English form and the settlor has transferred the  properties to trustees who are to hold them for  certain specific purposes of religion and charity;  that in our opinion is not decisive but is  nevertheless a significant departure from the mode  a private religious endowment is commonly  made."

39.     In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas [(1969)  2 SCC 853], this Court held: "11. Yet another contention taken on behalf of the  appellant is that the architecture of the building in  which Gokulnathji is housed and the nature of that  building is such as to show that it is not a public  temple. It was urged that that building does not  possess any of the characteristics of a Hindu  temple. It has not even a dome. This contention  again has lost much of its force in view of the  decision of this Court referred to earlier. Evidence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

establishes that Vallabha’s son and his immediate  successor Vithaleshwar had laid down a plan for  the construction of temples by the Vallabha  Sampra-dayees. He did not approve the idea of  constructing rich and costly buildings for temples.  Evidently he realised that religious temple  buildings were not safe under the Mohammedan  rule. For this reason he advised his followers to  construct temples of extremely simple type. The  external view of those temples gave the  appearance of dwelling houses. It appears to be a  common feature of the temples belonging to the  Vallabha Sampradayees that the ground-floor is  used as the place of worship and the first floor as  the residence of Goswami Maharaj. Therefore the  fact that Gokulnathji temple at Nadiad had the  appearance of a residential house does not in any  manner militate against the contention that the  temple in question is a public temple."

40.     In Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar  Das [(1971) 1 SCC 574], it was stated: "20. An attempt appears to have been made in the  trial court to establish that certain ceremonies, such  as Sankalpa, Pratistha and Utsarga, were  performed at the time when idols were installed in  the temple. In the case of temples Pratistha and not  Utsarga, if established, would indicate dedication  to the public. (See Kane’s History of  Dharmasastras, Vol. 2, Part II, 892 to 893 and  Deoki Nandan v. Murlidhar). Unfortunately for the  appellant Board, there was no clear evidence of the  particular ceremonies performed at the time when  Gaibi Ramdasji installed the idols except a general  statement from the respondent that when idols are  installed in temples Pran Pratistha is generally  performed. Support for a dedication to the public  was also sought from the fact that the idols were  installed permanently on a pedestal (Sinhasan) and  the temple was constructed on grounds separate  from the residential quarters of the Mahant. In the  first place, such factors are also found in private  temples and Mutts, and therefore, are not  conclusive. In the second place, there was the  evidence that the Mahant’s residential quarters are  in fact not separate from the temple premises."

41.     In the instant case, the dedication was made even according to the  appellants long back.  Constructions for residential purposes were made  thereafter.  It is not a case where the dedication of the property occurred  subsequent to the constructions of the residential houses.  It is also not a case  where the idol was installed inside the residential premises.

42.     We, therefore, in view of the decisions of this Court, are of the  opinion that merely because the appellant has a residential house in the  portion of the property which is the subject matter of the trust, the same is  not outside the purview of the Act.

43.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.  In the facts and circumstances of this case, there  shall be no order as to costs.