PETITIONER:
COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLEENDOWMENTS, MYS
Vs.
RESPONDENT:
RATNAVARMA HEGGADE (DECEASED) BY HIS L.RS.
DATE OF JUDGMENT20/10/1976
BENCH:
SHINGAL, P.N.
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 1848 1977 SCR (1) 889
1977 SCC (1) 525
ACT
Hindu Law--Religious Endowment--Hindu temple forming
part of a Jain Institution--When may be treated as a Hindu
religious endowment.
HEADNOTE
Section 9(12) of the Madras Hindu Religious Endowments
Act, 1926, defines ’temple’ as a place, by whatever designa-
tion known, used as a place of public 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 religious
worship Section 9(11) provides that all property belonging
to, or given or endowed to the support of a temple or for
the performance of any service or charity connected with the
temple will constitute its endowment, including the premises
of the temple. Section 2 provides that the Act applies to
all Hindu public religious endowments. The Section, the
Explanation to the section, and s. 3(b) shown that Hindu
public religious endowments’ do not include private endow-
ments and Jain religious endowments.
Dharmasthal, in which the temple in dispute was situate
has a number of institutions which were under the management
of a person known as Heggade who was a Jain. The Religious
Endowments Board, after an enquiry, held that the Act ap-
plied to the temple. On application made under s. 84(2), the
District Judge held that it was a private temple, and that,
therefore, the Act did not apply to it. On appeal, the High
Court did not .consider whether it was a private temple, but
held that the temple was an adjunct to the composite insti-
tution of Dharmasthal, that, according to the customs and
usages of the institution, the temple could not.be separated
from the rest. of the institutions, that Dharmasthal was
both a religious and charitable institution, that the deity
in the temple was worshipped both by .the Hindus and the
Jains in accordance with their respective faiths, that the
deity was .neither an exclusively Hindu deity not an exclu-
sively Jain deity, that the institution. of Dharmasthal was
rounded by the Jain, that its administration remained exclu-
sively Jam since its inception, that it could not be in-
ferred that there was an implied dedication to the Hindus
exclusively, and that therefore the temple, was not a temple
as defined in the Act, and that the Act did not apply to it.
The High Court also held that its property was also an
adjunct to the composite institution consisting of Hindu
Gods, Jain Gods and Daivas, worshipped by Hindus and Jains.
Dismissing the appeal by special leave to this Court,
HELD: (Per A.N. Ray, C.J., and P.N. Shinghal, J):
(1) Section 9(12) of the Act only requires that the
temple should be dedicated for public religious worship, as
of right by Hindus, but it would not detrace from its char-
acter of a temple as such if Jains also worship there. The
pro visions of the Act will however not be attracted to it
in the absence of and evidence to prove the existence of an
endowment for it, as the Act applies only to Hindu public
religious endowments. [899 H, 900 A]
(2) The evidence in the case shows that the institution
of Dharmasthal was originally a Jain religious and charita-
ble restitution to which property was endowed by the ances-
tors of the present Heggade who was himself a Jain. It was
that endowment which spread and gained more and more impor-
tance over the years because of the offerings made largely
by Hindu and Jain devotees and worshippers. A lingam was
installed in the temple by a Hindu Sanyasi only in the 16th
century; but, it has not been established that there is any
endowment which could be said to belong exclusively to the
temple. Even if any such
890
endowment was made by some one in the name of the temple it
was taken to be an endowment for the entire institution
known as Dharmasthal and was treated as such. The temple
cannot therefore be said, to be a Hindu religious endowment
within the meaning of s. 2 and the provisions of the Act are
not applicable to it. [896 F-H: 897 A]
(3) The evidence also shows that the temple is part and
parcel of the composite institution known as Dharmasthal and
is so inseparably connected with it that it is its integral
part, and it cannot therefore be held to be an endowment
within the meaning of s. 9(11). It has not been proved that
any property belongs to the temple or has been given or
endowed for its support or for the performance of any serv-
ice or charity connected therewith, or that it has any such
premises of its own as could be said to form its own endow-
ment. The mere installation of the idol in the temple could
not be said to bring into existence any such property as
could be said to belong to the deity or given or endowed for
the support of its temple or for the performance of any
service or charity connected therewith. The temple does not
have even a separate prakararn. The shrine of the adja-
cent shrine is in dose proximity of the temple and within
the same prakaram. The existence of other shrines of Jain
Daivas
in the same prakaram as the temple, therefore, shows
that this temple cannot even claim to have any exclusive
premises of its own so as to constitute an endowment within
the meaning of s. 9(11) of the Act. [897 A, F]
(4) In a given case, it may be difficult to prove the
original dedication because of the lapse of considerable
time and its user by Hindus as of right may be enough to
prove an initial dedication. But, in the present case, it
would not be possible to conclude that there was any such
dedication because there is nothing to show how the Hindu
Sanyasi, who installed the lingam in the temple in the 16th
century, could be. said to be a donor when the property did
not belong to him. [900 ,F-G]
(5) The facts that the temple was not shown to be a Jain
endowment, and hat it possesses the characteristics of a
Hindu temple will not make, any difference because, there is
no evidence to show that there is any endowment’ to the
temple, as such, and the temple is a part and parcel of
Dharmasthal. [900 A_B]
Per Beg, J.
(1) In order to decide a dispute under s. 84(1)(a) it is
necessary to. decide whether a particular place is a temple
as contemplated by the Act. But, that is not enough for the
decision of the whole issue to be decided. For that purpose
attention has also to be directed towards deciding the
question whether the institution to be considered is a
temple and nothing more. If the temple, as a place of
worship, is an integral part of an institution so that it is
not separable as an institution in itself, the mere fact
that there is a temple as defined by the Act, where Hindu
members of the public worship as a matter of right, will not
go. In such a case, the institution is not the temple,
although a temple can by itself, be an institution. There
is thus a distinction between the meanings of temple’ merely
as a place of worship as defined in s. 9(12) and a ’temple’
as an institution. It is therefore, necessary to consider
the history, the beliefs underlying at the inception and
sought to be propagated the forms of worship meant to be
kept alive, the prevalent customs and practices, the exact
nature and process of the endowments connected with the
institution, the established rules for its management, the
objects to be carried out by those in charge of the endow-
ment, and whether all these taken together justify the
inference. that a particular temple, as defined by the
Act, is also a separate or separable institution by itself,
or is just an integral and organically inseparable part of
an institution or an organisation outside the Act, [903 A-B,
906E,H-907 A-C]
(2) A consideration of the property which belongs to or
is endowed for the support of temples or for performance of
any service or charity connected therewith including the
premises of temples may also become necessary so as to
determine the character of an endowment as a part of the
institution and the process by which it took place.. [907
F-G]
(3) The origin ,and process of dedication is not always
found embodied in document. Where the dedication itself is
evidenced by a document, its objects,
891
such as they may be, can be determined by interpreting the
document. There are, however, many cases in which dedica-
tion or endowment of property for a particular purposes has
to be inferred from immemorial or long user of a property in
a particular manner or from the conduct of a party. Neither
a document nor express words are essential for a dedication
for a religious or public purpose in our country. Although
religious ceremonies of Sankalpa and Samarpanam are
relevant for proving a dedication, yet, they are not indis-
pensable. [907 G-H; 908 A-B]
Bholanath Nandi v. Midnapora Zamindary Co.. Ltd. 31 I.A.
75, Lakshmidhar Misra & Ors. v. Rangalal & Ors. AIR 1950 PC
56, Manohar Gandhi v. Lakhmiram, ILR 12 Bom. 247 @ 263,
Deoki Nandan v. Murlidhar, [1956] S.C.R. ’756 and Puajri
Lakshmana Goundan v. Subramaniya 29 C.W.N. 112 (P.C.)
referred to.
All that s. 9(12) requires is that the place should be a
place of worship either dedicated for the benefit of or used
as of right by the Hindu community or a section thereof as a
place of religious worship. The word ’exclusively’ is not
there at all so as to justify any exclusion of a place of
worship from the definition of a temple on the ground that
Jains worship together with Hindus of ’other sects. But,
the issue to be decided is whether the ’institution’ is a
temple as defined in the Act. It is not whether a particu-
lar place is a temple, in the sense that it is set apart for
worship by the Hindu public in general or a section of it,
but it is whether an institution itself is a temple as
defined by the Act. [905; D-G, 906 F-H, 907 A-D].
(5) In the present case, the findings of the High Court
show that the institution or organisation of which the
temple is an inseparable part, is predominantly Jain in
character. In view of the well established doctrine of
implied endowment of property, by its long user for a par-
ticular religious or public purpose, based on a presumed
consent, it could be said that the temple had become a
separate institution with an endowment of its own consisting
at least of the land over which the temple had been built,
the building and the idol installed with free access to it
by the Hindu public in general which made offerings even
though Jains also worship there. But, in view of the general
rule of practice under Art. 136 of the Constitution that
this Court does not disturb findings of the final court of
fact where two views are possible, this Court would not
differ from the conclusion reached by the High Court that
the temple was not a separate institution. On such a
finding it would be exempt from the operation of the Act by
reason of the Explanation to s. 2 excluding Jain religious
endowments from the benefits of the Act. [905 E-H, 907 D-F]
(6)In the present case, neither the District Judge nor
the High Court had given any findings whether any endowment
whatsoever of the temple existed. The extent of property
covered by an endowment was also not really investigated as
no issue was framed on it. At least the structure of the
temple with the idol installed and the ground upon which the
temple stands must be deemed to be dedicated even though
these may not for purposes of management, form separable
units. When a religious institution becomes a means of
obtaining money or material benefits, in the form of offer-
ings or donations or gifts, as it generally does, from
members of the public, a danger of its misuse can only be
effectively averted by appropriate supervision. The powers
of the Government, .under the relevant Act to extend the
provisions of the Act to Jain public religious institutions
which are not affected by the dispute brought before the
Court, are however, adequate to deal with such situation.
[912 A-H, 913A]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 111 of 1971.
(Appeal by Special Leave from the Judgment and Decree
dated 30-8-1968 of the Mysore High Court in Regular Appeal
No. 165/57)
Sachin Chaudhuri and Narayana Nettar, for the Appellant.
K. Sen, K.N. Bhatt and K.R.D. Karanath, for the Re-
spondent through L.Rs.
338SCI/76
892
The Judgment of A.N. Ray, C.J. and P.N. Shinghal, J. was
delivered by Shinghal, J.M.H. Beg, J. gave a separate Opin-
ion.
SHINGHAL, J. --This appeal by special leave arises out
of the judgment of the High Court. of Mysore dated August
30, 1968, upholding the order of District Judge, South
Kanara, dated November 9, 1956. By that order the District
Judge set aside the decision. of the Board of Commissioners
for Hindu Religious Endowments, Madras, hereinafter referred
to as the Board, that the institution known as Sri Manjuna-
tha temple at Dharmasthal, Puttur Taluk, South Kanaka
district, was a ’temple’ as defined in clause (12) of sec-
tion 9 of the Madras Hindu Religious Endowments Act, 1926
(Madras Act II of 1927), hereinafter referred to as the Act.
The Commissioner under the Madras Hindu Religious and Char-
itable Endowments Act feels aggrieved because the impugned
judgment has the effect of taking the temple out of the
control provided by the Act. The respondent in this appeal
was the "supplemental" petitioner before the District Judge
and was brought on record on the death of Manjayya Heggade
who was the original petitioner in the petition under sub-
section (2) of section 84 of the Act.
The controversy relates to the Manjunatha temple, in
Dharmasthal, which is now the name’ of a village in Belthan-
gady taluk of South Kanara district of Tamil Nadu. The
original name of the village was Mallarmadi. The locality
in which the temple is situated was called Kukya Kudume, but
it came to be known as Dharmasthal after the visit of Sri
Vadiraja Swamiar of Sode Mutt, Udipi, in the 16th century,
to which reference will be made in a while.
It is not in dispute that, even according to the Heggade,
Dharmasthal has a number of institutions including the
following main institutions,--
1. Nelleyadi Beedu,
2. Chandranatha Basthi,
3. Manjunatha temple,
4. Ammanvaru temple, and
5. Heggadeship.
These institutions have been shown in exhibit A 59 which is
said to be a rough sketch of the Dharmasthal. It is also
not in dispute before us that "Daivas" were first estab-
lished in Nolleyadi Beedu, by an ancestor of Heggade who was
a Jain, and were worshiped there. Heggade began to give
charity to persons of all religions, and the institution
became well known and travellers began to visit it in large
numbers. It is the common case of the parties that Sri
Vadiraja Swamjar of Sode Mutt, Udipi, who was a Sanyasi,
happened to pass that way and was invited by Heggade to stay
there. The Swamiar however refused to accept food there on
the ground that it was "Bhuta Kshetra". Heggade felt very
sorry as the great Sanyasi was starving in his house. It is
said that Heggade thereupon arranged to instal the idol of
Sri Manjunatha in the "garbagriha." The Swamjar was ap-
peased and performed the first "pooja" in that temple, which
thereafter came to
893
be known as Dharmasthal. This is said to have happened in
the sixteenth century and is, at any rate, said to be the
origin of the Manjunatha temple in the Dharmasthal campus.
The Board started proceedings under section 84(1) of the
Act to decide whether Sri Manjunatha temple was a temple as
defined in clause (2) of section 9 of the Act. Heggade
urged before the Board, inter alia, that all the institu-
tions in Dharmasthal formed a single unit representing a
private institution, that it had been rounded by his ances-
tors on their own private land, that there was no dedication
to the Hindus and they could not claim any right of
worship, that Dharmasthal was Jain in character, that it
was a charitable but not a religious institution, that his
status was not akin to that of a mere trustee and that
"Heggadeship" was intimately and inseparately connected with
the Dharmasthal institution and Manjunatha temple.
The Board made an enquiry and reached the conclusion
that Manjunatha temple was a separate entity and was the
most important institution and that it was not the private
property of the Heggade. I also held that it was not a
Jain institution, but was a Hindu temple, and that it was a
religious and not merely a charitable institution for its
charity was connected with the temple. The Board also held
that the public had used the temple freely ever since its
foundation. It accordingly decided that Manjunatha was a
temple as defined in the Act even though its trusteeship
vested in Heggades who were Jains.
As has been stated, an application was made by Manjayya
Hegde to the District Judge, under sub-section (2) of sec-
tion 84 of the Act for setting aside the Board’s decision.
It was specifically pleaded in that application that the
entire institution known as Dharmasthal was a "composite"
institution and that his ancestors always claimed that the
Manjunatha Devaru, its properties and deities belonged to
them personally and that its ’patta’ stood in their names
from time immemorial. On that basis, it was pleaded further
that as the properties were outside the scope of the enquiry
under section 84 of the Act, the Act "did not apply and the
Board had no jurisdiction to hold an enquiry under section
84." A counter-affidavit was flied on behalf of the Board
in which it was pleaded that Manjunatha temple of
Dharmasthal was "an independent entity being a separate
temple, owning its own property and having separate income."
It was pleaded further that there were properties in the
name of the deity of the Manjunatha in Mysore State and
other places. The District Judge did not frame any issued
but formulated some points for determination including the
points whether Manjunatha Devaru was only a part of the
institution known as Dharmasthal, and not a separate insti-
tution in itself, and whether the provisions of the Act did
not apply to it ? He recorded the evidence and heId that
Manjunatha temple was one of the 3 or 4 shrines maintained
from the income of the institution known as Dharmasthal,
Heggade was a component part of the institution. the temple
stood on the private land of Heggade, the Manjunatha shrine
was a Hindu institution but it was so mixed up and connected
with other Jain institutions that it was practically impos-
sible to separate it, and that Dharmasthal was a happy
blending of charity and religion. The District Judge held
further that the Manjunatha shrine was the private
894
temple of the Heggade, it had not been dedicated to the
Hindu public, and it was not used by the public as of right.
The District Judge did not decide whether the shrine of
Ammanvaru and other deities was a Jain institution. He
accordingly held that though the Manjunatha shrine may be a
Hindu shrine, it was private property of the Heggade and the
provisions of the Act were not applicable to it. The Dis-
trict Judge accordingly set aside the order of the Board
dated March 9, 1949.
The Commissioner filed an appeal to the High Court
against that judgment of the District Judge dated November
9, 1956. One of the main questions presented for determina-
tion before the High Court was whether "all the institu-
tions" of Dharmasthal formed a single composite institution.
It was not in dispute before the High Court that, apart from
the question of Manjunatha temple being an adjunct to the
composite Dharmasthal institution, the temple was not an
institution at all. Even the Heggade did not deny the exist-
ence of Manjunatha temple as an institution and took the
specific plea in his affidavit dated July 22, 1949 that the
Manjunatha Deity "is a private institution belonging to the
Heggade." The High Court examined the "crucial question"
whether Manjunatha was a temple within the definition of the
Act and whether it was a "Religious Endowment" under section
9(11). It held that the Manjunatha temple was an adjunct to
the composite institution of Dharmasthal and according to
the customs and usages of the institution that temple could
not be separated from the rest of the institution, that
Dharmasthal was both a religious and charitable institution,
that Manjunatha was a deity worshipped both by the Hindus
and the Jains in accordance .with their respective faiths
and that it was neither an exclusively Hindu deity nor an
exclusively Jain deity. The High Court referred to the
pleadings and the evidence and held that the institution was
rounded by a Jain, its administration remained exclusively
Jain since its inception, and that as Jains also worshipped
along with Hindus, it could not be inferred that there was
an implied dedication to the Hindus exclusively. The High
Court thus hold that the temple was not a temple as defined
in the Act, and it was therefore not necessary to examine
the question whether it was a private temple of the Heggade.
In the result, the High Court took the view that the Act did
not apply to the institution and the Board had no jurisdic-
tion over it. It therefore dismissed the appeal with costs.
The Commissioner has obtained special leave, and this is
how the appeal has come up here for consideration.
As the controversy in this case relates to the applica-
bility of the Act to the Manjunatha temple, it will be
convenient to examine its relevant provisions.
The preamble of the Act states, inter alia, that it is
meant to provide for the better administration and gover-
nance of "certain Hindu religious endowments" described in
it. Section 2 makes it clear that the Act applies "to all
Hindu public religious endowments". Private religious
endowments are therefore outside its scope. Then there is
an Explanation to the following effect,--
895
"Explanation,---for the purpose of
this Act, Hindu public religious endowments
do not include Jain religious endowments."
The effect of the section therefore is to
exclude not only private religious endowments,
but also Jain religious endowments and it is
around the provisions of section 2 that the
controversy in this case has centred. The
exclusion of Jain religious endowments has
been emphasised by section 3(b) which empowers
the Local Government to remove the exclusion
and extend the provisions of the Act, and the
Rules framed thereunder, to Jain religious
endowments, subject to such restrictions and
modifications as may be considered proper. As
no such extension has been notified, the Act
does not cover Jain religious endowments. It
is confined to Hindu religious "endowments"
and will not be applicable where there is no
such endowment at all.
The expression "Religious endowment" or
"Endowment" has been defined in clause (ii) of
section 9 as follows,--
"(11) ’Religious endowment’ or ’Endow-
ment’ means all property belonging to, or
given or endowed for the support of maths or
temples or for the performance of any service
or charity connected therewith and includes
the premises of maths or temples but does not
include gifts of property made as personal
gifts or offerings to the head of a math or to
the archaka or other employee of a temple."
It follows that "all property" belonging to, or given or
endowed for the support of a temple or for the performance
of any service or charity connected with the temple will
constitute its endowment, including the premises of the
temple. It would therefore be necessary to examine whether
there is evidence to prove any such endowment in respect of
Sri Manjunatha temple. In this connection it will be neces-
sary to examine which property, if any, was endowed to the
temple, and by whom, and which, if any, could be said to be
the premises of the temple to the exclusion of all other
temples ?
The expression "Temple" has been defined
by clause (12) of section 9 in these terms’-
"(12) ’Temple’ means a place, by whatev-
er designation known, used as a place of
public 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 religious worship."
The definition thus emphasises that only those temples will
fall within the purview of the Act which are places of
"public religious worship" and are "dedicated" to, or for
the benefit of, or are used "as of right" by the Hindu
community.
It may be mentioned in this connection that, as has been
stated, the District Judge has held that although the Manju-
natha temple may be a Hindu temple, it is the private temple
Of the Heggade and is not a temple expressly dedicated to
Hindus or a temple which could be
896
said to have been used or resorted to by the Hindu public as
of right. The High Court has, on appeal, held on the other
hand, that Manjunatha is neither an exclusively Hindu deity
nor an exclusively Jain deity and that it is not therefore a
temple as defined in the Act. It has therefore not examined
the other question whether it is a public or a private
temple. As regards the property of the temple, the High
Court has held that it is an "adjunct" to the composite
institution consisting of Hindu and Jain Gods and Daivas
worshipped by Hindus and Jains.
Counsel for the parties have argued at length on the
questions whether Manjunatha temple is an exclusively Hindu
temple and whether it is a place of public religious worship
dedicated to or used as of right by the Hindu community as a
place of religious worship. There is considerable evidence
for deciding these questions, but even if it were assumed
that the answer to these questions should be in the affirma-
tive, that would not be decisive, of the controversy, for
the other question would still remain whether it is an
"endowment"? It will be recalled’ that by virtue of section
2, the Act applies only to Hindu public religious "endow-
ments."
The definition of "Religious endowment" and "Endowment"
in clause (11) of section is common. Accordingly, the
questions which arise for consideration in this connection
are whether the temple has property belonging to, or given
or endowed for its support or for the performance of any
service or charity connected therewith. It has not been
disputed before us, and is in fact beyond controversy, that
there is considerable movable and immovable property of the
Dharmasthal as a whole i.e. the entire complex or campus
consisting of Nelleyadi Beedu, Chandranath Basthi, Manjuna-
tha temple, Ammanvaru temple and the Heggadeship. But the
question is whether there is any such property exclusively
of the Manjunatha temple so as to constitute a Hindu reli-
gious endowment for purposes of section 2 of the Act ?
It will be recalled that it is not in dispute here that
it were the "Daivas" who were first established in Nelleyadi
Beedu and were worshipped there by an ancestor of Heggade
who was a Jain. The High Court has in fact found that it
has been clearly established by the evidence on the record
that the institution was rounded by a Jain and that ever
since its inception its administration has remained in the
hands of a Jain, namely, the Heggade. So when Vadiraja
Swamjar of Sode Mutt, Udipi, came there as mentioned earli-
er, there was only worship of Jain "Daivas" and of "no God".
This is to be found in the report (Ex. A 108) of T. Narayan
Nambiyar in the matter of the Manjunatha temple, which was
taken in evidence and has been relied upon by the High
Court. It was at the instance of the Swamiar that the idol
of Manjunatha was brought and installed in the "garbagriha"
and it was he who performed the first ’pooja’. It was
therefore the Swamjar who was responsible for the installa-
tion of the Manjunatha idol, which was a ’lingam’, in a
campus where there were shrines of Devas like Nelleyadi
Beedu, the Chandranatha Basthi and several other buildings.
It could not therefore be said that the mere installation of
the idol of Manjunatha brought into existence any such
property as
897
could be said to belong to that deity or given or endowed
for the support of its temple or for the performance of any
service or charity connected therewith.
There is, on the other hand, evidence to show that all
the buildings and institutions of the Dharmasthal, which was
the composite name of the entire campus or complex consist-
ing of the buildings mentioned in plan Ex. A 59, were situ-
ated in the land belonging to the Heggade, and of which he
held a ’patta’. This is evident from Ex. A 103 which is a
certified copy of the statement of Kumara Heggade dated July
31, 1820, which appears to have been read in evidence with
the consent of the parties. To the same effect is the
statement of U. Seetharamayya dated October 12, 1954 who was
acquainted with Dharmasthal since 1908. As it is, the
Manjunatha temple does not have even a separate "prakaram".
The shrine of Ammanvaru is in close proximity of the Manju-
natha temple and within the same "prakaram". It has not
been disputed before us that, as has been stated by U.
Seetharamayya, P.W. 2, its important deities are Kalarahu,
Kalarhayi, Kumaraswami and Kanya Kumari some of which, at
any rate, are the same as the Jain deities worshipped in
Nelleyadi Beedu and Badinade both of which are admittedly
Jain institutions. Moreover, Kanya Kumari in Ammanvaru
shrine cannot be said to be Parvati, the consort of Shiva,
for M. Govinda Psi R.W. 12, who claims to have studied Hindu
and Jain religions and was examined on behalf of the Board,
has stated that Parvati and Kanya Kumari are "not
identical". The shrine of Annappa Daiva is also situated
within the common "prakaram". The existence of the shrines
of Ammanvaru and Annappa Daiva in the same "prakaram" as the
Manjunatha temple therefore shows that Manjunatha temple
cannot even claim to have any exclusive premises of its own
so as to constitute an endowment within the meaning of
clause (11 ) of section 9 of the Act.
The High Court has found it as a fact that the shrine of
Manjunatha is an "adjunct" to the composite institution of
Dharmasthal and according to the customs and usages of the
said institution, the shrine of Sri Manjunatha cannot be
separated from the rest. In arriving at this conclusion the
High Court has taken into consideration those facts which
have been established by the evidence on the record. It
will be sufficient to make a brief reference to the follow-
ing 14 facts ’which have been mentioned by the High Court,--
(i) All the shrines in Dharmasthal were rounded by the
Heggade who was a Jain.
(ii) All the shrines are situated in close proximity on
"wrag" lands of which the ’patta’ is in the name of Heggade.
(iii) The rituals of all the shrines are interconnected.
(iv) All places of worship participate in the installa-
tion of the Heggade (Exs. A 58 and A 108).
(v) The ’pooja’ is reciprocal e.g. whenever there is an
important ceremony in Maniunatha shrine, special ’pooja’ has
to be performed in Chandranatha Basthi which is a Jain
institution (Ex. A 108).
898
(vi) All ’prasadam’ is normally given only from Amman-
varushrine and not from Manjunatha temple, (P. Ws. 3, 4 and
5).
(vii) The festivals, including that relating to "makara
shankranti", of all the shrines, are common (P.W.2 and
exhibits A 69 and A 70).
(viii) All offerings are made and received for the
entire institution and not for any particular deity (Exs. A
69, A 70 and A 108), and the public do not make any distinc-
tion in making the offerings and whatever is given is for
Dharmasthal as a whole (Ex. A 108).
(ix) On Heggade’s death, ’pooja’ is’ stopped in all
institutions until’ purification (Ex. A 108).
(x) "Hoilus" or complaints are made to Dharmasthal as a
whole’ and ’prasadam’ is given to the complainants from
Ammanvaru shrine Ex-A 72).
(xi) Chandranatha Basthi, which is a Jain institution,
is closely interlinked with aH the other institutions in
Dharmasthal.
(xii) The paraphernalia of "Daivas" (who are Jain dei-
ties) is kept in Manjunatha and Ammanvaru shrines (Ex. A
108).
(xiii) There is-extraordinary unity of interest between
the Heggade and Dharmasthal (Exs. A 107 and A 103) and no
distinction is made between the office of Heggade and the
deities (Ex. A 104).
(xiv)-The deities which had been installed before the
installation of the ’lingam’ in the Manjunatha temple con-
tinued to enjoy their previous importance (Ex. A 105) and
Dharmasthal could not be said’ to have been dedicated to
Manjunatha but to the earlier deities.
To the above may be added the following further facts,--
(i) The entire income of all the institutions consti-
tutes one common fund from which the expenses of all the
shrines and the Heggade are: met (Report Ex. B 2 of R.W. 3).
(ii) The vast charity which is undertaken was in exist-
ence even before the installation of the ’lingam’ in Manju-
natha shrine (P.W. 3).
(iii) While the ’lingam’ was installed in Manjunatha
temple by Vadiraja Swamjar of Sode Mutt, Udipi, as an exclu-
sively Hindu God, in its present "garbagriha" which exclu-
sively contains that ’lingam’ and has no non-Hindu God, the
Jain Daivas have continued to be worshipped side by side, in
the adjacent Ammanvaru shrine. Even in the presence of the
Swamiar, the Heggade was present at the time of worship and
offered ’Kanikam’ (R.W. 9). Whosoever went to Dharmasthal,
whether a Hindu or a Jain worshipped Manjunatha and the
other deities and Daivas alike (Ex. A 108).
(iv) It may be that Brahmins perform ’pooja’ in Manjuna-
tha temple, but that is done in the presence of the Heggade
(R.W. 11) who also worships Manjunatha and controls all the
institutions as one integral Dharmasthal.
(v) The Jain shrine of Anna Daiva is also within the
same ’prakaram’ in which the temples of Manjunatha and
Ammanvaru are’ situated.
899
It therefore appears that the High Court was justified
in taking the view that Manjunatha temple is part and parcel
of the composite institution known as Dharmasthal and is so
inseparably connected with it that it is its integral part.
It cannot therefore be held that the Manjunatha temple is an
"endowment" within the meaning of clause (11 ) of section 9
of the Act for it has not been proved that any property
belongs to it, or has been given or endowed for its support
or for the performance of any service or charity connected
therewith, or that it has any such premises of its own as
could be said to form its own endowment.
It would follow from what has been said above that even
if ’the Manjunatha temple is assumed to be a place used, as
of right, for public religious worship by Hindus, it could
come under the purview of the Act only if it could be estab-
lished that it was a ’religious endowment’ within the
meaning of section 2, but this has not been proved to be so.
On the other hand it appears that the present institution of
Dharmasthal was originally a Jain religious and charitable
institution to which property was endowed by the ancestors
of the present Heggade who was himself a Jain. It was that
endowment which spread and gained more and more importance
over the years because of the offerings made largely by
Hindu and Jain devotees and worshippers. But it has not
been established that there is any endowment which could be
said to belong exclusively to Manjunatha temple. Even if any
such endowment was made by some one in the name of Manjuna-
tha temple, (as stated by K.C. Nambayar R.W. 3), it was
taken to be an endowment for the entire institution known as
Dharmasthal and was treated as such. The Manjunatha temple
cannot therefore be said to be a Hindu religious endowment
within the meaning of section 2. The provisions of the Act
are not applicable to it, and the Board clearly erred in
holding otherwise.
It has been argued by Mr. Chowdhary for the appellant
that generally speaking Hindus include Jains. According to
him, the underlying assumption in the Act is that Jains are
also Hindus, and that the fact that Jains also worship in a
Hindu temple will not detract from the fact that it is a
Hindu temple as it is not necessary that a Hindu temple
should be a place exclusively for Hindu public religious
worship. Reference in this connection has been made to The
All India Sai Samaj (Registered) by its President D. Bhima
Rao, Mylapore v. The Deputy Commissioner for Hindu Reli-
gious and Charitable Endowments (Administration) Depart-
ment, Madras-34, and others, ( 1 ) The State of Madras by
the Secretary, Revenue Department, Madras and another v. The
Urumu Seshachalam Chettiar Charities, Tiruchirapalli, by its
Board of Trustees and others,(2) and S. Kannan and others v.
The All India Sai Samaj (Registered) by its President, D.
Bhima Rao, Mylapore(3). It will be sufficient to say that
what section 9(12) of the Act requires by way of definition
of a ’temple’ is that for purposes of the Act a ’temple’
should be dedicated for public religious worship, as of
right, and it would not detract from its character as such
if Jains also worship there. The argument of Mr. Chowdhary
is, however,
(1) (1967) 2 M.L.J. 618. (2) (1960) 2 M.L.J. 591.
(3) (1974) 1 M.L.J. 174.
900
futile because, as has been mentioned, the provisions of the
Act will not be attracted to the Manjunatha temple in the
absence of any evidence to prove the existence of an endow-
ment for it.
It has next been argued by Mr. Chowdhary that unless the
temple of Manjunatha could be shown to be a Jain endowment
it would come within the definition of ’temle’ in the
Act.This argument has only to be stated to be rejected
because, as has been shown, there is no evidence to show
that there is any endowment for the Manjunatha temple
as .such, and the temple is a part and parcel of Dharmasthal
which came to be endowed in the facts and circumstances
mentioned above.
An ancillary argument has been made that an infer-
ence of Hindu endowment for the benefits of the public
should be drawn from the facts that the deity belongs to
the Hindu Trinity, the architecture of the temple is that of
a Hindu temple, the rituals are performed by Brahmins ac-
cording to Hindu form of worship and honey is used for
"abhisheka" which is contrary to the Jain form of worship.
We have already assumed that the temple possesses the char-
acteristics which make it a Hindu temple, but even so there
is no justification for the argument that there is any
endowment for it as such.
Then it has been argued by Mr. Chowdhary that Manjunatha
temple is not an "adjunct" to the composite institution of
Dharmasthal for it is the most important temple in the
campus. It has been urged that mere common management .and
control cannot justify the argument that Manjunatha temple
is an inseparable part of the Dharmasthal It is not neces-
sary to examine this argument once again, for we have given
our reasons for taking a contrary view.
Another argument of Mr. Chowdhary is that formal dedica-
tion of the endowment to the temple of Manjunatha was not
necessary and that its user by the Hindus as of right would
be enough to prove the initial dedication. Reliance for the
argument has been placed on B.K. Mukherjee on the Hindu Law
of Religious and Charitable Trusts. third edition, page 27,
which makes a mention of the rituals to be observed when a
donor wants to consecrate a temple and establish a deity in
it. It may be that, in a given case, it may be difficult to
prove the original dedication because of the lapse of con-
siderable time but, in the present case it would not be
possible to conclude that there was any such dedication
because there is nothing to show how Vadiraja Swamiar, who
installed the ’lingam’ in Manjunatha temple, could be said
to be a donor when the property did not belong to him,
In the view, we have taken, we find no force in this
appeal and it is hereby dismissed with costs.
BEG, J.--I agree with the order proposed by my learned
brother Shinghal. But, I would like to indicate my own
reasons in this case for reaching this conclusion.
The following facts appear from the petition filed on
22nd July, 1949, by the Heggade or trustee of the Manjunatha
temple, and from affidavits and other documents filed either
in support or in opposition to it, in the Court of the
District Judge of South Kannara, in proceed-
901
ings under Section 84(2) of the Madras Hindu Religious
Endowments Act of 1927, (hereinafter referred to as ’the
Act’): In 1926, the Manjunatha temple was exempted by a
Government notification from the operation of the provisions
of the Madras Hindu Religious Endowments Act 1923. On 28th
June, 1945, the Board, which had been set up under Section
10 of the Act of 1927, informed the Heggade that it was
examining the position afresh whether the exemption which
had been granted in 1926 should be withdrawn. After due
enquiry the Board had moved the Government on 26th October,
1945, to cancel the exemption and it was cancelled by the
Government on both December, 1945, under the provisions of
Act 2 of 1927. On 7th February, 1946, the Heggade had made
an application to the Government to review the cancellation.
Thereupon, the Government directed the Board to enquire
into the whole question again. That enquiry before the
Board took place on 27th July, 1946. The Board gave its
decision on 9th March, 1949, holding that the temple was
covered by the provisions of the Act.
It was in circumstances stated above that the Heggade had
made an application before the District Judge after the
coming into force on May 15, 1946, of the amending of Act 10
of 1946. The whole proceeding before the District Judge
took place as a fresh and original trial in the course
of which detailed oral and documentary evidence was
produced in support of the respective cases by the two sides
to the dispute which were: the Heggade of the Jain Dharamas-
thala, of which the temple was said to be a part, and the
Board of Commissioners under the Act (probably substituted
by the Commissioner after the repeal of the Act and its
substitution by other enactments on the subject).
There was no argument before us on the question whether
the proceedings were governed by the provisions of the Act
before its amendment in 1946 or its provisions as they stood
after the amendment. But, it appears to me that the case
proceeded on the footing that the amended Act, which had
come into force before the Heggade had petitioned to the
District Judge, governed the rights of the parties and the
scope of the enquiry. The question whether the Institution
known as Dharmasthala included the Manjunatha temple or
whether Manjunatha temple could be said to have a
separate legal entity of its own as an Institution seems to
me to be covered by the provisions of Section 84 as they
stood both before the amendment in 1946 and after it was
amended in 1946. An appeal to the High Court, however, lay
under the amended provisions only, There was no objection
to the appeal to the High Court on the ground that the
unamended provisions did not contain such a right. Here, I
may, for the purpose of clarifying the exact scope of the
enquiry out of which the case now before us by special leave
has arisen, reproduce the provisions of Section 84 of the
Act both before and after its amendment in 1946.
The unamended provisions of Section 84 read as follows:
"84(1) If any dispute arises as to whether
an institution is a math or temple as defined
in this Act or whether a temple is an excepted
temple, such dispute shall be decided by the
Board.
902
(2) Any person affected by a decision
under sub-section (1) may, within one year,
apply to the Court to modify or set aside such
decision, but, subject to the result of such
application, the order of the Board shall be
final".
After the amendment by Act X of 1946, Section
84 reads as follows: "84(1) If any dispute
arises as to--
(a) whether an institution is a math or
temple as defined in this Act,
(b) whether trustee is a hereditary trustee
as defined in this Act or not, or
(c) whether any property or money endowed
is a specific endowment as’ defined in this
Act, or not.
Such dispute shall be decided by the Board and
no Court in the exercise of its original
jurisdiction shall take cognizance of any such
dispute.
(2) Any person affected by a decision under
sub-section (1), may within six months apply
to the Court to modify or set aside such
decision.
(3) From every order of a District Judge,
on an application under sub-section (2), an
appeal shall lie to the High Court within
three months from the date of the order.
(4) Subject to the result of an applica-
tion under subsection (2) or of an appeal
under Sub-section (3), the decision of the
Board shall be final. (Substituted by Madras
Act X of 1946)".
The case of the Heggade or the managing trustee was far from
consistent. He took up the following positions: firstly,
that the temple was "private" and not a public temple and
was exempt from the provisions of the Act for that reason;
secondly, that the temple was a Jain institution, or, an
integral part of it, and, therefore, excluded from the
purview of the Act; and, thirdly, that the temple, even if
it was to be deemed to be a Hindu temple, as a place at
which the Hindu public could worship as of right, was really
not separable from the larger Jain institution, so that,
irrespective of the character of worship or the beliefs of
the worshippers at the temple, it was not an institution
which could be viewed separately from the Dharamasthala or
be held to be just a Hindu temple as an "institution’. The
Board considered the Heggade’s case to be "that the Institu-
tion is a unique institution where a Hindu temple was round-
ed and managed by a Jain family". A subtle distinction was
thus made between the temple as a place of worship and as a
part of a larger Jain institution. Although, I am doubtful
of the correctness of this distinction, on facts, yet, for
the reasons given below, I do not consider this to be a fit
case for interference with the findings of the High Court,
accepting the correctness of this distinction, on the par-
ticular facts of the case before us.
903
It seems to me that the question whether the Manjunatha
temple could be described as a Hindu temple as defined by
the Act, could be conclusively answered by a reference to a
number of admissions of the Heggade and his witnesses.
Indeed, the exemption of the temple from the provisions of
the Act by the State Government in exercise of its powers
under Section 3(1) of the Act, could be sought by the Heg-
gade only on the assumption that the temple constituted a
Hindu religious endowment which ought to be exempted from
the operations of the provisions of the Act. If it was
exempt by virtue of a statutory provision from the provi-
sions of the Act, as a Jain institution, there was no need
for an order to exempt it. The scope of proceedings which
have come up before us seems to go no further than resolu-
tion of certain disputes. They may, however, involve making
of certain declarations.
The origin of the temple was said to be given in a
document containing a statement of 1806, ’by the then
Dharmasthala Heggade, produced by the managing Heggade,
which runs as follows:
"There was formerly a woman called Amoo
Devi Ballalthi placed there by the favour of
God to perform the ceremonies. The God’s name
was Durga Amba Kallarkie, but was subsequently
changed to Kanya Kumari. God appeared to the
-woman in a dream and revealed himself to her
telling her he would remain in her house and
’she should therefore procure a bed and a
light for him to perform ceremonies, also that
she should build another house near to his to
perform ceremonies in and that her children
and heirs should accordingly succeed her.
Under this arrangement, the temple shall ever
flourish. As related before, the God in the
shape of a woman revealed himself to Ballalthy
and the Ballalthy acted accordingly. In the
1396 Sahvahanam, the Peer of Udipi, Wadirajas-
wamy, arrived at Dharmasthala where the Bal-
lalthy ordered him to prepare his dinner and
on the next day to leave the place. The Peer
replied: "This is the residence of Devil. I
must establish God in it before I eat my din-
ner". On this, the Ballalthy consulted he God
in her sleep, who appeared and encouraged her,
desired her to give the Peer whatever was
required and told her he would establish the
Kuddera God there saying ’you will tell this
to the Peer who on hearing it will eat his
dinner’. When I bring the God from Kuddera
you will have a place prepared on the left
hand side for his residence and a Brahmin
appointed to perform ceremonies. "On the same
evening the Manjunatha (Kudder God) was
brought and a house built and he was lodged in
it on the next morning, this was all seen.
The Ballalthi informed the Peer of this. He
accordingly came and after dining departed.
Sometime afterwards the Ballalthy built a
house on the right hand side and made it the
residence of the God and Brahmins were ap-
pointed to perform ceremonies to both. The
old God (viz., that of the Ballalthy) some
time afterwards told the Ballalthy he had
appointed the devil Kulataya to preside over
the offerings and therefore she must build a
house for him,
904
to expend all the religious offerings proper-
ly, should any dispute arise, proper investi-
gations were to be made. ’Some delay being
made in the collection of the offerings by
Kulataya, Annappa, another Devil was fixed,
for whom another residence was built and four
people were chosen to superintend the chari-
ties which the offerings admitted of...".
As the Board observed, it appeared that Sri Manjunatha
idol was installed on the occasion of Vadirajaswamy of
Udipi’s visit to the Dharmasthala. This was taken to be the
introduction of the worship of God as opposed to that of the
Devil. Sri Manjunatha was the installed God. It was as-
serted that this was in accordance with Jain beliefs. It
was said that God spoke through the Heggade who acted as the
oracle and used to answer questions put to him by devotees
at special sessions arranged for this purpose. It was,
however, clear that Hindus in general were not prohibited
from worshipping at this temple. They had worshipped here
long enough freely and publicly to acquire the right to
worship as members of the Hindu public in general. This
right, I think, could not now be denied to them whatever be
its origin.
After an elaborate discussion of the nature of beliefs
and worship, the Board had concluded: "... it is clear that
Shri Manjunatha Temple, Dharmasthala, Puttur Taluk, South
Kanara District is a ’temple’ as defined in Madras Act II of
1927 and we decide accordingly".
When the matter went up before the District Judge under
Section sub. s. (2) of the Act, the District Judge, after
discussing the evidence, recorded his conclusion as follows:
"Therefore it appears to me that taking
into consideration all these circumstances the
claim of the petitioner that this Shri Manju-
natha Shrine though it may be a Hindu one in
his private temple seems to be well-founded
and it is not a temple which is either ex-
pressly dedicated to the Hindu public or which
has been used or resorted to by the Hindu
public as of right".
It is difficult for me to understand where the District
Court found the law which requires "express" dedication for
use by the Hindu public or why he thought that the public
had not acquired a right to worship. Its findings, at any
rate, carried with them the implication that, although there
was a dedication, it was for "private" purposes. I find it
difficult to conceive of such a transaction. Dedication to
a deity necessarily implies a cessation of individual human
ownership.
The dispute was then taken to the High Court of Mysore,
which reached the conclusion, after a detailed discussion
of the whole evidence:
"If, ’Sri Manjunatha’ were a Hindu deity
exclusively and not a deity worshipped by the
Jains as well, it is inconceivable that the
name ’Manaya’ should be found among 9 Jains
also. In our opinion, Sri Manjunatha is a
deity worshipped
905
both by the Hindus as well as the Jains in
accordance with
their respective faiths and it is neither an
exclusively Hindu deity nor an exclusively
Jain deity".
It then stated its views as follows:
"Since the institution is not a ’Temple’
as defined in the Act, the further question
whether it is a private temple of Nellyadi
Beedu family as contended by the Neggade does
not arise for determination. The proceedings
before the Board and the Court below are
under the Act. In view of our finding that
the Institution is not a ’temple’ under the
Act, the Board has no jurisdiction over the
Institution. Having held that the Act has no
application to the Institution and the Board
has no jurisdiction over it as contended by
the Heggade, the Court below should have
desisted from giving any finding on the ques-
tion whether it is a private temple of Nellya-
di Beedu family. We express no opinion on the
said issue".
The High Court’s view seemed to be that there was a
"dedication" but for mixed purposes Outside the Act. Jain
beliefs, as distinct from generally held and accepted Hindu
beliefs, the origin and nature of the endowments, the estab-
lished practices and customs relating to management of the
temple, the receipt and disbursement of income of what was
held to be a single institution called Dharmasthala, had
been taken into account by the High Court in order to decide
whether "the institution" is a "temple" as defined in the
Act or something more. Its opinion seemed to be that the
real question to be decided here was not whether there was a
temple, as defined by the Act, but whether the temple, which
existed there, was an inseparable part and parcel of a Jain
institution which was outside the Act, or, it was an insti-
tution which, taken by itself, was covered by the Act. If
the temple was, so to speak, a mere appendage of the larger
multi purposed institution, all the parts of which were
managed as a single entity, the temple could not, in the
opinion of the High Court, be "the institution".
Although, I am prepared to accept the High Court’s
findings on questions of fact, I do not find it possible to
agree with the High Court’s view that, if a place of worship
is open to both Jains and Hindus in general, or, has a mixed
character, it is not a temple within the meaning of that
term as defined in Section 9, sub. s. (12) of the Act. All
that Section 9, sub. s. (12) requires is that it should be a
place of worship either dedicated for the benefit of or used
as of right by the Hindu community or a section thereof as a
place of religious worship. The word exclusively is not
there at all so as to justify any exclusion of a place of
worship from the definition of a temple on the ground that
the place of worship is not confined to worship, as a matter
of right, to either Hindus as members of the general public
or to any section of Hindus.
The Act does not define the term "Hindu". This word has
had a fairly wide connotation. In origin, it indicated
people living in the Indus region. It is only by subsequent
usage and extension of meaning
906
that the word acquired a religious, and, therefore, in this
sense, a more limited significance. But, in some contexts,
the term. "Hindu", even today, stands for Indians in gener-
al. In foreign countries all Indians are sometimes
described as "Hindus". Even as a term used for Indians
professing a particular type of beliefs, which are presumed
to have an indigenous origin, it is wide enough to include
Jains and Sikhs. Hence, this is the meaning given to the
term Hindu in the Hindu Succession Act. In a statute deal-
ing with religious endowments, the term, even though not
defined, may be presumed to stand for people of this country
with certain religious beliefs held or forms of religious
worship practised by people of this country originally.
But, this would also embrace a very wide sector of the
public. And, in any event, there is nothing whatsoever in
the definition of "temple" by the Act to justify the infer-
ence that Jains or any other group of person must be exclud-
ed from worship before it can be a "temple".
For reasons given above, I am unable to read into the defi-
nition of the word, "temple", given in the Act, the idea of
excluding from the benefits of the Act temples open for
worship to Hindus of all sects and beliefs. This means that
a place of worship where Jains, as a section of Indian
citizens, even when distinguished by their special doctrines
and practices from the rest of the Hindus, worship together
with Hindus of other sects, could not be a temple outside
the Act. All that the Act requires is that Hindus in gener-
al, or even a section of Hindus, should be able to worship
there as of fight. This requirement is, in my opinion,
satisfied by Shri Manjunatha temple on the findings of
the High Court which I accept, not without hesitation, as
correct. The view I have taken above is, however, not
enough, in my opinion, to dispose of an issue under section
84(1)(a) of the Act. It has to to borne in mind that the
issue to be decided under Section 84(1)(a) of the Act is
whether an "institution" is a math or temple as defined in
the Act. It is not whether a particular place is a temple,
in the sense that it is set apart for worship by the Hindu
public in general or a section of it. It is whether an
"institution" itself is a temple as defined by the Act.
The term temple has been defined in section 9(12) of the
Act as follows :
"9(12) ’Temple’ means a place, by what-
ever designation known, 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 religious worship".
It, therefore, becomes necessary, in order to decide a
dispute under section 84(1)(a) whether a particular place is
a temple as contemplated by the Act. But, that is not
enough for the decision of the whole issue to be decided
under Section 84(1)(a) of the Act. For that purpose, atten-
tion has to be also directed towards deciding the question
whether the "institution" to be considered is a temple and
nothing more. If the temple, as a place of worship, is an
integral part of an institution, so that it is not
separable as an institution, in itself, the mere fact that
there is a ’temple’, as defined by the Act, where
907
Hindu members of the public worship as a matter of right,
will not do, In such a case, the "institution" is not the
temple,although a temple can, by itself, be an institution.
The term "institution" is not defined in the Act of 1927,
although, in the more elaborate provisions of Madras Hindu
Religious and Charitable Endowments Act XXII of 1959, there
is now definition of the term "religious institution" as
well showing that this concept is wider than that of a
temple.
If, therefore, there is a distinction between the mean-
ings of "temple" merely as a place of worship, as defined in
Section 9(12), and a "temple" as an institution, as there
seems to me to be, an authority deciding the issue whether
it is an "institution", as contemplated by Section 84(1)(a)
of the Act, will have to consider whether the history, the
beliefs lying at the inception and sought to he propagated,
the forms of worship meant to be kept alive, the prevalent
customs and practices, the exact nature and process of the
endowments connected with the institution, the established
rules for its management, the objects to be carried out by
those in charge of the endowment, taken together, would
justify the inference that a particular "temple", as defined
by the Act, is also a separate or separable institution by
itself or is just an integral and organically inseparable
part of an institution or organisation outside the Act.
These wider aspects, which may not appear to be relevant at
first sight, seem quite necessary to consider when we close-
ly examine the nature of the issue contemplated by Sec-
tion 84(1)(a) of the Act and decided by the High Court.
In the case before us, the findings of the High Court
show that the institution or organisation of which Manjuna-
tha temple is an inseparable part, is predominantly Jain
in character. On such a finding, it would be exempt from the
operation of the Act by reason of the explanation to section
2 excluding Jain "religious endowments" from the benefits of
the Act. It may be that very good grounds could be given
for holding that the temple is a separable or separate
entity dedicated, by user, for worship by Hindus in general,
without restriction of worship by Jains only as a matter of
right. But, as two views seer, to be reasonably open on the
question--whether it is such a separate or separable insti-
tution or entity: I do not consider it fit to be reopened by
us under Article 136.
A consideration of the property which belongs to or is
"endowed for the support of maths or temples or for perform-
ance of any service or charity connected therewith and
includes the premises of maths or temples" may also become
necessary so as to determine the character of an endowment
as a part of the "institution" and the process by which it
took place. The institution endowed, on the findings of the
High Court, being more than or wider than the Manjunatha
temple, is not just a Hindu temple although a temple, by
itself, could be such an institution if it were a separable
entity.
The origin and process of dedication is not always found
embodied in a document. Where the dedication itself is
evidenced by a document, its objects, such as they may be
can be determined by interpreting the document which makes
the task of the authorities deciding the question generally
easier. There are, however, many cases in
8 --1338SCI/76
908
which dedication or endowment of property for a
particular purpose has to be inferred from immemorial user
of a property in a particular manner or from the conduct of
a party, such as permission to build a road for use by the
public or permission to bury the dead on a piece of land.
The last. mentioned type of case may also give rise some-
times to an estoppel against the owner of the land.
Cases where an inference of "dedication" results
from what may be considered immemorial user or a kind of
permissible user giving rise to an estoppel, because others
have spent money or done ’some act on the strength of ’a
licence or permission to use the land for a particular
purpose, are not uncommon in our country. They should not,
as Lord Macnaghten hinted in Bholanath Nundi v. Midnapore
Zemindary Co. Ltd.,(1) be complicated by resorting to the
peculiar English notions of dedication, when he said:
"It appears to their Lordships that on
proof of the fact of enjoyment from time
immemorial there could be no difficulty in
the way of the Court finding a legal origin
for the right claimed. Unfortunately however
(in the lower Courts) the question was over-
laid, and in some measure obscured, by copious
references to English authorities and by the
application of principles or doctrines, more
or less refined, rounded on legal conceptions
not altogether in harmony with Eastern no-
tions".
After quoting the passage, set out above, Lord
Radcliffe, in Lakshmindhar Misra & Ors. v. Rangalal &
Ors.,(2) pointed out (atp. 58) about such dedications in
English law:
"But dedication is only known to English law
as something equivalent to an irrevocable
licence granted by the owner of soil to the
use of the public. Dedication of a piece of
land to a limited section of the public, such
as the inhabitants. of a village, is a claim
unknown in law, and evidence limited to such
special user would not justify a finding of
dedication: see Poole v. Huskinson, (1843) 11
M. & W. 827: (63 R.R. 782), Hildrath v. Adam-
son, (1860) 8 C.B. (N.S.) 587; (125
R.R. 794). Berrnondsey v. Brown, (1865) 1
Eq. 204:(147 R.R. 124)".
It was explained in Lakshmidhar Misra’s case (supra) that
the doctrine of lost grant originated in English law "as a
technical device to enable title to be made by prescription
despite the impossibility of proving immemorial
user".Prescription by a convention,was deemed to start in
1189, when Normans conquered England. The real basis of
such rights in English law seemed to be prescription. In
this very case, differences were pointed out between a
dedication and a customary right enjoyed by people of a
locality to use a particular piece of land on certain occa-
sions. It was indicated here that a. dedication, by pre-
sumed lost grant, in English law, unlike. customary rights,
which
(1) 31 I.A. 75. (2) A.I.R. 1950. P.O. 56.
909
may become attached to land, postulates a grantee and the
creation of an estate.
Although certain essential or basic prerequisites of a
valid trust in English law, such as the three reasonable
certainties laid down by Lord Eldon in Knight v.
Knight(1)---that of the obligation to be carried out, that
of the subject matter or of property affected by it, and
that of the object to be served or the persons to be
benefited--are required in this country too for valid endow-
ments no less than they are in England, yet, valid dedica-
tions can be inferred, under our law__, without showing
compliance with at least some of the technical requirements
of English law.
Dedications in Hindu law do not require acceptance of
property dedicated for a religious or a public purpose. In
Monohar Ganesh V. Lakhmiram(2), a rule of Hindu law coming
down from ancient times was thus stated:
"A Hindu who wishes to establish a
religious or charitable institution may,
according to his law, express his purpose and
endow it, and the ruler will give effect to
the bounty or at least protect it so far, at
any rate, as is consistent with his own Dharma
or conception of morality".
Neither a document nor express words are essential for a
dedication for a religious or public purpose in our country.
Such dedication may’ be implied from user permitted for
public and religious purposes for sufficient length of time.
The conduct of those whose property is presumed to be
dedicated for a religious or public purpose and other.
circumstances are taken into account in arriving at the
inference of such a dedication. Although religious ceremo-
nies of Sankalpa and Samarpanam are relevant for proving a
dedication, yet, they are not indispensable (see: B.K.
Mukherjee on the "Hindu Law of Religious. and Charitable
Trusts"--Third Edn. 1970 p. 80).
The question of an implied dedication by user by the
public is particularly important in cases like the one
before us where a claim that a trust is private or sectarian
in nature is set up against a wider claim on behalf
of the general public. In Deoki Nandan v. Murlidhar(3),
this Court said:
"the distinction between a private and a
public trust is that whereas in the former the
beneficiaries are specific individuals, in
the latter they are the general public or a
class thereof. While in the former the bene-
ficiaries are persons who are ascertained or
capable of being ascertained, in the latter
they constitute a body which is incapable of
ascertainment".
In B.K. Mukherjea’s Tagore Law Lectures on the Hindu Law
of Religious and Charitable Trusts (1970)--(3rd edition), we
find the following passage at page 143:
(1) (1840) 3 Beav. 148. (2) 1. L.R. 12 Bom. 247, 263;
(3) [1956] S.C.R. 756.
910
"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 temple 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 dedica-
tion would arise".
Cases are also cited there where reliance had been placed
upon circumstances such as the structure or the location of
a temple outside a private residence or dwelling so as to be
exposed to public view and’ worship by members of the gener-
al public to infer dedication for the public.
In Pujari Lakshmana Goundan v. Subramaniya,(1) the
question for determination was whether a Hindu temple round-
ed between 1841 and 1856 had been dedicated for use by the
public by its founder who had executed no deed showing this.
But, the founder, Lakshmana Goundan, was shown to have in-
stalled an idol at his house and allowed Brahmins and Hindus
to worship the idol as if it was a public place of worship.
The Hindu public was admitted free of charge, though only on
certain days in the week, in the greater part of the temple,
and, in one part only on payment of a fee, and, in the inner
shrine, not at all. It appears that the income from offer-
ings and fees was spent by the Pujari founder on the temple
and the idol as well as on himself. Nevertheless their
Lordships of the Privy Council held that Lakshmans Goundan,
having held out and represented u:, the Hindu public that
the temple was for their benefit, the inference was irre-
sistible that had dedicated the temple for use by the
public. In B.K. Mukharji’s Lectures (supra), the facts of
this case have been cited as an example of an application
of the principle of estoppel. Our law reports abound
with similar cases where dedication by founders or owners is
inferred or presumed, irrespective of their own religious
persuasions, from’ the purposes for which a piece of proper-
ty has been used for long enough. In some cases the ele-
ments of an estoppel are present. But, the basis of such
dedications seems, in many cases of this type, to be,
strictly speaking, nothing more than a presumption from
certain’ facts. Perhaps we could describe it, in most
cases of this sort, as a "deemed dedication" although it
must not be confused with a fiction. It is, after all, an
inference from facts which must exist and lead to the con-
clusion deduced.
(1) 29 C.W.N. 112 (P.C.)
911
In view of tiffs well established doctrine .of. implied
endowment of property, by its long user for a particular
religious or public purpose., based on a presumed consent of
the owner, I do not think that the High Court could be held
to have reached a wrong conclusion even if it has inferred
that, whatever be the origin of the Manjunatha temple, it
had become a separate institution with an endowment of its
own consisting at least of the land over which the temple
had been built, ’the building, and the idol installed with
free access to it by the Hindu public in general which made
offerings even though Jains also worship there. Neverthe-
less, in view of the discussion of a good deal of evidence
of the peculiar composite character of the institution known
as Dharmasthala, and, bearing in mind our general rule of
practice that we do not disturb findings of the final Court
of fact where two views are possible, I do not propose to
differ from the conclusion reached by the High Court that
the temple was not a separate institution. The Manjunatha
temple, on the findings of the High Court, which we are
upholding, had become an accretion or growth on the body, if
one may so .out it, of the institution known as Dharmastha-
la, even though it could be removed from that body by a
surgical operation. It is not for us to say, on the find-
ings before us, whether a situation has arisen in which a
surgical operation may be called for. Such an opinion can
only be given upon the results of a more thorough investiga-
tion ’into the objects of the institution, its properties,
the sources of its income, and the manner in which they are
utilised than we have before us.
The question which troubles me, however, is whether a
religious ’institution or even that part of it to which
members of the public make .contributions, through their
offering and gifts, is to be left entirely uncontrolled by
authorities specially appointed by the State in order to see
that such income or donations are not misused or are uti-
lised for the purposes for which they are meant. It seems
to me that religious beliefs, professions, and practices,
which have a powerful hold over the minds and feelings of
the people, particularly in our country, should not be
permitted to become mere cloaks for exploiting the credu-
lity of the simple minded and the ignorant and unsophisti-
cated. When a religious institution becomes a means of
obtaining money or material benefits, in the form of offer-
ings or donations or gifts, as it generally does, from
members of the public, a danger of its misuse can only be
effectively averted. by appropriate supervision. It seems
to me that this is the whole purpose of the Act. ’The
income from the -public, through a religious institution,
seems to me to bring in that secular aspect which justifies
interference by State authorities through adequate supervi-
sion. However, these are matters which so far as religious
endowments, such as the one before us, held to be predomi-
nantly Jain, for the reasons given by the High Court, are
concerned, the State Government can take into account in
deciding whether it
912
should exercise its powers under Section 3(2) of the Act, to
extend the benefits of the Act to them, or, if necessary, to
amend the Act.
The District Court did not specifically frame or try any
issue on the question whether any endowment existed at all.
It had framed the following points for determination:
"( 1 ) Is the Sri Manjunatha ’Devaru only a part of
the institution known as Dharmasthala and not a separate
institution in itself?.
(2) Is the Dharmasthala a charitable institution?
(3) Is the Dharmasthala and in particular the Manju-
natha Devaru not an exclusively Hindu place of worship ? If
not do not the provisions of the Hindu Religious Endowments
Act apply?
(4) Is the Manjunatha Devaru a private place of wor-
ship.
(5) Is the order of the Board dated 9th March 1949
liable to be set aside?"
The High Court also did not give the finding that no
endowment whatsoever exists. The extent of property cov-
ered by any endowment was also not really investigated as to
issue was flamed on it. Atleast the structure of the temple
with the idol installed and the ground upon which the
temple stands must be deemed to be dedicated even though
these may not, for purposes of management, form separable
units. The High Court took the view that the dispute
falling under Section 84(2)(a) could be disposed of by
deciding issues or points numbered 1 and 3 only. The
District Court had chosen to resolve the principal dispute
that arose by deciding issue No.4. Other questions were
treated as merely subsidiary or even unnecessary to decide.
I have tried to indicate above what seemed to me to be the
real nature of the proceedings in the course of which a
dispute covered by Section 84(1)(a)of the Act arose and also
the principles on which such a dispute should, in my opin-
ion, be resolved, although I do not consider it necessary,
in exercise of the special powers of this Court under Art.
136 to interfere with the High Court’s findings of fact;
because I think that the powers of the Government which is
not even a party, acting under Section 3 of the Act, are
not restricted by decisions given by Courts in resolving a
dispute covered by Section 84(1) of the Act. All that the
Government was bound to do under Section 3 of the Act was to
consult the Board. The Madras Hindu Religious and Charita-
ble Endowments Act of 1959, which contains the law governing
the subject today, has section 2 relating to a general power
to extend the provisions. of the Act to Jain public reli-
gious institutions and endowments as a mater of policy,
irrespective of the. character of management, whether good
or bad and Section 3, for the extension of the provisions of
the Act to particular. Jain religious
913
and charitable institutions, in cases of mismanagement,
after due inquiry. These powers are not, in any way,
affected by the dispute which has been brought before us
under the provisions of an Act repealed long ago.
For the reasons given above, I concur with the order
proposed by my learned brother Shinghal that this .appeal be
dismissed and parties be left to bear their own costs
throughout.
V.P.S. Appeal
dismissed.
914