C.M. Lodha, J.
1. This is a plaintiff's second appeal.
2. The plaintiff Idol Shri Murli Manoharji through Chandra Shekhar minor represented by his next friend Smt. Radha Devi filed the suit out of which this appeal arises on 15-12-1960 in the Court of Sub-Judge, First Class, Ajmer alleging that the temple, situated in Mohalla Kesarganj in the city of Aimer known by the name of Shri Murli Manoharji's temple was built bv Ramnarayan, who is the common ancestor of Chandra Shekhar and defendants Nos. 2 to 4 Shive Shanker, Kanhaiyalal and Ram Chander. The plaintiffs case is that the idols of Shri Radha Krishan and Shri Mahadeo were installed in this temple and Pratishta ceremony was also duly performed. It was further alleged that land measuring 66' X 91' was acquired by Ram Narayan from the Municipal Committee, Aimer with the object of constructing a temple on it, in the year 1888 A. D. The temple was built on a portion of the said land and residential houses, a well and six shops behind the temple were constructed from time to tune. The whole of the property including the houses, shops and the well, according to the plaintiff, were dedicated to the idols of Shri Radha Krishan & Shri Mahadeo and whatever income was derived from the property was being utilised for Sewapuia of the idols.
It was also alleged that in S. 1972 the idol of Radha Krishna was replaced by that of Shri Murli Manoharji after the performance of the Pratistha. It is further stated in the plaint that thedefendant No. 2 Shive Shankar and defendants Nos. 3 and 4 who are the sons and grandsons of Ramnaravan respectively started acting against the interest of the idol and partitioned the property belonging to the idol .and also mortgaged a portion of the building to defendants Nos. 5 to 7. The plaintiff goes on to state that the defendant No. 1 Dr. Gopilal Garg, and defendants Nos. 8 to 10 in execution of the decree obtained by them against the defendants Nos. 2 to 4 also got the building in question attached except the portions in which the idols of Shri Murli Manoharji and Mahadeo are installed, and proceedings for sale of the same were being taken. On these allegations it was prayed that a decree may be passed in the plaintiffs favour declaring that the plaintiff is the owner of the property in question which is not liable to attachment and sale in execution of any decree passed against the defendants Nos. 2 to 4 and further that all the alienations made by the defendants Nos. 2 to 4 in respect of the property be declared null and void.
3. Separate written statements were filed by defendant No. 1 Dr. Gopilal Garg, and defendant No. 9 Prabhu Dayal, whereas a joint written statement was filed by the mortgagees defendants Nos. 5 to 7. No written statement was, however, filed by the defendants Nos. 2 to 4. The suit was resisted on a number of grounds and it was pleaded that the property in question was owned and possessed by the descendants of Pandit Kamnarayan and partition of the same took place among them. It was further pleaded that the idols had been put in the temple only for earning livelihood, and that there had not been any dedication of the property in question to the idols.
4. After recording the evidence produced by the parties, the learned Munsiff. Aimer City dismissed the plaintiff's suit holding that the property in question has not been proved to be the debutter property.
5. Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal which was partially allowed by the Civil and Additional Sessions Judge, Aimer who by his judgment dated 31 3-1964 held that the temple and the well situated in the suit property are the debutter property dedicated to the temple of Shri Murli Manoharji and are not liable to sale in execution of decrees against the defendants Nos. 2 to 4. He, however, held that rest of the property was not debutter property and consequently he upheld the dismissal of the plaintiff's claim in respect of the property other than the temple and the well, that is, six shops, and the houses situated at the back of the temple.
6. Dissatisfied with the Iudgment of the learned Senior Civil Judge. Aimer the plaintiff has filed this second appeal. Learned counsel for the appellant has urged that both the lower courts have fallen into an error of law in holding that in absence of ceremonies of 'Sankalp' and 'Samarpan' dedication could not be held to be proved. In support of his submission he has referred to Deoki Nandan v. Murlidhar, AIR 1957 SC 133 and State of Bihar v. Sm. Charusila Dasi. AIR 1959 SC 1002.
7. In AIR 1957 SC 133 it was held that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed that would be valuable evidence of endowment, but, absence of such proof would not be conclusive against it. It was further observed that the ceremonies relating to dedication are Sankalpa, Uthsarga and Prathistha. Sankalpa means determination and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof is that it becomes impressed with the trust for which he dedicates it. While the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the property to the public. This view was further reiterated by their Lordships in the subsequent case: AIR 1959 SC 1002.
8. There is admittedly no deed of dedication in the present case, and the question whether there was in fact a dedication of the property in question to the idols, is to be determined by the oral evidence produced by the parties and the circumstances brought on the, record. The criticism by the learned counsel for the appellant that the court below has rejected the plaintiff's claim for want of evidence of 'Samarpan' and 'Sankalp' does not seem to be well-founded. Both the courts below have taken into consideration the oral evidence led by the parties as well as the conduct of the settlor of the temple namely Ramnarayan and his descendants and the way in which they have treated the property. I am, therefore, unable to accept the contention of the learned counsel for the appellants that the lower appellate court has rejected the plaintiff's claim with, respect to the residential house and shops only because of absence of evidence of Sankalp and Samarpan.
9. It is, therefore, now to be seen whether the inference drawn by thelower courts from the evidence on the record is correct? In order to prove dedication the plaintiff produced P. W. 1 Budhmal, P. W. 2 Jamnadas, P. W. 3 Parma Nand, P. W. 4 Janki Parshad, P. W. 5 Pannalal. and P. W. 6 Kanhaivalal, and also got the statement of Smt. Radha Devi recorded on commission. The learned counsel also placed strong reliance on the documents Exs. D, B and C and Exs. G to M and also Ex. A.1 and Ex. A.2. He has also argued that the allegations made by the plaintiff in paras Nos. 3 and 4 of the plaint that after installation of the idols Pratishtha ceremony had been duly performed and the income accruing from the property in question was spent on Sewapuja of the idols, were not specifically denied by the defendants in their written statement and therefore these allegations must be deemed to have been admitted by necessary implication.
10. In para No. 2 of the plaint it was pleaded that the idol of Radha Krishan was duly installed and the Pratishtha ceremony was also duly performed and there is a Parikrama in the temple. In the written statement filed by the defendant No. 1, it is mentioned that the facts stated in para No. 4 of the plaint are not admitted. Similarly in para No. 4 of the plaint it is averred that a plot of land was acquired by the founder Shri Ramnarayan from the Municipal Committee. Aimer with the object of constructing a temple, and a temple was actually constructed on a part of the premises and on the remaining part residential houses and a well as well as six shops were constructed later on, and that the income from the aforesaid property was utilised for Sewa-puja of the temple.
In reply to this paragraph the defendant No. 1 has asserted that the facts stated therein are not true and the property in question was owned and possessed by the descendants of Ramnarayan who had actually partitioned it and further that there had been never any dedication of the property in question to the idols. In view of this clear denial by the defendants of the allegations made in the plaint, I fail to see how any part of the plaintiff's case can be said to have been admitted by necessary implication? So far as installation of idols is concerned there is now no dispute left between the parties as the main temple in which the Idols are installed has been held to be debutter property and the dispute survives now only with respect to the residential houses and the shops.
11. Coming to the oral evidence led by the plaintiff the learned Civil Judge has held that it is wholly insufficient for proving dedication of these properties to the idols. P. W. 1 Budhmal.P. W. 2 Jamnadas and P. W. 6 Kanhaiva Lal on whose evidence strong reliance has been placed by the learned counsel for the appellant have nowhere stated that they were present at the time when the alleged dedication was made in Samwat year 1946. They simply deposed that there is a temple and a Parikrama around the idols which are worshipped and religious ceremonies and festivals are regularly observed. The appreciation of the evidence of these witnesses by the lower appellate court cannot be said to be erroneous. Learned counsel for the appellant, however, laid much emphasis on the document Ex, D. dated 12-7-1888, which is an Itlanama issued by the Municipal Committee, Aimer in the name of Ramnarayan to the effect that certain piece of land had been given to him for the purpose of constructing a temple.
It is not clear from this notice whether this land was granted free to Ramnarayan. A copy of the resolution fay which the land was sanctioned in the name of Ramnarayan has not been placed on the record. All that can be said on the basis of Ex. D is that Ramnarayan represented to the Municipality that he wanted a plot of land for constructing a temple. But this circumstance by itself cannot be conclusive of the fact that there was a complete dedication of the whole plot and the building raised on it by Ramnarayan to the idols of Radha Krishan and Mahadeo which were installed after he had constructed the temple on a part of the land. Admittedly the residential block and the six shops in dispute were constructed not at the time of constructing the temple but later on. Ex. B is another document pertaining to the sanction by the Municipality for construction and in my opinion it does not advance the case of the appellant any further. Ex. C is a notice given to Ramnarayan to remove certain stones lying near the temple. This document is very vague and does not throw any light on the question in issue.
12. The other piece of evidence on which the learned counsel for the appellant rested his case are the rent notes Exs. G to M with respect to the shops in question ranging from Samwat 1887 to 1960. It is urged that in the rent notes Ex. K Ex. L and Ex. J of S. 1901. S. 1889 and 1004 respectively the shops have been described as 'Dukan Mandir'. On the basis of the aforesaid description of the shops leased out by these rent notes, the learned counsel wants me to infer that the shops were described as belonging to the temple and therefore dedication of these shops to the temple must be presummed.
The learned Senior Civil Judge has taken these rent notes into consideration and has come to the conclusion that they are wholly insufficient for holding that the shops had been dedicated to the temple. It is remarkable that none of these rent notes has been executed in favour of the idols. It is also noteworthy that most of these rent notes have been executed in favour of either Ramnarayan or his descendants Harishankar and Shiveshanker and it is impossible to hold on the basis of these rent notes that the shops had been dedicated to the idols.
13. It was alleged in the plaint that the income derived from the houses and the shops was spent over the Sewapuja of the temple and the balance, if any, was spent for the maintenance of Ramnarayan and his family. However, no accounts have been produced in support of this assertion. The way in which the shops and the block in dispute have been treated by the descendants of Ramnarayan is a clear indicator of the fact that the residential houses and the shops were their private property. Admittedly about 25 years back defendant Kanhaiyalal filed a suit for partition in respect of the residential houses and six shops against his brother describing the property in question as ancestral property of his grandfather Ramnaravan and the suit was decreed, and the property was partitioned by metes and bounds.
Later on Kanhaiyalal mortgaged his share with defendant No. 1 Dr. Gopilal. The six shops were auctioned in execution of a decree obtained by Rai Bahadur Kishenlal against Shiveshanker son of Ramnarayan and Kanhaiyalal purchased the shops, at court sale. Kanhaiyalal thereafter mortgaged this very property. It is further clear that Kanhaiyalal first filed a suit for declaration that the property in question belonged to the idol of Mahadeoji and the same was dismissed by the Second Additional Sub Judge, Aimer on 22-8-1953.
These facts are not denied by the appellant, but what is contended is that these were only acts of misappropriation of debutter property by the shebait and as such could not change the character of the property. However, I find it difficult to accede to this contention. It is difficult to hold that these are only stray acts of misappropriation. On the other hand these transactions indicate that the property was never considered as debutter property.
14. In Kanwar Doorganath Roy v. Ram Chunder Sen, (1876) ILR 2 Cal 341 (PC) it was held that in absence of a document of endowment very strong and clear evidence of such endowment ought to exist. A strong presumption was drawn in the aforesaid case from the conduct of the parties in treating the suit property as their private property for the purpose of holding that the property was not de-butter.
15. In Mahani Dasi v. Pareshnath AIR 1954 Orissa 198 it was held that the mere fact that an idol is proved to have been installed does not, by itself, create an endowment of properties in favour of the idol. An idol may be installed and worshipped without any property being dedicated to it. An idol, like any living person, may be rich or poor. It was observed that the conduct of the family in its relation to the deity and its properties would be a strong indicator as to how the properties were being used.
16. In Bhagwan Din v. Gir Har Saroop. AIR 1940 PC 7 their Lordships held that the dedication requires to be proved. It was further observed that the general effect of the evidence was that the family had 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 popularity among Hindus of the locality or among persons resorting to the annual mela.
17. In State of Madras v. S.S.M, Paripalana Sangam, AIR 1962 Mad 48 it was held that in order to constitute a valid endowment it is necessary that the donor should divest himself of the property. What is essential is that there should be an unambiguous expression of an intention to divest and an actual divestment for the benefit of the beneficiary. Such divestiture can be proved by a written document, or even orally but the fact) of dedication must be established by evidence. Such evidence may consist of contemporaneous statements or merely subsequent conduct of the trustees. In either case there should be a clear and cogent evidence to show that there was an intention to dedicate the property for the particular purpose, followed by an actual divestment or appropriation of the property to the specific object.
18. Thus the law seems to be well, settled that even in the absence of a document and ceremony such as Sankalp or Samarpan, dedication may be established by other evidence. The question whether there has been a dedication of a certain property to a temple is a question of fact to be determined on the basis of the evidence produced in each case. As already stated above there is no direct evidence of dedication of the residential houses and the shops in question to the temple in the present case. The circumstantial evidence gives an indication to the contrary. The property in question has always been treated as a private property and has been actually partitioned among the heirs of Ramnarayan.
There is no convincing and clear evidence that the income accruing fromthe houses and the shops in question was ever set apart for Sewapuja of the idols. In these circumstances the conclusion arrived at by the lower Courts that the dedication of the residential houses and the shops in question to the idol of Shri Murli manoharji is not proved, appears to be correct and no interference is called for with the judgment and decree of the learned Senior Civil Judge.
19. In the result, I do not see any force in this appeal, and hereby dismiss it. But in the circumstances of the case, I leave the parties to bear their own costs.
20. Learned counsel for the appellant prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.