P.N. Mookerjee, J.
1. The original appellant Sarat Chandra Bhattacharjee, since deceased, was the defendant in a suit under Section 92, Civil P. C. read with Order 1, Rule 8 of the Code. The suit was decreed and he filed the present appeal.
2. Sarat died during the pendency of the appeal in this Court and the present appellants who are three of his sons along with their eldest brother Hrishikesh who is respondent 4 were substituted in his place.
3. The suit was brought on 9-7-1943. It was once dismissed by the learned District Judge on a preliminary ground but the said dismissal was set aside by this Court on 17-3-1949 and at the re-hearing after remand the suit has been decreed by the learned Subordinate Judge.
4. The dispute relates to the Goari Siddhes-war Kalibari. It is an ancient institution dating about a century back. The deity Sree Sree Siddhe-swari Kali Thakur appears to have been originally the family deity of a pious Hindu Brahmin Dina-bandhu Chatterjee. It was originally set up and installed in a hut, constructed by Dinabandhu on the northern bank of the river Jalangi, popularly known as Kharia. When the hut was about to be washed away by erosion of the river, Dinabandhu crossed over to Goari on the other side of the river with the deity which was located in the house of the local Government Pleader Babu Ramgopal Mukherjee. Through the efforts of Ramgopal Babu and the then Subordinate Judge of the District, the plot of land, on which the Kalibari now stands, was secured by way of gift from the local zemindars of Juniadaha. The temple was then constructed upon that piece of land and the deity was removed there and duly consecrated and installed. Dinabandhu, worshipped the deity and performed its sheba puja during his life time and upon his death his son Tarapada used to look after it. On Tarapada's demise, his widow Kailash Kamini remained in charge of the deity and she used to carry on the sheba puja through a local Brahmin at first and then with the help of her spiritual guide Ram Krishna Bhattacharjee, father of the deceased defendant Sarat Chandra Bhattacharjee. After Kailash Kamini's death, the worship of the deity was carried on by the defendant until about the institution of the present suit.
5. The contest between the parties lies in a short compass.
6. According to the plaintiffs, the disputed Kalibari is a public temple and defendant who was its shebait at the time of institution of the suit was unfit to hold that office and was liable to be removed from such shebaitship. They, accordingly, instituted the present suit on behalf of the Hindu public of Krishnagar under Section 92, Civil P. C., read with Order 1, Rule 8 of the Code, after obtaining the necessary permission from the Collector under Section 93 and Rule 8, referred to above. In pursuance of the notice under Order 1, Rule 8 of the Code, a number of Hindu inhabitants of the place joined the suit as added plaintiffs.
7. In the suit, as originally framed, the principal prayer was for removal of the defendant from shebaitship of the deity Sree Sree Iswari siddhes-wari Kalimata and, later on, a substantive prayer was added for the framing of a scheme and for the appointment of a new shebait, if necessary.
8. The plaint alleged inter alia (a) that the gift of land from the Juniadaha Babus was for the establishment of a public temple for installation of the deity Sree Sree Iswari siddeswari Kalimata for public worship and the temple and the adjoining rooms were all constructed out of public funds, raised by public subscription, and the expenses of the daily sheba puja of the deity also and of the annual Kali Puja and other festivals as well as, celebrated in the temple, were all met out of public subscription and public offerings;
(b) That the Hindu public had always free access to the deity and to the temple and also free darshan & worship & the ornaments of the deity and the temple utensils etc., were either gifts from. the general Hindu public or acquired out of public funds; and
(c) That the local Hindu families kept their family deities for worship in the temple and used to bring shalagram Shilas from the disputed Kalt-bari to their respective houses on the occasion of marriage, Upanayan, Annaprasan and other religious ceremonies and they used to offer pujas to Sasthi Devi, Manasha Devi, Lakshmi Devi and other Goddesses on the occasions of Janmasthami, Sivaratri and other Hindu festivals in the said temple,
9. The plaintiffs further alleged that the defendant was a man of loose character and he had in his keeping a woman of low caste and ate food, cooked by her, and had even gone to the length of attempting to molest and outrage the modesty of a woman devotee within the precincts of the temple, It was pleaded also that the defendant was guilty of mis-appropriating public money and offerings, given to the deity, to his own use and of spending them for the satisfaction of his carnal desires.
10. The defence in substance was a denial of the plaintiffs' allegations and the defendant claim-ed the deity, the Kalibari and the temple utensils and other properties as his personal properties on the strength of an alleged Will of Kailash Kamini. His definite plea was that the deity was the family deity of Dinabandhu who, after destruction of the original temple on the other side of Kharia by erosion of the river, shifted with the idol to Goari to the house of the local Government Pleader Ram-gopal Mukherjee and then with funds, obtained from sale of his (Dinabandhu's) ancestral properties, supplemented by beggings, he built the temple of the present 'Kalibari and installed the deity there, the land of the site haying been gifted to him by a munificent local zeminder. The defence also alleged that the public had no right in the temple or its properties and the access that it had to the deity for 'darshan', worship and other purposes was merely permissive and, as to public participation in the annual Kali Puja at the temple and in other festivals, held there, it was pleaded that these were merely by courtesy of the defendant and his predecessors and no right could be founded on any such participation in temple festivals or user of the temple properties. The plaint allegations of immorality, misappropriation etc. were characterised as utter falsehoods and the defendant stated before the Court that he was the victim of a foul conspiracy.
11. The learned Subordinate Judge, on a consideration of the evidence, adduced by the parties, accepted the plaintiffs' case and decreed the suit. He directed, inter alia, the removal of the defendant from shebaitship, the framing of a scheme and the appointment of a new shebait upon the finding that the disputed Kalibari was a public temple and that the defendant was unfit to hold the office of its shebait. Against this decree the defendant has preferred the present appeal.
12. In arguing the defendant's appeal, Dr. Sen Gupta and, following him, Mr. Balai Lal Pal raised principally two contentions. They urged first that the Kalibari in suit and the deity installed in it and the temple properties were the private and personal properties of the defendant and, in any event, they did not constitute a public endowment, to which Section 92, Civil P. C. could have any application, and that the trial Court was in error in accepting the plaintiffs' case on the point and, secondly, that no case had been made out for the defendant's removal from shebaitship and the allegations against him were all unfounded.
13. On the first question, stress was laid on the original character of the deity, namely, that it was a family idol of Dinabandhu and also upon the evidence of the defendant in support of his written defence. Stress was also laid upon the onus which lay upon the plaintiffs to prove their case of public endowment and the plaintiffs' evidence was subjected to close scrutiny and very severe criticism to support the argument that it was utterly worthless, or, at any rate, totally Insufficient to establish the public character of the deity or the temple. The respondents supported the judgment of the Court below in all its details and Mr. Janah who appeared for them maintained that enough had been proved in the present case to enable the Court to hold that the disputed Kalibari was a public endowment.
14. We have given the matter our most anxious consideration. We have examined the whole record with the utmost care and we have reached the conclusion that the decree of the learned Subordinate Judge should be upheld. The plaintiffs' case of public endowment has been proved even by the defendant's own witnesses and by his and his predecessors' admissions and conduct and, in the facts of this particular case, the conclusion of the learned Subordinate Judge appears to be eminently reasonable. The history of the endowment, the circumstances in which the temple and its extensions were built and the deity located there, the manner in which and the means by which its worship was carried on through all these several decades and the public user of the temple and its properties on ceremonial and other occasions and public participation in the management of important temple festivals, all confirm the public character of the endowment and point unmistakably to the fact that, from its inception, the disputed Kalibari was a public temple and the deity was installed in it as a public deity for public worship. We do not think that the fact that the image was originally the family idol of Dinabandhu, or that the sheba puja was carried on by Dinabandhu and, thereafter, by his son Tarapada and, after him, by the defendant's father Ramkrishna and then by the defendant really militates against the above conclusion.
15. Prom the evidence, adduced in the case, and the circumstances, disclosed herein, the true position seems to be as follows:
16. That, after the destruction of the original temple on the other side of Kharia by erosion of the river, Dinabandhu had difficulty in finding out a suitable accommodation for his family Goddess Sree Sree Sidheswari Kalimata and he approached the then Government Pleader of Krishnagar, Ram-gopal Babu, who arranged for temporary accommodation of the deity and also of Dinabandhu at his Goari house and thereafter in consultation with local influential gentlemen, including the learned Subordinate Judge steps were taken to make permanent arrangements for the location of the deity. The plan which appears to have been made with the obvious concurrence of Dinabandhu was the erection of a public temple with public funds and munificence of the local people and the consecration and installation of the deity as a public deity for public worship. That object was attained by securing gift of a plot of land from the local zemindar of Juniadaha and by raising public subscriptions for construction of a temple thereon. Dinabandhu no doubt was an active helper in the matter and, the pious Brahmin that he was, he must have rejoiced at this happy turn of events which relieved him of all anxieties about his Thakur. Quite naturally, Dinabandhu was placed in charge of the deity in its new temple which was built with public subscription on land, gifted by the local zemindar Dinabandhu and his family were respected by the local people and the sheba puja of the Thakur and the management of the temple remained in their hands, the public having free access to the temple and free 'darshan' and worship of the deity and they offered pujahs, 'Pranamis' and offerings andpaid the 'Pujaris' the usual 'dakshinas'. Everybody felt happy and content, the people of the locality at having a public Thakur and temple and Dinabandhu and his family members having the satisfaction of being able to find a permanent accommodation for their original family deity and of getting satisfactory permanent arrangements made for its worship through the local Hindu public.
17-21. (After discussion of the evidence His Lordship proceeded:) A broad analysis of the evidence shows that the plaintiffs' witnesses who came from different classes of people and various walks of life, namely, pleaders, muktears, medical practitioners, business men, service-holders, zemindars and devout Hindu ladies and who are decent and respectable people, have testified, inter alia, to the following facts:
(a) that the disputed temple was built with public money contributed by the local Hindus;
(b) that its extensions were made by members of the local Hindu public with their own funds;
(c) that its repairs were carried out by local Hindu contractors who charged no remuneration, for their services and the necessary costs for such repairs were provided by the local Hindu gentry;
(d) that the Hindu public had all along free access to the temple and had 'Darshan' of the Thakur and offered pujas and offerings unobstructed for about a century and they had never to take anybody's permission there for; (e) that the local Municipality treated the disputed Kalibari as a place of public worship and exempted it from assessment on that footing;
(f) that various Bigrahas of the local people used to be kept in the temple and on ceremonialoccasions Shalagram shilas used to be taken to private houses from the temple in question and pujas of the local people to Sasthi Devi, Manasha Devi and other Goddesses used to be sent to this temple;
(g) that the annual Kali puja and pujas of other Bigrahas, located in the temple, were performed on appropriate and ceremonial occasions with public subscriptions and under public management and even the daily pujas used to be carried on with public offerings;
(h) that the Thakur's ornaments and the utensils for Bhog and other purposes were all supplied by the local Hindus and articles of food for the daily sheba puja were also sent and supplied by a local Hindu zemindary estate;
(i) that, at the request of the local people, the Municipality provided a light near the main gate of the temple and the Kalibari in question is known by repute as the Goari Siddehswari Kalibari which suggests a public character; and
(j) that devotees used to place marble tablets in the temple in memory of their deceased relations and they used to do this upon the belief that the Kalibari was a public temple and, for this, no permission had ever to be taken from the defendant; and
(k) that the defendant and his predecessors used to hold out to the local Hindu public that the disputed temple was a public Hindu temple and raise public subscriptions for its purposes on such representation.
22. Apparently also, as circumstances seem to indicate, the gift of land by the Juniadaha Babus, which forms the present site of the temple, free of rent or Niskar fu'djand the consecration and installation of the deity there by Dinabandhu were made for public benefit to provide a public temple and a public deity for public worship in the locality. We may add further that, in the C. S. records, the temple is recorded as debuttar which is contrary to the defendant's positive case of private and personal ownership.
23. It is true that the above facts, barring possibly (a) and (k) and the gift of land, not personally to Dinabandhu but, apparently for public purposes, and consecration of the deity in manner, mentioned above, do not, by themselves, taken separately, lead to any irresistible inference of public endowment, but the exceptions, just noted, taken in the light of the cumulative effect of the said other stated facts, leave no room for doubt that the disputed Kalibari was a public temple.
24. In our opinion, the proved facts, as tated, above, amply satisfy the required tests of a public endowment, as laid down in the decided authorities (Vide, for example, 'Subramania Aiyar v. Laksh-mana Goundan', AIR 1920 Mad 42(A); 'Hari Kishen v. Raghubar Dayal', AIR, 192G Oudh 578 (B); 'Lax-manrao Umajirao v. Govindrao Madhorao', AIR 1950 Nag 215 (C); 'Pujari Lakshmana Goundan v. Subramania Ayyar', 29 Cal WN 112: (AIR 1924 PC 44) (D); 'Mundancheri Koman v. Achuthan Naur ); and 'Prakash Chandra v. Subodh Chandra : AIR1937Cal67 and, although one or other of the elements, relied upon in particular cases, may be wanting here, what has been established in this case is sufficient to indicate the public character of the disputed temple. We do not think that there is anything in the 'Barodi Asram case : AIR1937Cal67 , so strongly relied upon by Dr. Sen Gupta and his learned junior Mr. Pal, which militates against the view we have taken above. Rather, the present case is stronger as the temple here was built and the endowment created with public money and with a deity consecrated to public benefit and installed for public worship. The fact that the idol in question was originally the family deity of Dina-| bandhu would not, as already stated above, affect this position. The evidence is overwhelming to establish the necessary ingredients and the essential indicia of a public endowment.
25. On this Question of pub-lie endowment, we may usefully refer to a passage in Dr. Bijan Kumar Mukherjea's recent Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, which occurs at page 186 of the book and which runs as follows:
'The distinction between public and private Debutter, involves, ....... important legal consequence. The question frequently comes up before our Courts of law, and several circumstances have been held by Judges to be material for the purpose of determining the question. When the donor has expressed his intention of dedicating the temple to the public by a document or otherwise, no difficulty arises. In cases where no express dedication is proved, the character of the endowment must always be a legal inference from proved facts. As in the case of highways, long user is undoubtedly a material element from which an inference of dedication may arise. If the public have been in the habit of worshipping in the temples in an open and unconcealed manner, for a long period of time, and were never denied any access to it, that would be a strong evidence of dedication. With regard to period of user, no hard and fast rule has been laid down. 'There is no minimum which must be fulfilled, and there is no maximum which compels the inference'. Each case would depend upon its own circumstances. Besides user by the public, conduct of the founder and his descendants is also relevant, and, if they, in fact, held out the temple to be a public temple, a very strong presumption of dedication would arise. It is found in many cases that repairs and additions to the temple buildings are made with public subscriptions and the festivals in the temple are also performed with the aid ofpublic funds. These facts certainly fortify the inference of the temple being a public one.'
26. A similar statement of the law is also to be found at pp. 418-19 of the book where the learned Jurist makes the following observation:
'Whether the trust is public or private would have to be decided in each case with reference to the terms of the document if any; and if there is no document or its language is ambiguous, the decision would depend upon inferences which could be legitimately drawn from the evidence, adduced in the case, the material evidence being of actual user and public repute. The question at times becomes undoubtedly difficult, and although certain indicia of a public foundation have been enunciated in several decided authorities yet none ofthem can be regarded as conclusive. The question generally arises in regard to temples. It washeld by the Privy Council in Bhagwan Din v. GirHar Saroop , that it is possible that a temple which was a private one at its inception might be so dealt with, that in course of years, it might become a public temple. The essence of a public foundation consists in dedication to the public and whether there has been any dedication or not must be ascertained with reference to circumstances of each individual case.'
27. The learned author then discusses the above Privy Council case of , in some detail with particular reference to its true bearing on this difficult subject of public and private endowment at page 419 of his book and points out the special circumstances which ultimately led to the rejection of the appellants' claim there of a public endowment. Indeed, the facts, found in that case, namely, that the grant of land to the person who set up thereon the mud hut with the idol which, later on, became the temple, was made to him personally and his heirs-'generation after generation and descent after descent', that his family had always treated the temple and its properties as their private property and that the public had only a restricted user in them in that the temple was closed to them for private purposes of the above family, clearly ruled out public dedication or any case of public endowment and the Judicial Committee merely emphasised the importance of the above facts and pointed out the distinction between private and public endowment in the light thereof. Neither user not repute could have justified a finding of public endowment in that case which, as pointed out by their Lordships, was distinguishable from the two cases, cited before them, viz. 29 Cal WN 112: (AIR 1824 PC 44) (D) and .
28. Two other cases may be briefly referred to. The first is the Privy Council case of Chhota-bhai v. Jnan Chandra Basak . There their Lordships of the Judicial Committee actually found, inter alia, in agreement with the High Court, that the donors of the gift to the Sant Sat Gurus did not' intend to create any public trust, nor was any such trust created by the Sant Sat Gurus themselves and that the Sant Sat Guru for the time being remained the 'sole master of all moveable and immovable properties which were alleged in that case to be the subject of public trust. In the second case also, namely, Parma Nand v. Nihal Chand ; the specific finding was that the alleged trust property, was acquired by a private' person, though occupying at the time the office of Mahant, and that, at its highest, the evidence established a private trust, the expression 'wakf', used before the Income-tax Authorities to describe the particular institution; being held to cover a private trust as well.
29. In the present case, the temple and its properties were acquired out of public funds, donated for a public endowment; the donors (including the Juniadaha Babus who gifted the land of the temple site), were the authors of the trust, the temple and its properties were the subject of the trust or the-trust property and the Hindu public were the beneficiaries. It is only necessary to remind our selves here that trust in this connection and in allied context, that is, in relation to Hindu (and Muhammadan} Religious Endowments and Section 92. Civil P. C., is to be understood in its general and not technical sense (Vide Dr. Mukherjea's Tagore Law Lectures) referred to above, at pp. 412-13, citing, inter alia, Vidya Varuthi Thirtha v. Balusami Ayyar, 48 Ind App 302: (AIR 1922 PC 128) (J); Ram Prokash v. Anand Das 43 Ind App 73: (AIR 1916 PC 256 (K) and Basudeo Roy v. Mohunt Jugal Kishore, 22 Cal WN 841: AIR 1918 PC 37 (PC) (L) and other cases.
30. In the above view, it is unnecessary for our present purpose to examine the full implications of the decision of the East Punjab High Court in the case of Ram Parshad v. Shankar Das, AIR 1949 EP at pp. 65-66 (M), when the Privy Council case of cited above, was considered and explained in a particular manner but we may safely state that the distinction, sought to be emphasised therein for explaining the said Privy Council decision, prima facie appears to be material and helpful and also quite sound in law. Be that as it may, on the facts, found above by us in the present case, there can be little doubt that the onus that lay upon the plaintiffs-respondents to prove affirmatively the creation of a public trust or endowment has been amply discharged.
31. To sum up now the result of our discussion : When there is no unambiguous document to assist the Court in the determination of the public or private character of a particular endowment, it has to make its inference and come to its decision or final conclusion in the matter on the proved facts and circumstances and, in that connection, the material evidence, generally speaking, is of actual user and public repute. Such evidence, as we have already stated, unmistakably points to the public character of the particular endowment, with which we are here concerned, namely, the disputed Kalibari. Indeed, there is in this particular case the paramount fact of special importance that the endowment in question was founded at its inception on public charity.
32. We accordingly, hold that the learned Subordinate Judge was right when he found in favour of the plaintiffs on the question of the public character of the disputed Kalibari and we agree with him in rejecting the defendant's submissions to the contrary.
33. The main point which was urged in support of the appeal being thus answered against the appellant, we take up now the other question which relates to the defendant's removal on the ground of his moral turpitude and unfitness. The evidence on this point has been fully discussed by the learned Subordinate Judge and it is enough for us to express our general concurrence with his said discussion. Special mention may, however, be made of the admitted fact that the defendant was subjected to ignominy by the local people who had his head shaved by a barbar and had him paraded along the main thoroughfare with a rope round his neck. The occasion for this, according to the plaintiffs, was the defendant's attempt to outrage the modesty of a female devotee within the precinctsof the temple and his immoral character and association. The defendant attributes it to a spirit of vengeance for some past quarrel between his Bon's brother-in-law and one of the plaintiffs (plaintiff 1 Rabindra Nath Ghosh). That quarrel, on thedefendant's own evidence, took place several years back. It is unbelievable that the defendant would be subjected to the above ignominy on account of that past trivial quarrel, in which he himself was not directly involved. Upon the evidence before the Court, we prefer to accept the plaintiffs' case on this point and we agree with the learned Subordinate Judge that a case for removal of the defendant from shebaitship has been sufficiently made out. The appellant's plea on this part of the case must also, therefore, fail.
34. A final attempt was made by Mr. Pal to limit the decree to the temple proper, leaving out the actual residence of the defendant and his family. It is, however, difficult to give effect to this contention. The temple and its adjuncts including the particular rooms, in which the defendant's family used to reside, were all debuttar propertiesof the deity and they bear the same character. We, accordingly, do not deem it possible to make any distinction between them for purposes of the present suit. Mr. Pal's submission is rejected.
35. In the result, the appeal fails and it is-dismissed.
36. As the original defendant is dead and in view also of the considerations which induced the learned Subordinate Judge to direct the parties to bear their own costs in the trial Court, we do not propose to make any order for costs in this appeal. This will, of course, be subject to the order for costs, passed by this Court in the previous appeal, viz., First Appeal No. 355 of 1944, which will have full effect, namely, that the costs of that appeal will be paid by the present appellants to the present respondents.
Renupada Mukherjee, J.
37. I agree.