Deoki Nandan Versus Murlidhar and others – 04/10/1956

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 settler has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 of endowment, but absence of such proof would not be conclusive against it.

AIR 1957 SC 133 : (1956) SCR 756

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(Before : B. Jagannadhadas, T. L. Venkatarama Ayyar, B. P. Sinha And S. K. Das, JJ.)

Civil Appeal No. 250 of 1953, Decided on : 04-10-1956

HinduHindu A geographical name given by non-Hindus, who came to visit Bharatvarsha (Hindusthan). Sanatan Dharma is the actual Dharmic tradition of the Hindus. People who live in Hindusthan are Hindu, whether they Follow Islam, Chris, Buddha, Mahavira, or Nanaka. In this way, Tribals are also Hindu. LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis.—Religious endowment—Nature of dedication—Determination of public or private trust—Considerations for.

Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endownment? Though such a notion had a vogue at one timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”).

When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.

The word ‘family’ in its popular sense means children, and when the settlor recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public.

Counsel for the Parties:

Mr. A. D. Mathur, Advocate, for Appellant

Mr Jagdish Chandra Advocate, for Respondent No. 1

JudgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)

Venkatarama Ayyar, J—The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship.

2. One Sheo Ghulam, a pious Hindu and a resident of the said village, had the Thakurdwara constructed during the year 1914-16, and the idol of Sri Radhakrishnaji ceremoniously installed therein. He was himself in management of the temple and its affairs till 1928 when he died without any issue. On March 6, 1919, he had executed a will whereby he bequeathed all his lands to the Thakur. The provisions of the will in so far as they are material, will presently be referred to. The testator had two wives one of whom, Ram kaur, had predeceased him and the surviving widow Raj Kaur, succeeded him as Mutawalli in terms of the will and was in management till her death in 1933. Then the first defendant, who is the nephew of Sheo Ghulam, got into possession of the properties as manager of the endowment in accordance with the provisions of the will. The appellant is a distant agnate of Sheo Ghulam and on the allegation that the first defendant had been mismanaging the temple and denying the rights of the public therein, he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920, but the court declined to interfere on the ground that the endowment was private. A application to the Advocate-General for sanction to institute a suit under section 92 of the Code of Civil Procedure was also refused for the same reason. The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship. The first defendant contested the suit, and claimed that “the Thakurdwara and the idols were private”, and that “the general public had no right to make any interference.”

3. The Additional Civil Judge, Sitapur who tried the suit was of the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that the Thakurdwara had been built by Sheo Ghulam “for worship by his family”, and that it was a private temple. He accordingly dismissed the suit. This Judgment was affirmed on appeal by the District Judge Sitapur, whose decision again was affirmed by the Chief Court of Oudh in second appeal. The learned Judges, however granted a certified under S.109(c) of the Code of Civil Procedure that the question involved was one of great importance, and that is how the appeal comes before us.

4. The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact. In Laksmidhar Misra vs. Ranga LaL, 76, Ind App. 271, in which the question was whether certain lands had been dedicated as cremation ground, it was observed by the Privy Council that it was “essentially a mixed question of law and fact,” and that while the findings of fact of the lower appellate court must be accepted as binding, its

“actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself.”

In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found, and is open to consideration in this appeal.

5. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. 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 beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertaintment. The position is thus stated in Lewin on Trusts, fifteenth edition, pp. 15-16:

“By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained ……….. “

Vide also the observations of Mitter J. in Haji Mahammad Nabi Shirazi vs. Province of Bengal, I.L.R.(1942) Cal. 211. Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof.

6. Then the question is, who are the beneficiaries when a temple is built, idol installed therein and properties endowed therefor? Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment? Though such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the plaint), it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties.Vide Prosunno Kumari Debya vs. Gulab Chand Baboo, 2 Ind. App.145(P.C.) (C); Jagdindra Nath Roy vs. Rani Hemanta Kumafi Debi, 31 Ind. App.203(P.C.) (D) and Pramatha Nath Mullick vs. Pradyumna Kumar Mullick 52 Ind. App. 245. It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the SanskritSanskrit It is the oldest living language and civilizational mark. The language of Rig Veda or Atharva Veda (10000 years old) is a pre-Sanskrit Vedic language. It has its own Pratisakhya (Grammar) and Nirukta (Vocabulary).  40% of Tamil is Sanskrit. Before the written form, it was in the form of oral tradition. Such is the case of  Six Kanda Ramayana. Before Valmiki, it was in Oral form. Sanskrit has been the language of  Jambudvipa. The mother tongue of Sunok, Vasistha, Viswamitra or grandparents of  Zarathustra (Resource person of Abrahamic Religions) was the language of Rig Veda. The legend goes that the origin of Sanskrit is the sky, therefore, it is called Deva Bhasa. text. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sabara Swami has the following:

“Words such as ‘village of the Gods’, ‘land of the Gods’ are used in a figurative sense. That is property which can be said to belong to a person, which he can make use of as he desires. GodGod People in most cultures believe in the existence of supernatural beings and other supernatural concepts. God is attributed to both anthropomorphic properties (“listens to prayers”) and non-anthropomorphic properties (“knows everything”). Conceptualizing God is associated with willingness to get the COVID-19 vaccine or Vaccine hesitancy. Pope requested people not to practice “Jesus is my vaccine”. For the Jewish, family (Avestan universal) god became national God:  I am the God of Abraham, and the God of Isaac, and the God of Jacob,”(ex 3:15).  See Ishwar.  however dose not make use of the village or lands, according to its desires. Therefore nobody makes a gift (to Gods). Whatever, property is abandoned for Gods, brings prosperity to those who serve Gods.”

Likewise, Medhathithi in commenting on the expression “Devaswam” in Manu, Chap. XI., Verse 26 writes:

“Property of the Gods, Devaswam, means whatever is abandoned for Gods for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the properly owned, is impossible of application to Gods. For the Gods do not make use of the property according to their desire nor are they seen to act for protecting the same”.

Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Bhupati Nath Smrititirtha vs. Ram Lal Maitra, ILR 37 Cal 128 (F), it was held on a consideration of these and other text that a gift to an idol was not be judged by the rules applicable to a transfer to a ‘sentient being,’ and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins C.J.that “the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected” and that “the dedication to a deity” may be “a compendious expression of the pious purposes for which the dedication is designed”. Vide also the observations of Sir Ashutosh Mookerjee. In Hindu Religious Endowments Board vs. Veeraraghavacharlu, AIR 1937 Mad 750 (G),Varadachariar J. dealing with this question, referred to the decision in ILR 37 Cal 128 (F), and observed:

“As explained in the case, that purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust”.

7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individual’s are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.

8. In the light of these principles, we must examine the facts of this case. The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads:

(1) the will of Sheo Ghulam, Exhibit A-1, (2) user of the temple by the public, (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthasarga, and (4) other facts relating to the character of the temple.

9. (l) The will, Exhibit A-1, is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its provisions so far as they are material, may now be noticed. The will begins with the recital that the testator has two wives and no male issue, that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes. Clause 1 of Exhibit A-1 provides that after the death of the testator.

“in the absence of male issue, the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrishnaji, and mutation of names shall be effected in favour of Sri Radhakrishnaji in the Government papers and my wives Mst. Rai Kuer and Mst. Ram Kuer shall be the Mutawallis of the waqf”.

Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime, and the remaining half was to “continue to be spent for the expenses of the Thakurdwara”. It is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the Thakurdwara. Clause 4 provides that if a son is born to the testator, then the properties are to be divided between the son and the Thakurdwara in a specified proportion; but as no son was born, this clause never came into operation. Clause 5 provides that the Mutawallis are to have, no power to sell or mortgage the property, that they are to maintain accounts, that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit, property should he purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a committee of four persons to look after the management of the temple and its properties, and of these, two are not relations of the testator and belong to a different caste. It is further provided in that clause that after the death of the two wives the committee “may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion”. This Murlidhar is a divided nephew of the testator and he is the first defendant in this action. Clause 3 provides for filling up of vacancies in the committee. Then finally there is cl. 6, which runs as follows:

“If any person alleging himself to be my near or remote heir files a claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. in respect of whole or part of the waqf property his suit shall be improper on the face of this deed”.

10. The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment or that it should be public. The learned Judges of the Chief Court in affirming the decisions of the Courts below that the temple was built for the benefit of the members of the family, observed that there was nothing in the will pointing “to a conclusion that the trust was a public one”, and that its provisions were not “inconsistent with the property being a private endowment”. We are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family. 11. The testator begins by stating that he had no male issue. In ILR (1942) 1 Cal 211, the question was whether a wakf created by a deed of the year 1806 was a public or a private endowment. Referring to a recital in the deed that the settler had no children, Khundkar J. observed(of ILR Cal):

“The deed recites that the founder has neither children nor grandchildren, a circumstance which in itself suggests that the imambara was not to remain a private or family institution.”

Vide also the observations of Mitter J.(of ILR Cal). The reasoning on which the above view is based is, obviously, that the word ‘family’ in its popular sense means children, and when the settler recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public.

12. Then we have clause 2, under which the testator constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him. Clause 3 confers on the committee power to fill up vacancies; but there is no restriction therein on the persons who could be appointed under that clause, and conceivably, even all the four members might be strangers to the family. It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangers. Lastly, there is clause 6, which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial, and it is noteworthy that under clause 2, even the appointment of the first defendant as manager of the endowment is left to the option of the committee. It is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefit. And if he did not intend them to be beneficiaries under the endowment who are the members of the family who could take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the diety, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intentions, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct.

13. In the absence of a deed of endowment consituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P. W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and he deposed that while Sheo Gbulam’s wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right. It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rights. The learned Judges of the Chief Court also relied on the decision of the Privy Council in Babu Bhagwan Din V. Gir Har Saroop, 67 Ind App 1 as an authority for the position that,

“the mere fact that the public is allowed to visit a temple or Thakurdwara cannot necessarily indicate that the trust is public as opposed to private.”

In that case, certain properties were granted not in favour of an idol or temple but in favour of one Daryao Gir, who was maintaining a temple and to his heirs in perpetuity. The contention of the public was that subsequent to the grant, the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship, and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication. In repelling this contention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was not made out merely by showing that the public was allowed to worship at the temple,

“since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away.”

But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. In Mundacheri Koman vs. Achuthan 61 Ind App 405, which was referred to as followed in 67 Ind App 1 the distinction between user in respect of and institution which is initially proved to have been private and one which is not, is thus expressed:

“Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times, possibly owing to altered conditions, would affect the private characters of the of the trusts. As it is, they are of opinion that the learned Judges, of the High Court were justified in presuming from the evidence as to public user, which is all one way, that the temples and their endowments were public religious trust.”

We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment.

14. 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 settler has clearly and unambiguously expressed his intention in that behalf. 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. In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public.

15. In the court below, the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P.W. 10 stated that Prasadothsarga was performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under S.109 of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa, Uthsargaand Prathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the property. Uthsargais the formal renunciation by the founder of his ownership on the property, the result thereof being that it becomes impressed with the trust for which he dedicates it. Vide the Hindu Law of Religious and Charitable Trusts by B.K.Mukherjea, 1952 Edition, p.36.the formula to be adopted in Sankalpa and Uthsarga are set out in Kane’s History of Dharmasasatra, Vol.II, p.892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhatebyab). It would, therefore, follow that if Uthsargais proved to have been performed, the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to P.W.10 was recited on the occasion of the foundation was not Uthsarga but Prasadothsarga, which is something totally different. ‘Prasada’ is the ‘mandira’, wherein the deity is placed before the final installation or Prathista takes place, and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows:

It will be seen that this is merely the Sankalpa without the Uthsarga, and there are no words therein showing that the dedication is to the public. Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like, and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p.339 that “there is no utsargaof a temple except in the case of repair of old temples”. In the History of Dharmasastras, Vol.II, part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathistaand not Uthsarga.Therefore, the question of inferring a dedication to the public by reason of the pefromance of the Uthsargaceremony cannot arise in the case of temples. The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathistatakes the place of Uthsargain dedication of temples, and that there was prathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the public.

16. (4) We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum vs. Nawab Syud Ashgur Ally Khan, 15 Beng L R 167(J) it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the, Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public.

17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated ‘for the worship of the general public”, the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and “for his puja only”. The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.

18. In the result, the appeal is allowed, the decrees of the courts below are set aside and a declaration granted in terms of para.17 (a) of the plaint. The costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. of the appellant in all the courts will come out of the trust properties, the first defendant will himself bear his own costs throughout.