How to determine whether a Hindu religious endowment is a public or a private one

The references: Dr. Bijan K. Mukherjee on Hindu Law of Religious and Charitable Trust (Tagore Law Lectures, 3rd. ed., 1970); Mulla’s Hindu Law (14th ed.); Ganapati Aiyer’s Hindu Religious Endowment (2nd ed.); Saraswathi Ammal and Another Vs. Rajagopal Ammal, , Saraswathi Ammal and Another Vs. Rajagopal Ammal, , Raj Kali Kuer Vs. Ram Rattan Pandey, Deoki Nandan Vs. Murlidhar, , M.D. Reddi v. D. Subba Rao AIR 1957 S.C. 797 , Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, , Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, , Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , The Poohari Fakir Sadavarthy of Bondilipuram Vs. The Commissioner, Hindu Religious and Charitable Endowments, , Mahant Shri Srinivasa Ramanuj Das Vs. Surajnarayan Dass and Another, , Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, , Seshammal and Others, Vs. State of Tamil Nadu, , Lakshmana, Pujari v.S. Ayyar (1923) 29 C.W.N. 112 (P.C.), (1889) L.R. 16 I.A. 137 (Privy Council) , 12 CWN 946 (Privy Council) , Srinivasa v. Evalappa L.R. 49 I.A. 237, Mundancheri Koman v. Achuthan Nair L.R.61 I.A. 405, (1939) 9 AWR 188 (Privy Council) , AIR 1938 195 (Privy Council) , Prakash Chandra Nag Vs. Subodh Chandra Nag and Others, , Haji Mahammad Nabi Shirazi and Others Vs. Province of Bengal and Others, , Commissioner of Income Tax Vs. Jogendra Nath Naskar and Another, and S. Kannan v. All-India Sai Samaj (1974) 1 M.I.J. 174.

The following principles of law are to be followed in order to test as to whether a Hindu religious endowment was a public or a private one.

(a) There should not be any general or rigid rule and there is no canon of the Judges in general to the understanding of the issue. The approach should be flexible. There can be no landmarks pointing out the boundaries of public and private nature and character of foundation in all cases. There is no straight street.

(b) Where the dedication is not complete and the public is not interested in the worship, it is a private endowment.

(c) The question whether the temple ever was dedicated to the public, must depend upon the inferences which should ultimately be drawn from the facts not in dispute and from unambiguous evidence of records in the case, regard being had to the law and principles of Hinduism.

(d) Where the Idol is Shastrically installed and consecrated in a place and the worship is performed in accordance with the Shastras and the temple is open to the public as of right–it is a public temple; if not, it is a private one.

(e) Where the beneficiaries of a trust or endowment were specific or specified individuals, ascertained or capable of being ascertained within a reasonable period the trust or endowment is a private one. To be a public trust the beneficiaries must be indeterminate body of persons, and/or fluctuating body and/or who cannot be identified.

(f) There was a presumption in the Madras Presidency in favour of the temples and their endowments being public ones whereas there is no such presumption in Bengal or West Bengal where from the very early times a good number of rich families established private temples for their own use in grand scale and this had often happened, as stated in many of the treaties on old Bengal law and polity and some of them being of great and unknown antiquity.

(g) In a trust for family Idol, or in a private temple, in contra-distinction to a math or hermitage, public may be somewhat interested as well, but that does not make it a public trust or public temple as a matter of rule.

(h) Dedication to the public is not to be readily inferred. It would be rather hazardous. It would not in general be consonant with the Hindu sentiment or practice that the worshippers should be turned away from worshipping even in a private temple. It is an ancient practice further ennobled by public acceptance.

(i) The Court should be slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which might give strength to the inference that the user by the public was as of right.

(j) The admission of the public long after the establishment of the temple on a particular day, possibly owing to altered conditions, would not affect the private nature and character of the trust.

(k) Even if the heirs of the founder do not claim any right to the temple and their endowments, after the founder’s death, that would not make the temple a public one as a matter of course.

(1) If temples and their endowments were being used by the public freely, without any interference and as of right and there is no restriction of their entries to the temple, the temple and the endowment would be public. But neither the offerings by the public to the Idol nor their admission thereto per se would make it public. It must be user by the public at large as of right.

(m) The management and control of the temple and the endowment are not the sole criteria to judge the nature of the endowment. The assemblage even of a mammoth gathering on a particular day (in the instant cases, Foundation Day) and/or distribution of bhog or prasad, again, are no criteria to hold that the temple or endowment is a public one, as they do not by themselves change the nature and character of the endowment.

(n) Extensiveness of the object, largeness of the community or the section thereof, appeals for fund from the public, holding out to the public by the founder or his family that the institution is public, in the absence of a document, ceremonies open to the public as of right and on all days, huge gathering of the public, vastness of the temple, mode of its construction, control and management of the foundation by the public are some of the factors to be considered in favour of the temple and the endowment being a public one.

(o) Public should be public at large. A particular section might not suffice in many cases to answer the description of the public.

(p) Because there is no trustee or shebait from the founder’s family and the mere use of the expression pratistha do not prove the dedication to the public. There should be pran-pratistha, according to the Shastric rites when on consecration divine spirit would descend on the image and then becomes fit to be worshipped. That alone also does not make it public.

(q) There is a distinction between public right and right of a group of disciples, in an endowment who have personal attachment and devotion for their Guru. It is only akin to a spiritual family which is not understood in the strict legal sense.

(r) The facts and circumstances of each one must be considered in their historical settings, in order to be accepted as sufficient proof of dedication of a temple as a public temple.

(s) The original foundation cannot be extended except by the founder.

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