Commissioner of Hindu Religious Endowments vs Babaji Govinda Charan Das

Misra, J.—The present Respondent is the disciple and legal representative of one Babaji Kumunda Das, who was the Plaintiff. Mukunda Das brought the suit u/s 64(2) of the Act IV of 1939, to set aside the order of the Endowment Commissioner, which declared that the temple of the deity Shri Radahakanta Mahapravu in the muth of the said Plaintiff was an excepted temple. A further declaration was claimed that the properties mentioned in the plaint were the private properties of the Plaintiff. The trial court decreed the suit allowing both the prayers of the Plaintiff and making a further incidental declaration that there was no valid dedication made in respect of the suit properties in favour of the deity Shri Radhakanta Mahapravu, the private deity of the Plaintiff. The Endowment Commissioner, who was the Defendant in the said suit, has come up with the present appeal.

One of the main points urged in the appeal is a question of limitation. In the plaint, the Plaintiff, while referring to the order of the Endowment Commissioner, which was intended to be set aside, mentioned it to be Order No. 239 dated 7-4-1949 and 6-1-1950. In the plaint, he further mentioned that the cause of action arose on 7-12-1919 and 6-1-1950 and subsequently. The plaint was filed on 5-1-1951. If limitation was to be counted from 7-12-1949, the suit was filed beyond one year which is the period of limitation provided u/s 64(2) of the Endowments Act. In the plaint, nothing was said expressly as to how limitation was saved; neither in the written statement any plea was taken that the suit was barred by limitation. During the stage of argument before the trial court, the question of limitation was taken up, and to build up their respective theories parties adverted to the evidence of what one or other witness had said incidentally on the question. The trial court has discussed the bearing of that evidence on the point of limitation which it ought not to have done when there was no issue of the point. The question of limitation raised before us has only to be confined to the admitted facts in the case, and to no controvertial evidence. In the view of the trial court, the order of the Endowment Commissioner was passed on 7-12-1949; but it took the view that limitation was to be counted not from the date of passing of the order of the Endowment Commissioner, but from the date of notification thereof, which, according to the finding of the trial court, was 6-1-1950. The first question is as to whether 7-12-1949 or 6-1-1950 is the date of the Endowment Commissioner''s order, and the next question is whether limitation is to be counted from the date of the order or from the date of the notification. Ext. E is the order of the Endowment Commissioner dated 7 -12-1949. Ext. E is the order of the Endowment Commissioner dated 6-1-1950, which according to the Respondent is the real date of the order and which according to the Appellant is only the date of the notification. In Ext. E, the Endowment Commissioner has recorded all the reasons as to why he held the institution as an excepted temple. In Ext. E, an order is mentioned as Order No. 293/1050 G dated 7-12-1949 and 6-1-1950. The order says, "This case having come up for final disposal on the 7th December, 1949 and having stood over for consideration till this day, it is hereby decided that the above institution is an excepted temple within the meaning of Sub-section (5) of Section 6 of the O.E.R.E Act, 1939. The application u/s 64 is rejected". According to Mr. Mohanty, this order is at best a decree, whereas the earlier order is the judgment of the Endowment Commissioner, and according to him the limitation is to be counted from the date of the judgment and not from the date of the decree. The portion of the order in Ex. H, which I have quoted above, clearly indicates that though the case had come up before the Endowment Commissioner on 7-12-1949, it had remained pending for final consideration till 6-1-1950 and it was decided on that day that the above institution was an excepted temple, and following the said decision the application of the Plaintiff u/s 64 was rejected. Both the orders under Exts. E and H arose out of the application of the Petitioner u/s M(1) of the Endowments Act, and in Ext. E nothing, has been stated as to what final order the Court passed on the application. So Exts. E and H cannot be said to stand in the same position as a judgment and a decree. In Ext. H, a note is printed at the foot of the order which says. The annexure to this order containing the grounds of the above decision will be furnished on receipt of a copy or application therefor, and that makes it clear that the Endowment Commissioner treated the order under Ext. E as an annexure containing the grounds for the order passed on 6-1-1950 dismissing the petition u/s 64(1) of the Endowments Act. Thus, it is clear from both Exts. E and H that the Endowment Commissioner purported to pass the final order on 6-1-1950 and not on 7-12-1949 on which date only the grounds had been recorded, but the petition u/s 64 had not been finally disposed of. This aspect of the case does not appear to have been presented before the trial court. Mr. Mohanty sought to urge that in the suit and also the decree itself what the trial court has set side is not the order of the Endowment Commissioner of 6-1-1950, but that of 7-12-149. It is in fact so and it came to be so since the trial court was of the view that the order which was the basis of the suit was the order of 7-12-1949 and not of 6-1-1950. It may be incidentally noted that in the issues raised in the suit, the order under challenge was of 6-1-1950 and not of 7-12-1949. Whatever might have been mentioned in the issues or in the decree, the substantial point is, the order of which date is to be set aside, and as held above, it is the order of 6-1-1950, the previous order being merely a ground for passing the subsequent final order. This being my view about the date of the order, the other question as to whether limitation is to be counted from the date of the order or from the date of the notification, does not call for any decision.

Now coming to the main points in the appeal, they are-(1) whether the deity Shri Radhakanta Mahpravu is a public or a private deity, (2) whether the properties in suit had been endowed in favour of the said deity, and (3) whether the endowment was for public purpose. The uncontrovertial facts in the case, as, appear from the evidence on either side, are that the original Plaintiff Mukunda Das (who died at an age near 80) was initially a Gruhi and subsequently became a Babaji. He had a dwelling house consisting of one room which he later on converted to three rows of houses with the front two rows under tiled tooting which he did about 40 years back. This was being called the muth of the Babaji about 30 years back, he brought the deity Shri Radhakanta Mahapravu from Brundaban after getting it consecrated there, and he installed the deity in one of the rooms in the middle row of his muth. Mukunda Das had no properties worth the name initially and during 1908 to 1943 he purchased properties under 16 sale deeds (Exts. 1 to 13 and 18 to 20). In some of the sale deeds (Exts. 2, 3, 5 and 6) he described himself without that designation, and only in one of the sale deeds (Ext. 4) of 1934, he purchased 3.64 acres of land in the name of Shri Radhakanta Mahapravu installed inside the Radhakanta Muth, represented by his female disciple Lalita Dasi. The total of lands, so purchased by him in between 1898 and 1943 and including that covered by Ext. 4, amounted to about 49 acres. On 16-7-1943, he executed a registered deed of settlement (Ext. 21) of all the aforesaid properties in favour of the deity Shri Radhakanta. In the said deed it was mentioned that he had with the help of his own earnings constructed the muth and had got the deity Shri Radhakanta installed therein; that so long he had been managing all the services and ceremonies of the deity with the help of his self-earnings; that since future was uncertain and he did not know when he would die, he was executing the deed of settlement in favour of the deity undertaking that so long he would be alive he would be carrying on the Niti and ceremonies of the deity from the said properties of the deity; that after his death, his disciple Govinda Charan Das (the present Respondent) would carryon the affairs of the deity from the said properties without having any right to give away by sale or gift of any of the properties of the deity. Then he mentioned in the deed as to what would be the daily expenditure and what would be the expenditure on special occasions which he claimed to have been carrying on so long and would be carrying on in future and which should be followed by his disciple Govinda and his successive disciples. Then he mentioned that he was writing this deed of, settlement in favour of the deity for the information of the public in general. Though he executed this deed of settlement in 1943, he took no steps for seeking any mutation in favour of the deity, and as indicated by Ext. 22 of 1946, he paid the rents in respect of the suit properties in his own name and not on behalf of the deity. On 11-1-1949, he submitted a statement, as shown in exts. A(1) to A(3), u/s 12, Clause (2) of the Endowments Act, on requisition from the Endowment Commissioner. Meanwhile, the Endowment Commissioner asked him for contribution, and on 16.2.1949 as per Ext. B(1) he submitted his objection there against. Then on 12-3-1949, he raised a dispute filing a petition u/s 64 of the Endowments Act claiming the deity to be his private deity. While the petition before the Endowment Commissioner was still pending, he executed the cancellation deed (Ext. 16) on 11-7-1950, in which he mentioned that he had made the deed of settlement in favour of the deity under undue influence of others while he was in a weak and unsettled mind and was suffering from some disease, and that by the deed of cancellation he was setting aside the said settlement. Under this deed, he further recognised that Govinda was his disciple.

On the background of the above history of the muth and tile deity, the points raised above have to be considered. The first question is whether there was a completed Endowment in favour of Shri Radhakanta Mahapravu. The contents of Ext. 21, the deed of settlement, indicate that the dedication of the properties was completely in favour of the deity; and that no reservation was made for himself and his disciples, though they were required to act as the marfatdars of the deity. It was held in Bhekdhari Singh and Others Vs. Sri Ramchanderji and Others, . "Where the donor of a religious endowment constitutes himself a mutwalli for the de ties, there must be some unmistakable act to show that the possession was transferred to the deities and that the donor completely divested himself of the ownership of the property because the donor and the donee are the same. The effective way of showing this transfer of possession is by altering the land register."

Relying on this observation and on the fact that the Plaintiff had taken no steps for mutation in the name of the deity, and on the contrary paid rent on his own behalf under Ext. 22 in 1946, the trial court held that there was no completed endowment in favour of the deity. Though the Plaintiff had taken no steps for mutation of the properties in favour of the deity in 1950 under Exts. A(1) and (3A) he had voluntarily stated before the Endowment Commissioner, and that under solemn affirmation, that the suit properties were being utilised for the worship and ceremonies of the deity according to the deed of settlement of 16.7.1943. Next when he applied for being exempted from contribution, he mentioned in Ext. Bel dated 16-2-1949 that all the properties of the math were himself earned properties with no gift from any source and that lest there might be mismanagement in the deity''s affair after his death, he had made a settlement in favour of the deity on 16-7-1943 by a deed of settlement. The aforesaid statements made by the Plaintiff in Exts. A(1) to A(3) and B(1) show that the donor clearly manifested an intention to divest himself of the properties in favour of the deity. No doubt, mutation is one of the best methods of indicating such intention, but the aforesaid statements, which had been made by the Mahant voluntarily, have no less weight. Since there had been no mutation by 1946, the rent had to be paid in his own name as his name was still mentioned in the records as the owner of the properties, and so Ext. 2.2 does not necessarily indicate a counter intention. In the circumstances, differing from the trial court, I would hold that the dedication was complete in favour of the deity.

Though there was a complete dedication in favour of the deity that by itself does not establish that the dedication was a public trust. The deed of dedication does not indicate any interest reserved for the public, nor in exts. A(1) to A(3) there is an indication that any public purpose was intended by the donor. No doubt, in the deed of dedication, the donor mentioned that he was writing the deed for the information of the public in general; but that could not spell out any interest reserved for the public. In Hindu law, it is competent for a donor to create a religious trust, the benefit of which is confined to the members of a particular family or the disciples of a particular religious preceptor. It has been held in Deoki Nandan Vs. Murlidhar, , on which Mr. Mohanty himself relied.

The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof ... When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.

The deed of settlement shows that the right of worship was itself left to the Plaintiff and his successive disciples and created no right in favour of the public for such worship. If the deity was a private deity, then the endowment in favour of the deity was a private debottar in respect of which the Endowments Act has no application. So the moot question in the case is whether the deity is a public deity. In that connection it is pertinent to consider whether the muth, which came before the existence of the deity Shri Radhakanta Mahapravu, was a public or a private one. As will be seen from the history of the muth, it initially consisted of one room with no property attached thereto and the Plaintiff gradually improved the muth and also acquired properties. There is no presumption that whenever there is a muth, it is a public one. It has been observed in Mukherjea''s Hindu Law of Religious and Charitable Trust, P. 388, "As a matter of law, there is no reason why Muths also could not be classified as public and private". There is nothing in the written statement of the Appellant to indicate that the muth before the installation of Shri Radhakanta had any public character. In the written statement, the following were the reasons for which the deity had been claimed to be a public deity: (i) That the rent of the Bijesthali of the deity comprising of 2 acres of land is paid by the villagers to the Khallikote Estate; (2) That the lands were acquired by the Plaintiff in the name of the deity and then transferred in the name of the Chela; (3) That the villagers have been, as a matter of right, offering bhog and having Darshan without any obstruction; (4) That at the time of festivals like Janmastami and Radhastami, the villagers perform Kirtan and take Prasad and they pay contribution for holding such festivities; and (5) That the Plaintiff collected subscription from the public for the purpose of construction of the temple and for the maintenance and Bhog-rag of the deity, and that all properties acquired by the Plaintiff were by such public subscription. D.Ws. 2 to 6, who are residents of the village in which the temple is situated, mere examined on behalf the Appellant in support of the aforesaid issues. The trial court has recorded some reasons for not relying on their evidence. While generally agreeing with it, I would state some broad reasons which make their evidence unreliable. The village consists of about 200 houses and these self-same witnesses out of the villagers had come out against the Plaintiff before the Endowment Inspector to establish the public character of the temple, when the Endowment Inspector was making a preliminary enquiry. So these witnesses could not be said to be unbiased witnesses and no other person of the village nor of the neighbourhood has been examined on the Appellant''s side to prove the public character of the temple. Some of these witnesses have said that the rent for the Bijesthali, is paid by the villagers and the rent receipt is obtained for that; but not a single rent receipt has been sought to be produced in support of such contention. Though some of those witnesses claim that Borne of the properties of the deity were acquired by gift from others, no documentary evidence is forthcoming in support of their statements. Again, some of them have said that the Babaji was taking contribution from the villagers to acquire other properties, and not a scrap of document is forthcoming that any contribution had been paid by the villagers at any time. In the evidence stage an attempt was made to show that when the Plaintiff went to Brundaban to bring the deity Shri Radhakanta Mohapravu, subscriptions were paid by the villagers and this, while not being mentioned in the written statement on one hand, is supported by no documentary evidence on the others. No suggestion was made to any of the Plaintiff''s witnesses who were examined to prove the privte character of the deity, that the villagers had ever paid any contribution either for acquisition of the properties of the deity or for procuring the deity from Brundaban or for performance of any festival in connection with the deity. Ext. 21, the deed of dedication, which was written by the Plaintiff in 1943, when admittedly there was no discord between the Plaintiff and the villagers, would show that the Plaintiff acquired all the properties of the deity by his own earnings and there is no mention therein that any money was paid by the villagers by way of contribution or any property was gifted by anybody. Ext. A series were filed before the Endowment Commissioner in 1949 in which the details a bout the deity and its sebapuja had been mentioned, and there is no mention there which, if true; was reasonably expected that some of the festivities of the deity, such as, Janmastami and Radhastami were carried, on by contribution from the villagers. So, the allegations on the Appellant''s side that the villagers were paying rent for the Bijesthali or that they had contributed subscription for important festivities of the deity, or that lands had been gifted by certain persons in favour of the deity, are all more wild allegations having no foundation in truth. It is to be noted here that the Endowment Commissioner in his very order u/s 64(1) had accepted, "That Radha Astami, Janma Astami, Makara and Chaitanya Janma festivals are performed in the institution, but the deity does not go out on any occasion and the cost of all ceremonials is borne by the Babaji himself and public do not contribute anything towards the celebration of the festivals. No outsiders generally come to the Thakura of the Babaji nor had the public ever contributed anything for the deity. From the sketch of the institution filed it appears that the bed room of the Babaji adjoins the temple of the deity and the whole thing is within one compound". Irrespective of the aforesaid finding of the Endowment Commissioner, because of the endowment in 1943 in favour of the deity, it held that the endowment was a religious endowment, and that as such it came within the operation of the Endowments Act, and (sic) the institution was an excepted temple. It is something strange that irrespective of its own finding a bout the private character of the deity otherwise except for the fact of endowment, the Endowment Commissioner took a line of defence at the stage of the suit that the deity''s properties had been acquired by the public contribution. The only thing that has been established by evidence on either side is that the villagers go on occasions for Darshan of the deity and on those occasions they take no permission from the Plaintiff. While in the plaint the Plaintiff stated that the villagers go for Darshan but that with his permission, in the evidence stage he wanted to make up a case that the villagers do not at all go for Darshan of the deity. But some of the Plaintiff''s witnesses have however admitted that the villagers go for Darshan of the deity on occasions, and no permission is needed for that. On the other hand, some of the witnesses for the Appellants have stated that the villagers go for Darshan of the deity as a matter of right. No incident has been cited by any such witness to illustrate as to, how their going to see the Thakur, was one in exercise of their right. One of them has said, "As God is of all persons, so I say that the villagers have got a right for Darshan of the deity and have got a right in the muth". In a case like this, outsiders going for Darshan of the deity might be under three categories-(1) under express permission, (2) under implied permission, and (3) as a matter of right. What ordinarily happens, even in case of household deities outsiders do on occasions come for Darshan of such deities and such cases are often under implied permission. As observed in AIR 1940 7 (Privy Council) , an inference from the mere fact of user by the public that an institution is a public one is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind, it is not to be expected that the manager of a private temple should in all circumstances desire to discourage popularity. In view of the aforesaid dictum of the Privy Council and in the absence of anything to show that the villagers, who used to go to worship the deity on some occasions, did so as a matter of right, the normal inference would be that they were going for such worship under implied licence from the Plaintiff.

In the present case I find that the deity is enshrined in a room near the Plaintiff''s bedroom and deity''s temple is not detached from the Plaintiff''s residence. The endowment of the properties in favour of the deity by itself creates no right in favour of the public. The Plaintiff installed the deity and he applied all his personal earning for the worship of the deity, and nothing was contributed by any body in the public either to acquire the properties of the deity, or to perform any ordinary or special ceremony of the deity. Only the villagers were going to the deity on occasions for Darshan or offer their puja, and that by itself could not be a sufficient test about the public character of the deity. There is no allegation that the public ever took any interest in the management of the deity''s affairs or in taking accounts of the deity''s properties in the circumstances, I agree with the finding of the trial court that the deity was a private deity of the Plaintiff and not a public one.

The aforesaid finding is sufficient to set aside the order of the Endowment Commissioner that the temple of Shri Radhakanta Mahapravu in the muth of the Plaintiff is an excepted temple. But the Plaintiff asked for a further declaration, which has been granted, that the properties in suit are his private properties. The trial court granted him relief on that score on a finding that there was no completed settlement of those properties in favour of the deity. My finding above is that the settlement was a completed one. The Plaintiff subsequently cancelled the deed of settlement and wanted thereunder to treat the endowed properties as his own properties. In Konwar Dooganath Roy v. Ram Chandra Ben and Ors. their Lordships of the Privy Council observed that in the case of a family idol the consensus of the whole family might give the Debottar estate a secular turn. In the present case it has not been shown that the deed of cancellation, at the time of such cancellation, had the concurrence of the present Respondent who had been adopted as the disciple of the original Plaintiff. Apart from that when an interest has been claimed against the deity itself, in the absence of anybody representing the deity''s cause, there cannot be a declaration that the deity''s rights in the properties had been properly extinguished. So, the declaration of the trial court that the properties in suit are the private properties of the Plaintiff and not of the deity, cannot be supported and is left open.

In the result, the appeal is dismissed with costs, subject to the modification of the decree to the effect that whether the suit properties are the private properties of the Plaintiff or the properties of Shri Radhakanta Mahapravu, his private deity, is left open.

Barman, J.

I agree.