{"id":66586,"date":"1981-02-13T00:00:00","date_gmt":"1981-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/radhakanta-deb-anr-vs-commissioner-of-hindu-religious-on-13-february-1981"},"modified":"2017-10-22T13:09:42","modified_gmt":"2017-10-22T07:39:42","slug":"radhakanta-deb-anr-vs-commissioner-of-hindu-religious-on-13-february-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/radhakanta-deb-anr-vs-commissioner-of-hindu-religious-on-13-february-1981","title":{"rendered":"Radhakanta Deb & Anr vs Commissioner Of Hindu Religious … on 13 February, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Radhakanta Deb & Anr vs Commissioner Of Hindu Religious … on 13 February, 1981<\/div>\n
Equivalent citations: 1981 AIR 798, \t\t 1981 SCR (2) 826<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nRADHAKANTA DEB & ANR.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS, ORISSA\n\nDATE OF JUDGMENT13\/02\/1981\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nVARADARAJAN, A. (J)\nSEN, AMARENDRA NATH (J)\n\nCITATION:\n 1981 AIR  798\t\t  1981 SCR  (2) 826\n 1981 SCC  (2) 226\t  1981 SCALE  (1)304\n CITATOR INFO :\n R\t    1987 SC2064\t (5,15)\n\n\nACT:\n     Private v.\t Public endowments-Tests to determine on the\nfacts of  each case  whether an endowment is of a private or\nof a public nature, explained.\n\n\n\nHEADNOTE:\n     Allowing the appeal by certificate, the Court\n^\n     HELD: The\ttests which provide sufficient guidelines to\ndetermine on  the facts of each case whether an endowment is\nof a private or of a public nature are: (1) Where the origin\nof the endowment cannot be ascertained, the question whether\nthe user  of the  temple by  members of\t the public is as of\nright; (2)  The fact  that the\tcontrol and management vests\neither in  a large  body of persons or in the members of the\npublic and  the founder does not retain any control over the\nmanagement. Allied  to this  may be a circumstance where the\nevidence shows\tthat there  is provision  for a scheme to be\nframed by  associating the  members of\tthe public at large;\n(3) Where,  however, a\tdocument is  available to  prove the\nnature and  origin of  the endowment and the recitals of the\ndocument show  that the control and management of the temple\nis retained  with the  founder or  his descendants, and that\nextensive properties  are dedicated  for the  purpose of the\nmaintenance of\tthe temple belonging to the founder himself,\nthis will  be a\t conclusive proof to show that the endowment\nwas of\ta private  nature; (4) Where the evidence shows that\nthe founder  of the  endowment did  not make any stipulation\nfor offerings  or contributions to be made by members of the\npublic to  the temple,\tthis would be an important intrinsic\ncircumstance  to   indicate  the   private  nature   of\t the\nendowment. [833 A-E]\n     Deoki Nandan  v. Murlidhar,<\/a>  [1956] SCR 756; Mahant Ram\nSaroop Dasji  v. S.P. Sahi, Special Officer-in-Charge of the\nHindu Religious\t Trusts &  Ors.,<\/a> [1959]\t 2  Supp.  SCR\t583;\nNarayan\t Bhagwantrao  Gosavi  Balajiwale  v.  Gopal  Vinayak\nGosavi & Ors.,<\/a> [1960] 1 SCR 773; Bihar State Board Religious\nTrust, Patna  v. Mahant Sri Biseshwar Das,<\/a> [1971] 3 SCR 680,\nDhaneshwarbuwa Guru  Purshottambuwa  Owner  of\tShri  Vithal\nRukhamai Sansthan  v. The  Charity  Commissioner,  State  of\nBombay,<\/a> [1976]\t3 SCR 518; Gurpur Guni Venkataraya Narashima\nPrabhu &  Ors. v.  B.G. Achia,\tAsistant Commissioner, Hindu\nEndowment Mangalore & Anr.,<\/a> [1977] 3 SCC 17, followed.\n     In the  instant case:  (i) Ex.  A, an  ancient document\nexecuted as  for back as February 18, 1895, the authenticity\nand the genuineness of which is beyond question, clearly and\nconclusively show that the endowment was of a private nature\nand the\t intention of  the founder  was merely\tto instal  a\nfamily deity  in the  temple. (ii)  The fact that the temple\nwas of\ta massive  structure of about 25 yards in height, by\nitself, divorced from other things, could not prove that the\ntemple\twas   a\t public\t one.  (iii)  The  Shebaits  or\t the\nMarfatdars were\t appointed by  the founders of the endowment\nand the\t entire management  and control\t of the\t temple\t was\nretained by the family. (iv) The fact that bhogs\n827\nwere offered during the day which was in consonance with the\nrules observed\tby the\tpublic is  not of  much\t consequence\nbecause bhogs  are offered  even  in  private  temples.\t (v)\nClause 15  merely provides  that if  in\t future\t the  family\nbecomes extinct and no fit person could be found then any of\nthe Baisnab  Sampraday or  any reputed\tHindu of the village\ncould take action, namely, to perform the work of the deity.\nThis was  a contingent\tprovision and here also the founders\ndid not\t confer the  duty of  performing all the work on the\nmembers of  the public\tbut they  chose or  selected only  a\nparticular person  belonging to a particular community which\nalso shows  that even  if the  family was to become extinct,\nthe private  nature of\tthe endowment was not to be changed.\nIndeed if the intention was to instal the idol in the temple\nby way\tof a  public endowment, clause 14 would have clearly\nprovided that  in case the family become extinct the members\nof the\tpublic or of the brotherhood or the Government could\nhave taken  over the  management. On  the  other  hand,\t the\ninterpretation of  the\tvarious\t clauses  of  the  documents\nclearly shows  that sufficient\tcare has  been taken  by the\nPani family  to see  that the dedication to the family deity\nis not\tchanged even  if the family becomes extinct. [833 H,\n834 A, 838 G-H, 839 C, E-H, 840 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 318 of
\n1970.\n<\/p>\n
     From the  Judgment and  Decree dated  31-7-1969 of\t the
\nOrissa High Court in Appeal from Original Decree No. 78\/58.\n<\/p>\n
     P.K. Chatterjee and Rathin Dass for the Appellant.
\n     G.S. Chatterjee for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J. This appeal by certificate granted under
\nArt. 133  of the Constitution is directed against a Division
\nBench judgment\tdated July 31, 1969 of the Orissa High Court
\nand arises in the following circumstances.\n<\/p>\n
     The appellants-plaintiffs\thad instituted\ta suit under
\ns. 62(2)  of the  Orissa Religious  Endowment Act, 1939 (Act
\nNo. 4  of 1939) (hereinafter referred to as the ‘Act’) (this
\nAct applies  only to  public endowments)  to set  aside\t the
\norder dated  4-8-1950 of  the respondent  defendant by which
\nthe temple  of the  appellants, whose  deity was  Radhakanta
\nDeb, was  declared to be a public temple and a trust and the
\nendowment was  held to be of a public nature and, therefore,
\nwas to be governed by the Act. The Subordinate Judge decreed
\nthe  appellants-plaintiffs   suit  holding  that  the  deity
\ninstalled in  the temple  was a\t family deity  of  the\tPani
\nfamily and  the endowment being of a private nature, the Act
\nhad no\tapplication and\t the Order  passed by the respondent
\nregarding the management was set aside.\n<\/p>\n
     The  Respondent   (Commissioner  of   Hindu   Religious
\nEndowments, Orissa)  filed  an\tappeal\tin  the\t High  Court
\nagainst the decision of the
\n828<\/span>
\nSubordinate Judge  which was  heard by\tthe  Division  Bench
\nreferred to  above. The\t High Court reversed the decision of
\nthe Subordinate Judge and held that the temple and the deity
\ninstalled therein  being a  public endowment fell within the
\nfour corners  of  the  Act  and\t the  respondent  was  fully
\nentitled to  pass orders  for its  management.\tHence,\tthis
\nappeal by certificate before us.\n<\/p>\n
     The sole  question that falls for determination in this
\nappeal is  as to  whether or  not the appellant-temple was a
\npublic endowment  as alleged  by the  respondent or a family
\ndeity as alleged by the appellant.\n<\/p>\n
     The  learned   counsel   for   the\t  appellants,\tP.K.
\nChatterjee, has submitted that the approach made by the High
\nCourt was  wholly incorrect  and  it  has  misconstrued\t the
\nevidence and documents produced in the case to show that the
\nendowment was  a private  one and the deity installed in the
\ntemple was  purely a  family deity having nothing to do with
\nthe public. The learned counsel for the respondent. however,
\nsupported the  judgment of the High Court that the endowment
\nwas of a public nature
\n     The concept  of a\tprivate endowment or a private trust
\nis unknown to English law where all trusts are public trusts
\nof a purely charitable and religious nature. Thus, under the
\nEnglish law  what is  a public\ttrust  is  only\t a  form  of
\nCharitable Trust.  Dr. Mukherjee  in his Tagore Law Lectures
\non the\tHindu Law  of Religious\t and Charitable Trusts (1952
\nEdition) has  pointed out  that in  English law the Crown is
\nthe constitutional  protector of  all properties  subject to
\ncharitable trusts as these trusts are essentially matters of
\npublic concern.\t The learned  author has further pointed out
\nthat one  fundamental distinction between English and Indian
\nlaw lies  in the fact that there can be religious trust of a
\nprivate character  under the Hindu law which is not possible
\nin English law. It is well settled that under the Hindu law,
\nhowever, it  is not only permissible but also very common to
\nhave  private\tendowments  which   though  are\t  meant\t for
\ncharitable  purposes  yet  the\tdominant  intention  of\t the
\nfounder is  to instal  a family\t deity\tin  the\t temple\t and
\nworship the  same  in  order  to  effectuate  the  spiritual
\nbenefit to  the family\tof the\tfounders and his descendants
\nand to\tperpetuate the memory of the founder. In such cases,
\nthe property  does not\tvest in God but in the beneficiaries
\nwho  have   installed  the   deity.  In\t  other\t words,\t the
\nbeneficiaries in  a public trust are the general public or a
\nsection\t of   the  same\t  and  not  a  determinate  body  of
\nindividuals  as\t  a  result   of  which\t  the  remedies\t for
\nenforcement of\tcharitable trust are somewhat different from
\nthose which  can be availed of by beneficiaries in a private
\ntrust. The members of the public may not be debarred
\n829<\/span>
\nfrom entering the temple and worshipping the deity but their
\nentry into the temple is not as of right. This is one of the
\ncardinal tests\tof a  private endowment. Similarly, even the
\nMahomedan law  recognises the  existence of  a private trust
\nwhich is  also of a charitable nature and which is generally
\ncalled\tWaqf-allal-Aulad,  where  the  ultimate\t benefit  is
\nreserved to  God but the property vests in the beneficiaries
\nand the income from the property is used for the maintenance
\nand  support   of  the\t family\t of   the  founder  and\t his
\ndescendants. In\t case the  family becomes  extinct then\t the
\nWaqf becomes  a public\twaqf, the property vesting in God. A
\npublic Waqf  under the Mahomedan law is called Waqf-fi-sabi-
\nlil-lah.\n<\/p>\n
     The question  as to  whether the religious endowment is
\nof a  private nature or of a public nature has to be decided
\nwith reference\tto the\tfacts proved  in each case and it is
\ndifficult to  lay down\tany test  or tests  which may  be of
\nuniversal  application.\t  It  is  manifest  that  where\t the
\nendowment is lost in antiquity or shrouded in mystery, there
\nbeing no  document or revenue entry to prove its origin, the
\ntask of\t the court  becomes difficult  and it  has  to\trely
\nmerely on  circumstantial evidence  regarding the  nature of
\nthe user  of the  temple. In  the instant  case, however, as
\nthere are two documents which clearly show the nature of the
\nendowment, our\ttask is\t rendered easier. It is well settled
\nthat the  issue whether a religious endowment is a public or
\na private  one must  depend  on\t the  application  of  legal
\nconcept of a deity and private endowment, as may appear from
\nthe facts  proved in  each case.  The essential\t distinction
\nbetween a  private and a public endowment is that whereas in
\nthe former  the beneficiaries  are specified individuals, in
\nthe  latter   they  are\t the  general  public  or  class  of
\nunascertained people.  This doctrine  is well-known  and has
\nbeen accepted  by the Privy Council as also by this Court in
\na large\t catena of  authorities. This  being  the  essential
\ndistinction between  the nature\t of a  public or  a  private
\nendowment, it  follows that  one of  the  crucial  tests  to
\ndetermine the  nature of  the endowment would be to find out
\nif the\tmanagement of the property dedicated is in the hands
\nof the strangers or members of the public or in the hands of
\nthe founders or their descendants. Other factors that may be
\nconsidered would  be the nature of right of the worshippers,
\nthat is\t to say,  whether the right to worship in the temple
\nis exercised  as of right and not as a matter of concession.
\nThis will be the strongest possible circumstance to indicate
\nthat the  endowment was\t a public one and the beneficiaries;
\nare the worshippers and not particular family. After all, an
\nidol is\t a juristic  person capable  of holding property and
\nthe property  dedicated to the temple vests in the deity. If
\nthe main  worshippers are  the members\tof  the\t public\t who
\nworship as  a matter  of right\tthen the  real purpose is to
\nconfer benefit on God.\n<\/p>\n
830<\/span><\/p>\n
Some of\t the circumstances from which a public endowment can
\nbe inferred  may be whether an endowment is made by a person
\nwho has\t no,  issue  and  who  after  installing  the  deity
\nentrusts  the\tmanagement  to\tmembers\t of  the  public  or
\nstrangers which\t is  a\tclear  proof  of  the  intention  to
\ndedicate the  temple to public and not to the members of the
\nfamily. Where,\thowever, it  is proved that the intention of
\nthe testator  or the  founder was  to  dedicate\t the  temple
\nmerely for the benefit of the members of the family or their
\ndescendants, the endowment would be of a private nature.\n<\/p>\n
     The mere fact that members of the public are allowed to
\nworship by  itself would not make an endowment public unless
\nit is  proved that  the members of the public had a right to
\nworship in  the temple.\t In Deoki  Nandan v.  Murlidhar<\/a> this
\nCourt observed as follows:-\n<\/p>\n
\t  “The distinction  between a  private and  a public
\n     trust is  that whereas  in the former the beneficiaries
\n     are specific  individuals, in  the latter\tthey are the
\n     general public  or a class thereof. While in the former
\n     the beneficiaries\tare persons  who are  ascertained or
\n     capable  of  being\t ascertained,  in  the\tlatter\tthey
\n     constitute a body which is incapable of ascertainment.\n<\/p><\/blockquote>\n
\t       ..\t       ..\t     ..\n<\/p><\/blockquote>\n
\t  The cardinal point to be decided is whether it was
\n     the intention of the founder that specified individuals
\n     are to  have the right of worship at the shrine, or the
\n     general public  or any  specified portion\tthereof.  In
\n     accordance with this theory, it has been held that when
\n     property is dedicated for the worship of a family idol,
\n     it is  a private  and not\ta public  endowment, as\t the
\n     persons who  are entitled\tto worship  at the shrine of
\n     the deity\tcan only  be the  members of the family, and
\n     that is  an ascertained group of individuals. But where
\n     the beneficiaries\tare not\t members of  a family  or  a
\n     specified individual,  then the  endowment can  only be
\n     regarded as  public, intended  to benefit\tthe  general
\n     body of worshippers.”<\/p><\/blockquote>\n
\t  (Emphasis supplied)
\n     This view\twas reiterated\tin a  later decision of this
\nCourt in  Mahant Ram  Saroop Dasji  v.\tS.P.  Sahi,  Special
\nOfficer-In-Charge of the Hindu Religious Trusts & Ors.<\/a> where
\nS.K. Das,  J.  as  he  then  was,  speaking  for  the  Court
\nclarified the law thus:\n<\/p>\n
831<\/span><\/p>\n
\t  “But the  most  usual\t and  commonest\t form  of  a
\n     private religious\ttrust is one created for the worship
\n     of\t a   family  idol   in\twhich  the  public  are\t not
\n     interested. Dealing with the distinction between public
\n     and private  endowments in Hindu law, Sir Dinshah Mulla
\n     has said  at p.  529 of  his principles  of  Hindu\t Law
\n     (11th edition)
\n\t  ‘Religious  endowments   are\teither\t public\t  or
\n\t  private. In  a public\t endowment the dedication is
\n\t  for  the  use\t or  benefit  of  the  public.\tWhen
\n\t  property is  set apart for the worship of a family
\n\t  god in  which the  public are\t not interested\t the
\n\t  endowments is a private one’.”<\/p><\/blockquote>\n
     In\t Narayan  Bhagwantrao  Gosavi  Balajiwale  v.  Gopal
\nVinayak Gosavi\t& Ors.\tthe<\/a> same  principles were reiterated
\nand it\twas pointed  out that  the entries  made in the Inam
\nRegister showing  the nature  of the endowment were entitled
\nto great  weight and  taken with the vastness of the temple,
\nthe mode of its construction, the long user by the public as
\nof right  and grants  by Rulers and other persons were clear
\npointers to  the fact  that the\t endowment was\tof a  public
\nnature.\n<\/p>\n
     In the case of Bihar State Board Religious Trust, Patna
\nv. Mahant  Sri Biseshwar  Das,<\/a>(2) this\tCourt laid down some
\nimportant tests to determine the nature of the endowment. In
\nthis connection,  the fol  lowing observations need specific
\nmention:-\n<\/p>\n
\t  “Therefore, evidence that sadhus and other persons
\n     visiting the  temple are  given food and shelter is not
\n     by itself\tindicative of  the  temple  being  a  public
\n     temple or\tits proper  ties being\tsubject to  a public
\n     trust.\n<\/p><\/blockquote>\n
\t  Evidence that\t the mahants used to celebrate Hindu
\n     festivals when members of the public used to attend the
\n     temple and\t give offerings\t and that  the\tpublic\twere
\n     admitted to  the temple for darshan and worship is also
\n     not indicative  of the temple being one for the benefit
\n     of the  public….The fact\t that members  of the public
\n     used to  come to the temple with out any hindrance also
\n     does not  necessarily mean\t that the temple is a public
\n     temple, for  members of  the public  do attend  private
\n     temples…Yet, the\t Privy Council held that the general
\n     effect of\tthe evidence was that the family had treated
\n     the temple\t as family property and the mere fact of the
\n     members of\t the public  having come  to the  temple and
\n     having made  offerings and\t the mela  having been\theld
\n     which
\n832<\/span>
\n     gave popularity  to the temple and increased its esteem
\n     in the  eyes of  the public and the fact that they were
\n     never turned  away were  not enough  to hold the temple
\n     and the properties as a public trust.\n<\/p><\/blockquote>\n
\t  ..\t\t      ..\t\t     ..\n<\/p><\/blockquote>\n
\t  Thus, the  mere fact\tof the\tpublic\thaving\tbeen
\n     freely admitted to that temple cannot mean that courtbs
\n     should  readily   infer  therefrom\t dedication  to\t the
\n     public. The  value of  such public\t user as evidence of
\n     dedication depends\t on  the  circumstances\t which\tgive
\n     strength to  the inference\t that the  user\t was  as  of
\n     right.”<\/p><\/blockquote>\n
     It may  thus be  noticed that this Court has invariably
\nheld that  the mere fact that the members of the public used
\nto visit  the temple  for the purpose of worship without any
\nhindrance or  freely admitted  therein would  not be a clear
\nindication of  the nature  of the  endowment. It is manifest
\nthat whenever  a dedication  is made  for religious purposes
\nand a  deity installed in a temple, the worship of the deity
\nis a necessary concomitant of the installation of the deity,
\nand  therefore,\t  the  mere  factum  of\t worship  would\t not
\ndetermine the  nature of  the endowment.  Indeed  if  it  is
\nproved that  the worship  by the members of the public is as
\nof right  that may be a circumstance which may in some cases
\nconclusively establish\tthat the  endowment was\t of a public
\nnature. In  Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri
\nVithal Rukhamai\t Sansthan v.  The Charity Commissioner State
\nof Bombay<\/a>  all the  aforesaid cases  were summarised and the
\nprinciples indicated above were reiterated.\n<\/p>\n
     In Gurpur\tGuni Venkataraya  Narashima Prabhu & Ors. v.
\nB.G.  Achia,   Assistant  Commissioner,\t  Hindu\t  Endowment,
\nMangalore &  Anr. Krishna  Iyer, J.,<\/a>  reiterated these\tvery
\nprinciples in the following words:\n<\/p>\n
\t  “The law  is now  well settled that ‘the mere fact
\n     of the public having been freely admitted to the temple
\n     cannot mean  that courts should readily infer therefrom
\n     dedication to the public. The value of such public user
\n     as evidence  of dedication depends on the circumstances
\n     which give\t strength to the inference that the user was
\n     as of  right’. (See  Bihar State Board Religious Trust,
\n     Patna v.  Mahant Sri  Biseshwar Das-<\/a>[1971]\t 3 SCR\t680,\n<\/p><\/blockquote>\n
     689).”<\/p><\/blockquote>\n
833<\/span><\/p>\n
     Thus, on  a conspectus  of\t the  authorities  mentioned
\nabove, the  following tests  may be  laid down\tas providing
\nsufficient guidelines to determine on the facts of each case
\nwhether an endowment is of a private or of a public nature:\n<\/p>\n
     (1)  Where\t the  origin  of  the  endowment  cannot  be
\n\t  ascertained, the  question whether the user of the
\n\t  temple by members of the public is as of right;
\n     (2)   The fact  that the  control and  management vests
\n\t  either in  a large  body  of\tpersons\t or  in\t the
\n\t  members of  the public  and the  founder does\t not
\n\t  retain any  control over the management. Allied to
\n\t  this may  be a  circumstance\twhere  the  evidence
\n\t  shows that  there is\tprovision for a scheme to be
\n\t  framed by associating the members of the public at
\n\t  large;\n<\/p><\/blockquote>\n
     (3)   Where, however,  a document is available to prove
\n\t  the nature  and origin  of the  endowment and\t the
\n\t  recitals of the document show that the control and
\n\t  management of\t the temple  is\t retained  with\t the
\n\t  founder or  his descendants,\tand  that  extensive
\n\t  properties are  dedicated for\t the purpose  of the
\n\t  maintenance of the temple belonging to the founder
\n\t  himself, this\t will be  a conclusive proof to show
\n\t  that the endowment was of a private nature.
\n     (4)   Where the  evidence shows that the founder of the
\n\t  endowment  did   not\tmake   any  stipulation\t for
\n\t  offerings or\tcontributions to  be made by members
\n\t  of the  public to  the temple,  this would  be  an
\n\t  important intrinsic  circumstance to\tindicate the
\n\t  private nature of the endowment.<\/p><\/blockquote>\n
     Fortunately, in  this  case  there\t are  two  important
\ndocuments Ext.\tA and  Ext. 1-from  which the  nature of the
\nendowment can  be clearly  spelt out  and we  would  examine
\nthese documents in the light of the tests and the principles
\nenunciated above because after going through the judgment of
\nthe High  Court we are satisfied that the High Court has not
\nproperly construed  some of the important features contained
\nin the documents and the evidence and has in fact overlooked
\ncertain important aspects which completely negative the fact
\nthat the endowment was of a public nature.\n<\/p>\n
     Ext. A  is an  ancient document executed as far back as
\nFebruary 18,  1895. The\t authenticity and the genuineness of
\nthis document  is beyond  question and the High Court itself
\nhas described  this document as a document which has created
\nthe present  endowment. Even  though the document may not be
\ntreated as having itself.\n<\/p>\n
834<\/span><\/p>\n
created the endowment but it gives clear indication that the
\nendowment was created near about the date when this document
\nwas executed.  Some of\tthe extracts  of this document which
\nare undisputed,\t in our\t opinion, clearly  and\tconclusively
\nshow that  the endowment  was of  a private  nature and\t the
\nintention of the founder was merely to instal a family deity
\nin the\ttemple. In  order to fortify our conclusions, it may
\nbe necessary  to give  certain important  recitals from this
\ndocument which may be extracted thus:-\n<\/p>\n
\t  “That I Gopinath Pani, my father Bhagyarathi Pani,
\n     Alekha Pani,  father of  Dinabandhu Pani  and  father’s
\n     brother of\t Basudeo Pani  and Narsinha  Pani father  of
\n     Balabhadra Pani-minor,  having made  the image  of\t our
\n     family deity  Sri Padhakanta  Deb\tinstalled  it  in  a
\n     temple which  was built by them in Depur Sasan in Pipli
\n     Division and  they endowed\t the Tanki  Bajyapati, Tanki
\n     Baheli and\t Kharida Swata\tproperties given  below from
\n     the usufruct of which day-to-day Sibapuja and Janijatra
\n     of the  deity was\tmanaged by  them as  the Sebait\t and
\n     Marfatdar and we are also managing in the same way. For
\n     the proper\t management of\tthe deity’s property and the
\n     Sebapuja of  the deity  in\t future,  we  lay  down\t the
\n     following directions out of our own accord.\n<\/p><\/blockquote>\n
\t  ..\t    ..\t      ..\t..\n<\/p><\/blockquote>\n
     1…. we  hereby appoint  the said\t Adwait\t Charan\t Das
\n     Babaji,  Sutradhari   Gaudeswar  Sampraday\t Baisnab  by
\n     caste, worship  and Sebapuja of the deity by profession
\n     as the  Tatwabadharak and\tSebait and  hereby (appoint)
\n     him by  this trust\t deed and we become aloof from those
\n     duties vesting  in him  the following properties of the
\n     deity…\n<\/p><\/blockquote>\n
\t  2. From  this day  the said Babaji will manage all
\n     the immovable  and movable\t properties of\tthe deity as
\n     the Sebait\t and  Tatwabadharak.  He  will\trealise\t the
\n     usufructs of  the property and after giving the rent of
\n     the lands,\t he will  manage the day-to-day Bhog and the
\n     festivities of the deity well according to the previous
\n     customs and rules and in the way we were doing and will
\n     keep the surplus amount in the store of the deity.\n<\/p><\/blockquote>\n
\t  3. The day-to-day Bhoga and the festivities of the
\n     deity will\t be done  according to\tthe  income  of\t the
\n     properties of  the deity and will never exceed the said
\n     income.\n<\/p><\/blockquote>\n
\t  4. The said Babaji cannot incur any loan on behalf
\n     of he  deity nor  can he sell, mortgage, keep as surety
\n     or trust
\n835<\/span>
\n     any of  the immovable  or movable properties nor can he
\n     misappropriate any\t cash kind  ornament or\t utensils of
\n     the deity.\n<\/p><\/blockquote>\n
     ..\t\t\t  ..\t\t    ..\n<\/p><\/blockquote>\n
\t  6. If\t the said  Babaji does\tanything contrary to
\n     the conditions  laid down\tin items 4 & 5 written above
\n     he will  be removed  from his  right of  Sebaitship and
\n     Tatwabadharakship by  us or  cur heirs who will appoint
\n     another fit man in his place and take the charge of all
\n     the properties in the store of the deity
\n     ..\t\t      ..\t\t ..\n<\/p><\/blockquote>\n
\t  9. As\t the properties\t maintained herein have been
\n     endowed to\t the deity  before, we or our successors had
\n     or will  have no claim on this and any such claim made,
\n     shall be void.\n<\/p><\/blockquote>\n
     ..\t\t\t..\t\t  ..\n<\/p><\/blockquote>\n
\t  11.  Now   or\t in  future  the  man  appointed  as
\n     Tatwabadharak  will   work\t according   to\t rules\t and
\n     directions mentioned herein and for the Sebapuja of the
\n     deity the\tdirections and the menus are determined here
\n     for all days to come.\n<\/p><\/blockquote>\n
\t  12. …. All other necessary expenses of the Jatra
\n     (festivals) repairing  of the  temple, utensils and the
\n     ornaments of  the deity, etc. will be done according to
\n     the income.\n<\/p><\/blockquote>\n
     ..\t\t\t ..\t\t   ..\n<\/p><\/blockquote>\n
\t  14. Any  pious man of our family at present and in
\n     future will  see whether the work of the deity is being
\n     performed according  to the  direction as\taforesaid by
\n     the appointed Tatwabadharak and will take proper action
\n     as mentioned above.\n<\/p><\/blockquote>\n
\t  14. If  in future  there be  no  fit\tman  in\t our
\n     family, any  of the  Baisnab Sampraday and any Hindu of
\n     reputation of  the\t village  and  of  the\tlocality  is
\n     entitled to  take such  action, we have no objection to
\n     this.”<\/p><\/blockquote>\n
\t  (Emphasis supplied)
\n     The intention  which can be gathered from this document
\nis placed  beyond doubt by a later document Ext. 1 which was
\nexecuted on  17-11-1932 and is in the nature of a settlement
\nDeed, the relevant portions of which may be quoted thus:-\n<\/p>\n
\t  “Our forefathers  for the  good of  our family  by
\n     making the\t family deity  Sri  Radhakanta\tDeb  Thakur,
\n     erecting a
\n836<\/span>
\n     temple  befitting.\t His  installation,  installing\t Him
\n     therein and endowing the landed properties as described
\n     in the  schedule below,  used  to\tcarry  out  all\t the
\n     Sebapuja work of the deity in orderly manner by meeting
\n     the expenses  from out  of the  income and yield of the
\n     said properties..\tAs the\tsaid Lalit  Charan  Das\t and
\n     Raghunath\tPani   a  person   of  our  family  together
\n     misappropriated by\t utilising the\tincome and  yield of
\n     the properties of the deity in illegal expenditures and
\n     without carrying  on the Sebapuja work in proper manner
\n     caused  heavy  damage  to\tthe  movable  and  immovable
\n     properties of  the deity  in different unfair means, we
\n     have removed  them from  Sebapuja work of the deity and
\n     also  from\t  management  and  custody  of\tthe  deity’s
\n     properties. .  . If the work of the deity is carried on
\n     for some  time more  in the manner in which the work is
\n     being managed  now then  the temple  established by our
\n     forefathers as  a mark  of pride  of our family and all
\n     the Debuttor  properties of the deity will be destroyed
\n     in toto  and the  noble glory  of the  forefathers will
\n     perish  ..\t  We  by   this\t deed\tof   trustee   order
\n     determination appointed you as trustee for the Sebapuja
\n     work of our family deity Shri Radhakanta Deb Thakur and
\n     for the work of looking after His properties, according
\n     to the  following conditions  and terms,  so that\tfrom
\n     today onwards  on the  strength of this deed of trustee
\n     order determination  you from  Chela to  Bara chela  by
\n     carrying  on   the\t  Sebapuja,   offerings,   religious
\n     ceremonies and  festivals and by preserving and looking
\n     after all\tthe debuttor  properties, realise the income
\n     and yield therefrom according to convenience.\n<\/p><\/blockquote>\n
     ..\t\t\t ..\t\t  ..\n<\/p><\/blockquote>\n
\t  10. If  we or\t any body  amongst us misappropriate
\n     any money\tor property  by\t taking\t secretly  from\t the
\n     tenants or\t borrowers, we\tand our\t successors will  be
\n     liable for punishment according to criminal law and you
\n     can realise  any compensation you intend to take either
\n     mutually or with the help of the court. We and our sons
\n     and grandsons shall be bound and liable to pay.\n<\/p><\/blockquote>\n
     ..\t\t\t  ..\t\t   ..\n<\/p><\/blockquote>\n
\t  22. But  if you might have obtained, any amount on
\n     loan against  the income  of the  debuttor property and
\n     anything that you might have spent from your own pocket
\n     for the  improvement of  the deity\t of the\t muth and to
\n     save the property, we will be bound and liable to repay
\n     the said
\n837<\/span>
\n     amount alongwith  just and prescribed rate of interest,
\n     and we  shall repay. If we do not repay voluntarily you
\n     and your  successors will\trealise from us and from our
\n     and from  our son’s  and grandsons\t existing and  to be
\n     acquired movable  and immovable properties and from the
\n     existing and  to be acquired debuttor properties of the
\n     deity according to law.”<\/p><\/blockquote>\n
\t  (Emphasis supplied)
\n     Considering the  two documents together the fundamental
\nfeatures, which\t now from  the recitals extracted above, may
\nbe summarised as follows:-\n<\/p>\n
     (1)  That the  deity was installed in the temple purely
\n\t  as a family deity and the dedication WAS made only
\n\t  for a\t group of  individuals who  may be connected
\n\t  with the family of the Panis who were the founders
\n\t  of the  deity. This  clearly establishes  that the
\n\t  intention of\tthe founders  was to  dedicate their
\n\t  properties and instal the deity in the temple only
\n\t  for  purposes\t  of  the  Pani\t family,  and  their
\n\t  descendants. A  perusal of  the recitals extracted
\n\t  above would unmistakably show that there can be no
\n\t  two opinions on this question.\n<\/p><\/blockquote>\n
     (2)  Extensive private properties belonging to the Pani
\n\t  family alone were dedicated for the maintenance Of
\n\t  the temple  and the  deity and there is nothing to
\n\t  show that  any contribution  was called  for\tfrom
\n\t  members of the public nor is there any averment in
\n\t  the deed  to show  that there\t was any stipulation
\n\t  for taking  offerings\t from  the  members  of\t the
\n\t  public to worship in the temple.\n<\/p><\/blockquote>\n
     (3)   There was  no provision for framing any scheme by
\n\t  associating  the   members  of   the\t public\t  or
\n\t  consulting them.  In fact,  Ext. 1 shows that even
\n\t  after the  descendants of  the founders had fallen
\n\t  on evil days and were not in a position to provide
\n\t  sufficient  funds  for  the  maintenance.  Of\t the
\n\t  temple yet  they appointed Udayanath Pattanayak to
\n\t  manage  the\taffairs\t of   the  deity  and  bound
\n\t  themselves personally to reimburse the Manager for
\n\t  any out-of-pocket  expenses incurred in connection
\n\t  with\tthe   maintenance  of\tthe   temple.\tThis
\n\t  circumstance\t manifestly    proves\t that\t the
\n\t  endowment was\t of a  purely private  nature  right
\n\t  from the  time it  was created  till 1932 when the
\n\t  management
\n838<\/span>
\n\t  was changed  and  continued  to  be  of  the\tsame
\n\t  nature. Indeed, the personal undertaking contained
\n\t  in Ext.  1 clearly  shows that there was never any
\n\t  intention to\ttreat the temple as a public one but
\n\t  the intention\t was, if  at all,  to continue it in
\n\t  the name  of the  family so  long  as\t the  family
\n\t  continued.\n<\/p><\/blockquote>\n
     (4)   There is  no recital\t in any\t of the documents to
\n\t  show that  the members  of the  public or  the vil
\n\t  lagers of  the place where the temple was situated
\n\t  were entitled to worship as of right. On the other
\n\t  hand,\t PWs  1\t to  6\twho  were  examined  by\t the
\n\t  appellants-plaintiffs\t have  categorically  stated
\n\t  that members\tof the\tpublic were  not allowed  to
\n\t  worship  in  the  temple  as\tof  right.  In\tthis
\n\t  connection PW 1 stated as follows:-\n<\/p><\/blockquote>\n
\t       “Members of  the public have no right to have
\n\t  Darsan of,  or to  offer bhog\t to the\t deity.\t The
\n\t  villagers do\tnot make  Kirtan before the deity or
\n\t  take any  part in  any festivity of the deity. The
\n\t  deity has no Bahari Jatra. No member of the public
\n\t  made any  gift to  the deity.\t No khairat  is ever
\n\t  given. The  properties of the Thakur are all (sic)
\n\t  with rent.”<\/p><\/blockquote>\n
     PW. 5  stated that\t the disputed deity was installed by
\nthe family  of the  other Panis and not by his ancestors and
\nthat the  deity was  not their\tfamily\tdeity  and  was\t not
\ndedicated to  the public. As against this oral evidence, the
\ndefence examined  DW 1,\t Raghunath Pani,  whose evidence has
\nbeen rejected  both by\tthe Trial  court and the High Court.
\nThus, apart  from  the\tunimpeachable  documentary  evidence
\ndiscussed above,  even the  oral evidence  to prove that the
\nendowment was  of a private nature is clear and has not been
\nrebutted by  the defence.  In this  state of the evidence we
\nare indeed  surprised to  find how the High Court could hold
\nthat the endowment was of a public nature.\n<\/p>\n
     The High  Court seems  to have  been  carried  away  by
\nfactors or  considerations which  are of a very minor nature
\nand by\tthemselves do  not prove that the endowment was of a
\npublic nature.\tFor instance,  one of the circumstances that
\nweighed with  the High\tCourt was  that\t the  temple  was  a
\nmassive structure  of about  25 yards  in  height.  That  by
\nitself, divorced from other things, could not prove that the
\ntemple was  a public  one. So  far as  the oral\t evidence is
\nconcerned. the High Court observed thus:\n<\/p>\n
839<\/span><\/p>\n
\t  “Apart from  the above  features disclosed  by the
\n     oral evidence  which are  indicative of the institution
\n     having been  treated as  a public\tone. the recitals in
\n     some of the clauses of the two documents.-(Exts. A & 1)
\n     also unequivocally\t indicate an intention of dedication
\n     in favour of public.”<\/p><\/blockquote>\n
     These observations\t are not  at all  borne out  by\t the
\nevidence of  PWs 1  to 5 which is the only oral evidence led
\nin the\tcase, the  evidence of\tDW 1 having been rejected by
\nthe trial  court as also the High Court. The High Court took
\ninto consideration  the fact  that certain  properties\twere
\nneeded for  the maintenance  of the temple and Seba-puja and
\nother ceremonies  were being  performed by  the Shebaits and
\nMarfatdars. The\t High Court overlooked the fact that Shebait
\nor the\tMarfatdars were\t appointed by  the founders  of\t the
\nendowment and  the entire  management  and  control  of\t the
\ntemple was retained by the family. We are unable to agree as
\nto how\tin these  circumstances could  it be  said that\t the
\nendowment was of a public nature.\n<\/p>\n
     Another circumstance  that weighed\t with the High Court
\nwas that  bhogs were offered during the day which, according
\nto the High Court, was in consonance with the rules observed
\nby the\tpublic.\t This  circumstance  also  is  not  of\tmuch
\nconsequence  because  bhogs  are  offered  even\t in  private
\ntemples. The  High Court also seems to have relied on clause
\n15 of  Ext. A to come to its decision that the endowment was
\nof a  public nature.  The High\tCourt was  of the  view that
\nunder this clause in certain contingencies any member of the
\nVaishnav  sect\t or  Hindu   resident  of  the\tvillage\t was
\nauthorised to exercise the powers and functions mentioned in
\nclause 7  of the deed. We are, however, unable to agree with
\nthe interpretation  placed by the High Court on clause 15 of
\nExt. A.\t Clause 15  merely provides  that if  in future\t the
\nfamily becomes extinct and no fit person could be found then
\nany of\tthe Baisnab  Sampraday or  any reputed\tHindu of the
\nvillage could  take action,  namely, to\t perform the work of
\nthe deity. This was a contingent provision and here also the
\nfounders did  not confer the duty of performing all the work
\non the members of the public but they chose or selected only
\na particular  person belonging\tto  a  particular  community
\nwhich also  shows that\teven if\t the family  was  to  become
\nextinct, the  private nature  of the endowment was not to be
\nchanged. Indeed\t if the\t intention was to instal the idol in
\nthe temple  by way  of a  public endowment,  clause 15 would
\nhave clearly provided
\n840<\/span>
\nthat in\t cast the  family became  extinct the members of the
\npublic or  of the  brotherhood or  the Government could have
\ntaken  over   the  management.\t On  the   other  hand,\t the
\ninterpretation of  the\tvarious\t clauses  of  the  documents
\nclearly shows  that sufficient\tcare has  been taken  by the
\nPani family  to see  that the dedication to the family deity
\nis not changed even if the family becomes extinct.\n<\/p>\n
     Having, therefore,\t carefully perused  the oral and the
\ndocumentary evidence  in the  case we are satisfied that the
\nconclusions arrived  at by  the High Court are wrong and are
\nbased  on  misinterpretation  of  Ext.\tA  and\tExt.  1\t and
\nmisreading of  the oral\t evidence led in the case, which, as
\nwe have shown, runs counter to the conclusions arrived at by
\nthe High  Court. For  the reasons given above, we allow this
\nappeal, set aside the judgment of the High Court, decree the
\nplaintiffs-appellants suit  and restore\t the judgment of the
\ntrial court. In the peculiar circumstances of this case, the
\nappellants will\t be entitled  to costs of the appeal in this
\nCourt quantified at Rs. 4,000\/- (Rupees four thousand only)
\nS.R.\t  Appeal allowed.\n<\/p>\n
841<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Radhakanta Deb & Anr vs Commissioner Of Hindu Religious … on 13 February, 1981 Equivalent citations: 1981 AIR 798, 1981 SCR (2) 826 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: RADHAKANTA DEB & ANR. Vs. RESPONDENT: COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS, ORISSA DATE OF JUDGMENT13\/02\/1981 BENCH: FAZALALI, SYED MURTAZA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-66586","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRadhakanta Deb & Anr vs Commissioner Of Hindu Religious ... on 13 February, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/radhakanta-deb-anr-vs-commissioner-of-hindu-religious-on-13-february-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Radhakanta Deb & Anr vs Commissioner Of Hindu Religious ... on 13 February, 1981 - 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