THE POOHARI FAKIR SADA VARTHY OF BONDILIPURAM versus THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS

111111

D1.:4mbtr 22

276 SUPREME OOURT REPORTS (1962) SUPP.

THE POOHARI FAKIR SADA VARTHY OF BONDILIPURAM v. THE COMM£SSIO:IBR, HINDU RELIGIOUS A~D CHARITABLE ENDOWMENTS (B. P. SINHA, P. B. GAJENDRAGADKAR AND RAGHUBAR DAYAL, J,J,)

Hindu

Latcr-Endowmml-T•mpk-Public Tempfo- Conditi<>n,• of-ltw.m Regi•ter-Entries-lf could be accepted at IA•ir fo<:e valu•-Hindu ReligioU8 li:nrku:menta Act, 1926 (Macl. 2 of 1927), "· '9. cl. 12.

The Emperor Aurangazeb made certain pranu to one Mukuldas Babajee, founder of institution Poohari Fakir the Sadavarthy, for the purpose of his maintenance and to carry on th~ distribution bf Sadavarthy to Fakirs etc. The sixth institution built a shrine for his private worship. head of the Tt was adjunct to the aforesaid institution, and the public had no access to it without the permission of Mahant. The income from various properties granted to founder and his disciples had b<en regularly utilised for the maintenance of the head of the institution and for distributing charities for the Sadhus ancl pilgrims; a part was spent on the expenses of the worship in the temple. The Board of Commissioners for Hindu Religious and Charitable Endowments, Madras held that the ternple in suit was a public temple. The sole qu<stion for determination was whether this institution WJ.S a public temple as defined in thr Act.

the

Held,

that an

institution would be a public

temple within the Hindu Religious Endowments Act, 1926, if two conditions arc satisfied; that it wa.; a place of puhlic religious W<•rship and secon<lly,. that it wa~ dedicatr-'1 to, or was for the benefit of, or was used as of right by the Hindu Community. or any section thereof, as a place of religious worship.

firstly,

th.e mere

\..\/hen there~ ~ood evidence about the temple being a ~a~t that a numbrr of people \\'orship

prh·ate onf", at the templt~, 15 not suff1c1ent to come to the conclusion th the temple must be a public as a matter of right a~ it is not us11al for to disallow visitors to the te?1p1e private one.

temple to which those people ,)l the owner of tgo if it be ~e

temple, eVcn

Tn the pre"nt case the description of the temple with rr<:prrt to it" r.on~truction, equipment, practice:ir;, observances

•

J9GI

Tiu Poohari Fok Sadavarthv tJf BunJi/ipurarn v. The Commiuiontr. Hindu R..:Ji~ ious and Cluzritahl6 Endowments

Raghubar D..,.J J.

2 s.c.R.

SUPREME COURT REPORTS

277

from

and the form of worship are not inconsistent with the the other evidence that the temple is not a inference public temple. The temple is not a temple as defined in the Act and it is not used as of right by Hindu Community, or any section thereof, as a place of religious worship.

Held, furtiter that the Inam Register is of great eviden tiary value, but that does not mean that the entry or entries in any particular column or columns be r..ccepted at their face value without giving due consideration to other matters recorded in the entry itself.

CIVIL APPELLATE JurusDICTlON: Civil Appeal

No. 87of1959.

Appeal from the

judgment and decree dated April 6, 1955, of the forruer Andhra High Court in A.S.O. No. 134/50.

T. V. R. Tatachari, for the appellants. Bhinui,pankaram, K. R. Chaudhuri anc! T. M. Sen,

for the tespoudent.

1961. December 21. The Judgment of the

Court was delivered by :

RAGHUBAR DAYAL, J.-This is an appeal on a certificate granted by the High Court of Andhra Pradesh, against the judgment and order of the High Court reversing the judgment and order of the District Judge, ViZ!lgapatam, holding that the place of worship in suit was not a temple as defined in the Madras Hindu Religious Endowments Act, 11126 (Madras Act II of l927), hereinafter called the Act.

On March28, 1947,theBoardofCommissioners for Hindu Religious & Charitable Endowments, Madras, held the institution in suit to be a tern ple as defined in the Act. The appellants, thereafter filed a petition under s. 84(2) of the Act, in the Court of the District Judge, Vizagapatam, and prayed for the setting aside of the order of the Board. They alleged that the institution, known as the Poohari Fakir Sa.davarthy, at Bondilipuram, Chicacole, a ongstanding institution, was st&i:ted by one Malukdas

1~1

n, Pooi.ri Fakir su-•"1 of Boodilipiu- v. 7L G.mais1iorur, BIUo Rtli1ioos a.d C.hOTila/JU F.Me~ls

R.,iruw Doyal J.

278 SUPREME COURT REPORTS [1962] SUPP.

time during the

Bavajee, some reign of the Moghul Emperor, Aurangazeb. The Emperor, in re cognition of the Bavajee's piety and devotion to God, made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthy to Fakirs and Sadhus and to pray to God for the pros perity of the Empire and Emperor, according to what was stated in the well-known historical works like Bhakthamala by Maharaja P.a.ghunandha Singh Deo of Rewa.

The institution flourished and continues up to this day. The original plaintiff No. 2, Rajaram Das Ba vajee, was the ninth in succeeeion from tho founder Malukdas Bavajee. He died during the pen doncy of the proceedings and is now represented by appellant No. 2, Mahant Gangaram Das Bavajee. Sithaldas Bavajee, the sixth head of the institution, who lived in the first half of the Nineteenth Cen temple and installed therein certain tury built a idols for his private worship. The shrine was an adjunct of the institution l'oohari Fakir Sadavarthy. It is alleged to be a private temple known as Jag annadhaswami temple, Balaga, and ia meant for the worship of the Mahant and hla disciples, one of whom conducts the daily worship.

c5r his

The income from the various properties gran suooeesors ted to Malukdas Bavajee had been regularly utilised for the maintenance of tJie head of the institution and for distributing charities to the aadhus and pilgrima passing through Balaga. A part of the income waa, however spent on the expenses of the worship in the temple and the incidental expensea connected with it.

The respondent Board denied that Jaganna dhaswami temple was a private place of worship, that the public had no acoess to it without the permission of *he Bavajee and alleged ~t the tem· pie po88llll8ed f.11 the features of a plaoe of public

1961

The Poohari Fcki, S11davarlhy of Bondilipuran1 v, The Corrtmi.uioner, Hindu R1lig,ous and Ch<ritabU Endowmmts

Boghuhar Daylll J,

2 S.C.R.

SUPREME COURT REPORTS

279

religious worship and was dedicated to or for the benefit of or used as of right by the Hindu commu nity as a place of religious worship.

The appellants examined five witnesses, inclu ding plaintiff No. 2, in support of their case. The respondent examined one witness. The plaintiffs also filed a number of documents. The respondent filed a few documents \Vhich included the Board's order dated March 28, 1947, and its enclosure.

The learned District Judge concluded, from the evidence, that Jagannadhaswami temple was not a temple as defined in the Act, it being a private for the benefit of the appellants temple existing only. He therefore set aside the impugned order of the Board. On appeal, the High Cuurt came to a different conclusion and allowed the appeal. It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established :

(i)

the temple is a very old temple constructed in or about the year 1750 ;

(ii)

the temple has the structure and

polity of a public temple ;

(iii) va.hanams,;

there are utsava vigrahams and

(iv)

it has a big compound wall with the gate opening into the Chinna Bazaar R.oa.d; (v)

regular worship every day at th• scheduled time ;

is performed

(vi)

there is an arohaka who per·

forms worship•;

(vii) a larg~ number of pilgrims attend every day and partake in the food given after na.ivedyam to the God ;

If fl

Tit Pooluui F.kir B-t/I} •f /Jo..tili;wcm .... 7}, c ..... wiofur. Hm R.litioru 11114 CUriloJ.11 g JPh

I

280 SUPREME COURT REPORTS [1962] SUPP.

(viii) there are utsavams and the rathot sa.vam which is particula1 ly conducted on large scale and is attended by members of the ·public .

The High Court relied on the statement of the solitry wituees examined for the Board and rejec ted the statements of the witneeses examined for the appellants.

The sole question for determination in this appeal is whether this institution is a 'temple' as defined in the Act. Clause ( 12) of s. 9 of tho Act reads:

" 'Temple' means a place, by whatever de signation known, used as a placo 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 a .place of religious worship.''

Tbe institution in suit will be a. temple if two con ditions are statisfied. One is that is a place of public religious worship and tho other is that it is dodicatod to or is for the benefit of, or is used as of right by, the Hindu community, or any section thereof, as a place of religious worship. We are of opinion that the oral and documentary evidenoe fully establish the appellants' cue that it is not a temple as defined in the Act.

The documents on record and bearing dates from 1698 to 1803 A. D. mention the grants to be for the purposes of the Bavajee, i.e., the head of the institution. The first document, Exhibit P-1, (is of the Hiiri year 1117, correaponding to 1698 A.D., and purports to be oxoctlt6d by Ibrahim Khan, Bahadur, a humble servant of Badahah Alamgir i.e., Emperor Aur~azeb. This order Ghazi., Bays:

"The village of Cheedivalaaa, Boonamali Pargana Haveli (town) towards Ki.ling of tho

:.l S.C.R. SUPREME COURT REPORTS

281

said Sirkar, has been fixed and continued as a complete inam in favour of Poohari (Poojari) Fakir Sadabarty in accordance with the Sanads of the previous rulers. Meanwhile, in view of the claims of the said person it has been con firmed as per endorsement in accordance with momooli (usage) and mustamir (continuing, lasting long). It is necessary that the said village be placed in the enjoyment of tho Eaid person so that, utilising the incomes thereof for his own maintenance, he may engage him self in praying for the stability of the State till eternity."

1961

The Pooh1ri Fa!ir Sar/arJarthy of BondUipw111n v. Tiu Commissiontr, Hindu Religious anlf Charita616 Eru/otlmunts

Ratkuhar Dayal J.

The purpose of the other grants is stated in practically similar terms aud it ia necessary to quote them. Nllne of the grants of land or other pro perty on record bears a date subsequent to that of thfl year 1803 A.D. The documents, Exhibits P-47, P-48 and P•49 are orders of the Collectors and refer to the villages of Cheedivalasa. and Thallavalasa, and the last two state that the income of these two villages was given for s'.ldavarthy (feeding) for the respective year to Phalari (Phulhari) Bavaji. There is no mention in any of these two documents that any grant was being made for the purposes of the temple or for the purposes of the Ba.vaji as well as for those of a. temple.

The only reference to the construction of the in Exhibit P-52, an extra.ct from the temple is Register of Ina.ms dated May 22, 1865, with respect to village Vanza.ngi. The name of the village, how ever, does not appear in the document itself. It is stated in this document :

"About century ago, the trustees built a

temple of Ja.ga.nnadhaswamy.''

According to this note, the temple may be said to have been built in a.bout 1760 A.D. The documents of the period from 1761 to 1803 A.D. Exhibits P-31

1961

TAI Fooh•ri Fo4ir ~ada1 arth;· oj Bondilipurmn v. Tiu Conm:iJJi.rur, Hilttiu Rtlitious tllCd C/ta,;1abl1 Endowmtnls

28~ t:ilJl'RE.ME COt:HT HEJ'ORTS [l!JG2] SUFI.

to P.4!J, do not record that the grants under them were for th<' expenses of the t<>mplc as well. The grants simply mention them to be for the expenses of Fakirs, in the name of Poohari Fakir Sadavarthy, and uot for the temple. The ncin·rtference to the temple in the various doeum(>f·ts is consistRnt with the temple being . for the pr iv ate woI'llhip of the bead of the l::ladav:r.rti Institution and being an adjunct to that institution, as in that case there was to be no grant to the temple and the grant had to be to the Sadi.varti institution or to its head.

It is alfo a matter for surprise that no in dependent grant to this temple was made subse quent to its coming into existence. Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known insti tution in that part of the country, where, it bas been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the varioua docu ments of the period between 1608 and 1803 A.D., that the vario11s endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution it.sP.lf, it being always in the name of the Bavajee in charge of that institution.

Before disOU88ing the entries in the inam regiaten which carry great weight, we may first refer to the Ru \es i11 pursuance of which the entries in the Inam registers were ma<lc, after due investigation. The various extracts from the Inam registers which have been filed show that the propoeala for the grant were confirmed under rnle 3, clause (I), tax free. This makes it of importance to consider the rule

11111

Ihe Poohari Fak it badavarthy of Bondilipuram v. Thi Commissio,.er, Hindu Religious and Charitable Endowments

Raghubar DaJal J.

2 S.C.R.

SUPREME COURT REPORTS

283

the ad thus referred to. It is one of the rules for judioation and settlement of the inam lands of the Madras Presidenoy and is quoted at page 219 in the case reported as Arunachellam Ohetty v. Venkatachala pathi Guruswamigal (I) :

"If the inam was given for religions or ch:i.ritable objeots, such as for the support of temples, mosques, oolleges, choultries, and other public buildings or institutions, or for serviees therein, whether held in the nam11s of the institutions or of tho persons rendering the pre the servioes; it will be continued to sent holders and their successors, and will not be subject to further interference, so long as the buildings or institutions are maintained in an efficient state, and the services continue to be performed according to the conditions of the grant."

It was also said at page 217 :

"But the Inam Register for the year 1864 has been produced, and to it their Lordships attach importance. It is true that the ma.king of this Register was for the ultimate purpose of determining whether or not the lands were . tax free .. But.it must not be forgotten that the preparation of this Register was a great a.ct of staw, and its preparation and contents · were the subject of much· consideration under · elaborawly detailed reports and minutes. It is to be remembered that the Inam Commis sioners through their officials made inquiry on tbe spot, heard evidence and examined docu ments, and with regard to each individual property the Government was put in posses sion not only of the conclusion come to as to whether the land was tax free, but of a state ment of the history and tenure of the property itself. While their Lordships do not doubt that such a. report would not displace actual

(1) (1919] L. R. 4<i I. A. 204.

1161

l lw P..ur; Fakir s,...,..,.J•f Bo..tilir'•m Vt Tlw eon-;,,;,.,, H - Rmt"'u Md CMr/UH1 94_,.,

284 SUPREME COURT REPORTS [19t2) SUPP.

and authentic ovidenoe in individual oaaee; yet the. Board, when auch ia not available, cannot fail to attach the utmoat importance, as part of the history of the property, to the information set forth in the Inam Register."

Exhibit P-50

is the "xtract from the ln&m Register No. 48 relating to village Tallavalasa. in the Taluk of Chicacole in the distriot of Ga.njam. The note of the Deputy Colleotor, In!l.m Commissioner, records inter alia the followmg particulars :

(l) The. villa.ge w1111 granted originally by tho Na.wa.b Ma.fuz Khan in Hiziri 1155 corres ponding with A.D. l 73Q to one Ina.mda.r Bai.ra.gi; a.s tho original sanad is not forth coming it is impoaaible to mention here with· out entering into deta.ils. the object of the grant and the tenure of the village. This mokha.sa jaha.giri is in posaession of the person in column (11) who is known by the name of 'a Pala.hara Ma.ha.nt Bartudoss Bavaji, Ba.iragi'.

(2) Th.is Bartudoss Bavaji pleaded that this village and three other villa.gee were granted in tho distriot by the former Rulera for Sadavarti and for oert&in other Divine Service, and that the prooeeds of them were appropriated to the expenses attendant on the temple of Sri Jagannadha.swami to some extent and to distributing Sadavarti or supplying viotuals, fire-wood, eto., or dreeaed food to Bairagis and others resorting to Rameew&l'am from Bena.rae and vice versa.

(3) This Bartudoes Ba!'a.ji pr~oed a ea.natl of Sri Seetaram Ra.nz1 Ma.hara.JS., the former zamindar of Vizianagaram in Vizaga pa.tam district, granted to one Gopaladaae Palahari Bavaji, dated Subhakrutu year, corresponding with A.D. 1782. This Sanad

1961

Tile PLahori Folcir Sadavarthy fl/ BQndil:tiuram v. 1·he Commtssiontr, HU.du Rtli~iou.s and Charitable Endowments

Raghubt1r DO)al J.

2 8.0.&.

81.JPREME OOURT REPORTS

285

showed that the said Gopaladass was then a manager of the branch of charity and that ibis village was granted free from any tax in lieu of th~ income in the villages of Balaza, Petranivalasa and Serumohannadpuram which were granted originally by the authorities for the support of the charity and which were resumed and incorporated with circar lands. The sanad explicitly stated that the proceed~ of the village were to be appropriated for Sadavarti. (4) On

the whole it appears that this mokhasa was granted for •Sadavarti' and for the support of the temple of Sri J agannadha swami in Balaga. There is a Bairagi Mattam in Balaga and a temple of Sri Jagagnadha is therefore a charitable swami. ........ This grant. To keep up the object of grant, I think the village may be confirmed on its present tenure.

(5) Column 8, meant for noting the des

cription of the inam, mentioned:

'Granted for the support for the Sadavarti Bairagi msttam in Balaga and of the temple of Sri Jagannadbaswami in the same village now efficiently kept up.'

16) In column 10, under the heading 'hereditary, unconditional for life only or for two or ythre lives' is mentioned 'hereditary'.

(7 > Jolumn II meant for recording the name of the grantor and the year of the grant, mentions,_ under it, Mafusu Khan Nawab ' dated Hijiri 1155. · (8) In column 13, Man9asa Palahari

Bairagi is mentioned as the original grantee. (9) Under column 18, referring to rela tionship to original grantee or subsequent 'Sadavarti registered holders,

is written

1961

l A. P.,lt.ri Folcir sua-1/t;J af BiMilituram v. Tl&, COflflfliJsioNr, H1M Bt1i1iqw a"d Cluzrita61~ &dOUM1t11t1

286 SUPREME COURT REPORTS [1962) SUPP.

Bairagi mattam and the temple of Sri Jagan in Balaga Trustee Palaha.ra nadha.swami Mahant Barta Dasu Bavaji'.

It is clear from the fact that the grant wu con sidered 'a charitable grant' that the grant waa not taken to bti for the purposes of the temple, but was taken to be & grant for the purpOBeB Sadavarti. This is also clear from the Statement of Bartud088 Bavaji that it is only a part of the prooeeds which is spent on the temple and not a major portiop of the proceeds, 11s his statement is to the effect that the proceeds are appropriated to the expenses atten dant on the temple 'to sonl\l extent'. There is no suggestion that the temple was in existence in 1739 A. D. when the grant was made. This makes it clear that no grant could have been made for the expensCI! of the temple and that a small portion of the prooeeds was naturally spend on the temple by the Bavaji after the temple had been constructed. Any stat!'ment in these entries about the grant be ing both for Sadavarti and for the expeJlllt's of the temple appears to be due to the wrong inference of the person making the enquiry. He could easily commit such an error on account of the existeaoe of a temple at the time of the enquiry and on ac count of the expreesion 'divine servioe'. The 'divine service' really. meant, as would appear from the expression in the Clther document& of the period 1698 to 1802 A.D., servi<ie by way of J>rayers for the stability and continuity of the State.

The expression that the grant was 'hereditary' also supports the conclusion that the grant was to the Bavajee personally and not to the teµiple even if the temple existed a.t the time of the original grant. In fact, the s~ izranted by Seetaram Ranzi Maha.raja and produced before the enquiry officers explicitJy stated that the prooeeda of the village were to be appropria tt'd for Sadavarti.

i···

1101

The Poohari Fokif' Sadavarthy OJ Bondilipu1(1.m v, 'l'ht Commislioner, Hindu Religious ond Ct.aritable Endowments

Rugl1uba1 Dayal J.

2 S.C.R. SUPREME COURT REPORTS

287

This extract therefore supports the case of the appellants even though the name of the temple has been mentioned along wit;_h Sadavarti Bairagi. The confirmation of the grant, tax.free, was recommen ded by the Deputy Collector, Inam Commissioner, under Rule 3, Clause ( 1 ). The order of the Offi ciating Inam Commissioner dated July 1864 is : 'Confirmed on present :tenure', and column 9 descri bed the tenure as 'tax free'.

Exhibit P-51 is the extract from the Inam Regis ter in the Zamindari estate of Tekkaly in the Chica cole Taluk, Ganjam District, and relates to the village Chinna Z:wanapalli. The report of the Deputy Collector shows that the claim of the then Bavajee was that the village was granted in the trustee and priest of the name of Gopaladoss, mattam in Hijari 1165, corresponding to 1752 A.D. It further records :

"It is explained by the Zamindar's shiris tadar on behalf of the Zamindar that this was granted for the support of the mattam and this is not a personal grant. This was entered in the permanent settlement account as an agrahar. The object of the grant is to feed Bairagis and etc., who travel between Benaras and Rameswaram or supply victuals clothes and etc. This branch of charity is known by the name of 'sadavarti'. The proceeds of this village with the other villages, which granted for the support of the charity are appropriat· ed to sadavarti and to worship the idols in the temple of the mattam ...... As this is gran ted on the whole for, the support of the charity branch, it should, I think, be confir. med on its present tenure."

The entries under the various columns are practi· cally on the lines of the entries in Exhibit P·50. The entries in this register also support the case of the appellants to the extent that the original grant

!HI

..

Tlte PooAori Faki< Sad...,.,._, of Bondilipura1

'f1N C«nmissiontr, Hi,,Ju R1li1iot1J and c11m;1obk ENiowmttds

288

SUPREME OOURT REPORTS (11162] SUP'.>,

in 1752 A. D., waa to the then Bavajee and Ill'&& for the purposes of the charity.

Exhibit l'-52 is the extract from the RegiBter of !n&ms with rC1poct to village V 11.llZ&ngi. It records very clearly :

"The object of this grant is to give 'sada varti' to travellel'8, that is, distributing alms and supplying victuals to travellers. This grant was made during the reign of •Alangir Padsha'. Ever since the Inam is continued undisturbed. About century ago, the trustees built a temple of Jagannadh&&wamy. Now in addition to distributing alms and giving Sadavarti to Bairagis a.nd others, the idol in the temple is worshipped aqd annual festivals &re made. It appears that the Trustee is defraying charges to meet the object of the grant and that he is not mis-appropriating the proceeds of the Inam in any way.''

The inam was confirmed as & charity grant to Mand.l8U S&davarty Charity according to the terms of the grant. This extract is of great importance as it, in clear term~, mentions that the object of the grant was to give sadavarti t-0 travellers and that it was confirmed as a charity grant to this charity. It speaks of the erection of the temple and still states that the Trustee was defraying the charges to meet the object of the grant. This indicates that the expenses of the temple were taken to be inci dental to the expenses of the entire sa.davurti a.nd that the temple was just an adjunct to the sadavarti institution.

Exhibit P-7, Parwana dated November 15, 1722, corresponding to 14th day of R:ibial Awwal 1135 Hijiri, refers to the grant of this dllage to Poohari Fakir ti&dave.rti.

Exhibit P-53 is the extract from th.i Register of in Chiu..cole to village Ragolu

Inams relating

11111

Thi Poohari Fllklt Sadavartliy of Bondilipuram V, Tht Commi.r.siow Hindu Religious b4 Charita/J/1 EnJoWl'lllnts

Ra1huhar Dayal J,

2 S.C.R.

SUPREME COURT REPORTS

289

Taluk. It records : 'In the sanad it wat-1 mentioned that the iuam was given for the support of fakirs to the original grantee about a century ago. The other notes in this extra.ct are practically identical with those in Exhibit P-52. The final order of the Inam Commissioner was also in terms similar, and was 'confirmed to the fakirs the sadavarti charity according to the grant, free, -there being no excess'. It is interesting to note that in column 2 (general ola.ss to which inam belongs) is noted 'Dewadayam', i.e., dedicated to God ; that in column 8 meant for the description of the inam is noted : 'for the sup• port of Pagoda of Sri Jagannadhaswami in·Bondili· puram', and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754-55 A. D. It is olear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa. Pa.lahari Baira.gi in Column 13) about a century ago ~nd that it was the trustees of the institution who <:onstructed the temple. When the temple was constructed by the trustees of the fostitution, viz., the Sada.varti institution, the original grant could not have been to the temple or to God. The entries in this extral't confirm th<' eonstruction we have placed on similar entries in Exhibit P-52 and other extracts indicating the grant to the temple.

Exhibit P-54 is the extract from the Inam Register of No. 85 '.l'allavalasa in the Taluk of CQ.icacole in the Di;trict of Ganjam. It is mentioned in this that Pratapa Rudra Naraya.na Devu granted this village to Falar Gosayi for the support of the 'Bavajee' or Swami, in Hiziri 1141 which would correspond to about 174 7 A. D. It is also noted in the report that the object of the gr1mt was that the proceed; should be appropriated for divine purpose and that the proceeds were appropriated to the temple and sadavarti. The note 'for the support

IHI

-1111 p oj_,; Fol;, s ........ of

BM' •tlil/pr v. n. C....iu'-, HiMu RllWiotu Aa4 Qo,jJdlo &'·=-•'1

290 SUPREME OOURT REPORTS (1962) SUPP.

of the pagoda of Jagann&dhaswami' in column 8 meant for the desoription of the in.am, again, entry m&de under an appears erroneous impression. There was no temple in existe11.oe when the grant wa.e made in about 1747 A. D.

to be an

in existence.' It is etated therein

Exhibit P-55 is an extract frc m the Register of Inams in the village of Balaga of Chicaoole taluk It mentions, under the dated August 13, 1881. heading 'by whom granted and in what year,' •the grant was made by Rajah Narayan& Gazapati raz Bahadur under orders of Alamgir P&dsha on !4th Mii.y of Hiziri ll 71 OOITeHponding with English years 1754-55'. It is also noted : the Sanad gran ted is that as these lands appear from a former firman to have to Sadavarti Mandass Bavaji been granted for planting topes and ralsing buildings; they should be restored to him in pursuance of loDl(· standing right. This mean• that the firma.n, which was not forth coming during the ina.m enquiry, It must bo noted dated from very early times. again that this extract also describes the inam as Devadayam," i. e., dedicated to God. Again, clearly, this entry is wrong in view of tho sanad which was in existence clearly ~tating that the lands were granted under a to Sadavarti llfandass Bavaji for planting tapes and raising is rerorded in buildings and also in view of what Exhibit P-12, a parvana of 1742 A.D., under the seal of Nawnb Jafer Ali Khan.

It records:

firm9n

the

"It has been proved that Ma.mfa~: the succe~sor of Poohari (Poojari) Faq it· ::;adabarti has, per endorsement full six kattis of land, free from assessment, in the villa~e of Balaga anrl etc., villages of the ea.id Ha.veli Sircar, fixed for the expenses of t'~e coming a.nd going Fakirs in accordanc1> with the 88.nads of the previous rulers. Therefore in consideration

.,

J9Gl

Thi l'oo,...i Fail1 Sadavarthy of Bontliliputom v. nt Commissionf1, Hindu Rtligioru .4n4 Charitabl1 EnJow111111ts

2 S.C.R. SUPREME COURT REPORTS

291 of the blessings to follow, it has been confir- med as of yore." ·

It was the result of this wrong vie.w of the· enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as 'service.'

observations

relating to Exhibit P-50 to be

The fact that the Inam Commissioner treated in the grant support of Sadavarti and for support of the temple of Sri Jagannadhaswami, would not make temple when the grant for the purposes of the itself not in existence at the the temple was time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The in Arunachellam's Case (') that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry . or entries in any particular column or columns be acotepted at their face value without giving due consideration to other matters recorded the in the entry itselr. We have already stated that 'divine service' referred to in this entry does not refer to any religious wmship but to the prayers to be offered by the grantee for the preservation of the State.

the Privy Council

of

We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being, constructed a temple and appropriated · the income for carrying out the worship of the temple. No document states that the temple was constructed b.v the Bavajee after obtaining the consent of the ruler for the time being, Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The

11)

(1919)L R.461.A.204.

1901 n .. PooN.ri Fair s11t1 .. 11111p of B"'4i/~11111 "· n, Cnnnissioo<r HiodM&l". b4 &u»_,, a.~

R .. ltu6., D'!J'<I J.

292 SUPREME OOURT REPORTS [1962] SUPP.

expreesion 'trustees' refers to the trustees of the Sa.davarti institution and not to the trustoea of the temple · a.s such. There is nothing in these docu· ments to support the view that the temple was built with the consent of the ruler for tho time being. Tho appellants examined five witn<'BBeS to support their case that the Hindu public have no right to offer worship in the temple which is a private temple. The learned Judges described the state ment of Jana.rdhana Prasad Bhatt, P.W. 4, a.s worthless. ~o particular reliance is placed on his statement by the appellants in this Court. The appellants, however. contend that the statements of the other witnesses have been rejected by the High Court for inadequate reasons.

The first witneBB is Iswara Sa.tyanarayana Sarma, P.W. I. He was aged 83 at the time of his depo1ition in 1949. He was a Sanskrit and Telugu Pandit in the Municipal High School and practised a.a an Ayurvedic Doctor. He has given reasons for the view that the temple is not a public temple. It is not neceasa.ry to refer to thom. His statement has been rejeot.ed a.a he was considered to be interested in the Mahant who had been his patient and a.a the' statement made by him that' people including the sishya.s, i.e., the disciples. take per· mission of the Mahant for worshipping, was collBi dered artificial. This witness "did not state that even disciples had to take permiBBion of the Mahant for worship and so the latter reason waa based on an erroneous impression of his statement, Tbe mere fact that the Mahant oonsulls him for hie ailments and the ailments of other eadhus is no ground for him to make false statements. He is not under obligation to tho Mahant. It may be that the Mahant is tmder obligation to him.

The next witntl88 is P. Kameswara Rao, P.W.2. He is aged about 30 years. He was the

1911

Th• Pooliari Fakir Bada1'artliy of Bondilipuram v. TM Commissioner, H indo B•ligious and Cliaritobl1 EndouJllUlll

llag1"'5ar Dayal J.

2 S.C.R. SUPREME COURT REPORTS

293

Additional Publio Prosecutor of Vizagapatam, had been Municipal Councillor for a i!ecade, President of the Co-operative Central Bank and resided close to the temple. He was in a very good position to know about the public worshipping at the temple as a matter of right. He stated that he never found the public using the temple and that he himself might have visited the temple roughly about a hundred times. He was put a direct question in cross-examination and gave a clear-cut answer. He denied from personal knowledge that the place was used a.s a place of public religious worship and that members of the publio who wne Hindus had a right of a.coess to the temple for purpo~es of religious worship. It may be mentioned that the question also ref~rred to the temple being built as a place of public religious worship and the answer would include a denial of this fact. It is obvious that the witness could not have known anything about it. He seemed to have overlooked the significance of this part of the question. We do not consider that his denying this fact on personal knowledge affects his veracity in any way, and especially, when he further stated that his persona.I knowledge consisted of three facts : (ij his attending the Ra.thayatrfl. and seeing that no offerings of barati and da.ksliina. were made ; (ii) his not seeing any membei: of the public entering the temple; temple whenever he entered into and (iii) whenever he entered the temple, he took the permission Of the mahant. The learned Judges rejected his testimoney with this observation :

the

"The evidence of this witness is more like an advocate supporting the case of mahant than that of a witness, who has come into the witness box to speak of facts. The aforesaid facts based on his personal know ledge afford a very slender foundation for the conclusion which this witness has so boldly asserted in the witness box."

IPII n.p-.;pu;, s-.."rl•f s.Milil*'4"'

'·

TIN Com•,1i•sio1W. B-.. R.liti11t11 mCINriWI• gm.-,,,.

ll ... 16or D9<fl J.

294 SUPREME COURT REPORTS SUPP. [1962]

'the aforesaid

The expression

facts' had reference to the facts on which his personal knowledge was based. Thes facts, in our opinion, afford good ground for the view exprcsPect by him that the temple was not a public temple. He visited the temple so many times, and never saw any member of the public visit it. He himself took permission from the Mahant when he entered the temple. Nothing could be better corroboration of his own statement than his own personal conduct m seeking permission from the Mahant. We do not see any good relll!on for discrediting his testi mony.

The next witness is G. Venkata Rno, P.W. 3, aged 48 years. HB is a chairman of the Municipal Council, Chicacole, Secretary & Vice-President of the Co-operative Central Bank. His statement has been considered to be very artificial. His state ment that whenever he visited the temple he asked the permission of the Mahant ia good corroboration of his statement that he considered the temple to be & private temple and not & public one. The facts that the Mahant is also a Municipal Com missioner and consults him occasionally as a doctor, are no good grounds to discred~t him.

the

appellant No. 2. He

The last witness is the plaintiff' No. 2, the predecessor of is undoubtedly interested in the suooes of the proceed ings started by him. But that alone is no reason to ignore his statement altogether.. In fact, his statement should be accepted in view of the support it gets from the statements of the other three witnea11es just referred to.

It is very significant. as pointed out by le&rned counsel for the appellants, that none from the Hindu public of the place has been examined for the respond~nt in supi;iort olits contention. that the Hindu pubhc go t.o thlB temple for worship as a matter of right. Quite a good number of people

11H11

Thi PHhari Fakir SarlalJa!'thy of Bondilipuram v. The Commissi1111er, Hindu R'ligiaus and Clraritable Jlll111'>wrnmt

B.,Jru!NJr D111al I.

2 S.C.R.

SUPREME COURT REPORTS

295

should have been available for the purpose if it was a fact.

The respondent, on the other hand, examined only M. Adinarayana Rao, who had been Inspec tor of Hindu Religious Endowments Board of the Chicacole division.from 1946 to 1948. He certainly states that the temple in suit is a public temple in which all people can go as a matter of right for worship. It is a moot question as to how he can make such a statement even if he had seen a num ber of people entering the temple and worshipping there, which itself is not a fact. When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple is not sufficient to come to the con clusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disiillow visitors to the temple, even if it •be a private one. Ile stated that there were several festivals like Nethroshasevam, the car festival and kalyanam. In cross-examination he had to admit that he had not visited the kalyan festival and did not know when it was celebrated. This is sufficient to indi cate that he is a zealous witness. He stated that there was an archak, but he could not give the aroha.k's name. Ordinarily, it need not have been expected of him to have known the archa.k's name. But, considering that he was an Inspector of the Board and had visited the temple officially also and had to submit a report, it is rather difficult to believe that if he had realy found an arohak, a priest other than the Maha.nt and his disciples, he would not have considered it essential for the pur poses of his enquiry to know his name. We see no to prefer his shaky statement to the reason statements of the witnesses examined for the appellants.

IHl

••

Tu Poolo4ri F.J.ir SaJ-tliyof BolU/ilii"'""'

Tlw CommiJJiontr, ff;,,., Rtli1ious and Clwilobu EnloWflllltlS

Rqbbcr D~ J.

296 SUPREME COURT REPORTS [1962] SUPP.

We need not consider the statements of the witnesses with respect to the features associaud with 1hc public temple and which are said to be absent in the temple in suit. It is admitted by the respondent's witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public haa a Tulsi Kotta, and this contention seems to find support from the statem1·nt made by the respondent's witneBS in re examinl\tion that generally, in Oriya temples no flag-staffs are located and Tulsi plants are groj\'Il instead. The description of the tt-mple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with tho inference from the other evidence that the tem. pie is not a public temple.

The statement of th<• respondent's witness that generally Oriya temples have no flag-staffs and have Tulsi plants has significance in one other in Mundancheri connection also .• It was said Koman v. Achuthan Nair (1) at page 408 that in. tho greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments form public ctµ.ritable tru~ts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situat~ at a place which was practically at the boundary of the to the common Madre;; Preeidency, and close that Presidency and Ori.eea. boundary between The prcsumtion with respect to the temple in the Madras Presidency, '.iierefore, will be a very weak one with respect to the temple so situated.

We are therefore of opinion that the temple in 11Uit is not a temple as defined in the Aot as it is not used aa of right by the Hindu community, or any section thereof, as a plaoe of religious worship. We therefore allow the appeal with cOllte through out, set aside the order of the Court below and

\I) (193•) L. R. 61.

I.A. 405.

Ifill

The Poolrari Fakir Bad .. a.rlh;y of Bondillrpuram v. The Commissioner, Hindu. Reli1ious anti Charitable Endownunts

Raghuhor Da;yal J.

1'6J

Dicnnber 2 t

2 S.C.R. SUPREME COURT' REPORTS

297

restore the order of the District Judge, Vizagapa· tam, setting aside the order of the Board dated March 28, l!J4 7.

Appeal allowed.

PRAMATHA NATH TALUQDAR

v. SAROJ RANJAN SARKAR (S. K. DAs, J. L. KAPUR, and M. HmAYA'fULLAH JJ.) Criminal .Comp taint-Scope ojenquiry-Secmid complaint on same facts but fresh evidence-When ca" be entertained- Exceptional circumstances-Manifest error-Gode of Criminal Procedure, 1898 (Act 5 of 1898), as. 200, 202, 203, 204-0rimi nal Matter-Special Bench-Validity of Constitution-Calcutta High Court (Appellate) RukB-Sanction-Abetment by conspi racy-Gode of Criminal Procedure, 1891 (Act 5 of 1898), s. J96A-lndian Penal Gode, 1860 (XLV of 1860), ss. 107, 109, 120A, 12CB.

On March 17, 1954, Promode Ranjan a brother of N. R. Sarkar filed a complaint under s. 200 Code of Criminal Pro cedure against Pramathanath and S. M. Basu alleging offences punishable under ss. 467, 471 and 109 of the Indian Penal Code, before the Chief Presidency Magistrate in respect of a document appointing Pramathanath as the Managing Director of N. R. Sarkar & Co. and the minutes of the Board meeting It was alleged therein that me signatures resolving the same. of N. R. Sarkar on 11..- documents were forgeries. After considering the evidence of the Handwriting Expert the Magis trate dismissed the complaint. Promode Ranjan preferred a revision petition to the High Court. The High Court dismissed the revision Petition. By an application dated January 6, 1956, when the revision petition was pen<;ling, attention of the High Court was. drawn to the fact that the minutes dated January 16, 1948, had been typed on· a letter bearing at the top in print "Telephc>ne City 6091" where as the City Exchange had not come into existence till December 1948. The Supreme Court granted special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn.

On April 3, 1959, Saroj Ranjan, another brother of N.R.Sarkar, laid a complaint on the same facts and ail~tions