J.N. Bhatt, J.
1. By this Appeal under Section 72(4) of the Bombay Public Trusts Act, 1950 ('BPT Act' for short, hereinafter), the appellants have challenged the judgment and order passed by the learned Joint Charity Commissioner, in Revision Application No. 16 of 1971.
2. In this appeal, a very short, but significant, question which has been raised for adjudication is, as to whether the Jain Derasar, known as 'Shri Shantinathji Jain Derasar' is a private temple or a public trust temple. With a view to appreciate the merits of this appeal to the present appeal, may be narrated, as the outset.
3. A Jain temple known as 'Shri Shantinathji Jain Derasar' ('disputed temple' hereinafter for the sake of convenience and brevity), situated at Gopipura, in Oswal Mohalla, in the city of Surat and according to the case of appellants is a private family religious temple, established in S.Y. 1939 (1883 AD). The disputed temple property is registered, originally, with City Survey No. 1513, in Ward No. 13, in the City of Surat. Respondent No. 3 in this appeal, gave an application to the learned Assistant Charity Commissioner, on 4-1-1969, alleging that the disputed temple is not a private trust but it is a public trust. After having received such an application from respondent No. 3-Anikumar Motichand Zaveri, learned Assistant Charity Commissioner made inquiries and thereafter was pleased to initiate 'suo motu' inquiry about the disputed temple under the provisions of Section 19 of the BPT Act. The provisions of Section 19 of the BPT Act empower the Deputy or Assistant Charity Commissioner to hold an inquiry for registration. On receipt of an application under Section 18 of the BPT Act, or upon an application made by any person having interest in a public trust, or on his own motion, the Deputy or Assistant Charity Commissioner can initiate inquiry for the purpose of ascertaining as to whether a trust exists and, if yes, whether such trust is a public trust and whether any property is the property of such trust. Relying on the said provisions, the learned Assistant Charity Commissioner at Surat, started 'suo motu' Inquiry No. 89 of 1969. On appreciation of the facts and circumstances and evidence in the aforesaid inquiry, the learned Assistant Charity Commissioner, at Surat, was pleased to hold that the disputed temple is a public trust temple. It may be mentioned that the present appellants and present respondent No. 4, unfortunately, died during the pendency of this appeal, who were original opponents in the inquiry before the learned Assistant Charity Commissioner. The learned Assistant Charity Commissioner directed the original opponents, in that inquiry, to submit accounts for the past years and also to submit information pertaining to the movable properties, including cash, belonging and other properties of the trust. Thus, the learned Assistant Charity Commissioner was of the opinion that the disputed temple was a public trust temple and directed in that inquiry before him to get the trust registered, by his order on 31-3-1976.
4. Being aggrieved by the said judgment and order, the opponents in that inquiry, preferred a Revision Application No. 16 of 1971 by invoking the aids of the provisions of Section 70 of the BPT Act, before the Charity Commissioner, at Ahmedabad. After hearing the parties, the learned Joint Charity Commissioner, at Ahmedabad, in Revision Application No. 16 of 1971, was pleased to dismiss the same, on 24-5-1972. Thus, the judgment and order of the learned Assistant Charity Commissioner, at Surat, came to be confirmed by the learned Joint Charity Commissioner, at Ahmedabad, in Revision Application No. 16 of 1971.
5. Being aggrieved by this judgment and order, the applicants in that revision application, challenged the judgment and order of the learned Joint Charity Commissioner by filing an application under Section 72 of the BPT Act in the District Court, at Surat, by filing Miscellaneous Application No. 110 of 1972, which was heard and decided on 9-4-1975. The said application came to be rejected.
6. Being dissatisfied with the judgment and order of the District Court, as Surat, the present appellants have come up before this Court.
According to the contention of the appellants, the disputed temple is a private trust and it is known as 'Shri Shantinathji Jain Ghar Derasar'. In that, it is also contended that the disputed temple is a private family religious trust, constructed in S.Y. 1939 (1883 AD). Thus, it is alleged that the disputed temple, which is more than 100 years old, is a private trust temple wherein family deity is installed by their ancestor i.e., one Shri Fulchand Uttamchand Zaveri. The disputed temple was constructed and created for the use of family by the founder Shri Fulchand Uttamchand Zaveri and his descendants and it has been ever since managed by the trustees selected from the family so far. The last trustees were Manekchand Sakarchand Zaveri, Chandrakant Sakarchand Zaveri and Lawaharlal Gulabchand Zaveri (Ustad). Their ancestor was the one deceased Fulchand Uttamchand Zaveri. Thus, according to the contention of the appellants, the disputed temple property belonged to Fulchand Uttamchand Zaveri and after his demise, it belongs to his family. In 1948, two members of the family of deceased Fulchand Uttamchand Zaveri, viz., Sakarchand Khushalchand and Gulabchand Naginchand, donated Rs. 10,000/- to the disputed temple for its maintenance and better upkeep by making a registered deed dated 22-12-1948. In that registered deed, the disputed temple, according to them, came to be referred to, for the first time, in the written deed and its true character was further identified therein. Thus, it is pleaded that the disputed temple is a private trust temple and the said property belongs to the family of its original founder, Late Shri Fulchand Uttamchand Zaveri and thus the controversy in the present appeal has shrunk down to a small compass, i.e., as to whemer the disputed temple is a private trust property or a public trust property?
7. Incidentally, it may be indicated that respondent No. 3, in this appeal, Anilkumar Motichand Zaveri, had made representation before the Assistant Charity Commissioner, by giving an application, on 4-1-1969, where upon the learned Assistant Charity Commissioner, at Surat, initiated 'suo motu' inquiry. It is the contention of the opponents in that inquiry who were present appellants in this appeal (Since deceased pending appeal) that the entire proceeding were ex parte and not legal. It is also necessary to mention that the prosecution was also ordered by the learned Assistant Charity Commissioner as the original opponents failed to get the disputed temple registered under the Act as a public trust. A criminal prosecution before the Court of the learned Judicial Magistrate, First Class, at Surat, for the offences punishable under Section 66 read with Section 18 of the BPT Act, for not getting the said temple trust registered as a public trust was terminated into acquittal of the original appellants/opponents. The acquittal appeal, being Criminal Appeal No. 286 of 1972, was filed by the State of Gujarat, against these two persons, original accused, in Criminal Case No. 716 of 1971, was also dismissed by this Court, on 20-11-1973. The view taken by the learned Magistrate in the said criminal case that the accused persons before the Court, who were trustees of the aforesaid trust, had a bona fide belief that the trust was a private trust and hence they had not made necessary application for registration of the trust as a public trust, and it was confirmed in the said criminal appeal by this Court.
8. Learned Counsel appearing for the appellants has, seriously contended that the findings of the learned Extra Assistant Judge, in Civil Miscellaneous Application No. 110 of 1972, are erroneous. It is further, forcefully, contended that the disputed temple is a private family trust property and not a public trust temple, as decided by the District Court, at Surat. These contentions are, seriously, resisted by the learned Assistant Government Pleader, on behalf of the respondents Nos. 1 and 2. It is also contended by the learned Assistant Government Pleader that though the proceedings before this Court are styled as First Appeal, whereas, in reality three competent judicial authorities, including the District Court, at Surat, have concurrently found that the disputed temple is a public trust temple and there being not there being not any substantial question of law, this appeal should be dismissed.
In order to appreciate the merits of the rival contentions raised before this Court in this appeal, it would be necessary to refer to the relevant material facts in the light of relevant case law.
9. It is not uncommon for some families to instal their deities in the temple for the worship of the family members. Such temples are located within the premises of the bungalow or residentaial quarters. Such family Derasar or Ghar Derasar may be endowed with property without any question of a public trust or such families may make a sort of permanent provision for the Pooja, Archana, etc., for the maintenance and upkeep of the temple. Family deity may be even permanently installed idol. It may also happen that members of the public may be allowed to visit the temple freely as ordinarily religious sentiment would not prevent any devote from visiting a private temple. If members of the public are not allowed as a matter of right and merely because the members of public are allowed to visit such temple, it would not ipso facto indicate that visit to a temple is as of right. Such temples are called private temples or 'Ghar Derasar'. It may also be mentioned that 'temple' means, a place of worship where people congregate to approach an embodiment of the Supreme, to worship Him and offer prayers and gifts. Theretically speaking, this can be done at any place and at any time, but temples provide and should provide a special environment and traditional facilities for arousing a feeling of devotion. It is generally held in India that several minds and hearts, consentaneously, attuned to a particular attitude of aspiration and devotion are bound to produce both spiritual and practical results. Therefore, temples may be described as 'occult laboratories' where certin physical acts of adoration coupled with certain systematized prayers, pslams, mantras and musical invocations, can yield certain physicl and phychological results as a matter of course, and if these physical processes are properly conducted, the results will accrue, provided the persons who perform them are adequately equipped. In short, temple is an edifice dedicated to the worship of a deity and anciently usually regarded as a residing place of deity whose presence is symbolised by a statute or other sacred token, i.e., there must be worshippers, one who is worshipped and a place to worship. The word 'temple' is also defined in Section 2(17) of the BPT Act. According to the said definition, 'temple' means, a place by whether 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.
10. Temple may be two kinds, public and private. The BPT Act applies only to a public temple. To constitute a temple under this BPT Act applies only to a public temple. To constitute a temple under this BPT Act, the name of the place is irrelevant. It may be known as a temple or Mandir, or Deval or Gurudwara or Derasar, or Agiari or Ashram or Math or Haveli, etc. For constituting a temple, it is not always necessary to show that there was a dedication to or for the benefit of the public. If it is established that Hindu Community or any section thereof uses the temple as of right, the temple is a public trust, though dedication may not be proved. It may be also mentioned, however, that only because public uses a temple for Darshan, the temple is not a public temple, unless it is established that the user is as of right. The essence of the temple is that it should be used:
(1) as of right,
(2) for darshan, or
(3) worship.
Private temples are known to Hindu Law and are not repugnant to Hindu notions. In a private temple, people who visit the same for darshan, would not be refused or prevented, out of religious sentiment. It is not unusual for rich families to instal their favourite deities in the temple for the worship of the family members, to set apart a portion of the family property for the upkeep of the temple and to make a sort of permanent provision for Pooja Arechana, etc. and to use the income, thereof, for its maintenance. When the property is set apart for the worship of a family God in which public are not interested, the endowment is a private one. Private religious endowment can arise only with respect to family deity.There is no other manner in which a private religious endowment can be created. Even in case when the management of the temple by the members of a family throughout will not make a temple a private one if the idol installed therein is not a family deity.
11. It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Of course, where it is proved that ceremonies were performed that would be valuable evidence of endowment, but, absence of such proof would not be conclusive against it. The ceremonies relating to deciation are Sankalpa. Uthsarga and Prathista. Sankalpa means determination to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof is that it becomes impressed with the trust for which he dedicates it. While Sankalpa states the objects for the relaisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public. It would, therefore, follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. In the case of temples, the proper word to use is Prathista and not Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. Therefore, in a given case, where the evidence shows that there was prathista of certain idol in the temple, it establishes that the dedication was to the public. Even in absence of any document and ceremony such as, Sankalpa, or Samarpan, dediction of property to an idol which is a question of fact may be established by other evidence. Even where there is no proof dedication, and it is generally so in the case of ancient Hindu Temples, the question whether the temple is public or private has to be decided from other circumstances from which an inference can be drawn and the most important circumstance in such cases is the user by the public for a very long period without any let or hinderance. It is settled law that where all castes of the Hindu public for centuries have been freely using a temple and have never been debarred from using it and there is no evidence that they did so with permission, it would require strong evidence to persuade a Court to hold that the temple is nevertheless for the use of an isolated class or a family.
12. In case of an ancient temple wherein the original of the temple is lost in antiquity, the inference is to be drawn from long user established be evidence. Hence in the case of an ancient temple which is used from the very inception as a place of public religious worship and as of right by the followes of the Sect or Sampradaya, it establishes the public character of the temple. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. Proof of long user by the public without interference would be the cogent and convincing evidence to establish that the temple was dedicated to the public.
13. It may also be noted that subsequent change from private temple to public temple can also be inferred in the light of the facts and circumstances of the case. Initially, a private temple, may be subsequently converted into a public temple. A private temple may become public gradually in course of time, having acquired great deal of reputation because of the eminence of its founder and other circumstances and having attracted large number of devotees. Therefore, once a private temple or a family temple or Ghar Derasar may be converted into a public temple or public trust depending upon the circumstances and the facts of the case. It may also happen that initially installation of the idol was in a private endowment but the conduct of the owner and the behaviour of the public is such that it would lead to the inference of a public endowment. So what is important to be noted at this juncture is that initially a private or a family temple, may, in the course of time, cease to have the character of a private temple and, may, assume the character of a public temple.
14. No doubt, the Hindu Law does recognise endowment to public temple as well to a private temple and it does not mean that whenever any property is endowed for the purpose of a deity, a public trust is created and the temple in which the deity is installed to be deemed to be a public temple. The usual cases in which it is claimed that an endowment is a private trust are those, where the deity is installed in a family house or where the temple has been created on land belonging to the family or where the trust of the property intended for the unkeep of the temple is made in favour of particular individual from generation to generation.
15. It would be pertinent, at this juncture, to refer to the provisions of Section 2(13) of the BPT Act which reads as under:
(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, 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.
It is very clear from the aforesaid definition that a trust should be one to express or constructive and for either religious or charitable purpose. It is an inclusive defintion. It is well-settled principle of statutory interpretation mat when there is an inclusive definition, the ordinary meaning of the word is enlarged but the ordinary meaning is not restricted by such inclusive definition. The word in respect of which 'include' is used bears both its extended statutory meaning and its ordinary, popular and natural sense whenever that would be properly applicble. Settlement means any disposition of property of whatever name, by any instrument or number of instruments, whereby trusts are constituted for the purpose of regulating the enjoyment of the settled property successively among the persons or class of persons nominated by the settlor. Needless to mention that execution of a trust deed is always not necessary for the creation of a public charitable trust by a Hindu. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the properties which show the extinction of the private secular character of the property and its complete dedication to charity. It may also be mentioned that no writing is necessary to create an endowment except where the endowment is created by a Will in which case the Will must be in writing and attested at least by two witnesses.
16. In short, in order to determine the character of a disputed temple in a given case, the Court is required to consider various circumstances and antecedents and incidental facts. The guidelines to judge as to whether the disputed temple or property is private or public are crystalised in catena of judicial pronouncements and the facts and circumstances of each case are required to be examined for such guidelines so as to effectively adjudicate upon the controversy revolving round the character and nature of the temple.
17. The important guidelines emerging from the settled case law on the point may be stated at this juncture. In other words, the following features and characteristics bear material role in determining and deciding the nature and character of the disputed temple:
(1) History and origin of the temple;
(2) Intention of the settlor;
(3) Dedication to the deity or to the public;
(4) Evidence to show dedication for the use of public in the course of time;
(5) Public visiting the disputed temple as beneficiaries or as worshipers;
(6) Source of funds for construction of the temple;
(7) Source of funds for maintenance and upkeep of the temple;
(8) Collection box for cash, grains etc.;
(9) Location of temple;
(10) Extensiveness of temple and to it;
(11) Feeding in temple and celebration of festivals;
(12) Vesting of control and management of the temple;
(13) Mode of succession of the Trustees;
(14) Conscience of the management and the conscience of devotees themselves as to the development of the temple;
(15) Contribution of the public for the maintenance of the temple etc. etc.
15-12-1990
18. In the light of the aforesaid crystalised legal proposition and the guidelines propounded in catena of judicial pronouncements, the facts of this appeal may be again examined.
19. A contention is raised on behalf of the appellants/original opponents that Maneklal Sakarchand Zaveri and Chandrakant Sakarchand Zaveri, the Trustees of the disputed temple were not afforded with sufficient opportunity of hearing and, therefore, the matter is required to be remanded. This contention is, seriosuly, opposed. It is contended on behalf of the respondents, by the learned Assistant Government Pleader, that sufficient opportunity was given by the Assistant Charity Commissioner. But the said persons did not avail of the opportunities and did not appear. It appears from the record of the present case that the contention raised by the learned Assistant Government Pleader is well-founded. The contention raised on behalf of the appellants that the opportunity of hearing was not given to them by the learned Assistant Charity Commissioner, in Inquiry Case No. 89 of 1969 ius devoid of any merits. The said contention is, rightly, rejected by two Courts below. The learned Assistant Charity Commissioner had issued notice, on 18-7-1969, for the hearing of that inquiry, returnable on 11-8-1969. On 7-8-1969, the notices were issued against all the three opponents in that inquiry. There were the following three opponents in that inquiry:
(1) Maneklal Sakarchand Zaveri,
(2) Ratanchand Sakarchand Zaveri, and
(3) Jawaharlal Gulabchand Ustad.
For the sake of convenience and brevity, they are hereinafter referred to as the original opponents.
20. Pursuant to the said notice in that inquiry, original opponent No. 3 in that inquiry, Shri Jawaharlal Gulabchand Ustad, appearted and mentioned that the main Trustees had gone abroad and, therefore, adjournment was sought for sixty days, he appeared, on 7-8-1969, and adjournment was granted on 11-8-1969. A long date was granted by the learned Assistant Charity Commissioner. Next date was fixed on 19-11-1969. Again the original opponents in that inquiry (appellants before this Court) were informed by Registered post about the next date fixed, on 19-11-1969. On that date, none remained present. However, the learned Assistant Chairty Commissioner was pleased to 'suo motu' adjourn the matter for further inquiry and next date was fixed, on 27-11-1969. Again the original opponents were informed. However, no one remained present, though duly sarved, on 27-11-1969. Again the learned Assistant Charity Commissioner was pleased to adjourn the matter in the larger interest of 'suo motu' and the matter was adjourned to the next date which was fixed on 18-12-1969. Again notices were issued to the opponents in that inquiry. Notices were sent on 20-11-1969 informing all of them to remain present on the next date, i.e., 18-12-1969. Surprisingly, again none of the opponents, personally appeared. However, one Babulal appeared on behalf of the said opponents and requested for adjournment on the ground of sickness. The learned Assistant Charity Commissioner was pleased to adjourn the matter on 2-1-1970 directing said Babulal to inform the opponents to appear of the nest date i.e., 2-1-1970. Moreover, notices were also issued by the office of the Assistant Charity Commissioner by Registered Post. Though notices were served no one remained present on 2-1-1970. Therefore, the learned Assistant Charity Commissioner had to proceed ex-parte in absence of any report for adjournment or any request from the opponents before him. However, the case was posted on 29-1-1970. Nobody appeared on that day also. Finally the case came to be disposed of on 31-3-1970. In view of the aforesaid facts and circumstances and the proceedings recorded before the learned Assistant Charity Commissioner, it could not be said even for a moment that opportunity of hearing was not given to the opponents in that inquiry. It may be also mentioned at this juncture that a show cause notice was issued by the lerned Assistant Charity Commissioner against the said opponents as to why criminal prosecution should not be launcged against them for and due to failure to get the Trust registered. The accused persons, i.e. opponents in the aforesaid inquiry, appeared in the said criminal prosecution. The said criminal case was decided by the learned Judicial Magistrate, First Class, at Sural, acquitting the accused (original opponents in the aforesaid inquiry before the learned Assistant Charity Commissioner). Not only that, in the Criminal Appeal No. 286 of 1972 filed by the State, the accused in that criminal case and the respondents in that criminal appeal defended the acquittal order passed by the learned Judicial Magistrate, First Class, at Surat, in Criminal Case No. 716 of 1971, and the order passed by the learned Magistrate came to be confirmed by this Court in the aforesaid Criminal Appeal, on 20-11-1973. It is very clear that the original opponents had appeared and resisted the said criminal case and criminal appeal. Some-how or the other they did not avail the opportunity of hearing before the learned Assistant Charity Commissioner. Therefore, it is contended that an inference could be drawn against them by holding that they were not very much interested in defending the said Inquiry No. 89 of 1969 before the learned Assistant Charity Commissioner, be as it may. It appears that the said persons, despite sufficient opportunities being given to them in the said inquiry, did not avail of the opportunities. Therefore, it cannot be contended that the ex-parte proceedings before the learned Assistant Charity Commissioner in the said inquiry were illegal.
21. Moreover, it may be mentioned that against the order of the learned Assistant Chairity Commissioner, passed on 31-3-1970, in the Inquiry Case No. 89 of 1969, against the opponents in that inquiry, Maneklal and Ratanchand, was challenged by them, by filing a Revision Application No. 16 of 1971 before the learned Chairity Commissioner. They preferred thge Revision Aplication under Section 70-A of the BPT Act. The order passed by the learned Assistant Chairity Commissioner in the said inquiry was, seriously, opposed and challenged by the said original opponents. However, the said revision application was dismissed by the learned Joint Chairity Commissioner, at Ahmedabad, on 24-5-1972. The point that the original opponents, i.e., Maneklal, Chandrakant and Jawaharlal were not given an opportunity of being heard was agitated in the said revision application. However, in the facts and circumstances of the case it was rejected by the learned Joint Chairity Commissioner. The order passed in the said revision appliction was again challenged by the said original opponents by filing an application under Section 72 of the BPT Act, being Miscellaneous Application No. 110 of 1972. No doubt, the proceedings under Section 72 of the BPT Act is the nature of an 'appeal' though the word 'application' is used in Section 72(1) of the BPT Act. Again the same contention was agitated in the said Miscellaneous Application No. 110 of 1972 before the District Court. The said Miscellaneous Appliction was heard by the learned Extra Assistant District Judge, at Surat. In the course of the proceedings, an application on behalf of the original opponents for allowing them to produce evidence as to the character of the Trust was given. It was contended that the learned Assistant Charity Commissioner had, erroneously, passed the order for ex-parte proceedings. The said application for adducing evidence in the said application before the District Court was heard and, on merits, the application was dismissed with costs, on 9-4-1975. However, before dismissing the said application, the original opponents and the original appellants before this Court (since deceased) were allowed to produce a registered deed, dated 22-12-1948. The District Court, at Surat, allowed them to produce a certified copy of the settlement deed dated 22-12-1948 by passing an order, on 5-4-1975, below Ex. 33, in the said application. Therefore, in the larger interest of justice, the documentary evidence which was relied on by the original opponents, was, however, allowed to be produced by the District Court, at Surat, and the request to adduce additional oral evidence was, rightly, rejected by the District Court, Against the rejection of the said request to adduce oral evidence by giving an application, at Ex. 24, in Miscellaneous Application No. 110 of 1972, a Civil Revision Application No. 936 of 1975 was filed before this Court and it is declared at the bar that the said civil revision application was withdrawn.
22. The original opponents in that inquiry before the learned Assistant Charity Commissioner, being dissatisfied with the dismissal of their Miscellaneous Application No. 110 of 1972 filed in the District Court, at Surat, have, now, come up before this Court, challenging its legality and validity be invoking the aids of the provisions of Section 72(4) of the BPT Act. Unfortunately, all the three original opponent/appellants died during the pendency of this appeal. Therefore, their legal heirs and representatives were brought on record.
23. In view of the aforesaid facts, it cannot be contended, even for a moment, that the original opponent were deprived of any opportunity of being heard. Despite opportunity being given in the said inquiry before the learned Assistant Charity Commissioner, they remained absent and they did not avail of the opportunity. Unfortunately, in a matter wherein the dispute which started in 1969, which has so far culminated into this appeal, cannot be said to be a fit case to remand the matter on the ground that the proceedings before the learned Assistant Charity Commissioner, in 1969, were bad or illegal. Such a contention, in the opinion of this Court, cannot be sustained as it would otherwise result into abuse of process of law. Therefore, this contention merits rejection.
24. It is vehemently canvassed that the disputed temple is a private family religious temple. In that, it is contended that the decision of the learned Assistant Charity Commissioner declaring the disputed temple 'SHRI SHANTINATHJI JAIN DERASAR' as a Public Trust, is erroneous and illegal. It is further contended that in view of the settlement deed dated 22-12-1948, which was subsequently produced before the District Court, at Surat, the disputed temple is a private family religious trust for the benefit of the members of the family of Fulchand Uttamchand. This contention is, seriously opposed by the learned Assistant Government Pleader. Though the decision of the learned Assistant Charity Commissioner under Section 19 of the BPT Act, in Inquiry Case No. 89 of 1969, came to be confirmed in a revision before the learned Charity Commissioner, under Section 70-A of the BPT Act, and further confirmed by the District Court, at Surat, in a Miscellaneous Application No. 110 of 1972, is examined in the light of the facts and circumstances of the case and the relevant case law by this Court and this Court is extremely unable to uphold the contention that the disputed temple is a private family religious trust. Thus, the finding of fact recorded by the learned Assistant Charity Commissioner and confirmed by two other judicial authorities, is again examined by this Court and it is found that the said finding is, fully, justified.
25. The learned Assistant Charity Commissioner has considered the oral evidence and documentary evidence produced before him in the course of the proceedings in an inquiry under Section 19 of the BPT Act and after having obtained the opinion of Assessors, clearly, found that the disputed temple which is situated on land bearing City Survey No. 1513 alongwith the properties of the said Trust are that of public trust properties and the said temple is a public temple. The oral evidence consisted of following three witnesses is very important:
(1) Anilkumar Motichand Zaveri,
(2) Hirachand Sakarchand, and
(3) Bapulal Uttamchand Zaveri,
It is very clear from the evidence of the aforesaid three witnesses that the disputed temple has been used since many many years by the members of public belonging to 'Jain Sampraday' as of right. It is very clear from the evidence that all Jains who are interested to workshop the deity in the said temple attend the said temple (Derasar) without any obstruction or interference and they are attending the said temple for Darshan as a matter of right. The said temple is 106 years old. This finding of fact has remained unassailable. One of the main tests to decide the nature of the trust, either private or public, is the enjoyment of the temple for workshop and darshan, as of right. It is settled proposition of law that when the temple in question is used by the public, as of right, for a long period, it would be a pointer and indication suggesting the character of a public temple. It would also go to show that the intention of the founder was to devote the property to public purposes by a religious or charitable nature. Therefore, the long user by the public, as of right, would go to show that the nature of the disputed temple is public and not private.
26. Reliance is sought to be placed on the settlement deed dated 22-12-1948, which was allowed to be produced in the District Court, at Surat, in the course of the proceedings in Miscellaneous Application No. 110 of 1972. I am taken through the said registered settlement deed. It is executed, on 22-12-1948 by the three settlers, i.e., Sakarchand, Khushal-chand and Gulabchand. Relying on the said registered settlement deed, it is contended that the disputed temple is a private family trust and not a public temple. It is intended that it is recited in the said deed that the disputed temple was established by one FUlchand Uttamchand. It is further contended that the temple was to be used by the descendants of deceased Fulchand Uttamchand as a private Jain Temple and allow the descendants of the deceased Fulchand Uttamchand and their family to allow them to worship and darshan. This contention, placing reliance on the said registered settlement deed, was raised before the District Court, at Surat, and it was rightly, rejected. It is reiterated before the Court. Recitals in the said registered settlement deed are contrary to the evidence on record. It is very clear from the evidence on record in the present case that the disputed temple has its origin in S.Y. 1939 (1883 AD) i.e., more than 106 years. There is clear and cogent evidence to show that the disputed temple was built 106 years back. Apart from the oral evidence on record, there is documentary evidence also to substantiate this finding. Photographs of the temple are also produced in the present case. It is an admitted fact that there is a 'tablet' (takhati) in the said disputed temple. It is explicit from the recital made in the said tablet that the disputed temple was built by one Shah Udaychand Khubchand and it was opened after Pratishta ceremony, on Pos Vad Atham of S.Y. 1939, on Wednesday. This undisputed documentary evidence unequivocally establishes two following points:
(1) That the disputed temple (Derasar) was constructed in S.Y. 1939, there was Pratishta ceremony before it was opened for Darshan, and
(2) The originator of this disputed temple was one Shah Udaychand Khubchand.
Therefore, the recitals made in the registered settlement deed, dated 22-12-1948, are running counter to the documentary evidence which is not in dispute. It is mentioned in the said deed that the original founder of the disputed temple was one Fulchand Uttamchand, which is falsified by the documentary evidence, which is more than 100 years old. Under these circumstances, considering the documentary evidence and the oral evidence, the said settlement deed is, rightly, not relied on by the District Court, at Surat. Learned Counsel for the appellants/original opponents has not been able to make any capital out of this submission. Consequently, this submission merits rejection.
27. The oral evidence consisted of residents of the area where the disputed temple is situated and the devotees of the said temple and their evidence clearly go to show that the disputed temple is a public religious place for worship for Jains and that it is dedicated to the public and that it is being used by Jains, as of right, as such. The said temple is kept open regularly from 7-30 a.m. to 12-30 p.m. and from 6-00 p.m. to 9-00 p.m. It is also clear from their evidence that large number of Jains go to this temple without any obstruction or hinderance. It is also found that special Poojari is engaged for doing Archana and Pooja in the temple. It is also an admitted fact that for offerings, a special box is prepared and kept in the temple and offerings made by the devotees and the followers of the said deity are accepted by the temple management and are used for the upkeep and maintenance of the disputed temple. It is also clearly testified by the witnesses examined before the learned Assistant Charity Commissioner that the management of the said temple is done not by the descendants of the original founder, Shah Udaychand Khubchand. A donation of Rs. 10,000/ - for the maintenance of the temple was also collected, as transpired, from the settlement deed dated 22-12-1948.
28. The extract from the public property register is produced, at Ex. 15, and undisputably, it is also not in the name of the original founder or in the name of anyone of his descendants. On the contrary, it is in the name of the deity. The disputed temple is not a part and parcel of any residential house or bungalow. These are the important circumstances indicating the public nature of the disputed temple.
In the case of Deoki Nandan v. Murlidhar, reported in : [1956]1SCR756 , the Supreme Court has held that if the idol installed is not within the place of residential quarters but in a separate building constructed for that very purpose, it is one of the relevant circumstances to show the public nature of the temple. In view of the evidence on record, the disputed temple is situated separate from other properties and not forming part of any residential quarters. This aspect is also very important to be borne in mind alongwith other antecedent circumstances.
29. Even if it is presumed that the settlement deed dated 22-12-1948 is correct and acceptable then also it would not be a decisive factor to reach to a conclusion that the disputed temple is a private family religious endowment. There is sufficient evidence on record to show that members of public have unfettered and instructed right to visit the disputed temple and offer worship. The existence of all these things, such as, use of the public and offering by the public should be found out for determining whether the endowment is public or private. There is clear and cogent evidence on record to indicate that members of public are allowed to worship in the temple without any hinderance and as of right. It would be interesting to note at this stage that apart from consistent and cogent oral evidence to indicate that the temple is used for worship, as of right, by members of public, there is sufficient documentary evidence to show that the disputed temple is taken for granted, as a public temple and the properties as to be public trust property. In this connection, reference may be made to the documents produced, at Exhs. 16, 17 and 18. Document produced, at Ex. 16, is a list of 72 public trusts (Derasars) situated, at Surat. It was prepared in S.Y. 2022 (1965 AD) and it was published by 'Gopipura Jain Sangh', At Surat. In the said list, entry No. 29 is pertaining to the disputed temple. There it is shown that the disputed temple is a public temple and the properties are shown as public trust properties. In that list 'Ghar Derasars', i.e. private derasars and public trusts, i.e., public derasars are separately shown. The disputed temple is shown as Public Trust Derasar. Similarly, in Ex. 17 entry No. 18, at page 5, dated 18-1-1970, the disputed temple is shown as Public Trust Derasar. This list is published by one 'Desai Pole Jain Pedhi Trust'. In Ex. 18 entry No. 16, the disputed temple is shown as Public Trust Derasar. The list of Public Trust and Private Trusts existing in the District of Surat is published by one Committee of a Trust. No doubt, mere mention that the disputed temple is a public trust in the list published by some trust or committee of a trust, would not be legally sufficient to change the character or one would not jump to the conclusion that the disputed temple is a public trust temple. However, what is important here is that the worshipers of the Derasar, i.e., Jains in that District have taken it for granted that the disputed temple is a Public Trust Derasar. This is again one more important circumstance to suggest that the disputed temple is public trust. These three documents are old ones and cannot be said to be forged or fabricated one. Therefore, the oral evidence that members of the public at large have been using the disputed temple as a public temple for worship and Darshan, as of right has been further reinforced by this documentary evidence, produced at Exhs. 16, 17 and 18. That means, the aforesaid documentary evidence goes to show that the disputed temple was never treated or accepted as 'Ghar Derasar' but was treated and characterised as public Derasar and in fact was styled and treated as a public trust temple. Therefore, the settlement deed dated 22-12-1948, even if it is accepted at its face value, then also there is clear and clinching evidence to show that the disputed temple, though presumed to be originally a private temple, has been converted into a public temple by subsequent conduct and user by the members of public, as of right, since long. This would be a clear pointer of public trust character.
30. Witness, Hirachand Sakarchand Zaveri, Ex. 33, witness Anilkumar Motichand Zaveri, Ex. 13 and witness Bapulal Uttamchand, Ex. 35, have J consistently and unequivocally testified that the disputed temple is used for worship by Jains as of right since many many years. Witness Bapulal Uttamchand has also clearly deposed that the disputed temple is used as of right by Jains since more than 30 years. It is also in evidence that the disputed temple has an offering box. Photograph of one offering box (Golak) is produced at Ex. 25. Members of the public or Jain worshippers offer their gift of money in the said Golak. Documentary evidence produced at Exhs. 16, 17 and 18, referred to hereinbefore also clearly goes to show that the disputed temple is treated by the members of public and Jain Community as a public trust. Thus, it is explicit from the evidence on record that not only that the disputed temple is never considered or treated or accepted as a private religious family trust or as a Ghar Derasar but it is accepted and acknowledged by the members of the public as of right, as public trust. Therefore, alternatively also there is unstinted and strong proof to show that subsequently the disputed temple came to be converted into a public temple. Therefore, even in the light of the settlement deed of 1948, if it is considered to be a private temple at that time as recited therein, it became a public trust gradually in course of time and it has acquired great deal of reputation as a public trust temple on account of various circumstances, such as, visit by members of public for worship as of right, acceptance of public donation and contribution, etc. etc. Therefore, even if the disputed temple is held to be originally a private temple, it came to be converted as a public trust temple in course of time.
31. On close scrutiny and careful examination of the evidence on record, in fact, the disputed temple cannot be said to be private temple or family temple (Ghar Derasar). The settlement deed relied on by the appellants dated 22-12-1948 which came to be admitted later on before the District Court, at Surat, does not mention about the origin of the temple in question. According to this registered settlement deed of 1948, the disputed temple is a private temple belonging to the members of the family of deceased Fulchand Uttamchand and the disputed property belongs to the said temple. It is contended, relying on the said settlement deed, that the founder of the temple was one Fulchand Uttamchand and the disputed temple is a private Jain temple. Again, it may be mentioned that, admittedly, the disputed temple came to be constructed in S.Y. 1939 (1883 AD). That means, the disputed temple came to be constructed more than 100 years before, whereas, the registered settlement deed of 1948 recites that the disputed temple belongs to the family of Fulchand Uttamchand and whereas there is (incontroverted evidence to show that the disputed temple was constructed in S.Y. 1939 by one Udaychand Khubchand. This aspect is also not, seriously, disputed and that there is no mention about the name of Udaychand Khubchand in the registered settlement deed. There is also an evidence to show that the deity was installed by Pratishta. It is evidence of one Anilkumar Motichand Zaveri (Ex. 13) that in case of private temple or Ghar Derasar Pratishta ceremony is not performed. There is 'tablet' (Takhati) in the disputed temple. According to the tablet, the disputed temple was built by one Udaychand Khubchand in S.Y. 1939 (100 years before). The photographs of the tablets on the temple, at three places are produced in the present case, at Exhs. 22 to 24. The photograph of Derasar is produced, at Ex. 19. It is amply clear from the said tablets that the disputed temple was constructed by one Shah Udaychand Khubchand on Posh Vad Aatham, on Wednesday in S.Y. 1939. Therefore, the settlement deed of 1948 relied on does not explain as to how the disputed temple came to be a family temple of Fulchand Uttamchand. Nobody has appeared or is examined to connect the disputed temple with Fulchand Uttamchand, which, in reality, was founded and constructed in S.Y. 1939 by one Udaychand Khubchand. After having carefully examined the documentary evidence and the oral evidence, it is clearly established that the disputed temple was built by one Shah Udaychand Khubchand, after Pratishta ceremony having been performed on Posh Vad Aatham, on Wednesday, in S.Y. 1939. This aspect has remained, uncontroverted. Even before this Court in this appeal, there is no challenge, about that. There is clear and consistent evidence on record to show that the temple in question is a public place for worship for Jain community and the said temple is dedicated to Jain community, as a whole, and all Jains have been visiting and worshipping in the said temple as of right. Under these circumstances, the registered settlement deed, alleged to be a trust deed, is of no consequence to the appellants/original opponents. The executant of the deed of 1948 cannot be said to be the settlers of the trust. No new trust could be said to have been created by the said deed of 1948. How could there be a new trust in 1948 in respect of a disputed temple, which is in existence, since 1883? No any reasonable explanation or any evidence worth the candle produced is adduced to show the circumstances leading to the execution of the settlement deed of 1948.
32. It is also very clear from the evidence on record that the management of the disputed temple is not restricted to the descendants of the founder of the temple. The management is also shared by the members of the public. Contributions and donations are also given by the members of the public. Poojari is engaged for Archana, Pooja, etc. It is also proved, without any doubt, that the management and the control is not vested in the members of the family. Therefore, there is no any hesitation, whatsoever, in holding, in the circumstances of the present case, that the disputed temple is a public temple and, therefore, a Public Religious Trust, within the meaning of Section 2(17) read with Section 2(13) of the BPT Act, 1950, and the temple and the properties of it are not private properties of the original opponents/appellants or the members of their family.
In a recent decision of the Supreme Court, rendered in the case of Pratapsinhji v. Deputy Charity Commissioner, reported in : [1987]3SCR909 , it is clearly held that the essence of a public endowment consists in its being dedicated to the public and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. The distinction between a private and public endowment is that, whereas, in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. Thus when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the members who are entitled to worship at the shrine of the deity can only be the members of the family, i.e., an ascertained group of individuals. But where the beneficiaries are not the members of a family or specified individuals but the public at large of a specified portion thereof, then the endowment can only be regarded as public intended to benefit the general body of worshippers. The ratio of the said decision is fully applicable to the facts of the present case. In the said decision, the Supreme Court had considered nine earlier decisions of the Supreme Court and two decisions of the Privy Council. Therefore, the decisions of the Supreme Court and the Privy Council which are relied on by both the sides are considered and examined in the aforesaid recent Supreme Court decision. The aforesaid decision of the Supreme Court is fully applicable to the facts of the present case.
33. In view of the facts and circumstances narrated hereinbefore and the entire catalogue of evidence in the present case, there is no hesitation in holding that the disputed temple is a public trust temple. The finding of fact arrived at by the learned Assistant Charity Commissioner at Surat, on 31-3-1970, in Inquiry Case No. 89 of 1969, that the disputed temple 'SHRI SHANTINATHJI JAIN DERASAR' is a public trust temple and which is confirmed in Revision Application No. 16 of 1971 by the learned Joint Charity Commissioner, at Ahmedabad, on 24-5-1972 and which was further confirmed by the learned Extra Assistant District Judge, at Surat, in Misc. Civil Application No. 110 of 1972, on 9-4-1975, is, fully, justified. The said finding of fact is also confirmed in the appeal. With is the result, the appeal is required to be dismissed with costs, as being meritless.
In the result, the appeal is dismissed with costs.