Bombay High Court
Shankarlal Sandhuram Master And ... vs Kedargir Guru Harigir Since Died ... on 12 July, 2016
Bench: V.K. Jadhav
1 FA 611.1996.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 611 OF 1996
WITH
CA/5000/2016 IN FA/611/1996
WITH
CA/5898/2016 IN FA/611/1996
1. Shankarlal Sandhuram Master
Age : 55 years, Occ: Business,
R/o Subhash Road,
Jalna, District Jalna.
2.
Sukhlal Balchand Pipriya
Age 65 years, Occ: Business,
R/o Rajendra Prasad Road,
Jalna, District Jalna.
(Appellant No.2 abated as
per Registrar's order dated
19.09.2006)
3. Chandulal Papalal Khubhaiya
Age 60 years, Occ: Business,
R/o Modikhana, Sadar Bazar,
Jalna, District Jalna.
4. Kishanlal Bhikarchand Jethe
Age : 45 years, Occ: Business,
R/o College Road, Jalna,
District Jalna.
5. Jammanlal Maniram Narvayee
Age : 70 years, Occ: Business,
Rahemanjune, Jalna,
District Jalna. ...Appellants...
(orig. applicants)
Versus
1. Kedargir Guru Harigir
(Since died through his
Legal Heirs)
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2 FA 611.1996.odt
1-i) Smt. Subhadrabai w/o Kedargir
Giri, Age : 72 years,
Occ: Household, R/o Jalna,
District Jalna.
1-ii) Laxmangir s/o Kedargir Giri
Age : 53 years, Occ: Agriculture,
R/o. Jalna, District Jalna.
(Since died through his L.Rs.)
1-ii-a) Ashok s/o Laxmangir Giri
Age : 35 yrs, Occu: Agriculture,
R/o. Jalna, Taluka and District
Jalna.
1-ii-b) Bharat s/o Laxmangir Giri
Age : 32 yrs, Occu: Agriculture,
R/o. Jalna, Taluka and District
Jalna.
1-ii-c) Suresh s/o Laxmangir Giri
Age: 30 yrs, Occu: Agriculture,
R/o. Jalna, Taluka and District
Jalna.
1-iii) Ramgir Kedargir Giri
(Since died through his L.Rs.)
1-iii-a) Deepak s/o Ramgir Giri
Age: 21 yrs, Occu: Agriculture,
R/o. At post Rala Hivra,
Taluka Badnapur, District Jalna.
1-iii-b)Sanjay s/o Ramgir Giri
Age: 20 yrs, Occu: Agriculture,
R/o. At post Rala Hivra,
Taluka Badnapur, District Jalna.
1-iv) Shivgir Kedargir Giri
Age : 24 years, R/o Jalna,
District Jalna.
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3 FA 611.1996.odt
1-v) Sow. Sushila w/o Dayalgir Giri,
Age: 42 years, Occ: Household,
R/o Mangrool Pir,
District Akola.
1-vi) Sow. Urmila w/o Nirgungir Giri,
Age : years, Occ: Household,
R/o Gevrai, District Beed.
1-vii) Sow. Surekha w/o Subhasgir
Giri, Age : 35 years,
Occ: Household, R/o Hingoli,
District Parbhani.
2. Manohar Ambadas Paulbudhe
(Died) through his L.Rs.
2-A) Shivnath s/o Manohar Paulbudhe,
Age Major, Occ: Agriculture,
R/o Malipura, Old Jalna,
Taluka and District Jalna.
2-B) Sau. Sulochana w/o Mukundrao
Jamdhade, Age Major,
Occ: Household, R/o. Malipura,
Old Jalna, Taluka and District
Jalna.
2-C) Sau. Mandabai w/o Uttamrao
Kharat, Age : Major,
Occu: Household,
R/o. Wagharai, Taluka Jalna,
District Jalna.
2-D) Raosaheb s/o Manohar Paulbudhe
Age Major, Occ: Agriculture,
R/o Malipura, Old Jalna,
Taluka and District Jalna.
2-E) Sau. Sunita w/o Kishanrao Patil
Age Major, Occu. Household,
R/o. Kasba, Old Jalna,
Taluka Jalna, District Jalna.
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4 FA 611.1996.odt
2-f) Sau. Anita w/o Anshiram Raut,
Age Major, Occu. Household,
R/o. Ghyalnagar, Old Jalna,
Taluka and District Jalna.
3. Bhanudas s/o Ambadas Paulbudhe
(Since died through his L.Rs.)
3-i) Kailash s/o Bhanudas Paulbudhe
Age 35 yrs, Occu: Agriculture,
R/o. Malipura, Jalna.
3-ii) Prayagbai w/o Bhanudas Paulbudhe
Age 57 yrs., Occu:Household,
R/o. Malipura, Jalna.
4. Dashrath Ambadas Paulbudhe
5. Ramrao Ambadas Paulbudhe
(Resp no.4,5 All age major,
Occ: Agriculture,
R/o. Malipura, Jalna.)
6. Ravindrakumar Rikhabad Gahankari,
Age : 40 years, Occ: Business,
R/o. "Subhashkunj", Opp. Mill,
Jalna.
7. Haribhau V. Solanki,
Age: 42 years, Occ: Business,
R/o. Opp. Phulambrikar Natya
Mandir, Jalna.
8. Ashok Mangilal Runwal,
Age: 36 years, Occ: Busniess,
R/o. Mahavir Chowk, Jalna.
9. The Joint Charity Commissioner,
Aurangabad Division, Aurangabad.
Public Trust's Registration Office.
Aurangabad.
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5 FA 611.1996.odt
...
Advocate for Appellants : Mr S V Natu
Advocate for Respondent 1 : Mr. S.V.Adwant
Advocate for respondent Nos. 2 to 5 : Mr R D Mane
Advocate for respondents Nos. 6 to 8 : Mr C V Korhalkar
...
CORAM : V.K. JADHAV, J.
...
Reserved on : May 03, 2016
Pronounced on : July 12, 2016.
...
JUDGMENT :-
1. Being aggrieved by the Judgment and Order dated
28.9.1995 passed by the learned Additional District
Judge, Jalna in M.C.P. No.13 of 1991, the original
applicants preferred this appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a] The applicants had initiated a proceedings under
section 19 of the Maharashtra Public Trusts Act, 1950
(hereinafter referred to as 'The Act of 1950') for
registration of Public Trust i.e. 'Shri Sheriche Mahadev
Mandir', Jalna. Said inquiry was numbered as 23 of
1983. The applicants have mentioned names of five
persons as the trustees and the mode of succession
shown as surviving trustees to appoint new trustee.
6 FA 611.1996.odt
The main object of the trust is shown as religious one
and to continue customs and functions to be held in the
said temple, to held the annual fair on every
Nagpanchami day to feed the Saints and to maintain the
Dharmashala in the temple premises. The movable
property sought to be registered is shown as pooja
utensils worth Rs.2,000/-(Rs. Two thousand), and
immovable property shown is the land bearing S.No.229
ad-measuring 5 Acres 23 Gunthas, wherein a temple of
Lord Shiva, Dharmashala, Barav (well) and some
samadhis are situated. According to the applicants, the
said temple is a Public Trust and property referred to
above is trust property. The applicants further contends
that, Mahant used to manage the temple and its
property. The Mahant was a Bachelor and used to
nominate his successor from one of his disciples, who is
also necessarily a bachelor. There was no regular mode
of succession, but, the nominated Mahant shall get
rights of the Management of the temple and the
property. One Shri Shivgir Guru Harigir was the last
Mahant. He did not nominate his chela (disciple).
However, on 30.12.1347 Fasli, said Shivgir Guru Harigir
7 FA 611.1996.odt
had executed a Will deed under which a panch
committee was appointed to manage and administer the
above temple and the trust property. According to the
applicants, respondent no.1 late Kedargir Guru Harigir
was in occupation of the properties unauthorizedly and
during his lifetime he had instituted a suit for
cancellation of the aforesaid Will deed. It is further
alleged that, respondent no.1 Kedargir Guru Harigir was
disposing of the properties in dispute claiming it to be of
his own. It has also alleged that, respondent Kedargir
Guru sold land out of land Survey No.229 by dividing it
into plots and appropriated the income derived from the
said alienation. It has also contended that, the decision
of the said Civil Suit went against respondent no.1. The
applicants therefore, constrained to initiate the
proceedings under the relevant provisions of the the Act
of 1950 for registration of the Public Trust and its
properties.
b] During the course of the inquiry No.23 of 1983,
the learned Assistant Charity Commissioner, Jalna,
issued a public notice under the relevant provisions of
8 FA 611.1996.odt
the Rules of the Maharashtra Public Trusts Rules, 1951.
In response to the notice, respondent no.1 Kedargir had
raised his objection by filing his say at Exh.13.
Respondent No.1 claimed that said temple is not a
public trust and the property in dispute is not the trust
property. According to him, he is the absolute owner
thereof and the application, therefore, deserves to be
dismissed. In response to the notice issued, the
purchaser had also raised objection on the similar
grounds with the addition that he is the bonafide
purchaser for the value without notice. In response to
the said notice, respondents no.3 to 6 by their joint say
have also resisted the application on the ground that
their father was the protected tenant of the land to the
extent of 2 acres from eastern side and ownership
certificate dated 13.10.1956 also came to be issued by
the competent authority. They have denied all the
allegations made by the applicants, however, according
to them, their claim is restricted to the extent of 2 Acres
of land and contended that the same is liable to be
excluded from the said proceeding. Respondents No.7
and 8 are the purchasers and they have also strongly
9 FA 611.1996.odt
resisted the application.
c] Both the parties have adduced oral as well as
documentary evidence in support of their rival
contentions. Furthermore, the learned Assistant Charity
Commissioner, Jalna had inspected the spot and notes
of inspection dated 30.10.1985 are marked at Exh.108.
After hearing the parties, the learned Assistant Charity
Commissioner, Sub Region, Jalna, by his Judgment and
Order dated 15.1.1986 directed that said Shri Sheri
Shiva Mandir, Shamprasad Garden, Jalna to be
registered as a 'Public Trust' under section 20 of the
Bombay Public Trusts Act, 1950 and certificate of "A"
section is issued in the name of opponent Shri Kedargir
Harigir in the capacity of Manager and further due
entries be recorded in the register kept u/s 17 of the
Bombay Public Trust Act, 1950. Further the applicants
are advised to take legal steps for recovery of the
properties which are alienated under unauthorized sale
by the Manager within a period of three months and,
failing which the Charity Office is directed to take steps
for filing of the suit as mentioned above. The applicants
10 FA 611.1996.odt
further advised to make an application to the Joint
Charity Commissioner, Aurangabad, for framing of a
scheme under section 50-A of the Act of 1950 within a
period of two months from the order and, in case, no
application is filed by the applicants or any interested
persons, then, Charity Office should move for framing of
the scheme suo-motto.
3.
Being aggrieved by the same, the original
respondent no.1-Kedargir Guru Harigir preferred an
appeal No.4 of 1986 and original respondents No.2,7
and 8 preferred an appeal No.7 of 1986 before the Joint
Charity Commissioner, Aurangabad. The learned Jt.
Charity Commissioner, Aurangabad, by its Judgment
and order dated 31.12.1990 allowed both the appeals
and thereby quashed and set aside the Judgment and
Order dated 15.1.1986 passed by the learned Assistant
Charity Commissioner, Jalna in enquiry No.23 of 1983.
The learned Jt. Charity Commissioner has rejected the
application bearing enquiry No.23 of 1983.
4. Being aggrieved by the same, the original
11 FA 611.1996.odt
applicants preferred M.C.P No. 13 of 1991 before the
District Court, Jalna. The learned Additional District
Judge, Jalna, by its Judgment and Order dated
28.9.1995 dismissed said M.C.P. No.13 of 1991. Hence,
this appeal.
5. Mr. Natu, the learned counsel for the appellants
submitted written arguments. He submits that, temple
(Math) in question has been managed by Mahant, who
occupied Gaddi (Seat). It is an admitted position that,
last Mahant was one Shivgir Guru Harigir. Mode of
succession of the said 'Gaddi' of Mahant was by way of
Guru Shishya Parampara. Mahant used to nominate in
his life time his disciples to be Mahant after him. It is
also an admitted position that, last Mahant Shri
Shivgirguru did not nominate his chela, but, instead he
made a Will deed on 13.12.1347 Fasali under which he
appointed a Panch Committee to manage and
administer the temple and its property. Learned
counsel submits that, the Joint Charity Commissioner,
Aurangabad as well as the Additional District Judge,
Jalna wrongly observed in their respective judgments
12 FA 611.1996.odt
that last Mahant created a Trust under the said Will. As
a matter of fact, it has never been the case of the
appellants that Trust was created under the said Will.
Deceased Kedargir (original respondent No.1) claimed
himself to be the owner of the temple and the property.
His name has been included in the revenue record
showing him to be the Kabjedar of the land in dispute.
Alongwith his name there is also the name of said
Shivgir (last Mahant) recorded as owner and both of
them have been shown as 8 Annas sharers each.
Deceased Kedargir had challenged the Will deed
executed by Shivgir (last Mahant) in the Court and the
Court has recorded the findings that deceased Kedargir
(respondent No.1) was not a Mahant as he was a
married person. Jt. Charity Commissioner, Aurangabd,
as well as the Additional District Judge, Jalna has not
considered said findings recorded by the civil Court
against respondent deceased Kedargir.
6. Learned counsel for the appellant submits that,
deceased Kedargir (original respondent No.1) had
admitted in his cross examination that, origin of temple
13 FA 611.1996.odt
is not known and the temple and its property was
managed by Mahant who was a bachelor. He had
further admitted in his cross examination that, each
Mahant used to nominate his successor from his
disciples. He had further admitted that, he is married
having children. He had further admitted unequivocally
that devotees have free access to the temple and fair was
arranged at the time of Nag Panchami festival as well as
other auspicious days. Learned counsel submits that,
said temple is built in an imposing manner appearing to
be a public temple and the members of public are
entitled to worship in that temple as of right and there
is nothing on record to show that any restriction or
permission was required for worshiping in the said
temple. Furthermore, various religious festivals are
undertaken in the temple which are usually conducted
in public temples. Learned counsel submits that,
Mahant is a Manager or Custodian of the Institution
and he has to discharge the duties in the said capacity.
The assets are vested in the Mahant, as head of the
Institution, as owner thereof in trust for the institution
itself. The Mahant, by custom, is an ascetic who has
14 FA 611.1996.odt
renounced the worldly possession. Therefore, the
temple in question and its property has inherent
element of public institution, which needs to be upheld.
Learned counsel submits that, mere entries in revenue
record in the name of Mahants, without reference to the
temple or Institution, will not render the temple and
property as the personal property of Mahants,
considering the status of the Mahant in law as
expounded by the Apex Court and various High Courts.
7. Learned counsel further submits that both the
appellate authorities erred in relying upon the
provisions of Section 29 of the Act of 1950 to hold that
the application filed was beyond the period of limitation
since it was a case of trust by Will. Said Will executed
by Shivgir Guru (last Mahant) was challenged by
respondent No.1 (Kedargir) and held to be revoked
because of compromise between them. Said will neither
refers to creation of a trust nor creates a trust for the
first time since it was already in existence by virtue of
position of Mahant as trustee on institution. Learned
counsel submits that, the Judgment and Orders passed
15 FA 611.1996.odt
by the Jt. Charity Commissioner, Aurangabad as well as
Additional District Judge, Jalna are liable to be quashed
and set aside and the Judgment and order passed by
the learned Assistant Charity Commissioner, Jalna,
deserves to be upheld.
8. The learned counsel for the appellants in order to
substantiate his submissions places reliance on
following cases. Learned counsel for respondent no.1
submitted written arguments.
I] Baijaynanda Giri and others, Vs. State of Bihar
and another, Reported in AIR 1954 Patna 266.
II] Mahant Shri Srinivas Ramanuj Das Vs.
Surajnarayan Das and another Reported in AIR
1967 SC page 256.
9. Learned counsel for respondent No.1 submitted
written notes of argument. He submits that, the
Assistant Charity Commissioner, Jalna has decided the
issue improperly thereby exceeding the jurisdiction
vested in him. The provisions of section 79 of the Act of
1950 are limited to the points as to i] whether or not a
trust exists, ii] whether such trust is a public trust, and
16 FA 611.1996.odt
iii] whether a particular property is the property of such
a trust. These three points are preceded by the word
'Any Question'. The same may arise only in the
circumstances mentioned in section 19 of the Act of
1950. There are three conditions to determine the same
that are :-
i] on an application under section 18,
ii] On an application by a person having interest in
the public trust,
iii] own motion.
10. The learned counsel submits that, neither of the
conditions mentioned above are present in the case and
therefore, the Assistant Charity Commissioner, Jalna
was not conferred with the jurisdiction to decide the
issues taken up before him. All the conditions
mentioned in Section 19 are individually and/or
cumulatively absent in the present case. It has been
accepted by the applicants that, they are not the
trustees and similar finding is also recorded by the
learned Assistant Charity Commissioner, Jalna.
Further, there is no application on record, neither any
such application is made by the applicants to treat the
17 FA 611.1996.odt
above application as 'an application made by any person
having interest in the public trust,' nor the Assistant
Charity Commissioner, Jalna had treated such
application filed by an interested person. The term
'Person having interest' and 'Public Trust' are defined
under section 2 (1) and 2 (13) respectively of the Act of
1950. The applicants have not proved their interest in
terms of these provisions. The applicants have failed to
prove their interest in the temple or the Math. The
temple and Math which was solely managed by Kedargir
and earlier to him by his Gurus, had absolutely no
relation with Bathri Teli samaj, of which the applicants
are the members.
11. Learned counsel for respondent No.1 further
submits that, the applicants have specifically mentioned
in their application in form No.II against item No.4 that
origin or creation of the trust is a Will by Shivgir Guru
Harigir dated dated 30.12.1347 Fasli. Learned counsel
further submits that, as per provisions of Section 29 of
the Act of 1950, executor is under obligation to make an
application within one month from the date on which
18 FA 611.1996.odt
the probate of the Will is granted or within six months
from the date of testator's death, whichever is earlier.
Since no compliance is made under these provisions till
date, on this ground alone the application is liable to be
dismissed. On the other hand, it is for the first time
coming on record before the Assistant Charity
Commissioner, Jalna that it is not the claim of the
applicants that trust is created under a Will executed by
late Shivgir Guru. The Assistant Charity Commissioner
has overlooked the provisions and applicability of
section 29 of the Act and concluded that Public Trust
was in existence before the Will and therefore, the
provisions of section 29 of the Act of 1950 will not be
applicable.
12. Learned counsel for respondent no.1 further
submits that, the essential conditions for valid trust is :-
a] intention to create trust,
b] purpose for which the trust is created,
iii] beneficiaries and
iv] trust property.
19 FA 611.1996.odt
13. In a case of public trust essential criteria for a
public trust was whether it was dedicated for the use of
the public.
14. Learned counsel in order to substantiate his
contention placed reliance in a case Shivprasad
Shankarlal Pardeshi Since Deceased by Heirs
Shrikant Shivprasad and ors Vs. Leelabai
Badrinarayan Kalwar reported in 1998 (1) Mh.L.J.
Page 445, wherein the test has been laid down to
determine whether endowment is a private or public
trust, which runs as follows :-
i. Where the origin of the endowment cannot be
ascertained, the question whether the user of
the temple by members of the public is as of
right ;
ii. The fact that the control and management
vests either in a large body of persons or in
the members of the public and the founder
does not retain any control over the
Management. Allied to this may be the
circumstance where the evidence shows that
there is provision for a scheme to be framed
by associating the members of the public at
large ;
iii. Where, however, a document is available to
prove the nature and origin of the endowment
and the recitals of the document show that
20 FA 611.1996.odt
the control and management of the temple is
retained with founder or his descendants, and
that extensive property are dedicated for the
purpose of the maintenance of the temple
belonging to the founder himself, this will be
conclusive proof to show that endowment was
of private nature.
15. Learned counsel submits that, definition of the
Public Trust includes a Temple also, and there are
conditions necessary for holding such a temple to be a
Public Temple. Those conditions are :-
i] historical origin of the temple,
ii] the manner in which affairs of the temple have
been managed,
iii] the nature and extent of the gifts received by the
temple,
iv] the rights exercised by the devotees in regard to
worship in temple and
v] the dedication of the temple for the benefit of the
public and
vi] the value of public user as the evidence of
dedication depends on circumstances which gives
strength to the interference that the user was as
of right, and
vii] the public user for a longer period without
restriction.
16. The burden of proof is casted on the applicants
under the provisions of Section 19 of the Act of 1950 to
21 FA 611.1996.odt
prove that Temple in question is a Public Temple and
there exists a Temple over the property since antiquity,
however, the origin of the temple is not known and
nothing is on record to show that as to who built the
temple. Further, there is no evidence to show that
structure was erected with public contribution, or that,
it is a public temple. On the contrary, the Will deed of
Late Shivgir reveals that, he has been referred to as the
owner of the property. The Bathri Teli Samaj or any
person in general had never contributed the funds
towards the construction of Temple-Math-Dharmashala,
neither for its repairs, renovations, utsavs, or any other
festivals, neither any document to that extent have been
placed on record.
17. Learned counsel has, thus, insisted to consider
the following judgments which supports the contention
of respondent No.1 and dislodge the claim of the
applicants.
A] In case of T.D.Gopalan Vs. The Commissioner of
Hindu Religious Charitable Endowments, Madras
22 FA 611.1996.odt
reported in AIR 1972 SC 1716 Hon'ble Supreme Court
has observed that, :
"To determine whether a temple was public or
private, the following parameters are to be
considered :
- Origin of the temple.
- The manner in which its affairs were managed.
- The nature and extent of the gifts received by it.
- Rights exercised by devotees in regard to worship .
- The consciousness of the manager and the
conscious of the devotees themselves as to the public
character of the temple."
b] In case of Radhakanta Deb and anr. Vs. The
Commissioner of Hindu Religious Endowments,
Orissa reported in AIR 1981 SC 798, Supreme Court
has observed that :-
"Test to determine whether endowment is of
private or public character :
- Whether the user of the temple by members of
public is as of right.
- Management and control of the Temple in past and
Present."
c] In case of Thakurjee Deosthan, S.I.Hora Vs.
Viran Wd/o. Babu Dahat and others reported in 2015
23 FA 611.1996.odt
(6) ALL MR 671, this Court has observed that :-
"To establish the endowment as a public trust,
following must be established :"
* Clear intention to dedicate suit land for charitable
purposes.
* Relinquishment of right of ownership of the earlier
owners.
* Subject of endowment must be certain.
* Dedication of property must be complete or partial.
* If such dedication is complete, public trust is
created, in partial dedication on charity is created.
* History of institution.
* Cogent evidence as regards to conduct of the
parties.
* cogent evidence as regards to user of the
properties, and,
* Mere user of private property for a particular
purpose for long time will not by itself establish
that a public trust is created."
18. Learned counsel submits that, considering the
ratio of the aforesaid case, it is manifest that, there is
nothing on record to show that the temple is a public
temple and is a endowed property.
19. Learned counsel for respondent No.1 by referring
definition of 'Math" in section 2 (9) of the Act of 1950,
24 FA 611.1996.odt
submits that, there is no presumption regarding the
properties held by Mahant to be endowed properties. In
a case Sathappayar Vs. Periaswamy (LR 14 Mad 1),
Madras High court has observed that, there can be
private Maths. In Verayya Vs. Hindu R.E. Board (AIR
1938 Madras 810), it was observed that, the existence
of private Maths cannot be disputed and where the
property is given to the head of the Math for his
personal benefit, it cannot constitute a public religious
endowment.
20. Learned counsel submits that, learned Assistant
Charity Commissioner, Jalna has erroneously observed
that there cannot be a personal property of a Mahant.
21. Learned counsel for respondent no.1 further
submits that, a Mahant is appointed by his Guru and
not by public through election or by the Bathri Teli
Samaj, thus, it creates the Guru-Chela relationship.
Succession of the Mahantship of Math or religious
institution is regulated by custom or usage of the
particular institution, where a rule of succession is laid
25 FA 611.1996.odt
down by the founder himself who created the
endowment. In the instant case, there is no
endowment, nor a Deed of Trust. It reveals from the
pleadings of Shivgirguru in a Civil Suit instituted by
Kedargir Guru that, Shivgir and Kedargir are the
brothers, and they are from Gosavi community. In a
case Sathianama Bharati Vs. Saravanabagi Ammal
(18 Mad 266), it is observed that "A Goswami is not a
religious ascetic like Sanyasi or Tambiran who abjures
the world and its pleasures and lives a life of celibacy."
22. Learned counsel submits that, mere acquisition of
the property by Mahant does not lose its secular
character. The descent of the property from Guru to
Chela does not warrant the presumption that it is a
religious property. Though, the applicants asserted that
property was transferred from guru to disciple, the
property was always in their individual capacities and
never acquired any religious or public character.
Further as asserted by the applicant, Shivgir Guru, who
was the last Mahant, did not appoint any disciple, but
executed a Will deed and appointed 5 panchas for the
26 FA 611.1996.odt
administration of the Temple and Math, however, the
said testamentary document does not propose that his
intention was to create a Trust for 'Public Purpose.'
Learned counsel submits that, various revenue
documents from the year 1920 till the initiation of cause
in the year 1983 are in the name of Shivgir and
Kedargir, in their individual and personal capacities and
not in the name of idol.
23. Learned counsel in order to substantiate his
contention placed his reliance on following cases :-
i] In a case of Pandit Parma Nand Vs. Nihal Chand
and another reported AIR 1938 PC 195 wherein the
privy council observed that, the practice and intent of
the previous 'Mahant' is essential to determine the
nature of the Math or Temple.
In this reported case, previous Mahants or
successors did not manage the property as trust
property, thus, it was then held that the Math is a
private Math.
ii] In case of Mahanth Ramsaran Das Vs. Jai Ram
Das and another reported in AIR 1943 Patna, 135, the
27 FA 611.1996.odt
Patna High Court observed that :-
- Property does not lose its secular character by
mere acquisition by Mahant.
- Descent of property from Guru to Chela does not
warrant a presumption that it is a religious
property.
- To constitute a trust created for public purpose of
charitable or religious nature, the author of
authors of the trust must be ascertained, and
intention must be indicated by words or acts with
reasonable certainty.
- Mere provision for feeding sadhus, guests and
wayfarers in dedication to idol does not render the
dedication substantially for public purpose.
Held that :-
The fact that the properties belong to an idol in no
way establishes that the trust was public.
Public has no legal right, but was only by
invitation or permission.
Mahant did not give the public any right. Thus,
suit for declaration of trust was dismissed.
24. In case of The Bihar State Board of Religious
Trust Vs. Mahant Shi Biseshwar Das reported in AIR
1971 SC 2057 the Hon'ble Supreme Court observed
that :-
Mahant did not marry and passed on the
property from Guru to Chela does not raise a
presumption that it is religious property.
28 FA 611.1996.odt
Celebration of festivals does not make one
public temple.
Family treated temple as 'family property',
mere fact that public visit the temple and
make offerings and mela is held does not
make it a public temple (AIR 1940 PC 7).
When temple property was acquired by grant
to an individual or family, presumption or
dedication to the public is hazardous.
An interference can be made from the usage
and custom of the institution or from the
mode in which the properties have been dealt
with as also other established circumstances.
25. Learned counsel submits that, in view of the ratio
laid down in the above cited judgments, it is manifest
that, the property held by the Mahant in his individual
capacity, does not loose its secular character and can
not be treated as the property of the Math-Temple-Trust.
26. Learned counsel for respondent no.1 further
submits that, it is not in dispute that the temple and
Math are in existence since 100 years as asserted by the
applicants, however, there is no evidence placed on
record to show that temple and Math were erected and
formed respectively from the donations offered by the
devotees or public at large to Mahants. It is not the case
29 FA 611.1996.odt
of the parties that temple and Math were constructed by
the People of the society. It is not known that, who has
constructed the temple. There is no record to show that
the property which is subject matter of the proceeding
belongs to the Temple-Math. There is no documentary,
oral or parol evidence to suggest that suit property is
the property of the temple. Merely because there is
worship by public in the temple, celebration of festivals
and offerings by public, it cannot be considered that the
temple is a public temple and that the property on
which the temple is constructed is of the temple or that
the temple and Math is a constructive trust. There is no
clear and definite evidence to show that there had been
a dedication of the institution for the use of the public
in the later period. Mere presence of the idols and the
festivals would not bring it within the purview of the
temple must less a public temple.
27. Learned counsel for respondent No.1 further
submits that, Temple-Math occupies only a small area
in the total extent of the property. Entire property is
being enjoyed and has always been enjoyed by the
30 FA 611.1996.odt
Mahant Shivgir and later by Kedargir and his family for
their private use and occupation. The property
comprises of a small Shiv Temple, rooms and Samadhis
of the people belonging to Gosawi Samaj. This itself
suggests that the property does not have any public
character and it is not a Public Institution as such.
28. Learned counsel in order to substantiate his
contention placed his reliance on a case of Hari Bhanu
Maharaj of Baroda Vs. Charity Commissioner,
Ahmedabad reported in (1986) 4 SCC 162, wherein the
Apex Court has made observations :-
"When the origin of temple lost in antiquity
and there is no evidence to show that it was
built from public funds, presumption
should not be drawn that it is a public
temple."
Location of the Math, Temple and the
residence of the persons in it must be
considered to determine public or private
character of temple.
Merely a small area of the land is acquired
by the temple does not make the entire
property as the temple or trust property."
29. Learned counsel further places his reliance in a
case reported in 2000 (1) ALL MR 210 wherein Bombay
31 FA 611.1996.odt
High Court has made following observations :-
"Evidence shows that temple is situated in
residential precints and occupies only
small portion of the entire property this
shows it is a private temple and not a
public trust."
30. Learned counsel submits that, a public records-
revenue records have been prepared and maintained by
the public officers while discharging public duties, and
such record has got evidentiary and probative value
under section 45 of the Indian Evidence Act and, the
entries recorded therein have not been disturbed for
years together. It cannot be said that the property
bearing Sy. No.229 is a public property. Learned counsel
in order to substantiate his contention places his
reliance on a case Amardas Mangaldas Sadhu and
another Vs. Harmanbhai Jethabahi Patel and others
reported in AIR 1942 Bom 291, where in it has been
observed that :-
- The recitals in documents indicate that properties
were dealt with as private properties and no
reference to temple or trust and no reference that
village people created it or helped in the
Management.
32 FA 611.1996.odt
- The property was transferred without any
reference to trust in the past too.
- Will was made to indicate that it was private
property and not a public trust.
31. Learned counsel has also placed his reliance on
the judgment passed by the Patna High Court in case
of Bihar State Board of Religious Trust Vs. Acharya
Mahanth Amrit Das and others reported in AIR 1974
Pat 95, wherein it is observed that :-
- For establishment of trust, beneficiaries are to be
ascertained.
- Tests for distinction of a private and public
endowment depends on evidence of user,
dedication and the circumstances of a particular
case.
- Math was for personal benefit only has been
recognized in the past, in such cases no intention
on part of grantor to fetter the grantee with any
obligation in dealing with the property granted.
- Names in revenue record were in individual
capacity, thus it was held that it was a private
property not a public trust.
32. Learned counsel further relied upon the judgment
of Hon'ble Supreme Court reported in (2001) 10 SCC
464, wherein, it is observed that :-
33 FA 611.1996.odt
"Long standing entry in the revenue record is it
could be construed to be illegal, if not challenged
and there being no allegation of it being recorded
fraudulently or fictitiously, such an entry would
have weight for drawing inference in favour of the
person in whose favour such an entry is
recorded."
33. Learned counsel submits that, entries in the other
rights column of the revenue record in respect of
Sy.No.229 are in the nature of description of property or
parameters which can be used for identifying the
property. Such entry is not in the nature to stake a
charge over Sy No.229. It is stated in the other right
column that Temples are standing in Sy No.229 which
are definitely not legal persons, therefore, there is no
nexus between the said land and temple. Learned
counsel submits that, unless there is a pre-existing,
recognizable and enforceable legal right enjoyed by a
person in respect of Sy.No.229, the entry in the other
rights column will not give rise to any right with respect
to the said property, merely because there appears an
entry. Furthermore, mere an entry in other rights
column, an individual property does not acquire a
religious status. Further, just because a religious
34 FA 611.1996.odt
status is granted to a property, the said property does
not become a Public Trust. The names of deity would
have appeared in the ownership column, however, same
is inherently absent, therefore, said property is private
property. The land S.No.229 pre-existed the temple, as
a private property, over which the temple has been
constructed. Therefore, no proof to show that, temple
was constructed by the villagers/public out of public
donations or contributions. Merely because a person
calls himself a Mahant, the property he holds does not
partake a character of Math, Temple or Dharmashala.
Furthermore, there is also no evidence that Samadhi's
are built where religious leaders, revered by the public,
laid their lives and the provision of collection boxes near
the Samadhis would have been only for the deposit of
offering for the members of the families on the Gurus or
towards the fulfillment of vows taken by them. Learned
counsel places his reliance on a Judgment in case of
Saraswathi Ammal and others Vs. Rajagopal Ammal,
reported in AIR 1953 SC 491, wherein, it is observed
that :-
35 FA 611.1996.odt
"Dedication of property for worship at a tomb or
Samadhi is not valid in Hindu law and same
cannot be recognized as a charitable or
religious purpose".
34. Learned counsel for respondent No.1 further
submits that, one Ambadas Shivaji Paulbuddhe was
declared as the Protected Tenant over the land
Sy.No.229 ad-measuring to the extent of 2 Acres from
eastern side on 13.10.1956 under the provisions of
Section 38(E) of the Hyderabad Tenancy and
Agricultural Lands Act, 1950. After his death, in the
year 1978, his L.Rs. i.e. his four sons, have inherited the
tenancy rights over the suit property and, are holding it
till date. Learned counsel submits that, if the property
is of a trust or an endowment, the Tenancy Act cannot
be made applicable and therefore, when Ambadas
Paulbuddhe was declared to be the tenant of land
Sy.No.229, it proves that landlords Shivgir and Kedargir
had their private lands elsewhere in addition to the land
Sy.No.229 in dispute.
35. Learned counsel for respondent no.1 further
submits that, in view of the provisions of Hyderabad
36 FA 611.1996.odt
Endowments Regulations 1349 F: the founder is a
person who constructs a temple and establishes an idol
there and endows it with lands. The person providing
the original endowment only is the founder. Persons
who subsequent to the foundation, furnish additional
contributions do not thereby become founders. A
founder is a person who has legal estate to convey under
a deed of endowment. In the case in hand, the founder
of the temple is not known. Said regulations of 1349
Fasli (1940) was the statute for the erstwhile Hyderabad
State which then included the Marathwada Region.
Learned counsel submits that, while considering the
Regulations, it is clear that property in dispute is not an
'Endowment' under Regulation 2 of the Hyderabad
Endowment Regulation, as there is no transfer of
property made by any person for religious purposes of
charity or public utility. The said property is not an
'Endowed property' as defined under Regulation 2. If
land survey No.229 was ever an endowed property for
the endowment, the trustees, interested persons should
have taken up the claim for declaration of the property
as an Endowment under the Hyderabad Endowment
37 FA 611.1996.odt
Regulations. Therefore, the suit property was always
regarded as an 'individual property'.
36. Learned counsel for respondent No.1 further
submits that, the provisions of Transfer of Property Act,
1882 deals with transfers, interivos, that is the act of a
living person, conveying a property in present or in
future, to one or more living persons. Thus, to treat a
demised under a Will as a transfer of an existing
property in future, is contrary to all known principles
relating to transfer of property and testamentary
succession. There is absolutely no documentary
evidence to prove that the suit property is that of the
temple however, the entire public documents placed on
record draw only one conclusion that the property is
that of an individual.
37. Learned counsel submits that, the Joint Charity
Commissioner and learned Additional District Judge,
Jalna have dealt with issues No.1 and 2 exhaustively by
considering the pleadings, the evidence and the law
applicable. Therefore, no fault can be found with the
38 FA 611.1996.odt
judgments rendered by them. The learned Jt. Charity
Commissioner, Aurangabad and Additional District
Judge, Jalna have recorded categoric finding that, the
alleged temple is not a public temple and there is no
grant to show that land Sy.No.229 was endowed in the
name of Diety and that the property is a trust property.
Therefore, the claim made by the applicants is
unsustainable. Learned counsel submits that, the
judgments cited by the appellants/original applicants
are not applicable in the present set of facts and
circumstances. Learned counsel thus submits that the
appeal is liable to be dismissed with costs.
(original non applicant Nos. 3 to 6) submitted written
notes of arguments and submits that respondent No.2
to 5 are the protected tenant of the land ad-measuring 2
Acres from eastern side out of the land S.No.229 ad-
measuring 5 Acres 29 Gunthas. The respondent
Kedargir Guru Harigir was the owner of the disputed
property land bearing Sy.No. 229 ad-measuring 5 acres
29 Gunthas as the said land is a private property.
39 FA 611.1996.odt
Learned counsel further submits that, Ambadas s/o
Shivaji Paulbudhe was declared as protected tenant on
13.10.1956 under section 38(E) of the Hyderabad
Tenancy and Agricultural lands Act, 1950 to the extent
of 2 acres of the disputed land S.No.229. Said Ambadas
Paulbuddhe-protected tenant died in the year 1978
leaving behind him respondents no. 2 to 5 his L.Rs.
Learned counsel submits that, respondents no. 2 to 5
have produced before the Assistant Charity
Commissioner, Jalna the declaration of the competent
authority Exh.66, certified copy of the declaration of
ownership of land Sy No.229 to the extent of 2 Acres
under the relevant provisions of the Tenancy Act dated
13.10.1956 Exh.67, Namuna no.5 Exh.68, Pahani Patrak
No.3 for the year 1955-1959 Exh.69, Pahani Patrak 1951
to 1952 and Khasara Patrak 1954-1955. Learned
counsel submits that, the Assistant Charity
Commissioner, Jalna, the Jt. Charity Commissioner,
Aurangabad and the Additional District Judge, Jalna
has taken into consideration the aforesaid documents
and concluded that, the 2 acres of land out of Sy No.229
is a property declared in the name of protected tenant
40 FA 611.1996.odt
and the same is accordingly excluded the said property
while deciding the proceeding. Learned counsel submits
that, the provisions of The Maharashtra Public Trusts
Act, 1950 cannot be made applicable to the protected
tenants property to the extent of 2 acres out of land Sy
No.229. Learned counsel in order to substantiate his
contention placed his reliance on a case of Sahabdar
Khan and anr. Vs. Sadloo Khan (Dead) By L.Rs.
reported in (2001) 10 Supreme Court Cases page 464.
39. Learned counsel for respondents no.6 to 8 has
submitted written notes of arguments and supported
the case and cause of respondent no.1 and adopted the
submissions made by the learned counsel appearing for
respondent no.1. Learned counsel further submits that,
the appellant has failed to discharge the burden of
proving as to whether it is really a public temple and
public religious trust. The appellant has not made any
endeavor to prove the same. The appellants have
miserably failed to prove that the institution under
construction was a trust and it was a public trust.
There is no iota of evidence to show that there exists any
41 FA 611.1996.odt
board of trustees at any point of time by whom trust
was managed in all these years. It was first instance
and occasion when the appellants were appointed as
administrators by outgoing Mahant would not be a valid
justification for disposing with the proof of previous
similar appointments. The appellants have taken
conflicting and contradictory stands to avoid rigour of
section 29 of the Act and its inevitable fallout.
40. Learned counsel submits that, performance of a
different festivities, running of a dormitory for wayfarers
and providing them with food and shelter, right of entry
and worship to all does not mean and establish that a
given temple is a public temple and therefore a public
trust under the Act. The owner of a private temple also
furnishes all these facilities to the visiting devotees only
and sense of humanity and appreciation and regard for
the worshipers due to their faith in the god. There is no
evidence to show that subject land bearing Sy No.229
has even been endowed to the temple, either by the
erstwhile pre-independence Hyderabad State or by the
first ever Mahant. The Temple or the said property had
42 FA 611.1996.odt
never been recorded under the Endowment Register
maintained by the Hyderabad State. Thus, there has
never been dedication of the said property for the public
religious purpose by any of the person in the name of
the temple. It follows by necessary implication that it
was treated as private property of its owner and not as
an 'Endowed Property' of the temple, even in the then
Hyderabad State. Thus, said property is private
property of Shivgir and Kedargir. Learned counsel
submits that, Shivgir died prior to the year 1956. He
was survived admittedly by none except Kedargir i.e
original respondent no.1. Therefore, half share of
Shivgir in the suit property will devolve upon original
respondent no.1 Kedargir as per rules and order of
succession to the Males in the Bombay State
enumerated in Article 72 (11) of Chapter VI of Mulla's
Hindu Law. Furthermore, assuming without prejudice
to the earlier contention that Shivgir and Kedargir were
also disciples or the students of the same preceding
Mahant, Shivgir's property on his death in absence of
any kindred, shall pass to his preceptor, and if there be
no preceptor, to his disciple and if there be no disciple to
43 FA 611.1996.odt
his fellow-student. In the case in hand, there is no
evidence that, deceased Shivgir was survived by his
preceptor or a disciple. On the contrary, facts reveals
that he was survived by his fellow-student Kedargir.
Learned counsel submits that, taking either view of the
matter, the only legally possible inference would be that,
Kedargir succeeds to the private property of deceased
Shivgir and thus owns the entire suit land Sy.No.229.
41. Learned counsel submits that, the acquisition of
ownership and title of the protected tenant over the
subject matter to the extent of 2 acres by fiction of law
u/s 38 of the Hyderabad Tenancy Act clearly goes to
show that it has been private and individual property of
original respondent no.1 Kedargir. Learned Assistant
Charity Commissioner, Jalna has also not disputed this
fact. Learned counsel further submits that, decree
dated 30.11.1981 passed in R.C.S. No.393 of 1981 in a
suit instituted by respondent no.1 Kedargir Guru
against Jalna Municipal council, for decree of perpetual
injunction thereby restraining the Defendant Municipal
Council from causing any disturbance to his peaceful
44 FA 611.1996.odt
possession over Sy No.229 also proves the fact that, said
property has always been his privately owned property
and not otherwise.
42. Learned counsel further submits that, respondent
no.6 has purchased part of the land Sy. No.229 only to
the extent of 3600 sq. ft. on 10.5.1983 i.e prior to filing
of the application filed by the applicants before the
Assistant Charity Commissioner. Respondent no.6 had
verified the title of the respondent pertaining to the suit
land Sy No.229 from the long drawn revenue record
respecting the same. It was only on his satisfaction
based on such verification about clear cut-cut
indisputable and marketable title of respondent no.1 to
the same. He entered into an agreement to sell with
him and later on entered in to a transaction of sale for
monetary consideration. Respondent no.6 also received
a no objection certificate for running a Kerosene Agency
on the said plot on the basis of the agreement of sale.
Thus, respondent no.6 is the bonafide purchaser of the
plot in question for value without notice and that too he
had purchased the same before the application for
45 FA 611.1996.odt
registration was moved by the applicants. Respondent
no.6 did not ever start any activities or the user of the
said plot even until today right from the day one
because he is of the firm conviction that he shall put
the same to use only after it receives the seal of the
Court of law regarding legality and validity of the
transaction of the sale he had entered into. Learned
counsel also relies on the case relied upon by learned
counsel appearing for respondent no.1. Learned counsel
submits that the appeal is thus liable to be dismissed.
43. In the given set of facts, the relevant provisions of
the the Act of 1950, are required to be reproduced as
below :-
Section 2 (8) "Manager" means any person
(other than a trustee) who for the time being
either alone or in association with some other
person or persons administers the trust property
of any public trust and includes-
(a) in the case of a math, the head of such
math.
(b) in the case of a wakf, a mutawalli of such
wakf.
46 FA 611.1996.odt
(c) in the case of the society registered under
the Societies Registration Act, 1860, its
governing body, whether or not the property
of the society is vested in a trustee.
Section 2 (9) "Math" : means an institution for
the promotion of Hindu religion presided over by
a person whose duty it is to engage himself in
imparting religious instructions or rendering
spiritual service to a body of disciples or who
exercises or claims to exercise headship over such
a body and includes places of religious worship or
instruction which are appurtenant to the
institution:
Section 2(10) "person having interest"
includes-
(a) in the case of a temple, a person who is
entitled to attend at or is in the habit of
attending the performance of worship or
service in the temple, or who is entitled to
partake or is in the habit of partaking in the
distribution of gifts thereof,
(b) in the case of a math, a disciple of the math
or a person of the religious persuasion to
which the math belongs,
(C) in the case of wakf, a person who is entitled
to receive any pecuniary or other benefit
from the wakf and includes a person who
has right to worship or to perform any
religious rite in a mosque, idgah, imambara,
dargah, maqbara or other religious
institution connected with the wakf or to
participate in any religious or charitable
institution under the wakf,
47 FA 611.1996.odt
(d) in case of a society registered under the
Societies Registration Act, 1860, any member
of such society, and
(e) in the case of any other public trust, any
trustee or beneficiary;
Section 2 (13) "Public trust" :- means an
express or constructive trust for either a public,
religious or charitable purpose or both and
includes a temple, a math, a wakf, church,
synagogue, agiary or other place of public
religious worship, a dharmada or any other
religious or charitable endowment and a society
formed either for a religious or charitable
purpose or for both and registered under the
Societies Registration Act, 1860 (XXI of 1860).
2 (17) "Temple" means a place by whatever
designation known and used as a place of public
religious worship and dedicated to or for the
benefit of or used as of right by the Hindu
Community or any section thereof as a place of
public religious worship.
44. Section 18 of the Act of 1950 provides for
registration of the public trust and makes it duty of the
trustee of public trust to which the Act applies to make
an application for registration of the public Trust.
48 FA 611.1996.odt
45. Section 19 provides an inquiry to be conducted by
the Deputy or Assistant Charity Commissioner :
i] on an application u/s 18 of the Act,
ii] on an application made by any person having an
interest in public trust,
iii] suo- motto when it comes to the notice of or is
brought to the notice of the Deputy or Assistant
Charity Commissioner that a public trust exists
or that a certain property is the property of a
public trust.
46. There is a tendency to claim trust property as a
private, particularly, in case of temples. Anyone
interested can ascertain whether a public trust is
registered or not and, he may move the authorities for
registration of the trust which though liable to be
registered found not to have been registered.
47. In a case in hand, appellant Shankarlal and others
filed an application Exh.1 in a prescribed form with
requisite particulars. It is stated in the application that,
the temple in question is known as "Sheriche Mahadev
Mandir". The object of the trust shown as religious one
and the movable property sought to be registered shown
49 FA 611.1996.odt
as pooja utensils worth of Rs.2000/- and the immovable
property is the land S.No.229 ad-measuring 5 Acres 23
Gunthas wherein a temple of Lord Shiva, Dharamshala,
Barav etc. are situated. It is further stated in the
application Exh.1 that the Management of this temple
was looked after by Bathri Teli Samaj of Jalna Town and
the said temple is a 'Shradha Sthan' of the said Bathri
Teli Samaj. It is further asserted that, a Mahant used to
manage the temple and its property. Mahant was a
bachelor and used to nominate his successor from one
of his disciples, who is also necessarily a bachelor. The
succession of the temple and its property was not by
way of regular mode of succession, but the nominated
Mahant was to get the rights of the management of the
Temple and the property. Different Mahants occupied
the Gaddi of the Math and mode of succession to the
said Gaddi was from Guru to Chela. Last Mahant was
one Shivgir Guru Harigir and the said Shivgir Guru
Harigir did not appoint his disciple during his lifetime.
The last Mahant Shivgir guru Harigir had executed a
will deed during his life time on 30.12.1347 Fasali,
wherein he had appointed a panch committee of six
50 FA 611.1996.odt
persons from Bathri Teli Samaj for administration of the
Temple. It has further alleged in the application that
the original respondent no.1-Kedargir came in
unauthorized possession of the Trust property. The
original respondent no.1 Kedargir treated the trust
property as his private property and he had also
disposed of certain part of the trust property during his
life time by treating the said property as his private
property. It is further asserted in the application that
there are temples of God Mahadev and God Maruti in
the land and the temple constitutes a public temple,
wherein religious ceremonies are held and, so also
annual fair at the time of 'Nagpanchami' festival are
held.
48. The original respondent no.1 Kedargir had filed his
objection at Exh.13 categorically stating there in that,
he is the owner in possession of the suit land Sy.No.229
by virtue of succession and that, the said property is
private property and not the property of Trust/Temple or
Math. All the objection petitioners have asserted that,
the land Sy. No.229 the property is private property and
51 FA 611.1996.odt
it is not a trust property.
49. The question whether the Temple or Trust is a
private Trust or the Public Trust had come up for
consideration before various courts including the Apex
Court from time to time. The learned counsel for the
appellant as well as the counsel appearing for the
respondents placed their reliance on various cases
decided by the High Courts, and the Apex Court from
time to time.
50. In order to determine whether a particular trust is
Public Trust within the meaning of Section 2 (13) of the
Act of 1950, the Supreme Court and the High Courts
prescribed the principles and various guiding factors for
determination of the said question. Needless to say
that, there can be no simple or conclusive factual test to
determine the character of a Trust. The totality of the
circumstances and their effect must be considered. The
same is also required to be determined in the peculiar
facts of the present case, such as, the origin of the
temple is not known and it is also not known as to who
52 FA 611.1996.odt
built the temple. It is stated in the application that, the
said Temple was constructed 100 years back and the
property was dedicated for the use or benefit of the
public.
51. The Apex Court as well as various High Courts
highlighted the distinguishing features between the
Private Trust and the Public Trust.
52. In order to avoid the unnecessary length of the
Judgment those principles or guiding factors can be
summarized in the following manner without referring
the cases relied upon by the respective counsel. The
essentials of the public temples are that:-
1] the place must be used as a place of public
religious worship;and
2] it must be dedicated to the Hindu community or
any section thereof; and
3] the dedication or use of the place must be as a
place of public religious worship.
53. Furthermore, the historical origin of the temple, is
required to be considered and also the manner in which
the affairs of the temple have been managed. A trust is
53 FA 611.1996.odt
a public trust when it is either for the benefit of public
at large or for section or class of public which is
uncertain and a fluctuating body of persons. The real
test is whether the user by the public is as of right.
Furthermore, if the origin of the temple is unknown or
lost in antiquity, then there must be a proof to show
that it is being used as a public temple. In such a
cases, the true character of a particular temple is
required to be decided on the basis of various
circumstances such as :-
i] is a temple built in such a imposing manner that it
may prima facie appear to be a public temple.
ii] Are the members of public entitled to worship in
the temple as of right.
iii]. Are the temple expenses met from the
contributions made by the public.
Iv]. Whether the Sevas and Utsavas conducted in the
temple are those usually conducted in the temples.
V]. Have the management as well as the devotees
being treating the temple as public temple.
54. A religious endowment be held to be private or
public according as the beneficiaries there as under are
specific persons or the general public or section thereof.
54 FA 611.1996.odt
A place in order to be Temple, must be a place for a
public religious worship used as such place and must
be either dedicated to the community at large, or any
section thereof as a place of public religious worship.
Dedication may be made orally or can be inferred from
the conduct or from given set of facts and
circumstances. There need not be a document to
evidence dedication to the public. The consciousness of
the Manager of the Temple or the devotees as to the
public character of the temple, long use by the public as
a right to worship the Temple are the relevant factors
drawing a presumption strongly in favour of the view
that the temple is a public temple. The true character of
the temple is required to be decided by taking into
consideration diverse circumstances. The origin of the
Temple when lost in antiquity, it is difficult to prove the
public worship and it must be inferred from the facts
and circumstances of a given case.
55. It is submitted on behalf of the respondents that,
appellants/original applicants have not proved their
interest in the temple or the math. They are not the
55 FA 611.1996.odt
persons having interest in the alleged trust and, as
such, the Assistant Charity Commissioner, Jalna
exceeded the jurisdiction vested in him. It is also
submitted that the appellants/original applicants have
specifically mentioned in their application in form No.II
against item no.IV that documents about the origin or
creation of the trust is Will executed by Shivgir Guru
dated 30.12.1347 Fasli. It is submitted that, as per the
provisions of Section 29 of the Act of 1950 the executor
is under obligation to make an application within one
month from the date on which the probate of the Will is
granted or within six months from the date of testator's
death, whichever is earlier. According to the
respondents, since no compliance is made under the
provisions of section 29 by the applicants, therefore, on
this score alone the application is liable to be dismissed.
56. On careful perusal of original proceeding most
particularly, original application Exh.1, it appears that,
there are sub paragraphs 'A' and 'B' to paragraph no.4
in the application. So far as sub paragraph no. 'A' of
paragraph no.4 of the application is concerned, it
56 FA 611.1996.odt
speaks about the particulars of the documents creating
the trust and sub paragraph no.'B' of paragraph no.4 is
about the particulars of other than documents about
creating or origin of the Trust. In response to sub
paragraph 'A' of paragraph No.4, no information is
provided, however, in response to sub paragraph no.'B'
of paragraph no.4, reference has been given to Will Deed
executed by Shivgir Guru Harigir with a reference that
said public trust is a Dharmapith having a Gaddi of
Mahant and other documents are not available.
Furthermore, in a sheet attached to the format, it is
specifically contended that, said temple is known as
'Sheriche Mahadev Mandir' since last 100 years and the
temple and its property is a public Trust. It is also
stated in the said additional sheet that, the persons
belonging to Bathri Teli Samaj, Jalna are looking after
the management of the temple and said temple is their
Shradha Sthan. It is further added that, unmarried
Mahant's are appointed for managing the Trust and
mode of succession is that Mahant during his life time
appoint next Mahant from his disciple for looking after
said temple. A further reference is given that one
57 FA 611.1996.odt
Shivgir Guru Harigir was the last Mahant and by
executing a Will deed he had appointed the committee of
six persons and he had not nominated to next Mahant
from his disciple. By any stretch of imagination, I do
not find that the appellants/original applicants claim
that, said Will Deed is a document creating trust. It is
stated in the application that, Public Trust is in
existence and that last Mahant had not appointed his
successor from his disciples, instead by executing a Will
deed appointed a panch committee. The learned
Assistant Charity Commissioner, Jalna has thus rightly
held that Will deed in question, therefore, cannot be said
to be a document creating a Trust. In my opinion, the
learned Jt. Charity Commissioner, Aurangabad as well
as the Additional District Judge, Jalna have committed
a grave error while treating the said Will Deed as a
document creating the Trust.
57. The appellants/original applicant no.1 examined
himself before the Assistant Charity Commissioner,
Jalna. According to him he visited said temple since his
childhood and he is a devotee of Lord Shiva and he used
58 FA 611.1996.odt
to visit Shiva Temple. He further stated that, there are
in all 100 families belongs to Bathri Teli Samaj, Jalna
and all persons from this family visit to this temple.
Definition of expression "Person Having Interest" in
section 2 (10) of the Act of 1950 is wide enough to
include not only trustees but also the beneficiaries and
other persons interested in the trust. The term must be
liberally construed so as to include all the persons who
may be directly or indirectly concerned. It is not
disputed by the respondent that 'Institution' is a 'Math'
and the temple exists in the premises to which members
of public in general are having free and unrestricted
access. This makes it clear that the premises is not
only deemed to be a religious endowment but also
deemed to be a Hindu Public Religious endowment.
58. Religion is a state of life bound by monastic vows;
or action or conduct indicating a belief in, reverence for
and desire to please a divine ruling power, or the
exercise or practice of rights or observances implying
this. The term 'religion' which has not been defined
refers certain characteristics types of data i.e. belief,
59 FA 611.1996.odt
practice, feelings, moods, attitudes, etc. Religion in
general may be said to have three aspects is I] theology ,
ii] Mysticism and iii] rituals. Temples are closely related
to rituals. Definition of temple is comprehensive and
essence of the temple is that, it should be as of right for
Darshan or worship. The appellant/original applicant
no.1 has stated about the long course of worship of said
temple and the same is also not disputed by the
respondents. In my opinion, the applicants have real,
substantial and existing interest in the temple/Math
and its properties.
59. Undisputedly, the Math was presided over by
Mahant and Mahant exercise spiritual leadership over
the disciples and succession to the office of the Mahant
was regulated by the usage of the institution. The
distinction between a public trust and private trust,
broadly speaking, that, in a public trust the
beneficiaries of the trust are the people in general or
some section of the people, while in the case of private
trust the beneficiaries are an ascertained body of
persons. The beneficiaries of a Math are the members
60 FA 611.1996.odt
of the fraternity to which the Math belongs and the
persons of the faith to which the spiritual head of the
Math belongs, and constitute, therefore, at least a
section of the public. Maths, in general, consequently
are public Maths.
60. In a present case, there is no evidence as to who
actually founded the Math by granting the property to a
spiritual preceptor. There is no evidence, whoever the
founder be, that any particular family is the only body of
persons who is interested in the Math. When the
persons interested in a Math are not in a particular
family, the spiritual preceptor of the Math consisting of
his disciples, and the disciples in succession cannot be
deemed to be such a private family for whose benefit the
Math is founded. The body of disciples and the disciples'
disciples, is a very unascertainable body. Thus, such a
Math is not a private Math. Further when gifts of
properties have been made to the Math for the
enjoyment of the Chelas, Shishyas and anusishyas,
though ostensibly in the name of Mahant, the Mahant
holds the properties as a trustee for the indeterminate
61 FA 611.1996.odt
class of beneficiaries, and this stamps the Math with a
public character.
61. Opponent Shri Kedargir Guru has deposed that,
the temple belongs to him and the same is in his
possession for last 50 years. He has stated in next
breath that, there is 5 acres of land of the temple.
According to him, Mahantas are the owners of the
property. He has further stated that succession of the
temple is Guru to Chela. He has further clarified that
Mahant nominated his Chela during his life time by
observing certain ceremonies. He has further
unequivocally made a statement that, Mahant Shivgir
has not nominated a disciple. Said Shivgir asked him to
look after the 'Gadi'. According to him, Mahant Shivgir
is 50% owner of the temple and he is owner of the
temple to the extent of 50%. He has admitted in his
cross examination that, he married before 40 years,
having three sons and three daughters and he married
when Shivgir was alive. He has further stated in his
cross examination that, he is a Chela of Harigir and
Shivgir is Chela of Ramgir. He has also admitted in his
62 FA 611.1996.odt
cross examination that, all above Mahants are
Bachelors and Sanyasis and temple is ancient one. He
was not able to tell the origin of the temple and as to
when it was constructed. It appears from his evidence
that he has made a self contradictory statement. In
view of his own admissions he could not be nominated
as a 'Mahant'. It is difficult to digest that he was asked
by Shivgir to look after the Gadi and that Shivgir was
50% owner of the temple and he is owner to the extent
of remaining 50% of the temple. He has deposed in his
examination-in-chief itself that there is 5 acres of land
of the temple and there is an idol of Mahadev, Maruti
and Devi in the temple.
62. Opponent late Shri Kedargir Guru Harigir has
further admitted in his cross examination that, general
public visit the temple for Darshan and large Mela used
to be held at the time of Nagpanchami (Hindu Festival)
and Mela is still performed at the time of 'Shivratri'.
Needless to say that, the gathering of the followers used
to be held in the temple of God Shiva at the time of
Nagpanchami. Furthermore, festival Shivratri is a
63 FA 611.1996.odt
festival largely followed in the temples of God Shiva by
its followers. He has further admitted that, few persons
used to visit the temple daily and food is supplied to the
poor persons at the time of Mela. Furthermore, offerings
are placed before the deity. In response to the court
questions, he has made it clear that, there is free entry
in the temple. There is a Barav (big well) and Par (platform)
to the temple. Bhandara (public feast) is held in the month
of Shravan and at the time of Nagpanchami. He spent the
income for temple purposes. It is not disputed that while
entering into the temple there are Samadhis of wrestlers and
their names are engraved on the plates fixed on it.
63. In light of the above admissions, it is necessary to
look into the spot inspection report placed on record by
the learned Assistant Charity Commissioner Exh.108.
Spot Inspection of the temple as requested by the
parties was held on 30.10.1985 in presence of the
parties and their respective counsel. The learned
Assistant Charity Commissioner in his spot inspection
notes Exh.108 mentioned that, the temple is situated in
the heart of the city on the bank of local river and at the
64 FA 611.1996.odt
entrance of the temple there are Samashis of said
wrestlers. He has further observed in his inspection
notes Exh.108 that, there is main temple facing towards
East and there is a big Arch on which there are small
idols of Gods. Main temple is in the construction of
walls, which may be about 100 x 100 feet. He has
further observed that, there is a Gabhara (internal part
of temple-math where idols are kept) of the size of 10x10
feet approximately. There is a pind (Body) of God
Mahadeva at a lower level and further there is a statue
of Nandi (means of conveyance for God Mahadeva) on
the front side of said Gabhara. He has further observed
that there are big steps around the Gabhara and on the
right side of said Gabhara, there are open woveries.
Further, there are woveries on the back side of the
temple also. In addition to this, on the left back side of
the temple, there is a small room of 10x10 feet wherein
there are deities of different Gods and Goddesses and
same are kept on the platform. Near to this room, there
is Gadi of the Mahant where photos of the Mahant and
Gods are kept. Said Gadi is constructed by cement
having small wall to the height of 2 ½ feet approximately
65 FA 611.1996.odt
as a back side of the platform of Gadi and there is a
small temple of God Hanuman in front of the Gabhara.
The Learned Assistant Charity Commissioner has
further observed in his inspection notes that, there is
(i.e. ornamental piece of painted wood as fixed on the
spires of temples) on the top of Mahadev Pind which
may be in height of approximately 35 feet. Said Kalas
is engraved with the statues of gods constructed with
Mud and Lime. There are constructed Samadhis to the
left side at a height of 4-5 feet. There are also Samadhis
outside main construction. In all there are 14 Samadhis
of different Mahants of temple. Construction of
Samadhis is with an Arch over it and a small roof.
There is one big well (known in the local language as
Barav) situated towards right side of the temple having
steps to go down.
64. It is a matter of record that, on 1347 Fasli Mahant
Shivgir had executed a will deed and translation of the
same is marked in the record at Exh.89. I have
considered the contents of will deed to some limited
extent relevant for the present discussion. Mahant
66 FA 611.1996.odt
Shivgir stated in the said will deed that he is Mahant of
'Shere Mandir' situated at Jalna and he is in possession
of its property as detailed in the margin as owner after
the demise of his owner Harigir. In the margin,
description of the property is mentioned as Sy.No.229
ad-measuring 5 Acres 15 Gunthas. Further, by
appointing the Committee, Mahant Shivgir directed
them to perform ceremony just like him and keeping the
building of the temple in repairable condition and
further serve food to the Sadhus on occasion of
Nagpanchami Festival. However, it further appears that
during the life time of Shivgir, the opponent Kedargir
had instituted a suit bearing No.12/4 of 1351 Fasli
against Shivgir and said panch committees for
cancellation of the said will deed wherein it is averred
that the opponent Kedargir and Mahant Shivgir are the
real brothers and that will deed came to be executed
without any right and against law. It is apprehended
that rights of opponent Kedargir Guru will be affected.
Mahant Shivgir Guru who is defendant no.1 in the said
suit settled the dispute by way of compromise and
accepted the pleadings of opponent Kedargir Guru. In
67 FA 611.1996.odt
the light of the said compromise suit came to be
disposed of. Being aggrieved by the same, Panch
Committee has challenged the said compromise decree
by preferring an appeal before the Additional District
Judge, Jalna, wherein the Appellate Court has allowed
the appeal by setting aside the Judgment and Decree
passed by the Trial Court and, further dismissed the
suit with the observations that, the opponent Kedargir
Guru cannot be the owner of the property nor he is
Chela of Harigir or abilities to be taken as Chela. It has
also observed that consent statement of Shivgir
Mahant/defendant no.1 proved to be collusive. It has
also observed by the Appellate Court in the said appeal
that statement of Mahant Shivgir is full of suspicion and
tends supportive. It has also observed that the plaintiff
i.e. opponent Kedargir herein has not proved that he is
the Chela and jointly in possession of the property. It
has also observed that in the light of the written
statement filed by Mahant Shivgir/defendant no.1 in the
suit, said will deed is presumed to be cancelled. Said
Judgment of the Appellate Court has attained the
finality. It is thus clear from the contents of the will
68 FA 611.1996.odt
deed that Mahant Shivgir has accepted the property as
mentioned in the will deed, belonging to the Temple and
that he is looking after the management of the said
property as Mahant after demise of the earlier Mahant,
who nominated him as a next Mahant.
65. The learned Additional District Judge in the said
appeal has observed that, it is an admitted fact that
Shivgir Guru (original defendant no.1 in the suit) is the
Chela and Guru was Harigir and property is Devals
Property (temples property). The learned Additional
District Judge, Jalna has also observed that, statement
of the defendant no.1/Shivgir Guru proved to be
collusive. So far as compromise decree passed in the
said suit is concerned, the same was held to be a
collusive decree by the District Court in appeal. Thus,
the only inference could be drawn that the opponent
Kedargir had convinced Shivgir Guru about the
compromise and one does not know as to how Mahant
Shivgir Guru, who was the Sanyasi, tempted to effect a
compromise with opponent Kedargir in the said suit.
Admittedly, different Mahantas occupied the Gadi of
69 FA 611.1996.odt
temple and mode of succession to the Gadi was from
Guru to Shishya. Further, last Mahant Shivgir did not
appoint his disciple during his life time. Opponent
Kedargir claiming to be a real brother of Shivgir started
asserting his rights as owner of the temple as well as its
properties. Same is eminent from the fact that in the
revenue record though entry of the temple, Samadhis
etc., are mentioned, names of opponent Kedargir
alongwith Shivgir came to be mutated. Furthermore,
opponent Kedargir sold some of the land out of land
Survey No.229 and income was appropriated by him. In
the old revenue record, though name of Mahant is
shown as Kabjedar in respect of the property land
Survey No.229, the said property is not mentioned alone
but the temple, Samadhis and well have been shown in
the revenue record. The initial Revenue record indicates
that, Mahant is the Kabjedar of the landed property on
which the temple exists. However, after some years, the
name of opponent Kedargir appeared in the revenue
record as a Kabjedar to the extent of 50% without any
base. It is needless to observe that, said entries are the
manipulated entries. Thus, in the given facts and
70 FA 611.1996.odt
circumstances of the case, I am not inclined to give
much importance to the said entries in the revenue
record.
66. Thus, in the light of above discussion and the oral
and documentary evidence led by the parties, I am
convinced that the place where the temple exists is a
place or religious worship dedicated to the Hindu
Community or section thereof and said dedication and
use of the place as a place of public religious worship.
Further, said temple is built in such a imposing manner
that it appears to be a public temple. Most crucial test
is the "Kalas" (i.e. ornamental piece of painted wood as
fixed on the spires of temples) which un-mistakenly
points out that the temple is a public temple. Usually,
in a private temple, where the entry is restricted, the
"Kalas" (i.e. ornamental piece of painted wood as fixed
on the spires of temples) of the temple is not built.
There is enough evidence to indicate that the members
of the public are entitled to worship in the temple as of
right. Furthermore, sevas and utsavas are being
conducted in the temple and management as well as
71 FA 611.1996.odt
devotees are treating the temple as a public temple. The
Mahantas as well as devotees were knowing about
public character of the temple and long use by the
public as a right to worship further confirms that it is a
public temple. It is true that there is no presumption in
law that whatever owned by the Mahant or Manager of
the temple must be the property of the Trust. However,
there is absolutely no evidence to show that some
devotees presented the said landed property to the
Mahant. The fact that unmarried Mahantas were being
nominated strongly indicates the character of the
property. Religious Institution, includes a Samadhi and
when it is established or maintained for public purposes
together with the temple, it would indisputably come
within the purview of the said definition of temple.
67. Furthermore, it also appears that Mahant Shivgir
Guru when could not find any suitable person from his
disciples for being nominated as Next Mahant,
considering the public character of the temple and its
properties preferred to appoint a Panch Committee to
look after the temple and its properties. The learned
72 FA 611.1996.odt
Assistant Charity Commissioner has therefore rightly
held that the property land Survey No.229 except which
is declared in favour of the tenant Ambadas, is a
property of the public trust. Even in the tenancy
certificate, the temple, samadhis and well have been
shown with the remarks that the tenants should not, in
any manner, create any disturbance in the management
of the temple and its properties. Besides said remark,
the authorities under the Hyderabad Tenancy and
Agricultural Lands Act, 1950 has ignored the provisions
of Section 102-A of the said Act. Only on the basis that
a tenancy certificate, as provided under section 38-E of
the said Act, has been issued, no inference could be
drawn that the property land survey No.229 is the
personal property of Mahant Shivgir.
68. In my considered opinion, the learned Assistant
Charity Commissioner, Jalna, has rightly directed that
Sheri Shiva Mandir, Shamprasad Garden, Jalna be
registered as a Public Trust and further directed to take
legal steps for recovery of the properties which are
alienated under unauthorized sale. The learned
73 FA 611.1996.odt
Assistant Charity Commissioner, Jalna has further
rightly advised to make an application for framing of a
scheme as provided under section 50-A of the
Maharashtra Public Trusts Act, 1950. In an inquiry
under section 19, it is necessary to find out as to who
are the persons in whom the properties are vested and
unless that is done, it is not possible to find out who are
the trustees, however, it may happen in certain cases
that original trust property is vested in particular
persons, but, in course of time those trustees do not
apply their mind in the management with the result
that somebody else takes up the management and
manages the Trust. In the case in hand, the learned
Assistant Charity Commissioner, Jalna has observed in
the similar manner and further directed to issue
certificate of "A" Section in the name of opponent Shri
Kedargir Guru Harigir in the capacity of Manager. It
further appears that during the pendency of MCP
No.13/1991 before the District Court, Jalna, L.Rs. of
Kedargir Guru Harigir are brought on record, however,
the Additional District Judge, Jalna, by its impugned
Judgment and order dated 28.9.1995, had not suggested
74 FA 611.1996.odt
modification in the order of Assistant Charity
Commissioner, Jalna, with regard to issuance of
certificate of "A" section in the name of Shri Kedargir
Guru Harigir in the capacity of Manager. In light of the
discussion made in the foregoing paragraphs, it would
be appropriate to direct the learned Assistant Charity
Commissioner to re-consider the issuance of certificate
of "A" section by appointing a proper person as a
Manager to look after the day to day affairs of the Trust
and its properties till framing of the scheme of the
Trust, as directed. Hence, following order is passed.
O R D E R
I. Appeal is hereby allowed.
II. Common Judgment and Order passed by
the Joint Charity Commissioner,
Aurangabad dated 31.12.1990 in Appeal
Nos.4/1986 and 7/1986 and also the
Judgment and Order dated 28.9.1995
passed by the Additional District Judge,
Jalna in MCP No.13/1991 are hereby
quashed and set aside.
III. The Judgment and order dated 15.1.1986
passed by the Assistant Charity
75 FA 611.1996.odt
Commissioner, Jalna, Sub-Region Jalna,
in inquiry No.23/1983 stands confirmed
with the following directions :-
a] The learned Assistant Charity
Commissioner, Jalna, Sub Region,
Jalna shall appoint proper person as a
Manager in respect of the Trust Shri
Sheri Shiva Mandir, Shamaprasad
Garden, Jalna and certificate of 'A'
ig Section be issued in the name of
Manager so appointed within ONE
MONTH after receipt of the Record and
Proceedings.
IV. In the circumstances, there shall be no
order as to costs.
V. Record and Proceedings be returned back
forthwith.
VI. First Appeal is accordingly disposed of.
Pending civil applications, if any, also
stands disposed of.
( V.K. JADHAV )
JUDGE
....
. At this stage, Mr. Adwant, the learned counsel for
76 FA 611.1996.odt
respondent No.1 prays that, the effect, execution and
implementation of this judgment and order may be
stayed for four weeks. The order passed by the Assistant
Charity Commissioner, Jalna is dated 15.1.1986. I am
not inclined to grant stay to the order since the matter is
very old. Hence, request for stay stands rejected.
ig ( V.K. JADHAV )
JUDGE
aaa/-
.....
