G.C. Das, J.
1. This second appeal and the application under Article 226 of the Constitution which is numbered as O. J. C. 401 of 1956, were ordered by a Bench of this Court to be heard together being connected matters' and accordingly they were heard analogously and are disposed of by this common judgment. The second appeal by the Commissioner of Hindu Religious Endowments, Orissa (defendant-1) (hereinafter referred to as the Commissioner) is directed against a judgment of the learned Dist. Judge of Cut-tack D/-26-4-52 dismissing his appeal arising out of a suit filed by the respondents under Section 64 (2) of the old Orissa Hindu Religious Endowments Act (Orissa Act IV of 1939) (hereinafter referred to as the Act)'.
2. O. J. C. No. 401 of 1956, was filed by the plaintiff-petitioner under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus against the Commissioner and the Certificate Officer, Kendrapara, directing them not to proceed with the certificate proceeding for realisation of certain contribution amount for which a requisition was made by the Commissioner.
3. The plaintiff Harekrishna Chaudhury commenced the suit on 30-6-1948, under section 64 (2) of the Act to set aside the order of the Commissioner dated 15-9-1947, on the ground that the deity Sri Kanak Durga Thakurani (plaintiff-1) is a private deity of Harekrishna (Plaintiff-2) and that the said institution is not a temple within the meaning of Sub-section (13) of Section 6 of the Act. Accordingly the Act has no application to the plaintiff's institution, and as such the Commissioner is not entitled to to realise any contribution under section 49 of the Act.
The suit, O. S. No. 140 of 1948, was originally filed against the Commissioner (defendant-1) and one Sadhu Charan Chaudhury (Defendant-2), who though a member of the family of the plaintiff-2 posed himself as a representative of the public and was impleaded as such. Objection having been taken by the 1st defendant, defendants 3 and 4 were subsequently impleaded representing the Hindu public, and thereafter defendants 5 and 6 also joined the Commissioner at a later stage, and the plaint was amended from time to rime accordingly. Notices under Order 1, Rule 8, C. P. C. were also served.
The plaintiff's case throughout was that the deity, Sri Kanak Durga Thakurani was enshrined in room inside the dwelling house of the second plaintiff standing on his Gharbari plot No. 236 recorded in his name. It is significant that the plot is not recorded in the name of the deity (vide Khatian Ext. 5). Further, that the second plaintiff has been assessed to Chowkidari tax as will be evident from the Chowkidari Zamahandi registers (Ex. 1 series). Thedeity is offered the Bhog cooked in the family kitchen of plaintiff 2 by the females of his house.
The lands recorded in the name of the deity were endowed by one Barkat Singh, the Raja of Utikan in year 1776 in favour of Chaudhury Dibyasingh, an ancestor of the second plaintiff as the custodian of his private deity. In several previous litigations between the ancestors of the second plaintiff and those of the second defendant the present plaintiff and his predecessors being of the eldest branch have been holding the properties by rule of primogeniture which is prevalent in their family. The public have no access to the deity except by leave and license of the second plaintiff and his predecessors-in-interest.
4. Two separate written statements were filed, one by the commissioner and the other by the 2nd defendant. The defence of the 1st defendant was a complete denial of almost all the allegations contained in the plaint. He averred that after a through enquiry he finally decided by his order dated 15-9-1947, that the deity is a public one and that the properties standing in her name are public, though the Sebaitship has been hereditary with the second plaintiff. The grounds on, which he claimed the deity to be public were two:
(1) The public have a free access to the deity as of right and offer Bhog; and (2) The deity has gained wide popularity as its 'Paduka' has great efficacy in curing diseases and removing barrenness of females; and on each Thursday people gather in large numbers before the deity to have the Paduka, The second defendant similarly denied the plaint allegations and stated that the plaintiff-deity is a public deity and not a private deity of the second plaintiff. The public have access to the deity and they worship the deity as of right,
5. On these allegations and the evidence as recorded at the trial, the learned Munsif mainly relyang on the documentary evidence, came to the conclusion that the deity is a private one and as such the Act is not applicable to it. Accordingly, he directed refund of the contribution already paid to the commissioner. The commissioner along with the second defendant preferred an appeal against this judgment of the trial Judge. The lower appellate Court on a careful consideration of the evidence both oral and documentary, came to the finding that the deity is a private one and the order of the commissioner (Ex. 4) is wrong and accordingly confirmed the judgment of the trial judge, A new point regarding the maintainability of the suit was however raised at the appellate stage which was negatived. In the result, the learned Additional District Judge dismissed the commissioner's appeal. It is against this judgment that the present second appeal is directed.
6. Mr. S. Mohanty, learned counsel for the commissioner, attacked the judgment of the court below on three grounds:
(1) The question of private or public nature of the institution was not in controversy in the various orders and judgments which were filed in this case (Ex. 2 series). (2) The public were not parties at the time when the suit was filed; and
(3) The conditions for holding the institution to be a public one being present, the judgment of theCourt of appeal below is not quite correct.
7. Exhibit 2 (d) dated 8-8-1951, is the first document in point of time. This is a report by the local agent under Regulation XIX of 1810, by which he refused to interfere with the endowment on the ground that it was a private deity of the ancestors of the second plaintiff. The dispute, as is evident from Ext. 2 (d), then was that one Jagatananda made a petition, against Natha Madan Chaudhury, an ancestor of the second plaintiff alleging certain misappropriation and mismanagement of the endowed properties of the 1st plaintiff. Subsequently, Narayan Chaudhury the grandfather of the second defendant joined hands with Jagatananda,
Mr. Mohanty drew our attention to Clauses 2, 5 and 16 of Bengal Regulation XIX of 1810 and urged that the local agent had no jurisdiction to decide the character of the institution in those proceedingsand in fact he did not decide anything, Regulation XIX of 1810 was promulgated on 14-12-1810, and it was a Regulation for the due appropriation of the rents and produce of lands granted for the support of mosques, temples, colleges and for other religious purposes; for the maintenance and repair of public buildings,' and for the custody and disposal of nazul property or escheats. The very preamble of the Regulation states:
'Whereas considerable endowments have been granted in land by the preceding Governments of this country and by individuals for the support of colleges and for other .......beneficial purposes andwhereas there are grounds to support that the produce of such lands is in many instances appropriated contrary to the intentions of the donors, to the personal use of the individuals in immediate charge and possession of such endowments, and whereas it is an important duty of every Government to provide that all such endowments be supplied according to the real intent and will of the grantor and whereas it is moreover essential to provide for the maintenance and repair of .....buildings which havebeen erected either at the expenses of Government or of individuals for the use and convenience of the public, and also to establish proper rules for the custody and disposal of nazul property or escheats, the following rules have been enacted to be in force from the period of their promulgation, through the Provinces immediately dependent on the Presidency of Fort William',
Clause (2) refers to the general superintendence of all lands granted for the support of mosques and temples or for other religious purposes by the Board of Revenue. Clause (5) imposes a duty on the Board of Revenue to see that public edifices are not appropriated by individuals for private uses.
Clause (16) enumerates the object of the Regulation and states that it is to be clearly understood that the object of the present Regulation is solely to provide for the due appropriation of lands granted for public purposes agreeably to the intent of the grantor and not to resume any part of the produce of them for the benefit of Government.
Thus, the whole scheme postulates that the authorities mentioned in the body of the Regulation can only have jurisdiction over the endowments created for the benefit of the public before the advent of the British. It may be mentioned here that the Bengal Regulation XIX of 1810 originally related to mosques, temples or other religious edifices whichwas repealed by the Religious Endowments Act,1863 (Act XX of 1863). This regulation in so far as it applied to the Hindu Religious Endowments in Orissa has also been repealed by Section 11 of the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act IV of 1939).
The history behind this Regulation was that in 1810, the British Government presumably following the English notion of trusts, assumed control of all public endowments of Hindus and Muhammadans in the Presidency of Bengal and placed them under the charge of Board of Revenue, which policy continued and acted upon till the Act XX of 1863 was passed when the Government divested itself of the charge and control of all such institutions and placed them under the management of their respective creeds,
The fact that stands out is that an enquiry was made by the Agent under the provisions of this Regulation and a report was submitted by him, Mr. Mohanty very fairly conceded that this report by the local agent is admissible under Section 13 of the Evidence Act, and the evidentiary value thereof has been considered by the Court below. From a plain reading of the document, it is clear that the right that was claimed in respect of this institution was that it was a private one and asserted as such by the then ancestors of the second plaintiff.
The local agent on a thorough enquiry was of the opinion that it was a private deity having been situated in a room of their private house, and that the endowment was not for a public purpose, and accordingly, he was of opinion that he had no jurisdiction to interfere under Regulation XIX of 1810.
8. Thereafter, in 1876 and 1877, the grandfather of the second plaintiff Laxmidhar Chaudhury applied for being mutated in respect of the deity's endowed properties. This application was opposed by the father of the second defendant Mayadhar Chaudhury on the ground that he had also a share in the property, and that he should also be mutated along with Laxmidhar. The objection of Mayadhar was rejected vide Ext. 2 dated 3-6-1880. Not being satisfied with the order of the Land Registration Deputy Collector, Mayadhar instituted a Civil suit against Laxmidhar in the year 1881, for being recorded in respect of half of the endowed properties of the deity. This suit was dismissed (Ext. 2/A). Mayadhar carried an appeal to the District Judge as also to the Calcutta High Court, but without any success, (Exs. 2/B and 2/C). The learned appellate Judge on a consideration of these documents came to the conclusion:
'All these clearly go to prove the case of respondent No. 2 that the deity has all along been treated as his family deity'.
I myself have looked into the judgments and the orders carefully and I find that in the entire Ext. 2 series, the approach from the very beginning was regarding the character of the institution, and it has been held by the Robakari and other orders and judgments that the deity has all through been treated as a family deity and not as a public deity.
9. The learned Dist. Judge considered the oral evidence adduced on behalf of the plaintiff as well as the defendants and stated that there is not much of difference in the assertions made by the witnesses. It is clear from the oral evidence on either side that the deity Kanak Durga Thakurani has gained widepopularity and its 'Paduka' has great efficacy in curing diseases and barrenness of females, so much so that the second plaintiff is practically trading on it. True, the second plaintiff had never prevented the public to worship the deity and offer Bhog but the public have never exercised any right of worship or of offering Bhog as of right.
It was with the leave and license of the second plaintiff that the public were allowed to worship or offer Bhog. It is also admitted that the public never demanded any account from the second plaintiff regarding the management of the deity and its properties. D. W. 1 admits that the second plaintiff spends the entire income from the endowed lands and makes the offerings according to his own choice and sometimes spends (the income on his private account also. All these facts coupled with the fact that the deity is enshrined in a room inside the private house of the second plaintiff and the daily Bhog offered, is cooked in the family kitchen by the females of the house go unmistakably to show that the deity is a private deity housed in a room of the dwelling house of the second plaintiff.
Accordingly, the learned Additional District Judge rightly came to the conclusion that the deity as not a public deity, nor is it a temple within the meaning of Sub-section (13) of Section 6 of the Act.
10. Mr. Mohanty then contended that the presence of minor deities in the temple (image of Lord Krishna) as deposed to by P. W. 4, and Lord Krishna being taken out on Dol festivals and the public offer Bhog and take 'Paduk' (as deposed to by P. W. 2), and the goat sacrifice (as deposed to by P. Ws. 2 and 4) and the villagers performing Sankirtan before the deity, go to show that it satisfies all the conditions necessary for holding the institution to be a public one.
To begin with, this aspect of the case was never placed before either of the Courts below and we have not had the advantage of their finding. However, the presence of the image of Lord Krishna does not mean the presence of minor deities in the temple, nor does the image of Lord Krishna being taken out on Dol festivals change the character of the institution to a public one.
The second plaintiff does not deny the fact that the public worship the deity and receive the 'Paduka'. The concurrent findings of both the courts below are that the public are allowed to worship the deity with the permission of the second plaintiff. P. Ws. 2 and 4 deposed to the fact that the second plaintiff himself makes the sacrifice before the Thakurani. Thus, this mere act of animal sacrifice or the villagers performing the Sankirtan does not indicate that the institution is a public one.
11. Mr. Mohanty then urged that the endowed properties are dedicated to the public. Admittedly, there is no express dedication in this case, nor has a case of implied dedication been set up by the commissioner or the second defendant. The finding in this case is that the properties were endowed in the name of one of the ancestors of the second plaintiff, and that the second plaintiff and his pre-decessors-in-interest were appropriating the entire income of the same, either for offerings of the deity or for their private uses.
At no point of time, any member of the public did question the manner in which the rents and profits were utilised, nor demanded any account thereof. Reliance was sought to be placed in a case reported in Lakshman Goundan v. Subramania Ayyar, AIR 1924 PC 44 (A). In that case the facts as found were that the founder of the temple dreamt that he should instal at his house an idol of the god and that the god would come to his house and enable him to foretell events.
He did instal that idol at his house and allowed Brahmins and other Hindus of various castes to worship the idol as if it was a public idol. He acted as the Pujari of the idol, and received offerings made to the idol by worshippers and fees which he charged in respect of processions and other religious services. The number of Hindu worshippers increased and with the offerings and fees, he purchased some jewels for the idol, built for himself another house in the village to which he and his family removed and he extended the house in which the idol was, and added to it covered rooms for the accommodation of the worshippers during the ceremonies of worship.
He also built in the village a rest house for the use of worshippers of the idol. On certain days in each week the Hindu public was admitted by him free of charge to worship in the greater part of the temple, to one part only on payment of fees and to inner shrine apparently not at all. With the income which he derived from offering and fees at the temple he efficiently maintained the temple as if it were public temple and discharged all the expenses connected with the temple and the worship of the idol there. He applied the balance of the income he so obtained to the support of himself and his family and in acquiring for his own benefit and that of his family some immovable property which he possessed before he died. Sir John Edge, on these folding held that:
'The founder held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and that the inference is that he had dedicated the temple to the public'.
Thus, it appears that it was a case of implied dedication and no such dedication is present in the instant case. This case, however, was distinguished in a subsequent decision of the Board in Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 (B), wherein it was held that where a grant of a temple is made to an individual or family and the family has treated the temple as family property, dividing the various forms of profit whether offerings or rents, it is not enough to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable papularity among Hindus of the locality or among persons resorting to the annual mela.
Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case and dedication to the public is, not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazardous, since it would not in general be con-sent with Hindu sentiment 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 managers of a private temple should in all circumstances desire to discourage popularity. In coming to this conclusion, their Lordships of the Privy Council relied on another previous decision of theirs in Mundachari Roman v. Achuthan Nair. AIR 1934 PC 230 (C). In Bhubane-swar Deb v. Natabar Parida, 15 Cut LT 89 (D), a Bench of this Court held that one of the tests of public character of a temple is that the worship by members of the public which are not necessarily non-onerous and that the public had been worshipping therein as of right. Here, in the instant case, the finding is to the contrary. It is only with the leave and license of the second plaintiff that the public were allowed either to worship or to offer the Bhog to the deity. Hence the above two cases are directly against the contentions of Mr. Mohanty.
12. The next contention of Mr. Mohanty regarding the maintainability of the suit and the question of limitation, was not pressed and was given up by him.
13. In conclusion, therefore, the judgment of the learned Additional District Judge of Cuttack,dated 26-4-52 stands unassailable and the appeal is bound to fail. Accordingly, I would dismiss this appeal with costs.
14. The facts leading upto the application, O. J. C. No. 401 of 1956, are these: The petitioner succeeded in both O. S. No. 140/48 and Munsif Appeal No. 340 of 1950, and obtained a declaration that the institution was a private one and as such the Orissa Act IV of 1939 has no application to his institution and that he is not liable to pay any contribution to the commissioner. Further the commissioner was directed to refund the contribution which he had already realised from the petitioner.
The judgment of the trial Court was delivered on 3-10-50 and the appellate Court confirmed thedecision of the trial Judge on 26-4-52. Against this judgment of the appellate Judge, the commissioners preferred an appeal which was numbered as second appeal No. 346 of 1952 which has been just disposed of.
During the pendency of this appeal, the commissioner filed a requisition for the realisation of the contribution from the petitioner on 1-3-1956, and the certificate officer of Kendrapara issued notice to the petitioner under section 7 of the Public Demands Recovery Act and fixed the date 21-8-56. The notice was served on the petitioner on 11-7-1956, and on 20-8-1956, he filed an objection to the requisition denying his liability, apparently relying on the judgments of the courts below.
This petition was, however, rejected by the certificate officer, who then ordered to issue warrant of attachment of the movables of the petitioner after obtaining necessary information from the commissioner by 15-9-56. It appears from the record of the Certificate Officer, Kandrapara, that on 15-9-56 the commissioner filed no particulars as required by his order dated 20-8-56, except stating the name of the petitioner in the schedule attached to his petition dated 15-9-56. On the same date, the Certificate Officer eventually records an order to the following effect:
'The certificate debtor does not turn up, to pay the dues. Issue distress warrant against the movables of the certificate debtor for 31-1-56''.
Before this date, however, the present petition was filed on 26-9-1956, which was admitted in due course, and an interim stay was granted by this Court. In view of our finding in the above second appeal, it is clear that the Act is not applicable to the petitioner's institution and as such, he is not liable to pay any contribution and the requisition filed for the realisation of the same, is therefore not maintainable.
Accordingly, we would make the rule absolute and issue a Writ of Mandamus to the opposite parties. We declare that the commissioner is not entitled to realise anything from the petitioner towards contribution and the proceeding before the Certificate Officer, Kendrapara, in Certificate Case No. 332 of 1955-56 be quashed.
15. In the result, therefore, the application is bound to succeed and is allowed with costs. The hearing fee is assessed at Rs. 100/-.
16. I agree.