Judicial Dictionary

Juristic personality: SC Observation in Ayodhya Ram Janmabhumi Case

The Concept of Juristic Personality  as observed by Constitutional bench of Supreme Court in Ayodhya Ram Janmabhumi Title Appeal dated 09/11/2019

[Page 126-224] of  The Original Judgment [Para 86 to 205]

J. Juristic Personality 

J.1 Development of the law

86. At the heart of the legal dispute in the present batch of appeals is the question whether the first and second plaintiff in Suit 5 – Bhagwan Sri Ram Virajman and Asthan Sri Ram Janam Bhumi, Ayodhya, possess distinct legal personalities or, in other words, are juristic persons. Courts in India have held that Hindu idols are legal persons. The meaning and significance of this doctrine will be examined over the course of this judgement. At this juncture it is necessary to note that the legal personality of the first plaintiff in Suit 5 (Bhagwan Sri Ram Virajman‘) as represented by the physical idols of Lord Ram at the disputed site is not contested by any of the parties. Whether the second plaintiff (Asthan Sri Ram Janam Bhumi‘) is a juristic person has however been the
subject of controversy in the oral proceedings before us.

87. The present case requires us to answer two important questions: First, what are the exact contours of the legal personality ascribed to a Hindu idol? In other words, to what extent is the artificial legal personality ascribed by courts to a Hindu idol akin to the legal personality of a natural person? Second, can property of a corporeal nature (in this case land) be ascribed a distinct legal personality? To answer these questions, it is necessary to understand both the true purpose underlying the legal innovation of recognising or conferring legal personality and why courts have conferred legal personality on Hindu idols.

The legal subject: recognising rights, entitlements, duties and liabilities

88. The foundational principle of a legal system is that it must recognise the
subjects it seeks to govern. This is done by the law recognising distinct legal units
or legal persons‘. To be a legal person is to be recognised by the law as a
subject which embodies rights, entitlements, liabilities and duties. The law may
directly regulate the behaviour of legal persons and their behaviour in relation to
each other. Therefore, to be a legal person is to possess certain rights and duties
under the law and to be capable of engaging in legally enforceable relationships
with other legal persons. Who or what is a legal person is a function of the legal
system. The ability to create or recognise legal persons has always varied
depending upon historic circumstances. The power of legal systems to recognise
and hence also to deny legal personality has been used over history to wreak
fundamental breaches of human rights.

Roscoe Pound alludes to this in the following passage in Jurisprudence:

In civilised lands even in the modern world it has happened
that all human beings were not legal persons. In Roman law
down to the constitution of Antonius Pius the slave was not a
person. He enjoyed neither rights of family nor rights of
patrimony. He was a thing, and as such like animals, could be
the object of rights of property. … In French colonies, before
slavery was there abolished, slaves were put in the class of
legal persons by the statute of April 23, 1833 and obtained a
somewhat extended juridical capacity‘ by a statute of 1845.
In the United States down to the Civil War, the free Negroes
in many of the States were free human beings with no legal
rights.39


39 Roscoe Pound, Jurisprudence, Part IV, 1959 Edition


Pound‘s observations were extracted by this Court in Shiromani Gurdwara
Prabandhak Committee, Amritsar v Som Nath Dass40 where a two judge
Bench of this Court had to determine whether the Guru Granth Sahib
possessed a legal personality. While discussing who is a legal person‘ Justice A
P Misra observed:

11. …If we trace the history of a person in the various
countries we find surprisingly it has projected differently at
different times.

13. With the development of society, where an individual‘s
interaction fell short, … cooperation of a larger circle of
individuals was necessitated. Thus, institutions like
corporations and companies were created, to help the society
in achieving the desired result. The very constitution of a
State, municipal corporation, company etc. are all creations of
the law and these juristic persons arose out of necessities in
the human development. In other words, they were dressed in
a cloak to be recognised in law to be a legal unit.

89. Legal systems across the world evolved from periods of darkness where
legal personality was denied to natural persons to the present day where in
constitutional democracies almost all natural persons are also legal persons in
the eyes of the law. Legal systems have also extended the concept of legal
personality beyond natural persons. This has taken place through the creation of
the artificial legal person‘ or juristic person‘, where an object or thing which is not
a natural person is nonetheless recognised as a legal person in the law. Two
examples of this paradigm are, where a collection of natural persons is
collectively conferred a distinct legal personality (in the case of a cooperative
society or corporation) and where legal personality is conferred on an inanimate
object (in the case of a ship). The conferral of legal personality on things other
40 (2000) 4 SCC 146 than natural persons is a legal development which is so well recognised that it receives little exposition by courts today. The legal development is nonetheless well documented. Salmond in his work titled Jurisprudence notes:
Conversely there are, in the law, persons who are not men.
A joint-stock company or a municipal corporation is a person
in legal contemplation. It is true that it is only a fictitious, not a
real person; but it is not a fictitious man. It is personality, not
human nature, that is fictitiously attributed by the law to
bodies corporate.

So far as legal theory is concerned, a person is any being
whom the law regards as capable of rights and duties. Any
being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person, even
though he be a man. Persons are the substance of which
rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and
this is the exclusive point of view from which personality
receives legal recognition.

But we may go one step further than this in the analysis. No
being is capable of rights, unless also capable of
interests which may be affected by the acts of others. For
every right involves an underlying interest of this nature.
Similarly no being is capable of duties, unless also capable of
acts by which the interests of others may be affected. To
attribute rights and duties, therefore, is to attribute interests
and acts as their necessary bases. A person, then, may be
defined for the purposes of the law, as any being to
whom the law attributes a capability of interests and
therefore of rights, of acts and therefore of duties.41
(Emphasis supplied)

90. A legal person possesses a capability to bear interests, rights and duties.
Salmond makes a crucial distinction between legal personality and the physical
corpus on which legal personality is conferred:
The law, in creating persons, always does so by personifying
some real thing. Such a person has to this extent a real
existence, and it is his personality alone that is fictitious.
There is, indeed, no theoretical necessity for this, since the
law might, if it so pleased, attribute the quality of


41J W Salmond, Jurisprudence, Steven and Haynes (1913)


personality to a purely imaginary being, and yet attain the
ends for which this fictitious extension of personality is
devised. Personification, however, conduces so greatly
to simplicity of thought and speech, that its aid is
invariably accepted. The thing personified may be termed
the corpus of the legal person so created; it is the body
into which the law infuses the animus of a fictitious
personality.

Legal persons, being the arbitrary creations of the law, may
be as of as many kinds as the law pleases. Those which are
actually recognised by our own system, however, all fall
within a single class, namely corporations or bodies
corporate. A corporation is a group or series of persons which
by a legal fiction is regarded and treated as itself a person. If,
however, we take account of other systems of our own,
we find that the conception of legal personality is not so
limited in its application…42
(Emphasis supplied)

Legal personality is not human nature. Legal personality constitutes recognition
by the law of an object or corpus as an embodiment of certain rights and duties.
Rights and duties which are ordinarily conferred on natural persons are in select
situations, conferred on inanimate objects or collectives, leading to the creation of
an artificial legal person. An artificial legal person is a legal person to the extent
the law recognises the rights and duties ascribed to them, whether by statute or
by judicial interpretation. Salmond presciently notes that the rights and duties
conferred on artificial legal persons ultimately represent the interests and benefits
of natural persons. In fact, it is precisely because of the substantial benefits
derived by natural persons from such objects or collectives that legislators and
courts are called upon to consider conferring legal personality on such objects or
collectives.


42 J.W. Salmond, Jurisprudence, Steven and Haynes (1913)


91. At a purely theoretical level, there is no restriction on what legal personality
may be conferred. What is of significance is the purpose sought to be achieved
by conferring legal personality. To the extent that this purpose is achieved, legal
personality may even be conferred on an abstract idea. However, Salmond
notes that legal personality is usually conferred on objects which are already the
subject of personification or anthropomorphisms in layman‘s language out of
simplicity for thought and speech. The question whether legal personality is
conferred on a ship, idol, or tree is a matter of what is legally expedient and the
object chosen does not determine the character of the legal personality
conferred. The character of the legal personality conferred is determined by the
purpose sought to be achieved by conferring legal personality. There is thus a
distinction between legal personality and the physical corpus which then comes
to represent the legal personality. By the act of conferring legal personality, the
corpus is animated in law as embodying a distinct legal person possessing
certain rights and duties.

92. By conferring legal personality, legal systems have expanded the definition
of a legal person‘ beyond natural persons. Juristic persons so created do not
possess human nature. But their legal personality consists of the rights and
duties ascribed to them by statute or by the courts to achieve the purpose sought
to be achieved by the conferral of such personality. It is important to understand
the circumstances in which legal personality has been conferred and
consequently the rights and duties ascribed to the inanimate objects on which
this conferment takes place.

The Corporation

93. The most widely recognised artificial legal person is the corporation in
Company law. However, for the purposes of understanding the circumstances
under which courts have conferred legal personality, the example of the
corporation is of limited use. The idea of treating a collective of individuals as a
single unit for the purposes of identification in law is as old as human civilisation
itself. There exists a plethora of examples of such recognition scattered across
human history with the advent of guilds, partnerships and early unincorporated
businesses.

As Phillip Blumberg notes in his book titled The Multinational Challenge to Corporation Law:

When the Crown finally began to charter craft guilds and
trading companies – the first business corporations – in the
fifteenth century, an understanding of the legal nature of
the corporation was already substantially in place. … With
this history before them, Sir Edward Code, writing in the
beginning of the seventeenth century; … and Blackstone and
Kyd, writing in the late eighteenth century, could confidently
assert what the corporation was, how it was created, and
what legal attributes flowed from its organization. While they
had primarily ecclesiastical and municipal corporations in
mind, their commentary fully applied to business corporations
as well.43 (Emphasis supplied)

The jurisprudential concept of treating a collective of entrepreneurs as a single
unit for the purposes of legal recognition was already well established by the time
the first business corporations came into existence and did not warrant
examination by the courts. The author further states:


43 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality, Oxford University Press (1993), at page 3


Until well into the nineteenth century, recognition of a
corporation for business purposes, both in England and
in the United States, required a specific governmental
decision to grant corporate status. In England, this took
the form of a character from the Crown or an act of
Parliament. In the United States it required a legislative act. …
With the universal triumph of general incorporation
statutes more than a century ago, corporations could be
formed simply by filing certain forms and paying certain
fees and taxes. The state’s role has shrunken dramatically to
a general specification of procedures and a ministerial
administrative acknowledgement of the incorporators’
compliance with statutory formalities.44 (Emphasis supplied)

The independent legal personality of a corporation has never been dependent on
recognition by courts. The legal personality of the corporation was originally
granted by a positive act of the government. In later years, as incorporation
became the preferred method of doing business, corporate personality was
conferred by general statutes of incorporation which permitted any person to
incorporate a company subject to the satisfaction of certain statutory conditions.
These historical developments outline the departure from a positive act of the
government as the basis of corporate personality, to the creation of statutory
frameworks within which it was conferred. It does not, however, outline the
reasons underlining the conferral of legal personality and is of little assistance in
the present situation.

The Ship

94. A more pertinent example for the present purposes is the conferment of
legal personality on a ship. The concepts of a maritime lien and of actions in rem


44 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality, Oxford University Press (1993), at page 22


are established precepts of maritime law. A maritime lien may arise in the case of
a wrongdoing or damage caused by a ship which gives the claimant a charge on
the res‘ of the ship. The charge is crystallised by an action in rem‘ under which
the ship is directly proceeded against, as a legal person. In 1881, Sir George
Jessel MR explained this in The City of Mecca45, where he observed:
You may in England and in most countries proceed against
the ship. The writ may be issued against the owner of such a
ship, and the owner may never appear, and you get your
judgement against the ship without a single person being
named from beginning to end. That is an action in rem, and it
is perfectly well understood that the judgement is against the
ship.

D R Thomas in his book titled Maritime Liens46 traces the history of the judicial
conferment of legal personality on ships. He speaks of two theories- the
personification theory‘ and the procedural theory‘ in explaining the evolution of
the concept:

The first [theory], commonly coined as the personification
theory, traces the historical origin and development of
maritime liens to the juristic technique, which has obtained
since medieval times, of ascribing personality to a ship. Under
this theory a ship is personified and regarded as a distinct
juristic entity with a capacity to contract and commit torts. The
ship is both the source and limit of liability.

The second theory, known as the procedural theory, is based
on the premise that maritime liens evolved out of the process
of arrest of a vessel in order to compel the appearance of the
res owner and to obtain a security.

Although the point is not free of uncertainty it is probably the
case that a maritime lien is a substantive right whereas a
statutory right of action in rem is in essence a procedural
remedy. The object behind the availability of a statutory right


45 The City of Mecca (1881) 5 P.D. 106
46 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980)


of action in rem is to enable a claimant to found a jurisdiction and to provide the res as security for the claim.47

95. There is a direct nexus between the conferral of a limited legal personality
and the adjudicative utility achieved by the conferral. Courts treat the physical
property of the ship as a legal person against which certain actions may be taken.
Conferring legal personality on the ship allows for actions to be taken
independent of the availability or presence of the ship‘s owners, who in a great
many cases may be in other parts of the world. As a ship may only be in port for
a brief period, an action in rem allows the claimant to ensure pre-judgement
security. Thus, even absent an express personification, actions against the ship
as a legal person ensure the effective adjudication of admiralty disputes.

96. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd.48, this
Court noticed the underlying basis of this principle of Admiralty law. Justice
Thommen, speaking for a two judge Bench traced the exercise of admiralty
jurisdiction by English courts:

44. …The vital significance and the distinguishing feature of
an admiralty action in rem is that this jurisdiction can be
assumed by the coastal authorities in respect of any maritime
claim by arrest of the ship, irrespective of the nationality of the
ship or that of its owners, or the place of business or domicile
or residence of its owners or the place where the cause of
action arose wholly or in part.
…In admiralty the vessel has a juridical personality, an
almost corporate capacity, having not only rights but
liabilities (sometimes distinct from those of the owner)
which may be enforced by process and the decree
against the vessel, binding upon all interested in her and
conclusive upon the world, for admiralty in appropriate


47 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980), at pages 7 and 38
48 1993 Supp (2) SCC 433


cases administers remedies in rem, i.e., against the property,
as well as remedies in personam, i.e., against the party
personally… (Benedict, The Law of American Admiralty, 6th
ed., Vol. I p. 3.)
45. Admiralty Law confers upon the claimant a right in rem to
proceed against the ship or cargo as distinguished from a
right in personam to proceed against the owner. The arrest of
the ship is regarded as a mere procedure to obtain security to
satisfy judgement…. (Emphasis supplied)
In this view, the conferral of legal personality on a ship sub-served the purpose of
business certainty and expediency. The decree against the ship binds all
interested in her, and despite her nomadic nature, satisfies the requirement of
ensuring pre-judgment security. Besides the UK and India, the attribution of legal
personality to ships has been used extensively across jurisdictions. Illustrating
the approach of American courts, Professor Douglas Lind traces the evolution of
the concept:
As the United States entered its first century, the greater
part of the nation’s trade and commerce, as well as much of
the general transportation of persons, occurred on the high
seas or along the country‘s abundant inland navigable
waterways. The constitution had extended the federal
judicial power to all cases of admiralty and maritime
jurisdiction.

[The Brig James Wells v United States] case raised what was
quickly becoming a common issue: whether an American
registered vessel should be condemned for violating a federal
law. The Court held the Brig’s condemnation inevitable.
Noteworthy is the fact that while the case was styled in the
name of the vessel, neither the term ‘maritime lien’ nor ‘in
rem, appears, and there is no suggestion that the ship
itself, rather than those in charge of it, was the offender
… The practice of naming an action against a vessel did
not, however, attest to the idea of vessel personification.
The Court treated actions styled against a vessel as
including everyone with an interest in her as a party to
the suit.

Numerous cases had troubled the federal courts regarding
enforcement of liens when the principals (owners, masters)
with interests in a ship had no active role or prior knowledge
of the wrongdoing alleged. Traditional law of agency, with
the ship as agent, worked against a coherent rule of
responsibility and recovery … Given the peculiar vitalism of
the ship in lore, literature, and poetry, it took only a slight
conceptual shift in the legal mind for the federal courts to
assume the mental mode of adaptation to [the] reality of the
vitalism of the ship. The doctrine gave the courts the control
of the environment over maritime law that they had been
lacking … with the doctrine of the personality of the ship,
the Supreme Court inverted the relationship of agency,
making the ship the principal rather than the agent. In
this way, the desirable consequences of a coherent,
workable admiralty jurisdiction seemed possible. The
doctrine of the personality of the ship, that is, became a
central hallmark of nineteenth century American admiralty law
because it appeared to the Supreme Court to be good in the
way of belief … The idea originated in the practical efforts
of the Supreme Court, especially Justices Marshall and
Story, to meet critical social and political needs of the
new American republic.49 (Emphasis supplied)
97. The experience of American courts was that owners of offending ships
regularly avoided the jurisdiction of courts. The existing law of the day was
inadequate to address the situation. The judges of the American Supreme Court
therefore utilised the existing non-legal practice of anthropomorphising the ship
and gave it legal significance by conferring legal personality on vessels within
their jurisdiction. Significantly, the existing law of agency was ill equipped to deal
with the unique features of Admiralty Law. Allowing actions against ships then
created a vehicle through which the obligations of those with an interest in the
ships and her actions, though outside the jurisdiction of courts, would be fulfilled
by the recognition by the law of the personality of the maritime vessel. Perhaps
even more so than in the case of English admiralty courts, the American


49 Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009) at page 91


experience demonstrates that the conferral of legal personality on ships was a
result of historical circumstances, shortcomings in the existing law and the need
of courts to practically and effectively adjudicate upon maritime claims. Over the
course of several cases, the American Supreme Court solved the practical
difficulties of attribution and agency by making the ship a distinct legal person for
the purposes of adjudicating maritime claims.
History, necessity and convenience

98. These observations are true even beyond the realm of admiralty law.
Bryant Smith in a seminal article titled Legal Personality published in 1928 in
the Yale Law Journal50 states that ordinarily, the subjects of rights and duties are
natural persons. However, he goes on to note that:
… for some reason or other, it becomes necessary or
convenient to deal with an inanimate object such as a
ship, or with a human being in a multiple capacity, as a
trustee or a guardian, or with an association of human
beings in a single capacity, as a partnership or a
corporation. A merchant, for example, who has furnished
supplies for a voyage, or a boss stevedore who has
renovated the ship, cannot reach the owner of the vessel,
who is outside the jurisdiction. The obvious solution is to get
at the ship itself and, through it, satisfy the owner’s
obligations. But to devise a new system of jurisprudence
for the purpose, to work out new forms and theories and
processes, would too severely tax the ingenuity of the
profession. The alternative is for the judges to shut their
eyes to the irrelevant differences between a ship and a
man and to treat the ship as if it were a man for the
purpose of defending a libel.

It is true, of course, that the benefits and burdens of legal
personality in other than human subjects, on ultimate
analysis, result to human beings, which, we have no
doubt, is what the writers above cited mean. But the very
utility of the concept, particularly in the case of corporate
50 Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296

personality, lies in the fact that it avoids the necessity for
this ultimate analysis.

But, though the function of legal personality, as the quotation
suggests, is to regulate behaviour, it is not alone to regulate
the conduct of the subject on which it is conferred; it is
to regulate also the conduct of human beings toward the
subject or toward each other. It suits the purposes of
society to make a ship a legal person, not because the
ship’s conduct will be any different, of course, but because its
personality is an effective instrument to control in certain
particulars the conduct of its owner or of other human
beings.
(Emphasis supplied)
The above extract affirms Salmond‘s observations that the choice of corpus (i.e.
the object) on which legal personality is conferred is not based on strict legal
principle but is an outcome of historical circumstances, legal necessity and
convenience. Historical circumstances require courts to adjudicate upon unique
factual situations. In American admiralty law, the increase in maritime expeditions
coupled with the conferral of admiralty jurisdiction on the United States Supreme
Court led to an influx of cases involving maritime claims. The existing law of the
day did not allow the court to effectively adjudicate upon these new claims,
leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was
resorted to by courts. Both Lind and Smith highlighted several problems arising
from the uniqueness of the ship itself – a vessel travelling across multiple
jurisdictions, whose owners may reside in jurisdictions other than those where
they are sought to be acted against and have little knowledge of, or control, over
the operation of the ship. The conferral of legal personality on the ship did not
change the behaviour of the ship. It however created a legal framework within
which the interactions between natural persons and the ship could be regulated
to achieve outcomes at a societal level which are satisfactory and legally sound.

99. Both authors note that the existing personification of the ship required
courts to make but a small conceptual leap of faith, which resulted in significant
legal benefits for courts. This point is of greater historical than legal significance
for it cannot be stated that where there is no personification of an object, a court
is barred from conferring legal personality. Arguably, the independent legal
personality conferred on a corporation by acts of the state involved a far greater
conceptual leap. Yet it was deemed necessary and has since crystallised into a
foundational principle in the law of corporations.

100. There exists another reason to confer legal personality. Objects represent
certain interests and confer certain benefits. In the case of some objects, the
benefits will be material. The benefit may extend beyond that which is purely
material. An artificial legal person, whether a ship or a company cannot in fact
enjoy these benefits. The ultimate beneficiaries of such benefits are natural
persons. However, requiring a court, in every case, to make the distinction
between the artificial legal person and the natural persons deriving benefit from
such artificial person is inordinately taxing, particularly when coupled with the
increasing use of corporations and ships. This leads us to the third rationale for
conferring legal personality – convenience. The conferral of legal personality on
objects has historically been a powerful tool of policy to ensure the practical
adjudication of claims. By creating a legal framework, it equipped the court with
the tools necessary to adjudicate upon an emerging class of disputes. It saved
considerable judicial effort and time by allowing judges to obviate the distinction
between artificial and natural persons where it was not relevant. The conferral of
legal personality was thus a tool of legal necessity and convenience. Legal
personality does not denote human nature or human attributes. Legal personality
is a recognition of certain rights and duties in law. An object, even after the
conferral of legal personality, cannot express any will but it represents certain
interests, rights, or benefits accruing to natural persons. Courts confer legal
personality to overcome shortcomings perceived in the law and to facilitate
practical adjudication. By ascribing rights and duties to artificial legal persons
(imbued with a legal personality), the law tackles and fulfils both necessity and
convenience. By extension, courts ascribe legal personality to effectively
adjudicate upon the claims of natural persons deriving benefits from or affected
by the corpus upon which legal personality is conferred. The corollary of this
principle is that the rights ascribed by courts to the corpus are limited to those
necessary to address the existing shortcomings in the law and efficiently
adjudicate claims.

101. This principle is concisely articulated by Phillip Blumberg:
Distinguished by their particular legal rights and
responsibilities, each class of legal unit is unique. They
include legal subjects as disparate as individuals, maritime
vessels, physical objects, partnerships, associations, special
accounts, funds, economic interest groupings, and
governmental agencies, as well as the corporation and the
corporate group. In each case, the attribution of rights and
responsibilities demarcating the perimeters of legal
recognition of the unit reflects all the factors that
underlie societal lawmaking: the historical development
of the law, changing values and interests, socio-economic
and political forces, and conceptual currents.
There are certain fundamental points. First, neither legal
rights nor legal units exist in the air. Legal rights must
pertain to a legal unit that can exercise them. Further, there
can be no comprehensive list of legal rights and
responsibilities that automatically springs into existence
upon recognition of a particular subject as a legal unit.
Quite the contrary. It is the recognition of particular
rights and responsibilities (principally rights) – one by
one – that shapes the juridical contours of the legal unit
for which they have been created.
When the law recognises a particular right or imposes a
particular responsibility on a presumptive legal unit, this
constitutes recognition as a legal unit to the extent of the
attribution. Other rights and responsibilities may or may
not exist, depending on whether such recognition of the
unit in the view of the lawmaker – whether legislator,
administrator, or judge – will fulfil the underlying policies
and objectives of the law of the time in the area. Further,
as society changes, the concept of legal identity and the legal
consequences attributed to them inevitably change as well.51
(Emphasis supplied)
All legal units are not alike. The conferral of legal personality sub-serves specific
requirements that justify its recognition. The conferral of juristic personality does
not automatically grant an ensemble of legal rights. The contours of juristic
personality i.e. the rights and liabilities that attach upon the object conferred with
juristic personality, must be determined keeping in mind the specific reasons for
which such legal personality was conferred. The limits or boundaries of the rights
ascribed to the new legal person must be guided by the reasons for conferring
legal personality. The parameters of judicial innovation are set by the purpose for
which the judge innovates. An example of this is when courts lift the veil of
corporate personality where the conferral of an independent legal personality no
longer serves the above goals. The application of the doctrine is defined by its
ability to serve the object underlying its creation. The legal innovation will become
unruly if courts were to confer legal personality on an object and subsequently
enlarge the object‘s rights to the point where the original goal of intelligible and


51 Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207


practical adjudication is defeated. With this understanding, it is necessary to now
turn to the application of these principles with respect to Hindu idols.
The Hindu idol and divinity

102. At the outset, it is important to understand that the conferral of legal
personality on a Hindu idol is not the conferral of legal personality on divinity
itself, which in Hinduism is often understood as the Supreme Being‘. The
Supreme Being defies form and shape, yet its presence is universal. In the law of
Hindu endowments and in the present proceedings, it has often been stated that
legal personality is conferred on the purpose behind the idol‘. The present
judgment shall advert to the exact legal significance of this statement. For the
present, it is sufficient to note that legal personality is not conferred on the
Supreme Being‘ itself. As observed by this Court in Ram Jankijee Deities v
State of Bihar52:
19. God is omnipotent and omniscient and its presence is felt
not by reason of a particular form or image but by reason of a
particular form or image but by reason of the presence of the
omnipotent. It is formless, it is shapeless and it is for the
benefit of the worshippers that there is a manifestation in
the images of the supreme being. The supreme being has
no attribute, which consists of pure spirit and which is without
a second being i.e. God is the only being existing in reality,
there is no other being in real existence excepting Him.
(Emphasis supplied)

103. In 1991, the English Court of Appeal in Bumper Development Corporation Ltd v Commissioner of Police of the Metropolis53 was called to decide the question whether a Hindu temple and a Hindu idol could sue in a court


52 (1999) 5 SCC 50
53 [1991] 1 WLR 1362 (2)


of law. In 1976, an Indian labourer discovered a Siva Natraja‘ in Pathur, Tamil
Nadu which the labourer subsequently sold to a dealer in religious artefacts.
Other artefacts were subsequently found, including a Sivalingam‘, and were
reinstated in the Pathur temple. In 1982, Bumper Development Corporation
purchased the Siva Natraja‘ in good faith from a dealer in London who produced
a false provenance of the Natraja for the purposes of the sale. The Natraja was
subsequently seized by the Metropolitan Police. At trial, the Government of India
and the state government of Tamil Nadu intervened, along with the Pathur
Temple and the Sivalingam as juristic persons. The Court of Appeal engaged in
a lengthy discussion on foreign law in English Courts. However, in evaluating the
maintainability of the claim by the Pathur temple as a legal entity, the English
court made the following observations:

(1) Neither God nor any supernatural being can be a
person in law. A practical illustration of the truth of this
statement is that if the endowments were to vest in God as a
supernatural being litigation between different temples over
their respective rights would be impossible. In any event the
same person would be both plaintiff and defendant since, as
Dr. Mukherjea points out, all Hindus always worship the one
Supreme Being. That there is much litigation between
temples in India is clear beyond a peradventure.

(4) Any juristic person must be capable of identification.
This necessitates that person‘ having a name or
description. Since every Hindu idol is a manifestation of
one Supreme Being, one must look elsewhere than to the
name of God for an identification. The Pathur Temple
bears the name of its founder in its title; and that appears to
be the custom in Tamil Nadu. So any idol must in practice be
referred to by association with the name of the temple in
which it is. (Emphasis supplied)

104. Hinduism understands the Supreme Being as existing in every aspect of
the universe. The Supreme Being is omnipresent. The idea of a legal person is
premised on the need to identify the subjects‘ of the legal system. An
omnipresent being is incapable of being identified or delineated in any manner
meaningful to the law and no identifiable legal subject would emerge. This
understanding is reflected in the decisions of this Court as well. In Yogendra
Nath Naskar v Commissioner of Income Tax, Calcutta54, a three judge Bench
of this Court was called upon to determine whether a Hindu idol (or deity‘) falls
within the definition of an individual under Section 3 of the Income Tax Act
1922. Justice V Ramaswami speaking for a three judge Bench of this Court held:
Sankara, the great philosopher, refers to the one Reality,
who, owing to the diversity of intellects (Matibheda) is
conventionally spoken of (Parikalpya) in various ways as
Brahma, Visnu and Mahesvara. It is, however, possible that
the founder of the endowment or the worshipper may not
conceive of this highest spiritual plane but hold that the
idol is the very embodiment of a personal God, but that is
not a matter with which the law is concerned. Neither
God nor any supernatural being could be a person in law.
But so far as the deity stands as the representative and
symbol of the particular purpose which is indicated by
the donor, it can figure as a legal person. The true legal
view is that in that capacity alone the dedicated property
vests in it. There is no principle why a deity as such a legal
person should not be taxed if such a legal person is allowed
in law to own property even though in the ideal sense and to
sue for the property, to realise rent and to defend such
property in a court of law again in the ideal sense. Our
conclusion is that the Hindu idol is a juristic entity capable of
holding property and of being taxed through its Shebaits who
are entrusted with the possession and management of its
property.
(Emphasis supplied)

Legal personality is not conferred on the Supreme Being. The Supreme Being
has no physical presence for it is understood to be omnipresent – the very ground
of being itself. The court does not confer legal personality on divinity. Divinity in
54 (1969) 1 SCC 555

Hindu philosophy is seamless, universal and infinite. Divinity pervades every
aspect of the universe. The attributes of divinity defy description and furnish the
fundamental basis for not defining it with reference to boundaries – physical or
legal. For the reason that it is omnipresent it would be impossible to distinguish
where one legal entity ends and the next begins. The narrow confines of the law
are ill suited to engage in such an exercise and it is for this reason, that the law
has steered clear from adopting this approach. In Hinduism, physical
manifestations of the Supreme Being exist in the form of idols to allow
worshippers to experience a shapeless being. The idol is a representation of the
Supreme Being. The idol, by possessing a physical form is identifiable.
105. An exploration of the method adopted for the conferral of legal personality
on Hindu idols and the reason for the conferment is necessary. Chief Justice B K
Mukherjea‘s, The Hindu Law of Religious and Charitable Trusts
demonstrates a timeless quality and has significance in understanding the
evolution of our law on the subject. Justice Mukherjea notes that even prior to
courts regulating the Hindu practice of religious endowments, the clear public
interest in regulating properties dedicated for religious purposes, resulted in the
practice being regulated by the rulers of the day. He states:
1.36 … It appears however that from very early times
religious and charitable institutions in this country came under
the special protection of the ruling authority. In the celebrated
Rameswar Pagoda case, it was pointed out by the Judicial
Committee that the former rulers of this country always
asserted the right to visit endowments of this kind to
prevent and redress the abuses in their management.
There can be little doubt, thus observed Their Lordships,
that the superintending authority was exercised by the older
rulers. Mr. Nelson in his Madura Manual says: … The
Dharma Kartas held but little communication one with another
and recognised no earthly superior except the king himself.
Each was independent of all control and acted altogether
as he pleased. This freedom led naturally to gross
abuses and the king was compelled occasionally to
interfere in the management of some of the churches.55
(Emphasis supplied)

106. In an article which was published in 2010 in the Economic and Political
Weekly, Gautam Patel traces the historical evolution of endowments. He noted
the reason for the conferment of personality in law on idols:
Emperors and rulers routinely donated property and cash for
the establishment, maintenance and upkeep of Hindu shrines.
When land was made over to a temple, it was in the form of a
sanad, or grant, or firman, by edict. The Shrinathji temple at
Nathdwara, for instance, was said to have received a firman
from the emperor Akbar. Given the colonial obsession with
orderliness and documentation, this situation presented a
problem – large areas of land were owned, managed and
cultivated by shebaits and mohunts who were clearly not
the owners. Temples were, by their nature, malleable and
apt to grow and change. The entity with some permanence
was the idol and it is presumably for that reason that the
legal concept of the Hindu idol as a juristic entity owning land
evolved. The reason may have been purely fiscal – these
lands had to be surveyed, their ownership ascertained, and
then assessed for (or exempted from) land revenue and other
taxes. But the ownership of land almost always depended
on the establishment of a positive act of giving – by
firman, sanad or any other instrument that unequivocally
shows a dedication of the land to the idol.56
(Emphasis supplied)
The reasons for the recognition of the idol as an entity in law are intrinsically tied
to the historical circumstances in which recognition took place. The setting up of
religious endowments by individuals, merchants and rulers is an age-old practice
in India. However, the colonial administration in India and English law of the time
lacked the legal framework within which to record, tax and ultimately adjudicate


55 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition Eastern Law House, (1983) at page 28
56 Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17 December 2010) at page 49


upon claims with respect to Hindu religious endowments. Disputes arose with the
increase in the value of the properties dedicated. The establishment of courts
across the country led to their increasingly having to adjudicate upon claims
concerning endowments, idols, and debutter properties.

J.2 Idols and juristic personality

107. English and Indian judges in India were called upon to determine the legal
characteristics of Hindu idols and the properties associated with them. In
Manohar Ganesh Tambekar v Lakhmiram Govindram57, the plaintiffs were
persons interested in the religious foundation of the temple of Dakor and the
defendants were recipients of the temple‘s offerings. The plaintiff‘s prayer was
that the court appoint a receiver for the accountable disposal of the offerings
made at the temple. On the other hand, the defendants submitted that the
temple offerings were their own absolute and secular property. A Division Bench
of the Bombay High Court analysed the circumstances in which the case took
place and considered the need to confer legal personality on the Hindu idol. The
Court, speaking through Justice R West observed:
For a period extending over several centuries the revenues
of the temple seem to have but slightly, if at all, exceeded the
outlay required to maintain its services, but recently these
revenues have very largely increased. The law which protects
the foundations against external violence guards it also
internally against mal-administration, and regulates,
conformable to the central principle of the institution, the use
of its augmented funds.


57 ILR (1888) 12 Bom 247


108. The Hindu practice of dedicating properties to temples and idols had to be
adjudicated upon by courts for the first time in the late nineteenth century. The
doctrine that Hindu idols possess a distinct legal personality was adopted by
English judges in India faced with the task of applying Hindu law to religious
endowments. Property disputes arose and fuelled questions about the ownership
of the properties. Two clear interests were recognised as subjects of legal
protection. First, there existed the real possibility of maladministration by the
shebaits (i.e. managers) where land endowed for a particular pious purpose,
ordinarily to the worship of an idol, was poorly administered or even alienated.
Second, where the land was dedicated to public worship, there existed the threat
that access or other religious benefits would be denied to the public, in particular
to the devotees. Where the original founder of the endowment was not alive and
the shebait was not the owner of the lands, how were the courts (and through
them the State) to give effect to the original dedication? To provide courts with a
conceptual framework within which they could analyse and practically adjudicate
upon disputes involving competing claims over endowed properties, courts
recognised the legal personality of the Hindu idol. It was a legal innovation
necessitated by historical circumstances, the gap in the existing law and by
considerations of convenience. It had the added advantage of conferring legal
personality on an object that within Hinduism had long been subject to
personification. The exact contours of the legal personality so conferred are of
relevance to the present case to which this judgement now adverts.
109. In conferring legal personality on the Hindu idol, courts drew inspiration
from what they saw as factual parallels in Roman law. Justice B K Mukherjea
summarises the position:
…from the fifth century onwards – foundations created by
individuals came to be recognised as foundations in the true
legal sense, but only if they took the form of Pia Causa, i.e.,
were devoted to pious uses‘ only, in short, if they were
charitable institutions. Whenever a person dedicated
property whether by gift inter vivos or by will – in favour
of the poor or the sick, or prisoners or orphans, or aged
people, he thereby created ipso facto a new subject of
legal rights – the poor house, the hospital and so forth and
the dedicated property became the sole property of the new
subject – it became the property of the new juristic person
whom the founder had called into being.

1…A private person might make over property by way of
legacy or gift to a corporation already in existence and might,
at the same time, prescribe the particular purpose for which
the property was to be employed, e.g., feeding the poor, or
giving relief to the sick or distressed. The receiving
corporation would be in the position of a trustee and would be
legally bound to spend the funds for the particular purpose.
The other alternative was for the donor himself to create
an institution or foundation. This would be a new juristic
person, which depended on its origin on nothing else but
the will of the founder, provided it was directed a
charitable purpose. The foundation would be the owner
of the dedicated property, and the administrators would be
the trustees bound to carry out the object of the foundation.58
(Emphasis supplied)
In Roman law, where property was dedicated to a particular religious or
charitable purpose and not to an identified donee, the religious/charitable
purpose itself was elevated to the status of a legal foundation. The foundation
was a separate legal entity and came to own the dedicated property. Hindu law
does not make a distinction between religious and charitable purposes. However,
a clear parallel exists in the case of Hindu endowments.


58 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition, Eastern Law House (1983) at page 9


110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High
Court set out the rationale for and the process by which legal personality is
conferred on a Hindu idol. Justice West observes:
The Hindu law, like the Roman law and those derived from it,
recognizes, not only corporate bodies with rights of property
vested in the corporation apart from its individual members,
but also juridical persons or subjects called foundations. A
Hindu, who wishes to establish a religious or charitable
institution, may, according to his law, express his
purpose and endow it, and the ruler will give effect to the
bounty … A trust is not required for this purpose: the
necessity of a trust in such a case is indeed a peculiarity
and a modern peculiarity of the English law. In early times
a gift placed, as it was expressed, on the altar of God
sufficed to convey to the church the lands thus dedicated.

Such a practical realism is not confined to the sphere of law; it
is made use of even by merchants in their accounts, and by
furnishing an ideal centre for an institution to which the
necessary human attributes are ascribed. … But if there is a
juridical person, the ideal embodiment of a pious or
benevolent idea as the centre of the foundation, this
artificial subject of rights is as capable of taking offerings
of cash and jewels as of land. Those who take physical
possession of the one as of the other kind of property incur
thereby a responsibility for its due application to the purposes
of the foundation.

The law which protects the foundations against external
violence guards it also internally against mal-administration,
and regulates, conformable to the central principle of the
institution, the use of its augmented funds. It is only as
subject to this control in the general interest of the
community that the State through the law courts
recognizes a merely artificial person. It guards property
and rights as devoted, and thus belonging, so to speak,
to a particular allowed purpose only on a condition of
varying the application when either the purpose has become
impracticable, useless or pernicious, or the funds have
augmented in an extraordinary measure.
(Emphasis supplied)

111. The decision in Manohar Ganesh Tambekar indicates that the expression
of a religious or charitable purpose and the creation of an endowment to
effectuate it was adequate. The creation of a trust, as in English law was not
necessary. The creation of an endowment resulted in the creation of an artificial
legal person. The artificial or juridical person represents or embodies a pious or
benevolent purpose underlying its creation. Legal personality is conferred on the
pious purpose of the individual making the endowment. Where the endowment is
made to an idol, the idol forms the material representation of the legal person.
This juridical person (i.e. the pious purpose represented by the idol) can in law
accept offerings of movable and immovable property which will vest in it. The
legal personality of the idol, and the rights of the idol over the property endowed
and the offerings of devotees, are guarded by the law to protect the endowment
against maladministration by the human agencies entrusted with the day to day
management of the idol.

112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras
High Court was called upon to decide a dispute pertaining to the appointment of
the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami59,
a Division Bench examined the legal character of idols, temples and mutts in
some detail. Justice B Ayyangar went to on to observe:
As already stated, the worshippers are beneficiaries only in a
spiritual sense, and the endowments themselves are primarily
intended for spiritual purposes, through indirectly and
incidentally a good number of people derive material or
pecuniary benefit therefrom as office-holders, servants or
objects of charity…The question has not been suggested
or considered, whether the community itself for whose


59 ILR (1904) 27 Mad 435


spiritual benefit the institution was founded and endowed
may not be more appropriately be regarded as a
corporate body forming the juristic person in whom the
properties of the institution are vested and who act
through one or more of the natural persons forming the
corporate body, these latter being the dharmakartas or
panchayats, &c., charged with the execution of the trusts of
the institution and possessing strictly limited powers of
alienation of the endowments, as defined in the cases cited
above. Though a fluctuating and uncertain body of men
cannot claim a profit a prendre in alieeno solo, nor be the
grantee of any kind of real property (see Goodman v Mayor of
Saltash, yet there is high authority for treating such
community as a corporation or juristic person in relation to
religious foundations and endowments.

For all practical purposes however it is immaterial
whether the presiding idol or the community of
worshippers is regarded as the corporation or juristic
person in which the properties are vested, though from a
juristic point of view there may be a difference of opinion
as to which theory is more scientific. In the words of a
recent writer on Jurisprudence (Salmond‘s Jurisprudence‘
(1902), 346) the choice of the corpus into which the law shall
breathe the breath of a fictious personality is a matter of form
rather than of substance, of lucid and compendious
expression, rather than of legal principle, …
(Emphasis supplied)
The conferral of juristic personality by courts is to overcome existing shortfalls in
the law and ensure societally satisfactory and legally sound outcomes. Justice
Ayyangar observes that a key societal interest sought to be protected by the
conferral of juristic personality on the idol was the protection of the devotees‘
interests. Justice Ayyangar notes that such protection could also be achieved by
conferring juristic personality on the devotees as a collective. However, given the
widespread personification of the idol, he holds that juristic personality should
vest in the idol on considerations of practicality and convenience.

113. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five judge Bench of
the Calcutta High Court was constituted to answer the question whether bequests
by a testator to trustees for the establishment of an idol of the Goddess Kali and
the worship of the idol after the testator‘s death were invalid due to the Hindu law
principle which stated that gifts could only be made to sentient beings. The
testator in that case had dedicated certain properties to an idol. While the
testator died in 1890, the idol was not consecrated until 1894. A question arose
as to whether the non-existence of the idol at the time of the testator‘s death
invalidated the provisions of the will dedicated the property. In an erudite opinion
holding that such bequests were valid, Chief Justice Lawrence Jenkins held:
… but the testator directed all his property to be placed in the
hands of persons named by him and subject to certain
payments these persons were directed to spend the surplus
income which might be left in the sheba and worship of Kali
after establishing the image of the Kali after the name of his
mother. Now this manifestly was a disposition for religious
purposes and such dispositions are favoured by Hindu Law.
…In England it has been held that gifts for the worship of
God or to be employed in the service of the Lord and
Master are good. Then does it invalidate the disposition
that the discretion is for the spending of the surplus
income on the sheba and worship of Kali after
establishing the image of the Kali after the name of my
mother. I think not: 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.
(Emphasis supplied)
In his separate opinion, Justice Stephen noted:
But though a dedication to a deity does not constitute a gift,
it has legal effect. The intention of the donor is that the
subject-matter of the gift shall be used for doing honour to the
deity by worship, and for conferring benefit on the
worshippers and the ministers of the deity who conduct it.
This worship is properly and I understand necessarily carried


60 ILR (1909-1910) 37 Cal 128


out by having recourse to an image or outer physical object,
but the image is nothing till inspired by the deity. It is the
duty of the sovereign to see that the purposes of the dedication are carried out.
(Emphasis supplied)

In holding that the non-existence of the idol at the time of the testator‘s death did
not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the
endowed property vests in the purpose itself. As he notes, the pious purpose is
still the legatee. It is on this purpose that juristic personality is conferred. In
recognising the pious purpose as a juristic person, the state gives effect to, and
protects the endowment. The idol is the material embodiment of the testator‘s gift.
As the gift is one to ensure the continued worship of the deity, the idol is a
physical manifestation of the testator‘s pious purpose. Where courts recognise
the legal personality of the idol they are in effect recognising and protecting the
testator‘s desire that the deity be worshipped.

114. The understanding espoused by the decisions referred to above is
concisely summarised by Chief Justice B K Mukherjea in the following terms:

1.48A.- Principle as to personality of institutions.- Apart from
natural persons and corporations, which are recognised by
English law, the position under Hindu law is that if an
endowments is made for a religious or charitable institution,
without the instrumentality of a trust, and the object of the
endowment is one which is recognised as pious, being either
religious or charitable under the accepted notions of
Hindu law, the institution will be treated as a juristic
person capable of holding property.

1.48B. Idols.- The position as to idols is of a special nature. In
the Hindu Debutter, it seems, the position is slightly different,
and not the whole endowment, but the idol which as an
embodiment of a pious or benevolent idea, constitutes
the centre of the foundation and is looked upon as the
juristic being in which the Debutter property vests. After
all, juristic personality is a mere creation of law and has its
origins in a desire for doing justice by providing, as it were,
centres for jural relations. As Salmond says: It may be of as
many kinds as the law considers proper, and the choice of
the corpus into which the law shall breathe the breath of
fictious personality is a matter of form than of substance.61
(Emphasis supplied)

115. A Hindu may make an endowment for a religious purpose. There is a
public interest in protecting the properties endowed and ensuring that the original
pious purpose of the dedicator is fulfilled. The law confers legal personality on
this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol,
as the material manifestation of the juristic person which is looked upon as the
centre in which the property vests. The idol as an embodiment of a pious or
benevolent purpose is recognised by the law as a juristic entity. The state will
therefore protect property which stands vested in the idol even absent the
establishment of a specific or express trust. The pious purpose, or benevolent
idea‘ is elevated to the status of a juristic person and the idol forms the material
expression of the pious purpose through which legal relations are affected. It is
the pious purpose at the heart of the dedication which is the basis of conferring
legal personality on the idol and which is the subject of rights and duties. The
need to confer juristic personality arises out of the need for legal certainty as to
who owns the dedicated property, as well as the need to protect the original
intention of the dedicator and the future interests of the devotees. It was open for
courts to even confer the personality on the community of devotees in certain
situations, but the idol is chosen as a centre for legal relations as the physical
manifestation of the pious purpose.


61 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at page 36


116. The reason for this is outlined in the decision of the Calcutta High Court in
Mohatap Bahadur v Kali Pada Chatterjee62. In the distant past, the Maharaja
of Burdwan dedicated certain lands for the worship of an idol (the Trilokeswar
Shiva‘) and tasked the predecessor of the respondent as shebaits for the
management of the worship. Subsequent to the dedication, the idol was washed
away by the flooding of a river nearby. The Maharaja later built a new idol in the
same village. However, the respondents refused to perform worship at the site of
the new idol on the ground that the original idol had been washed away. The
appellant‘s sought a direction compelling the respondents to perform necessary
religious rites at the site of the freshly constructed idol. The Bench consisting of
Chief Justice Jenkins and Justice Mookerjee held:
4. …It is clear that the property must have been made out by
the Maharajah to the predecessor of the defendant in order
that the income might be applied for the worship of the image
[of] Trilokeswar Shiva. The question arises whether this trust
came to an end when the temple was washed away and the
image was broken….
5. …Were the contention of the respondent to prevail the
endowment would come to an end, if, as has happened in
this case, the land upon which the temple stood was
washed away by the action of the river. This view is not
supported by any text or any principle of the Hindu law
which has been brought to our notice.
6. It is, on the other hand, clearly opposed to the
principle recognized by a Full Bench of this court in the
case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then
the endowment was not destroyed when the land upon which
the temple stood was washed away and the image was
broken, what has happened since then to alter the position of
the parties? The defendant is in the same position as if he
held a service tenure. The land was given to him for definite
purpose, namely, that he might apply the income thereof for
62 AIR 1914 Cal 200

the purpose of the service of the image established by the
Maharaja….
(Emphasis supplied)
The idol constitutes the embodiment or expression of the pious purpose upon
which legal personality is conferred. The destruction of the idol does not result in
the termination of the pious purpose and consequently the endowment. Even
where the idol is destroyed, or the presence of the idol itself is intermittent or
entirely absent, the legal personality created by the endowment continues to
subsist. In our country, idols are routinely submerged in water as a matter of
religious practice. It cannot be said that the pious purpose is also extinguished
due to such submersion. The establishment of the image of the idol is the manner
in which the pious purpose is fulfilled. A conferral of legal personality on the idol
is, in effect, a recognition of the pious purpose itself and not the method through
which that pious purpose is usually personified. The pious purpose may also be
fulfilled where the presence of the idol is intermittent or there exists a temple
absent an idol depending on the deed of dedication. In all such cases the pious
purpose on which legal personality is conferred continues to subsist.
117. After independence, the principles applicable to the Hindu law of
endowments were affirmed by a four judge bench of this Court in Deoki Nandan
v Murlidhar63. In 1919, a Hindu testator executed a will bequeathing his lands to
the idol (or Thakur‘) of Shri Radhakrishnaji. A dispute arose between the direct
descendant of the testator and his distant agnates on the management of the
Thakur. It was contended that the Thakur was being mismanaged and the public


63 1956 SCR 756


was denied worship. A declaration that the Thakurdwara was a public temple was sought. The issue facing this Court was how to construct the scope of the
dedication in the testator‘s will. Justice Venkatarama Ayyar, speaking for this
Court, held:
6. …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 v Ram Lal Maitra it
was held on a consideration of these and other texts that a
gift to an idol was not to be judged by the rules applicable to a
transfer to a sentient being‘, and that the dedication of
properties to an idol consisted in the abandonment of 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 at p.
138 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 purpose for which the dedication
is designed.
7. 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.
(Emphasis supplied)

Upon making an endowment, the donor relinquishes all claims to the endowed
property. The property now vests in the pious purpose at the heart of the
endowment which is recognised as a legal person. The idol forms the material
manifestation of the pious purpose and the consequent centre of jural relations.
The beneficiaries of the endowment are worshippers and the proper maintenance
of worship to the idol is to enable the worshippers to achieve the spiritual benefit
of being in communion with the divine.

118. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta64,
in deciding that a Hindu idol (or deity‘) fell within the definition of individual
under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a
three-judge Bench of this Court held:
6. …It should however be remembered that the juristic
person in the idol is not the material image, and it is an
exploded theory that the image itself develops into a legal
person as soon as it is consecrated and vivified by the Pran
Pratishta ceremony. It is not also correct that the Supreme
Being of which the idol is a symbol or image is the recipient
and owner of the dedicated property.

The correct legal position is that the idol as representing
and embodying the spiritual purpose of the donor is the
juristic person recognised by law and in this juristic
person the dedicated property vests. As observed by Mr.
[J]ustice B.K. Mukherjea: With regard to the debutter… It is
not only a compendious expression but a material
embodiment of the pious purpose and though there is
difficulty in holding that property can reside in the aim or
purpose itself, it would be quite consistent with sound
principles of Jurisprudence to say that a material object
which represents or symbolises a particular purpose can
be given the status of a legal person, and regarded as
owner of the property which is dedicated to it. … The
legal position is comparable in many respects to the
development in Roman Law. (Emphasis supplied)


64 (1969) 1 SCC 555


The purpose behind the dedication

119. Similar to the conceptual grounding of juristic personality in the case of a
ship in admiralty law to personify actions in rem, the material object (i.e. idol),
seen as an embodiment of the purpose behind the dedication, was chosen as the
site of legal relations. The creation by judicial interpretation of an entity in law
sub-served an important function. For it obviated a situation that would arise if,
despite a dedication by a Hindu for a pious purpose, there existed no legally
recognised entity which could receive the dedication. Such a situation was
obviated by the judicially recognised principle that where an endowment is made
for a religious or charitable institution and the object is pious, the institution will be
treated as a juristic person even in the absence of a trust. Similarly, where the
dedication is for an idol to be worshipped, the interests of present and future
devotees would be at risk in the absence of a legal framework which ensured the
regulation of the dedication made. The conferment of legal personality on the
pious purpose ensured that there existed an entity in which the property would
vest in an ideal sense, to receive the dedication and through whom the interests
of the devotees could be protected. This was for the purpose of fulfilling the
object of the dedication and through the performance of worship in accordance
with religious texts, ensuring that the devotees realised peace through prayer.

120. The recognition of juristic personality was hence devised by the courts to
give legal effect to the Hindu practice of dedicating property for a religious or
pious‘ purposes. The founder or testator may choose to dedicate property for the
use of a pious purpose. In many of the above cases, this pious purpose took the
form of continued maintenance and worship of an idol. There was a clear state
interest in giving effect to the will of the founder or testator who has so dedicated
property, as well as for ensuring that the property is at all times used for the
purpose of the dedication. A legal fiction was created by which legal personality
was conferred on the religious or charitable purpose for which the endowment
was made. In the case of a dedication for an idol, the juristic personality finds
compendious expression‘ in the idol itself. By conferring legal personality, the
court gave legal effect to the dedication by creating an entity to receive the
properties so dedicated. By stating that the artificial person created is in fact the
owner of the dedicated properties, the court guarded against maladministration
by the shebait. Even though the artificial legal person cannot sue without the
assistance of a natural person, a legal framework was brought into existence by
which claims for and against the dedicated property could be pursued.

121. Though conceptually courts attributed legal personality to the intention of
the founder, a convenient physical site of legal relations was found in the physical idol. This understanding is reiterated by this Court‘s observations in Deoki Nandan that the idol is a compendious expression of the testator‘s pious
purpose. The idol, as a representation or a compendious expression of the
pious purpose (now the artificial legal person) is a site of legal relations. This is
also in consonance with the understanding that even where an idol is destroyed,
the endowment does not come to an end. Being the physical manifestation of the
pious purpose, even where the idol is submerged, not in existence temporarily, or
destroyed by forces of nature, the pious purpose recognised to be a legal person
continues to exist.

122. The extent to which the doctrine arose out of legal necessity and
convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v
Vidyanidhi Tirtha Swami65 when the learned judge noted that it was even
possible, by legal fiction, to recognise the community or collective of devotees as
a single legal person. As he noted, this would have equally served the court‘s
goals of creating an adequate legal framework for protecting the dedicated
properties and the interests of the devotees. However, the court notes that, as
there was no practical difference, the legal fiction was applied to the idol and not
to the devotees for the sake of simplicity. This course of precedent denotes how
the continued personification of the idol in religious practice laid the foundations
for the court to choose the idol as the site of legal relations.

123. The recognition of the Hindu idol as a legal or juristic person is therefore
based on two premises employed by courts. The first is to recognise the pious
purpose of the testator as a legal entity capable of holding property in an ideal
sense absent the creation of a trust. The second is the merging of the pious
purpose itself and the idol which embodies the pious purpose to ensure the
fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person.
The property endowed to the pious purpose is owned by the idol as a legal
person in an ideal sense. The reason why the court created such legal fictions
was to provide a comprehensible legal framework to protect the properties
dedicated to the pious purpose from external threats as well as internal
maladministration. Where the pious purpose necessitated a public trust for the
benefit of all devotees, conferring legal personality allowed courts to protect the


65 ILR (1904) 27 Mad 435


pious purpose for the benefit of the devotees.

124. Having set out the history and the underlying basis of the legal innovation
surrounding the conferral of juristic personality on Hindu idols, it becomes
necessary to advert to the principle question before us. The present case turns,
in a significant measure, on the answer to the contention urged on behalf of the
plaintiffs in Suit 5 that the first and second plaintiffs – Bhagwan Sri Ram Virajman
and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is
accepted, this Court will then be required to adjudicate upon the legal
consequences of the second plaintiff being declared a juristic person.

J.3 Juristic personality of the first plaintiff

125. For the devotees of Lord Ram, the first plaintiff in Suit 5, Bhagwan Sri
Ram Virajman is the embodiment of Lord Ram and constitutes the resident deity
of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter
personal to their conscience and it is not for this Court to scrutinise the strength
of their convictions or the rationality of their beliefs beyond a prima facie
examination to ascertain whether such beliefs are held in good faith.
126. The oral and documentary evidence shows that the Hindu devotees of
Lord Ram hold a genuine, long standing and profound belief in the religious merit
attained by offering prayer to Lord Ram at the site they believe to be his birthplace. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the
early nineteenth century record the prevalence of Hindu worship at the disputed
site. They also reference special occasions such as Ram Navmi during which
Hindu devotees converged upon the Janmasthan from distant areas motivated by
the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu
devotees in the existence of the Janmasthan below the three domed structure is
evidenced by the activities of the Nirmohis, individual devotees such as Nihang
Singh and the endless stream of Hindu devotees over the years who visited the
disputed site. This is testament to the long-held belief in the sanctity of the
disputed site as a place of worship for the Hindu religion. It is not necessary to
the determination of the legal personality of the first plaintiff in Suit 5 to establish
whether the devotees believed that the exact spot under the central dome was
the birth-place of Lord Ram or whether the faith and belief of the devotees itself
can confer title. These questions are addressed at a later part of this judgement.
For the present purposes, it is sufficient to note that the factum of Hindu belief in
the sanctity of the disputed site is established by evidence.

127. For the purposes of recognising a legal person, the relevant inquiry is the
purpose to be achieved by such recognition. To the extent such purpose is
achieved, the form or corpus of the object upon which legal personality is
conferred is not a matter of substance but merely a question of form. As
observed by Salmond, so long as the conferral of legal personality serves the
purpose sought to be achieved, legal personality may even be conferred on an
abstract idea. In the case of Hindu idols, legal personality is not conferred on the
idol simpliciter but on the underlying pious purpose of the continued worship of
the deity as incarnated in the idol. Where the legal personality is conferred on the
purpose of a deity‘s continued worship, moving or destroying the idol does not
affect its legal personality. The legal personality vests in the purpose of continued
worship of the idol as recognised by the court. It is for the protection of the
continued worship that the law recognises this purpose and seeks to protect it by
the conferral of juristic personality.

128. In addition to the continued worship of the deity, legal personality is
conferred on Hindu idols to provide courts with a conceptual framework within
which to practically adjudicate disputes involving competing claims over disputed
property endowed to or appurtenant to Hindu idols. In order to adjudicate
disputes, the court locates a site of jural relations to determine proprietary claims,
maladministration by shebaits and protect the interests of devotees. The law thus
protects the properties of the idol even absent the establishment of a specific or
express trust. In the proceedings before us, the legal rights and properties of the
first plaintiff in Suit 5 were in dispute. However, no submissions were made
challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev
Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the
juristic personality of the first plaintiff. The question of the legal personality of the
first plaintiff is distinct from the properties that appertain to the first plaintiff. The
determination of the properties that vest in the deity is discussed in light of the
competing claims to the property later in this judgement.
129. In the present case, the first plaintiff has been the object of worship for
several hundred years and the underlying purpose of continued worship is
apparent even absent any express dedication or trust. The existence of the idol is
merely a question of form, or corpus, and the legal personality of the first plaintiff
is not dependent on the continued existence of the idol. At the heart of the
present dispute are questions pertaining to the rightful manager of the deity and
the access of the devotees of Lord Ram to the idols. To ensure the legal
protection of the underlying purpose and practically adjudicate upon the dispute,
the legal personality of the first plaintiff is recognised.

J.4 Juristic personality of the second plaintiff 

Submissions

130. Mr K Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted
that in Hindu Law the concept of a juridical person is not limited to idols.
According to Mr Parasaran, the relevant question is whether prayer is offered to
the deity and not the form in which the deity appears. It was contended that
Asthan Sri Ram Janam Bhoomi is an object of worship and personifies the spirit
of the divine. The faith of the devotees regards the land as a deity and prayer is
offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this
court must confer juristic personality on the land represented as Ram
Janmasthan. To support this contention, it was urged that God is shapeless and
formless and there is no requirement that the object of worship be an idol. It was
urged that the performance of the parikrama (circumambulation) around the
disputed spot with the faith and belief that it is the birth-place of Lord Ram
delineates the boundaries of the property on which the status of a juristic entity
must be conferred. To support this contention, Mr Parasaran relied on the
following decisions, which shall be adverted to in the course of the judgment:
Manohar Ganesh Tambekar v Lakhmiram Govindram66, Bhupati Nath
Smrititirtha v Ram Lal Maitra67, Rampat v Durga Bharthi68, Ram Brahma v
Kedar Nath69 , Madura, Tirupparankundram v Alikhan Sahib70, The Board of
Commissioners for Hindu Religious Endowments, Madras v Pidugu
Narasimhan71, TRK Ramaswami Servai v The Board of Commissioners for
the Hindu Religious Endowments, Madras72, The Poohari Fakhir Sadavarthy
of Bondipiputram v The Commissioner, Hindu Religious and Charitable
Endowments,73 Venkataramana Murthi v Sri Rama Mandhiram74, Sastri
Yagnapurushad Ji v Muldas Bhudardas Vaishya75, Yogendra Nath Naskar v
CIT, Calcutta76, Kamaraju Venkata Krishna Rao v Sub Collector, Ongole77,
Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass78;
and Thayarammal v Kanakammal79.

131. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second
plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between:
(i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land
being the property of a deity. It was urged that in the present case, the land


66 ILR 1888 12 Bom 247
67 ILR 1909 37 Cal 128
68 AIR 1920 Oudh 258
69 (1922) 36 CLJ 478
70 (1931) 61 Mad. LJ 285
71 1939 1 MLJ 134
72 ILR 1950 Mad 799
73 1962 Supp 2 SCR 276
74 (1964) 2 ANWR 457
75 (1966) 3 SCR 242
76 (1969) 1 SCC 555
77 (1969) 1 SCR 624
78 (2000) 4 SCC 146
79 (2005) 1 SCC 457


constituting the disputed site, is an object of worship and is itself the deity. Mr
Vaidyanathan urged that the determination of the second plaintiff as a juristic
person renders infructuous questions of possession, joint-possession or adverse
possession as the land itself is a legal person and no other person can possess a
legal personality. It was urged that the mere fact that a mosque existed at the
disputed site cannot evidence a claim of either title or joint possession on behalf
of the Sunni Waqf Board. By an extension of the same argument, once it is held
that the disputed site is a juristic person, no partition of the land can be affected
as a deity, recognised as a legal person is impartible and cannot be divided. Any
division of the property will amount to a destruction of the deity. It is on this basis
that the impugned judgment of the High Court directing a three-way division of
the property was challenged. Reliance was placed in this regard on the decisions
in Pramatha Nath Mullick v Pradyumna Kumar Mullick80, Idol of Thakurji Shri
Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan81, and Profulla
Chorone Requitte v Satya Chorone Requitte82.

132. Mr Vaidyanathan submitted that the disputed property, being a legal
person, is res nullius. Since the disputed property is a juristic person, it is not
alienable. It was contended that land which is res nullius or res extra
commercium cannot be acquired by adverse possession. It was urged that even
if the image of the idol is broken, a deity is immortal and thus, the construction of
the mosque on the land did not take away from its character as a deity. Reliance
was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special


80 (1924-25) 52 IA 245
81 (1965) 1 SCR 96
82 (1979) 3 SCC 409


Officer-in-Charge of the Hindu Religious Trusts83, Ram Jankijee Deities v
State of Bihar84, Amrendra Pratap Singh v Tej Bahadur Prajapati85,
Thayarammal v Kanakammal86 and Rajasthan Housing Board v New Pink
City Nirman Sahkari Samiti Limited87.

133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing
for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the Asthan
Ram Janma Bhumi‘ (the second plaintiff in Suit 5) is not a juristic person. He
submitted that the contention that the disputed land is a juristic person was raised
for the first time only in 1989. Dr Dhavan urged that there are two separate and
distinct issues that have arisen before this Court. One concerns the faith and
belief that Lord Ram was born in Ayodhya and the evidence adduced to this
effect. The other is the set of legal consequences that flow from the disputed
property being elevated to the status of a juristic person. Dr Dhavan submitted
that while the faith and belief of a sect that religious significance attaches to the
birth-place of Lord Ram cannot be questioned, the precise site which constitutes
the place of birth is in dispute. Moreover, the property cannot be elevated to the
status of a juristic person only on the basis of faith and belief that it is the birthplace of Lord Ram. To this end, it was submitted that the subjective belief of a certain section of devotees cannot lead to the objective consequence of a
proprietary claim in law. It was urged that in the Vedic period, the worship of
physical objects of nature was practiced in ancient India. Underlying the worship


83 1959 Supp (2) SCR 583
84 (1999) 5 SCC 50
85 (2004) 10 SCC 65
86 (2005) 1 SCC 457
87 (2015) 7 SCC 601


of the object was the purpose it served. Dr Dhavan contended that the status of
juristic personality does not attach to every object of religious significance, and
that a positive act of sanctification or recognition is required.
134. Dr Dhavan further submitted that the conferment of legal personality on
immoveable property is not supported by the existing law on the legal personality
of Hindu idols and that conferring legal personality on land would be an
innovation leading to the insulation of land from any form of adjudication. Legal
impregnability would be conferred merely on the basis of the faith and belief of
devotees. It was urged that the conferral of juristic personality on the second
plaintiff would create two legal regimes – one applicable to idols and the other to
land – both with distinct rights, power, duties and interests. Dr Dhavan drew a
distinction between the applicable regime governing the idol and the regime
governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the following terms:
(i) The legal regime applicable to the first plaintiff as a recognised Hindu
idol – properties of the idol vest in it in an ideal sense; any claim to title is
actionable only at the behest of the shebait (unless the shebait has acted
contrary to the interests of the idol); and the law of adverse possession
and limitation would apply to claims involving property owned by the idol;
and
(ii) The legal regime applicable to the second plaintiff – juristic recognition
would be premised on the subjective belief of the devotees that the area is
a deity; the conferral of juristic personality renders infructuous any
competing proprietary claims; and the law of limitation and adverse
possession are inapplicable to the property in question.

135. Dr Dhavan argues against accepting any consequence as it emerges
based on the above distinction. Dr Dhavan contended that the conferral of
juridical personality on the second plaintiff would carve out a sphere of legal
impregnability. He submitted that while recognising the idol as a legal person is
legally defensible and consistent with the jurisprudence of this Court, conferring
legal personality on land itself is a legal innovation conferring rights that are not
available to the first plaintiff. It was finally urged that no distinction must be drawn
between Indic religions and other religions and no plea for constitutional
protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil
matter. This would result in the faith and belief of one religion influencing the
outcome of a civil adjudication on private rights between two religious
communities.
These rival submissions will now be analysed.
Distinguishing religious significance and juristic personality

136. Recognition of the religious significance of a place as a place of public
worship is conceptually distinct from recognising the place as a juristic person.
Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on the faith and belief that it is the birth-place of Lord Ram. A determination by this
Court of whether or not the disputed site is a juridical person will not in any
manner detract from the significance of the faith and belief of the Hindu
community.

137. To support their contention that the second plaintiff is a juristic person,
learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of
precedent. A close reading of those decisions indicates that the counsel have
selectively relied on extracts to support the contention that the disputed site is a
juridical person. To determine the extent to which they support the contentions
urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases
relied upon and examine the context in which they were adjudicated.

138. In Manohar Ganesh Tambekar v Lakhmiram Govindram88, the plaintiff
instituted a suit as a party interested in the maintenance of the religious
foundation of the temple dedicated to a deity. The plaintiff sought to make the
defendants, who were the recipients of the offerings at the temple, accountable
as trustees proper. The defendants claimed that they were the absolute owners
and held all offerings as private property. A Division Bench of the Bombay High
Court held that while private guilds may exist, under English law an association
consisting of a fluctuating or undefined class of individuals, whether or not it
exists for charitable purposes, cannot be vested with property without
incorporation. The defendants however put themselves forward as a body of
proprietors with revenue arising from the accumulated offerings of articles of
value laid at the feet of the idol. The Court, speaking through Justice R West
observed:
9. The evidence recorded in the case, including that of many
donors to the idol Shri Ranchhod Raiji, shows that having
discharged a religious duty or gained religious merit by a


88 ILR 1888 12 Bom 247


gift to the deity, the votary is but little interested in what
afterwards becomes of the offering …. Still he must
needs be and is concerned in the maintenance of a
decent and orderly worship. …He desires a regular and
continuous or at least a periodical round of sacred
ceremonies, which might fail if the offerings of past years
were all squandered, while those of any given year fell
short. The sevaks seem to have received the offerings, both
of immovables and of moveables, with a consciousness,
though but a hazy consciousness, that they were bound, out
of the funds thus coming to them, to provide for the worship of
the idol and the convenience of the pilgrims who resort to the
temple. (Emphasis supplied)
The sevaks (defendants) admitted to their responsibility to take care of the
temple. Articles of value were to be consigned to the bhandari. It is in this context
that the Court held:
11. … Mr. Macpherson admitted for the defendants in this
case that they could not sell the lands bestowed on the idol
Shri Ranchhod Raiji. This restriction is like the one by which
the Emperor forbade the alienation of dedicated lands under
any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov.
120, cap., 10. It is consistent with the grants having been
made to the juridical person symbolized or personified in the
idol at Dakor. It is not consistent with this juridical person’s
being conceived as a mere slave or property of the sevaks
whose very title implies not ownership, but service of the god.
It is indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, but, as a mere block of stone, their property for the
purpose of their appropriating every gift laid at its feet.. But if
there is a juridical person, the ideal embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land. (Emphasis supplied)

The decision clarifies that an idol as a juridical person is the ideal embodiment
of a pious or benevolent idea. The status of a juristic person was conferred on the idol as an entity which encompasses the purpose itself in which capacity the
properties and offerings vest. The observations in this case affirm the position
that juridical personality was conferred on the pious purpose and the property
endowed or accumulated did not itself become a juristic entity. It is not the
property endowed which is a juridical person – it is the idol which as an
embodiment of a pious purpose which is recognised as a juristic person, in whom
the property stands vested.

139. In Rampat v Durga Bharthi89, the respondent claimed, as Mahant of the
Asthan‘ as well as under the deed of settlement, that he was entitled to recover
properties which appertain to the Asthan‘ of Parela. One Mr Ghattari constructed
a monastery (Asthan‘) at Parela and consecrated its building towards the service
of his ascetic brotherhood and purchased the suit villages for the maintenance of
the institution. Justice Nazir Hasan speaking for the Oudh Judicial
Commissioner‘s Court on the nature of the Asthan‘ held:
In my opinion, the Asthan at Parela, as founded, was
completely in accordance with the type of monasteries of the
old days.

The several legal concepts which emerge out of the
foregoing narrative may be stated to be as follows: (1) It is a
congregation of Sannyasis, celibates and ascetics, who
has entirely cut themselves off from worldly ties. (2) The
properties appertaining to the Asthan are held in trust for the
purposes of the Asthan. (3) The purposes of the Asthan are
maintenance of the devotees and propagation of charities. (4)
The head of the Asthan is the trustee of the institution and of
the properties attached to it….An Asthan therefore is
essentially an institution of Sannyasis, celibates and
ascetics – having no wordly connection either of wealth
or of family. (Emphasis supplied)


89 AIR 1920 Oudh 258


In this view, the Asthan‘ was not a building but a seat of religious learning. The
nature of the Asthan‘ abundantly clarifies that is was not treated as corporeal
property, but a charitable institution of learning which was considered to be the
juridical person. The physical property that was the monastery was not treated as
a juristic person. The court concluded that it was the charitable institution as a
juristic person in which the suit villages vested.

140. In Rambrahma Chatterjee v Kedar Nath Banerjee90, the respondents
instituted a suit for a declaration that they were entitled to participate in the bhog
offered to three idols which were consecrated by the common ancestors of the
respondents and the appellant. A temple was constructed, and properties were
dedicated to the idols. The respondents, as descendants of the founders through
their daughters claimed a practice of participating in the bhog and the courts
below found that the descendants in the male line had consistently been
shebaits. The question which arose for determination was whether it was
competent for the founder to direct that the shebaitship should be vested in the
descendants through the son and that the descendants through the daughters
have a right to participate in the bhog offering. The High Court of Calcutta, held
as follows:
…a charitable corporation, in so far as it is charitable, is the
creature of the founder…There is no reason why the founder,
who is competent to provide for the government and
administration of the trust, should not be able to give a
direction for its management, which is not inconsistent with its
character as a religious and charitable trust…The test in each
case is, whether the direction given by the founder is
inconsistent with the nature of the endowment as a religious
and charitable trust and is a colourable device for the evasion of the law of perpetuities.


90 (1922) 36 CLJ 478


The court noted that for over two centuries, shebaitship rights had vested in the
descendants through the sons and that the descendants through the daughters
exercised a right to participate in the bhog offering. In this context, the court held
that it would be slow to interfere with the exercise of these rights over a long
duration of time without question and a reasonable presumption will be drawn in
favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case
that a deity is conceived as a real living being. In this regard, the court noted:
…There is a fundamental distinction between a gift to a
sentient being and an offering or dedication to a deity. Subject
to special usages to the contrary, the offerings do not become
the property of the officiating priest, but contribute to the
maintenance of the shrine with all its rights, ceremonies and
charities… It is sufficient to state that the deity is, in short,
conceived as a living being and is treated in the same
way as the master of the house would be treated by his
humble servant. The daily routine of life is gone through
with minute accuracy; the vivified image is regaled with
the necessaries and luxuries of life in due succession,
even to the changing of clothes, the offering of cooked
and uncooked food, and the retirement to rest. The
dedicated food, known as bhog, is, after completion of the
worship, distributed in charity amongst members of the family
as also among guests invited and uninvited; for in the oldest
Brahminical writings hospitality is regarded as the discharge
of a common debt to humanity and the guest is honoured as
a divinity. In our opinion, a direction that the descendants of
the daughters of the founder should participate in such a
distribution of consecrated food, is in no way inconsistent with
the purpose of the endowment. (Emphasis supplied)

The method of worshipping an established deity as a real person is separate and
distinct from the conferral of juristic personality in law. Human personality is
distinct from legal personality. The court made a reference to the methods of
worship performed for an established deity, which is in accordance with the faith
and belief of the worshippers. No question of a juristic person arose in this case.

Madhura Tirupparankundram

141. The plaintiffs in Suit 5 have then placed reliance on the decision of the
Privy Council in Madura, Tirupparankundram v Alikhan Sahib91. It was urged
that in this case an entire hill, as a place of public worship, was recognised as a
juristic person on the basis of the circumambulation performed around it.
Consequently, in the present case, the performance of the parikrama around the
disputed site should (it has been urged) have the effect of the land being elevated to the status of a juristic person.

142. The Privy Council in Madura Tirupparankundram was concerned with the
ownership of a barren hill in the Madura District of Madras. There was a mosque
at the highest point of the hill. The Tirupparankundram Temple, represented by
its manager, instituted a suit claiming the whole hill as temple property (with the
exception of certain cultivated and assessed lands and the site of the mosque).
The Mohammedan defendants asserted ownership over the mosque and a
portion of the hill known as Nellitope. The Secretary of State claimed to be the
owner of all unoccupied portions of the hill. The Subordinate judge of Madura
decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque
itself and the flights of stairs leading to it). The Mohammedan defendants filed an
appeal and the Secretary of State was directed to be a party to the appeal.
Despite a finding that the Hindus and Mohammedans had rights over the hill, and
without specifying what these rights were, the High Court held that the
Government was the owner of the hill. Around the base of the hill, worshippers
91 (1931) 61 Mad LJ 285

performed the Pradakshinan by a circumambulation of the hill. This path was also
used for processions with the temple car and was known as Ghiri Veedhi. While
the judgment of the High Court noted evidence on record that the hill as a whole
was worshipped by the Hindu community as a Linga, the question at the heart of
the dispute concerned the question of ownership over the unoccupied portions of
the hill within the Ghiri Veedhi. Under Lord Clive‘s treaty with Azim-ul-Dowlah in
1801, Madura came under the control of the East India Company. The High Court took the view that, post 1801 the entire hill, being part of the village, became Government property.

143. The Privy Council held that acts of ownership had been exercised
consistently by the temple for the greater part of a century over all unoccupied
portions of the land. Expenses were also incurred for the upkeep of smaller
shrines situated within the Ghiri Veedhi. The temple was held to have been in
possession of the unoccupied portion of the hill from time immemorial which had
been treated by the temple as temple property. The Privy Council held that, save
and except the mosque, there was no evidence of expropriation from the
remainder of the hill. Sir George Lowndes held:
The only rights which the temple can assert against the
respondent are rights which the East India Company granted
to them or allowed them to retain…and their Lordships think
the evidence shows that the temple was left after 1801 in
undisturbed possession of all that it now claims…Their
Lordships do not doubt that there is a general presumption
that waste lands are the property of the Crown, but they think
that it is not applicable to the facts of the present case where
the alleged waste is, at all events physically, within a
temple enclosure…On the whole their Lordships are of
opinion that the appellant has shown that the unoccupied
portion of the hill has been in the possession of the temple
from time immemorial and has been treated by the temple
authorities as their property.

A close reading of the judgment makes it evident that the Privy Council was only
concerned with (i) the unoccupied portions of the land and the protection of other
proprietary rights in the hill; and (ii) the ownership of the property by the temple.
The Privy Council was not concerned with the elevation of the hill itself to the
status of a juristic person. There is a distinction between the ownership of the
property by the temple, and the conferral of legal personality on land. Where land
is owned by a person, it cannot be a juristic person, for no person can own a
deity as a juristic person. This case does not further the argument advanced by
the plaintiffs in Suit 5 that the disputed property is itself a juristic person.
Temples governed by statutes
144. In The Board of Commissioners for Hindu Religious Endowments,
Madras v Pidugu Narasimhan92, the Board framed a scheme on the ground that
the institution in question was a temple within the meaning of the Madras Hindu
Religious Endowments Act 1863. The respondent instituted a suit challenging the
declaration of the institution as a temple under the Act. A Division Bench of the
Madras High Court observed that the institution had been in existence for several
centuries and had over time become a place of worship. The court observed that
the worship must be of sufficient significance to attract public endowments. On an
assessment of the events carried on within the institution, the court concluded


92 1939 1 MLJ 134


that there was, within the institution, public religious worship. The High Court held
that the Board was thus authorized to frame a scheme under the Act. Justice
Varadachariar observed:
The test is not whether it conforms to any particular school of
Agama Sastra; we think that the question must be decided
with reference to the view of the class of people who take part
in the worship. If they believe in its religious efficacy, in the
sense that by such worship, they are making themselves the
object of the bounty of some superhuman power, it must be
regarded as religious worship.

145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the
basis of this extract, that by performing the parikrama around the disputed site
with the faith and belief that the disputed site is the birth-place of Lord Ram, the
devotees believe that the receive the spiritual benefits of religious worship. This,
it was urged, is adequate for this Court to hold that the land constituting the
second plaintiff is a juristic person. The observations of the Madras High Court in
Pidugu Narasimhan were in the context of assessing whether the performance
of the ceremonies amounted to public religious worship in order to determine
whether the institution in question was a temple under the Act. No question arose
of the temple being a juristic person. At best, this case supports the proposition
put forth by the plaintiffs in Suit 5 that the nature of worship performed at the
disputed site is of a religious nature.

146. Mr Parasaran placed reliance on a decision of the Madras High Court in
TRK Ramaswami Servai v The Board of Commissioners for the Hindu
Religious Endowments, Madras93 to contend that the presence of an idol is a


93 ILR 1950 Mad 799


dispensable requirement with respect to religious worship and that the faith and
belief of the worshippers along with the performance of the parikrama around the
disputed land is sufficient for a court to confer on the disputed site legal
personality. In TRK Ramaswami Servai, a deed of gift was executed declaring
that certain land had been endowed to a temple Devasthanam and that a temple
was under construction. Besides the donor, two trustees were appointed. In
1937, the Hindu Religious Endowments Board demanded a contribution from the
trustees on the assumption that the construction of the temple was complete.
This was resisted by the appellants on the ground that the temple was not
constructed and that no idol had been installed. The temple was nonetheless
declared a temple within the ambit of the Madras Hindu Religious Endowments
Act, 1926. Subsequently, a scheme of management was sought to be framed for
the temple.

147. Among the various issues addressed by the court, one concerned the
existence of a valid temple for the purposes of the Act. The two judges on the
Division Bench differed and the case was then referred to a third Judge. Agreeing
that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri
held:
…The Hindu law recognizes the validity of dedications for the
establishment of a deity and the maintenance of its worship. It
is immaterial that the image of the deity has not been
established before a gift or bequest is made for it…The test is
not whether the installation of an idol and the mode of its
worship conform to any particular school of Agama Sastras. If
the public or that section of the public who go for worship
consider that there is a Divine presence in a particular place
and by offering worship at that place, they are likely to be the
recipients of the county or blessings of God then, you have
got the essential features of a temple as defined in
section 9, clause 12, of the Act. The presence of an idol,
though an invariable feature of Hindu temples, is not a
legal requisite under the definition of a temple in section 9, clause 12, of the Act.

The observations of the court were made in the context of assessing whether the
presence of an idol was required for the institution to be defined as a temple
under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in
this context that the court held that the belief of the devotees that they will be the
recipients of God‘s blessings was sufficient for the institution to be held a temple
under the Act. At best, these observations of the court establish that the belief of
devotees that there is a divine presence is constitutive of a place of public
worship. This however, is distinct from the conferral of juristic personality. An
adjudication that an institution is a temple for the purposes of a statutory
enactment is distinct from the issue as to whether the institution possesses
juristic personality. The observations in this case were made in the specific
context of a statutory definition and cannot be applied to a place a religious
worship for which no statutory enactment exists.

148. A similar question was adjudicated upon by the High Court of Andhra
Pradesh in Venkataramana Murthi v Sri Rama Mandhiram94, upon which
reliance was placed. In this case, the court was required to assess whether an
idol was a pre-requisite for a place of worship to be a temple within the purview of
the Hindu Religious and Charitable Endowments Act 1951. The court affirmed
that the existence of public religious worship and a dedication is adequate for the
institution to be declared as a temple under the Act, even absent an idol. This case does not support the case of the plaintiffs in Suit 5.


94 (1964) 2 ANWR 457


149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub
Collector, Ongole95, upon which significant reliance has been placed, the
question before a three judge Bench was whether a tank can be considered a
charitable institution within the meaning of the Andhra Inams (Abolition and
Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not
known. The appellant sought a declaration that the property comprised in the
Inam be registered in his name. This contention was rejected by the authorities
under the Act on the ground that under the records, the Inam was granted to the
tank itself and the ancestor of the appellant was merely the manager of the
charitable institution, the tank. It was contended by the appellant that even if the
Inam was granted for a charitable purpose, the object of the charity was a tank
which could not be considered a charitable institution. The three judge Bench of
this Court, speaking through Justice KS Hegde held:
9. From the above discussion, it is seen that under Hindu
Law a tank can be an object of charity and when a dedication
is made in favour of a tank, the same is considered as a
charitable institution. It is not necessary for our present
purpose to decide whether that institution can also be
considered as a juristic person. Once we come to the
conclusion that the inam with which we are concerned in this
case was an Inam in favour of the uracheruvu (tank) that
tank must be considered as a charitable institution under the
Act.

This Court was only required to assess whether a tank can be considered a
charitable institution within the meaning of the Andhra Inams (Abolition and
Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that


95 (1969) 1 SCR 624


there was no need to advert to whether or not a tank is a juristic person. This
case does not further the arguments urged by the plaintiffs in Suit 5.
Shiromani Gurdwara Prabandhak Committee

150. At this stage, it is necessary to advert to the decision of this Court in
Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass96.
In this case, a two judge Bench held the Guru Granth Sahib to be a juristic
person. Mr Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 placed considerable reliance on this decision to contend that
this Court has held physical property simpliciter to be a juristic person. Hence, he
submitted that there is a legal basis in the jurisprudence of this Court to confer
legal personality upon the disputed property. To analyse this contention, it is
necessary to consider the case in some detail.

151. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1)
of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property
was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections
were raised that the disputed property was a dharamshala and dera. The
Tribunal under the Act dismissed this objection on the ground that the petitioners
therein lacked locus. In the meantime, the Shiromani Gurdwara Parbandhak
Committee97 claimed that the disputed property was a Sikh Gurdwara and that
the Guru Granth Sahib was the only object of worship and it was the sole
owner of the gurdwara property. The Sikh Gurdwara Tribunal decreed in favour
of the SGPC and held that the disputed property belonged to SGPC.


96 (2000) 4 SCC 146
97 SGPC


152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had
ordered mutation in the name of the Guru Granth Sahib Barajman Dharamshala
Deh. Thus, the ownership column of the land continued in this name till
objections were filed to the declaration of the land as a Sikh Gurdwara. In the
appeals before the High Court from the findings of the Tribunal, a contention was
raised that the entry in the revenue records in the name of the Guru Granth Sahib
was void as it is not a juristic person. The High Court held that the Guru Granth
Sahib is not a juristic person and consequently, the mutation in the name of the
Guru Granth Sahib was liable to be set aside. It was in this context that this Court
was called to adjudicate whether the Guru Granth Sahib is a juristic person,
capable of owning the disputed property in its own name.

153. Tracing the evolution of the concept of juristic person, Justice AP Misra
noted that recognition in law of a juristic person is to sub-serve the needs of the
law and society.

The Court held:

19…When the donor endows for an idol or for a mosque or
for any institution, it necessitates the creation of a juristic
person.
21…There may be an endowment for a pious or religious
purpose. It may be for an idol, mosque, church, etc. Such
endowed property has to be used for that purpose. The
installation and adoration of an idol or any image by a Hindu
denoting any god is merely a mode through which his faith
and belief is satisfied. This has led to the recognition of an
idol as a juristic person.
27. The aforesaid conspectus visualizes how juristic
persons was coined to subserve to the needs of the
society…Different religions of the world have different
nuclei and different institutionalized places for adoration,
with varying conceptual beliefs and faith but all with the
same end.

Justice Misra further noted:

29…it is not necessary for Guru Granth Sahib to be
declared as a juristic person that it should be equated with an
idol. When belief and faith of two different religions are
different, there is no question of equating one with the other.
If Guru Granth Sahib by itself could stand the test of its
being declared as such, it can be declared to be so.
31. Now returning to the question, whether Guru Granth
Sahib could be a juristic person‘ or not, or whether it could be
placed on the same pedestal, we may fist have a glance as
the Sikh religion…In the Sikh religion, the Guru is revered as
the highest reverential person…
33. The last living Guru, Guru Gobind Singh, expressed in no
uncertain terms that henceforth there would not be any living
Guru. The Guru Granth Sahib would be the vibrating Guru.
He declared that henceforth it would be your Guru from
which you will get all your guidance and answer. It is with
this faith that it is worshipped like a living Guru. It is with
this faith and conviction, when it is installed in any
gurdwara it becomes a sacred place of worship.
Sacredness of the gurdwara is only because of placement of
Guru Granth Sahib in it. This reverential recognition of Guru
Granth Sahib also opens the hearts of its followers to pour
their money and wealth for it. It is not that it needs it, but
when it is installed, it grows for its followers, who through their
obeisance to it, sanctify themselves and also for running the
langer which is an inherent part of the gurdwara.
34. … It cannot be equated with an idol as idol worship
is contrary to Sikhism. As a concept or a visionary for
obeisance, the two religions are different. Yes, for its legal
recognition as a juristic person, the followers of both the
religions give them respectively the same reverential value….
42…for all the reason, we do not find any strength in the
reasoning of the High Court in recording a finding that the
Guru Granth Sahib is not a juristic person. The said finding
is not sustainable both on fact and law.
The view of the learned judge was that the creation of a juristic person was to
ensure the legal protection of the religious beliefs of the faith:
28. Faith and belief cannot be judged through any judicial
scrutiny. It is a fact accomplished and accepted by its
followers. This faith necessitated the creation of a unit to
be recognised as a juristic person. All this shows that a
juristic person is not roped in any defined circle. With the
changing thought, changing needs of the society, fresh
juristic personalities were created from time to time. (Emphasis supplied)

154. What emerges from a nuanced reading of the case is this: First, the case
did not relate to the conferment of juristic personality on immoveable property.
The relevance of this will be considered in the course of this judgement; Second,
as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where
juridical personality was conferred on the idol in Hindu Law as the physical site of
jural relations, the same physical corpus was absent in Sikhism. This Court was
thus required to locate a corpus upon which juridical personality may be
recognised for it was only consequent to this determination that the court could
decide whether the disputed property vested in the Guru Granth Sahib as a
juridical person. As stated above, necessity is often the basis of conferring
juridical personality. In this case, as it is in the case of the idol in Hindu law, it was
legally expedient to recognise the legal personality of the Guru Granth Sahib as
the corpus upon which juridical personality would be conferred in order to
determine whether the property could vest in the Guru Granth Sahib.

155. The judgment in Shiromani Gurdwara affirms that there is an underlying
purpose which is at the heart of conferring legal personality on objects. Different
religions are assessed in accordance with their own faith and belief. The absence
of idol worship in Sikhism necessitated the conferral of juristic personality on the
Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru.
Accordingly, it was then held that the disputed property vested in the Guru Granth Sahib.

Thayarammal

156. Lastly, in Thayarammal v Kanakammal98, by way of writings on a stone
inscription, the suit properties were dedicated for use by the public as a
Dharmachatram (choultry) where travellers and pilgrims could take shelter and be
provided with refreshments. The property was dedicated to the general public as
a resting place. No trustee was mentioned and the witness to the dedication was
Lord Thyagaraja himself. The plaintiff claimed to be in occupation of a part of the
dedicated property (Schedule A) and alleged that a portion of the Schedule B
property was encroached upon by the defendants who were liable to be evicted.
The defendants contested the suit on the ground that they had acquired title to
the portion of the property by way of a purchase made in a court sale conducted
in the course of executing a compromise decree. The High Court concluded that
the compromise decree was collusive and that the plaintiff also had no right as an assumed trustee. Accordingly, the Administrator General under the Official
Trustees Act 1913 was directed to take over the management of the Trust. The
principle question before this Court was whether a trust or charitable endowment
had been created.

157. The Court analysed the stone inscription and held that the suit property
was dedicated for charitable purposes, and it could not be claimed by the plaintiff
as a trustee or the defendant as an owner. However, in the course of the


98 (2005) 1 SCC 457


judgment, Justice DM Dharmadhikari speaking for the Court held:
16. A religious endowment does not create title in respect of
the property dedicated in anybody‘s favour. A property
dedicated for religious or charitable purpose for which the
owner of the property or the donor has indicated no
administrator or manager becomes res nullius which the
learned author in the book (supra) explains as property
belonging to nobody. Such a property dedicated for general
public use is itself raised to the category of a juristic person.
Learned author at p. 35 of his commentary explains how such
a property vests in the person itself as a juristic person….The
idea is the same, namely, when property is dedicated for a
particular purpose, the property itself upon which the purpose
is impressed, is raised to the category of a juristic person so
that the property which is dedicated would vest in the person
so created.

A close reading of the decision shows that the principle contention urged in the
case was that the property described as a Dharmachatram is covered under
Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act
1959 as a charitable endowment. This Court held that the dedication of property
for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This
Court held that the property which was dedicated for a charitable purpose could
not be claimed by the plaintiff as a trustee or the defendant as owner. With this
finding, the Court was of the view that it was the Tamil Nadu Hindu and
Charitable Endowments Act 1959 which governs the matter and accordingly the
suit property shall be taken in control for administration, management and
maintenance by the State Government and the Commissioner under the 1959
Act.

158. In assessing the position of the religious charitable institution, this Court
made certain observations in para 16 upon which reliance has been placed. The
Court proceeded on the premise that the suit property had been dedicated for a specific purpose and could not be owned by the defendant. This was to ensure
the protection of the purpose with which the suit property was dedicated.
Significantly, the deed of dedication did not identify a manager for the endowed
property and the court sought to protect the property by conferring legal
personality on the intention behind the endowment. Though the Court assessed
the position of law on the basis of the theoretical framework analysed above, the
observations extracted above seem to suggest that property itself was elevated
to the status of a juristic person. On an overall reading of the case as well as the
theoretical exposition which has been adverted to, the observations made have
to be read in the light of protecting the purpose behind the endowment and not to
suggest that the property itself was conferred legal personality.
Dedication of properties

159. The cases referred to Mr C S Vaidyanathan pertained to the consequence
of conferring legal personality by this Court on the disputed land. Far from
assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second
plaintiff is a juristic person, the cases adverted to above affirm that the practice of
conferring legal personality on Hindu idols was evolved by courts to ensure that
the law adequately protected the properties endowed to religious purposes. As a
large number of endowments were made to specific idols, courts located the idol
as a nucleus in which the rights, powers, privileges and immunities of the
endowment would vest. Legal personality was conferred to serve the very
specific public interest of protecting properties so endowed and creating a centre
of jural relations. Necessity mandated the creation and recognition of an entity in law, allowing courts to regulate the legal relations between natural persons and
the idol and consequently the properties vested in the idol. These cases will be
adverted to in the event the court determines that the second plaintiff is a juristic
person.

Faith and belief

160. The decisions and their observations which have been adverted to are
premised on the existence of a positive act of dedication or donation. It is
pertinent to note that plaintiffs‘ claim for the conferment of juristic personality on
the land that is the disputed site is not based on an express dedication. It was
urged that the spot under the central dome where the idols are placed is the birthplace of Lord Ram. The faith and belief of the worshippers is of paramount
importance. Hindus perform the parikrama around the disputed site with the faith
and belief that it marks the birth-place of Lord Ram. It has thus been argued that
Asthan Shri Ram Janam Bhumi‘, as a place of religious worship must
consequently be elevated to the status of a juristic person by virtue of the faith
and belief of the worshippers. It was contended that the presence of an idol is
dispensable in Hinduism, this contemplates a situation such as in the case before
us, where the land is itself worshipped as a deity. Devotees pray to the land as
the birth-place of Lord Ram, and consequently, the second plaintiff should, it is
urged, be recognised as a juristic person.

161. The argument which has been urged on behalf of the plaintiff in Suit 5 is
materially different from the case for conferment legal personality on a Hindu
endowment. In the case of an endowment, courts have recognised the charitable
or religious purpose situated in the institution as a basis for conferring juristic
personality on the institution. In doing so, the court recognises the pious purpose
of the founder or testator to protect the properties so endowed. However, it is not
the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is
debutter property. Rather, by invoking the argument of a juristic person, the
plaintiffs have urged this Court to create an additional ground for the conferral of
legal personality – the faith and belief of the devotees. Amongst the ensemble of
arguments advanced before this Court, this innovative legal claim is at the heart
of the present dispute.

162. The first difficulty that arises in accepting the contention urged by the
plaintiffs in Suit 5 stems from the very practical question of how such immovable
property is to be delineated. Unlike the case of endowed properties that are
delineated in the instrument or deed of endowment itself, where legal personality
is sought to be conferred on the basis of faith and belief of the devotees, the
devotees themselves may not agree on the exact contours of this property. The
question of delineation weighed on the mind of Justice Sudhir Agarwal who
stated:

1887. What would be the meaning of word place and
what should be its extent? Whether it would be a small
place which normally is required for birth of a human being or
whether it will cover an area of the entire room, house,
locality, city or sometimes one can say even more that that.
We know that Hindus worship rivers and lakes like
Ganga, Yamuna, Narmada, Mansarovar etc. They are very
sacred and pious. At several places a number of temples
etc. on the bank or near the said rivers have been
constructed. The very origin of such sacred rivers is also
a place of worship for Hindus like Gangotri, Yamunotri
(state of Uttaranchal) and Amarkantak (for river
Narmada). Can it be said that the entire length these
rivers cover would constitute and satisfy the requirement
of a juristic personality. It is not out of place that at
several places, the temple of Ganga, Narmada, Yamuna, etc.
have been constructed and they are religious endowments in
their own rights, enjoy all such legal rights and obligations, etc
as are available to such endowments. Similarly certain hills or
mountain or hilly terrains as such are treated to be places of
worship like, Kailash, Gobardhan, Kamathgiri etc.
(Emphasis supplied)

Parikrama

163. Despite these difficulties, the learned judge concluded that Asthan Sri
Ram Janam Bhumi‘ was a juristic person. It was urged before us that it is not the
entirety of Ayodhya that is the juristic person, but only the disputed property.
When a question was raised by the Bench as to the physical boundaries of the
alleged juristic person, it was urged that the performance of the parikrama
(circumambulation) around the disputed property delineated the property which
was worshipped as the Janmasthan and it is this property, being divine, upon
which the status of a juristic person must be conferred. In this view, the parikrama
served to mark the boundaries of the juristic person. On the other hand, Dr
Dhavan urged that the parikrama is merely a form of worship and not a method of
delineating the boundaries of a property.

164. The parikrama may be performed around a small idol, shrine, temple or
land in which the temple is situated. However, its principle purpose is to offer
worship to the divine and it is performed with the belief that the parikrama would
result in the performer being the recipient of some spiritual benefit. The parikrama
is not performed in order to mark the exact boundaries of the property to which
juristic personality is conferred. The performance of the parikrama, which is a

of worship conducted as a matter of faith and belief cannot be claimed as
the basis of an entitlement in law to a proprietary claim over property.
Ram Jankijee Deities

165. The counsel for the plaintiffs in Suit 5 relied on the observations by this
Court in Ram Jankijee Deities v State of Bihar99 to contend that the manner of
consecrating a deity is subjective and based on the determination of the
devotees. It was submitted that any method of consecration chosen by the
devotees is adequate for the conferral of legal personality on the deity. In that
case, the question before the court concerned whether the consecration of a
deity with a visible image by the performance of appropriate ceremonies led to
the establishment of a valid deity upon which juridical personality could be
conferred for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area
and Acquisition of Surplus Land) Act 1961. Two deeds of dedication were
executed – one to the deity, Ram Jankijee and the other to the deity, Thakur
Raja. Both deities, recognised as distinct entities, were given separate properties
and put in possession through the shebaits. Both deities were located in separate
temples within the dedicated property.

166. The Deputy Collector, for the purposes of the fixation of ceiling area,
allowed two land units to the deities on the ground that there are separate deities
to which the land was gifted. The Collector disagreed and allowed a single unit on
the ground that the entire property held by both deities was to be managed by a
committee formed under the Religious Trust Board and there was no evidence on


99 (1999) 5 SCC 50


the property donated to the deities being treated differently. This Court sought to
answer whether the two deities were separate and distinct legal entities. It is
pertinent to note that the Single Judge of the High Court held that the image of
the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures
and hence, there is no second deity to which a separate dedication could be
made. It is in this context that this Court observed, speaking through Justice
Umesh Banerjee:

14. Images according to Hindu authorities are of two kinds:
the first is known as swayambhu or self-existent or selfrevealed, while the other is pratisthita or established. The
Padma Purana says: The image of Hari (God) prepared of
stone, earth, wood, metal or the like and established
according to the rites laid down in the Vedas, Smritis and
Tantras is called the established images … where the selfpossessed Vishnu has placed himself on earth in stone or
wood for the benefit of mankind, that is styled the selfrevealed. (B.K. Mukherjea — Hindu Law of Religious and
Charitable Trusts, 5th Edn.) A swayambhu or self-revealed
image is a product of nature and it is anadi or without any
beginning and the worshippers simply discover its existence
and such images do not require consecration or pratistha but
a man-made image requires consecration. This man-made
image may be painted on a wall or canvas. The Salgram
Shila depicts Narayana being the Lord of the Lords and
represents Vishnu Bhagwan. It is a shila — the shalagram
form partaking the form of Lord of the Lords, Narayana and
Vishnu.
The Court then surveyed precedent to hold that while an idol is usually
consecrated in a temple, it does not appear to be an essential condition. The
Court held:
16…If the people believe in the temples’ religious efficacy no
other requirement exists as regards other areas and the
learned Judge it seems has completely overlooked this
aspect of the Hindu Shastras — in any event, Hindus have in
the Shastras Agni Devta, Vayu Devta — these deities are
shapeless and formless but for every ritual Hindus offer their
oblations before the deity. The ahuti to the deity is the
ultimate — the learned Single Judge however was pleased
not to put any reliance thereon. It is not a particular image
which is a juridical person but it is a particular bent of mind
which consecrates the image.

167. All the cases relied on by the Court pertain to the requisites of a temple
under various statutes or what constitutes a place of religious worship. The
observations of the Court form the basis of locating the centre of worship, which
according to it does not need to have a fixed image and is based on the faith and
belief of the worshippers. The observations of the Court were in the context of
determining whether a valid deity existed to whom a dedication could be made.
The question whether the second deity was a distinct legal person arose due to
the need to determine the validity of the deed of dedication in favour of the
second deity constituting a separate unit for the purposes of the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is
only consequent to the establishment of a valid deity that the dedicated property
would vest in the established deity in the ideal sense.

168. It cannot be said that the observations of the court in respect of the
consecration or establishment of a valid deity apply with equal force to the
conferral of juristic personality on property on the basis of the faith and belief of
the devotees. The rationale underlying the approach adopted by this Court is
clarified in the following observations:

17. One cardinal principle underlying idol worship ought
to be borne in mind that whichever God the devotee might choose for
purposes of worship and whatever image he might set up
and consecrate with that object, the image represents
the Supreme God and none else. There is no
superiority or inferiority amongst the different Gods. Siva,
Vishnu, Ganapati or Surya is extolled, each in its turn as
the creator, preserver and supreme lord of the universe.
The image simply gives a name and form to the
formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else.

(B.K. Mukherjea — Hindu Law of Religious and Charitable Trusts, 5th Edn.)

The observations in Ram Jankijee Deities were made in the specific context of
consecrating an image based on the faith and belief of devotees for the
establishment of a deity to which valid dedications may be made. The
observations in this case establish that the existence of a valid deity was not to
be tested against Hindu Shastras but on the basis of the faith and belief of the
devotees. Once the faith and belief of the devotees had been established, it was
an express deed of dedication that resulted in the conferral of juridical personality
on the idol. The observations in this case cannot be equated to the elevation of
property itself as a juristic person.

169. The court in that case was concerned with whether a specific image of a
deity must be tested against Hindu scriptures and it is in this context that the
court held that divinity is formless, shapeless but it is the human concept of a
particular divine existence which gives it the shape, the size and the colour.
There is no express deed of dedication in the present case. The case of Ram
Jankijee Deities is not an authority for the proposition that the mere faith and
belief of the devotees is sufficient for the conferral of juristic personality. While it
was adequate for the existence of a place of religious worship, it was on the basis
of a deed of dedication that juristic personality was conferred.

The sacred hill
170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100, the dispute
concerned two sects of the Jain community with regard to the rights of worship of
a hill of 25 square miles to which religious significance was attached. According
to the Digambaras, the sacred nature of the hill demanded that the moment they
set foot on the hill, they must abstain from any offence against nature, even
spitting. Though this is observed by the Swetambaris as well, the Digambaras
adopted a position that any course of action which is inconsistent with their
worship, such as the regular and continuous employment of human beings on the hill involves a desecration of the hill.

171. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to
the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were
posted on the hill which was accompanied by the construction of dwelling units
for them and for other pujaris. The Digambaris contended that the proposed
construction of a gate at the foot of the hill was intended to obstruct their access
to the hill. A suit was instituted contending that the hill was an object of worship
for both sects and on account of its special status, no construction would take
place on it. The trial judge held that the plaintiff Digambaris were entitled to
ensure that the hill, as endowed property of the deities, is kept in an immaculate
condition in accordance with their faith. The High Court reversed this judgment
and held that the hill was not debutter property but the property of the Raja of
Palgunj, whose title was transferred. Further, the proposed construction of the gate was held not to obstruct the right of worship of the Digambaris.


100 (1933) 38 LW 306 (PC)


172. In appeal, the Privy Council examined the evidence on record to conclude
that legal title had vested validly in the Raja. The result of previous litigation
between the Raja and the Swetambaris had concluded title in favour of the Raja.
A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their
right to worship. The Privy Council then examined the range of activities that
were carried out on the hill without a disruption of the right to worship, and held
that it was not proved that any of the acts complained of, barring the placing of
the Charans in the three shrines, in the plaint abridged the right to worship.

173. The trial judge concluded that the hill was debutter property of the deities
entirely on the belief of its sanctity. Taking exception to these observations,

the Privy Council held:

The Subordinate Judge has based his finding that the whole
hill is the debutter property of the jain deities on the belief in
its sanctity now entertained by both sects. As observed by
Ross, J., that evidence undoubtedly establishes beyond a
doubt that in the belief of the Jain community a spiritual
quality in some way attaches to the hill, but this is a
matter of faith and cannot in itself determine the physical
ownership of the hill.   (Emphasis supplied)

The Privy Council explicitly rejected the contention urged by the Digambaris of a
proprietary claim which was based on the faith and belief of the sect.

The consequence of absolute title

174. In the present case, the recognition of Asthan Sri Ram Janam Bhumi‘ as a
juristic person would result in the extinguishment of all competing proprietary
claims to the land in question. This conferral of absolute title‘ (resulting from the
conferral of legal personality on land) would in truth render the very concept of
title meaningless. Moreover, the extinguishing of competing claims would arise
not by virtue of settled legal principles, but purely on the basis of the faith and
belief of the devotees. This cannot be countenanced in law. The conferral of legal
personality by courts is an innovation arising out of necessity and convenience.
The conferral of legal personality on Hindu idols arose due to the fundamental
question of who the property was dedicated to and in whom the dedicated land
vested. The two clear interests that the law necessitated protection of were the
interests of the devotees and the protection of the properties from
mismanagement. In the present case, there exists no act of dedication and
therefore the question of whom the property was dedicated to does not arise and
consequently the need to recognise the pious purpose behind the dedication
itself as a legal person also does not arise.

The Swayambhu argument

175. It is pertinent to note that in reply, Mr Parasaran advanced a slightly
different argument. The initial argument advanced on behalf of the plaintiffs in
Suit 5 was that the performance of worship at the disputed site with the faith and
belief that the place is the birth-place of Lord Ram is sufficient for this Court to
confer on the disputed site juristic personality. The argument advanced in reply
was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran
contended that an idol is not necessary in Hinduism for the performance of
worship. It was contended that the idol is sacred as a symbol of the divinity,
however all worship is done to the one indivisible Supreme Being. The multitude
of idols and deities merely constitute different facets of the Supreme Being.
Hence, the law must recognize whatever form in which God manifests. It was
contended that the second plaintiff was a deity that manifested itself in the land‘
and therefore the juristic personality of Ram Janmabhumi vested in the
immovable property of the disputed site. In Mr Parasaran‘s submission, worship
at the disputed site was not offered only to Lord Ram but the very land on which
Lord Ram is said to have been born. Reliance in this regard was placed on the
existence of several temples where worship was performed despite the absence
an idol – most notably at the Chidambaram temple in Tamil Nadu.

176. To establish the legal personality of the second plaintiff, Mr Parasaran
urged that as the Ram Janmabhumi is a Swayambhu‘ deity, no dedication or
consecration is required for the court to recognise its juristic personality. It was
contended that the deity, by its very nature necessitated the performance of a
parikrama around it, which also delineated the boundaries of the property upon
which juristic personality must be conferred. Mr Parasaran contended that the
conferral of juristic personality sub-served the need to protect the land itself from
being encroached on or alienated. The land is believed to be the birth-place and
is treated reverentially by Hindus who have sought to offer worship there. As a
consequence, legal personality must be conferred on the land for its protection.
To support these submissions, Mr Parasaran relied on the following authorities:
Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP101, Ram
Jankijee Deities v State of Bihar102, Yogendra Nath Naskar v CIT, Calcutta103,
Bhupati Nath104, Manohar Ganesh Tambekar v Lakhmiram Govindram105,
Guruvayur Devaswom Managing Committee v C K Rajan106, Sri
Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107, Pinchai v
Commissioner, Hindu Religious and Charitable Endowments Board108,
Saraswathi Ammal v Rajagopal Ammal109; Kamaraju Venkata Krishna Rao v
Sub Collector110, Thayarammal v Kanakammal111, Shiromani Gurdwara
Prabandhak Committee, Amritsar v Som Nath Dass112 and Sapneshwar
Pujapanda v Ratnakar Mahapatra113.

177. Dr Dhavan briefly interjected to contend that though Hinduism may
recognise a Swayambhu deity, all such instances are characterised by the
existence of a physical manifestation. Except the faith and belief of the devotees,
no physical manifestation has been forthcoming to separate the disputed site
from any other land simpliciter.


101 (1997) 4 SCC 606
102 (1999) 5 SCC 50
103 (1969) 1 SCC 555
104 ILR (1909) 37 Cal 128
105 ILR 1888 12 Bom 247
106 (2003) 7 SCC 546
107 (2009) 4 CTC 801
108 AIR 1971 Mad 405
109 1954 SCR 277
110 (1969) 1 SCR 624
111 (2005) 1 SCC 457
112 (2000) 4 SCC 146
113 AIR 1916 Pat 146


178. In Mr Parasaran‘s view, even absent any distinguishing feature on the
disputed site to evidence the manifestation of divinity, the faith and belief of the
devotees is sufficient to recognise that the disputed site is a Swayambhu deity. At
the heart of the revised argument raised by Mr Parasaran is that the faith and
belief of the devotees alone is sufficient for this Court to recognise the disputed
site as a Swayambhu deity and consequently confer upon it legal personality. To
this extent, the contention urged by Mr Parasaran in his reply converges with the
earlier argument on faith and belief as the sole basis on which juristic personality
must be conferred. In both submissions advanced by the plaintiffs in Suit 5, the
faith and belief of the devotees is claimed to be the sole basis for the conferral of
juristic personality. The contentions on faith and belief have already been
analysed above. However, the argument urged that the disputed land is a
Swayambhu deity raises additional issues outside the realm of the Hindu Law of
endowments. It is to these issues that it is necessary now to turn.

179. Given the range of arguments advanced by the plaintiffs in Suit 5, it is
necessary to first advert to the cases relied on in reply. The observations relied
on have been selectively extracted and once the context in which the
observations were made are fully understood, they do not advance the argument
set out by Mr Parasaran.

180. Reliance was placed on Guruvayoor Devaswom Managing Committee v
C K Rajan114 to contend that a temple itself is a juristic entity. The dispute
concerned the mismanagement of temple affairs by the Devaswom Committee. A


114 (2003) 7 SCC 546


three judge Bench of this Court held that devotees could approach a High Court
or the Supreme Court by way of public interest litigation where their fundamental
rights under Article 25 and 26 of the Constitution were violated by action or
inaction on behalf of the state authorities. The only reference to a temple being a
juristic person is recorded at paragraph 40 of the judgement. Justice S B Sinha
noted:
40. … A proceeding initiated as a public interest litigation
would lie before the High Court or this Court, according to
Mr Subba Rao, where it was found that despite existence of
statutory provisions the State or the other statutory
functionaries were not taking recourse to the provisions
thereof for remedying the grievances of the devotees. In any
event, as a Hindu temple is a juristic person the very fact
that Section 92 of the Code of Civil Procedure seeks to
protect the same for the same purpose Article 226 and 32
could also be taken recourse to. Our attention in this
behalf has been drawn to Yogendra Nath v. CIT and
Manohar Ganesh Tambekar v. Lakhmiram Govindram.
(Emphasis supplied)

The observation that a temple is a juristic person formed a part of the
submissions made by the counsel and was merely preserved by the court as a
matter of record. There is no evidence that this Court accepted the contention
that the temple is a juristic person. No reliance can be placed on this decision or
the observation in paragraph 40 to contend that a temple is a juristic person.

181. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v
State of Tamil Nadu115 to demonstrate the recorded existence of a temple
without any resident idol. The decision records a brief history of the
Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a Division
Bench of the Madras High Court notes:


115 (2009) 4 CTC 801


…The Chidambaram Temple contains an altar which has no
idol. In fact, no Lingam exists but a curtain is hung before a
wall, when people go to worship, the curtain is withdrawn to
see the Lingam‘. But the ardent devotee will feel the divinely
wonder that Lord Siva is formless i.e., space which is known
as Akasa Lingam. Offerings are made before the curtain.
This form of worshipping space is called the Chidambara
rahasyam, i.e. the secret of Chidambaram.

The decision supports Mr Parasaran‘s argument that there can exist a temple
without an idol. An idol is one manifestation of the divine and it cannot be said
that absent an idol, there exists no divinity to which prayer may be offered.
However, the question before the Madras High Court was whether the appellant
and his predecessors were the founders of the temple and whether it was a
denominational temple for the purposes of state regulation of the temple‘s secular affairs. The High Court did not consider whether a temple could be a juristic
person and the decision does not support Mr Parasaran‘s contention that the
mere worship of empty land or space‘, absent a physical manifestation could
confer juristic personality. Moreover, the facts of the case are materially different
from the present case as the Chidambaram Temple is a physical structure built
around a specific spot that is considered holy. Despite the absence of an idol, the
temple serves as the physical manifestation of the deity and demonstrates the
institutional nature of the worship. This is in contrast to the present case. Worship
is offered to the idol of Lord Ram. The disputed site is a site of religious
significance, but that itself is not sufficient to confer juridical personality on the land.

182. Reliance was also placed on Pichal alias Chockalingam Pillai v The
Commissioner for Hindu Religions and Charitable Endowments
(Administrations Department) Madras116 to contend that a temple continues to
be recognised as a site of public religious worship even absent the presence of
an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram.
In the early twentieth century, one Chockalingam Pillai executed a deed of
dedication for the construction, installation and continued upkeep for four idols,
including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue
of a compromise deed in 1954 the appellants before the Madras High Court
came to be the managing trustees. The appellants were accused of failing in their
upkeep and service of the idol and the Commissioner of Hindu Religions and
Charitable Endowments framed a scheme to take over management of the
temple. The appellants challenged the competence of the Commissioner on the
ground that the temple was not a temple under Section 6(20) of the Madras
Hindu Religious and Charitable Endowments Act 1959. The primary contention of
the appellants was that the idols in the Kalyansundareswarar temple had not
been duly installed and consecrated. Justice K Reddy speaking for the Division
Bench of the Madras High Court held that the existence of an idol was not
necessary for a place of public worship to be a temple under Section 6(20) of
the said Act. He further observed:
… It does not appear that the aforesaid idols in the said
temples have been installed and consecrated according to
the rituals and ceremonies enjoined by Agama Sastras. They
have become places of public religious worship by long use of
the place as such by the Hindu community. We are, therefore,
of the view that the installation and consecration of idols with
ceremonies like Prana pratishta etc, prescribed by Hindu


116 AIR 1971 Mad 405


Sastras is not the sine qua non for public religious worship. In
any event, it is not a legal requisite under the definition of a
temple‘ in the Act…
Two points must be noted: First, the observations of the Court are made in the
context of satisfying a pre-existing statutory definition of a temple‘. It is in this
context, that the Madras High Court notes that the existence of an idol is not a
pre-requisite to satisfy the statutory definition of a temple. Second, the case does
not discuss the question whether a temple, even absent an idol, can be a juristic
person. It is pertinent to note that absent an idol, the temple itself had existed for
several years. In light of these observations, the decision does not support Mr
Parasaran‘s argument that absent an idol or any express form of manifestation or
recognition, land can constitute a juristic person.

183. Mr Parasaran relied on the decision in Saraswathi Ammal v Rajagopal
Ammal117 to argue that the widespread belief and worship of the land styled as
Ram Janmbhumi is sufficient to recognise it as a juristic person. The case
concerned a settlement deed whereby a widow dedicated in perpetuity the
revenue of certain immovable properties for the performance of daily puja and
Gurupuja‘ of her former husband‘s tomb. It was urged by the appellants in the
case that the dedication was for the performance of puja and an annual sradh‘
on a significant scale, and the dedication was thus for a religious and charitable
purpose. In rejecting this contention, Justice B Jagannadhadas, speaking for a
three judge Bench of this Court observed:
6…To the extent, therefore, that any purpose is claimed to
be a valid one for perpetual dedication on the ground of


117 1954 SCR 277


religious merit though lacking in public benefit, it must be
shown to have a Shastric basis so far as Hindus are
concerned. No doubt since then other religious practices and
beliefs may have grown up and obtained recognition from
certain classes, as constituting purposes conducive of
religious merit. If such beliefs are to be accepted by courts as
being sufficient for valid perpetual dedication of property
therefor without the lement of actual or presumed public
benefit it must be at least shown that they have obtained wide
recognition and constitute the religious practice of a
substantial and large class of persons. That is a question
which does not arise for direct decision in this case. But
it cannot be maintained that the belief in this belief of one
or more individuals is sufficient to enable them to make a
valid settlement permanently tying up property. The
heads of religious purposes determined by belief in
acquisition of religious merit cannot be allowed to be
widely enlarged consistently with public policy and
needs of modern society. (Emphasis supplied)
The above decision deals with whether a substantial and widespread practice of
a large number of Hindus would warrant its recognition as a religious or
charitable practice. Further, the court expressly observes it was not necessary to
answer this question as the ground of public policy is sufficient to discredit the
practice of tomb-worship by a few stray individuals. It does not deal with the
question when a court should confer juristic personality, either on an idol or on
land. While a particular practice may or may not be recognised by a court as
religious or charitable depending on the scale of adoption of the practice, a
parallel cannot be drawn with the concept of juristic person which operates in an
entirely different field of law. The decision does not support the contention that
widespread belief in the religious nature of a site is sufficient to confer upon that
site legal personality.

Lastly Mr Parasaran sought to rely on two decisions, Sapneswar Pujapanda v
Ratkanar Mahapatra118 and Sri Adi Visheshwara of Kashi Vishwanath
Temple v State of UP119 to contend that the second plaintiff in Suit 5 is a
Swayambhu‘ deity which has a recognised legal personality. The decisions
merely note that Hinduism recognises the concept of a Swayambhu deity, which
is not contested by either of the parties to the present dispute. Neither decision
advances the argument set out by Mr Parasaran. The substantive content of the
arguments advanced by the plaintiffs in Suit 5 is dealt with next.

184. Mr Parasaran submitted that the various deities and idols in Hinduism are
merely facets of the single indivisible God. It was thus contended that every
manifestation of the indivisible God is worthy of legal protection and the
conferment of legal personality.

185. This Court in Yogendra Nath Naskar v CIT, Calcutta120 drew a distinction
between the perception of the devotee that the idol is a manifestation of the
Supreme Being and the position in law that legal personality is conferred on the
pious purpose of the testator that is entitled to legal protection. Hinduism is an
expansive religion that believes divinity in the form of the Supreme Being is
present in every aspect of creation. The worship of God in Hinduism is not limited
to temples or idols but often extends to natural formations, animals and can even
extend to everyday objects which have significance in a worshipper‘s life. As a
matter of religion, every manifestation of the Supreme Being is divine and worthy

118 AIR 1916 Pat 146
119 (1997) 4 SCC 606
120 (1969) 1 SCC 555

of worship. However, as a matter of law, every manifestation of the Supreme
Being is not a legal person. Legal personality is an innovation arising out of legal
necessity and the need for adjudicative utility. Each conferment of legal
personality absent an express deed of dedication must be judged on the facts of
the case and it is not a sound proposition in law to state that every manifestation
of the Supreme Being results in the creation of a legal person.

186. In the present case, it was contended that the land forming the disputed
site is itself the manifestation of Lord Ram. Significant reliance was placed on the
existence of certain temples which do not possess idols, in particular the
Chidambaram temple in Tamil Nadu, to advance two legal propositions: First, that a Hindu deity possessing juristic personality could exist even absent an idol, and second that unadorned land, absent any distinguishing features, could constitute a Swayambhu deity and consequently a juristic person. As noted above, the cases relied upon by Mr Parasaran with respect to the Chidambaram and
Kalyansundareswar temple do not refer to the conferral of juristic personality.
However, it is true than an idol is not a pre-requisite for the existence of a juristic
person. Where there exists an express deed of dedication, the legal personality
vests in the pious purpose of the founder. The idol is the material embodiment of
the pious purpose and is the site of jural relations. There are instances of the
submergence or even destruction of the idol inspite of which it has been held that
the legal personality continues to subsist. Even if a testator were to make a
dedication to a religious purpose but the idol did not exist at the time the
dedication was made or the manifestation of the divine was not in the form of the
idol, but in the form of some other object of religious significance, the legal
personality would continue to vest in the pious purpose of the dedication itself.
However, that is not the situation in the present case. In the case of the second
plaintiff in Suit 5, there exists no express deed of dedication.

187. It is true that merely because the second plaintiff is not an idol, and there
exists no deed of dedication, it is not precluded from being conferred with legal
personality. Swayambhu deities, by the very fact that they are manifested from
nature, may not fit the description of an idol in the traditional sense. Courts are
not barred from recognising such a material manifestation of the divine as a
juristic person. The manifestation in a material form is what is the defining
feature. In the present case however, the arguments advanced in reply on behalf
of the plaintiffs in Suit 5 rest on a two-fold claim: First, that no material
manifestation is required for the conferral of juristic personality in the case of a
Swayambhu deity. In this view, the performance of worship with the faith and
belief that corporeal property represents the divine is adequate for the conferral
of juristic personality. Second, in the alternative, assuming that a material
manifestation is a pre-requisite for a Swayambhu deity, the land at the disputed
site represents the material manifestation and given the performance of religious
worship, no further evidence is required for the conferral of juristic personality.
Several examples of temples without idols were placed before this court,
including that of the Chidambaram Temple to contend that the deity of Ram had
manifested itself in the form of land itself. According to the plaintiffs in Suit 5, the
birth of Lord Ram at the disputed site is the revelation, and the resident deity of
Ram Janmabhumi manifests itself in the form of the land that it is the disputed
land. At the Chidambaram Temple, there exists no idol of the resident deity, Lord
Siva. A curtain exists at the altar. At the time of worship, the curtain is drawn
away and the altar is revealed to have an empty space. The empty space at the
altar is the subject of the prayers and devotees regularly leave offerings at the
altar. Mr Parasaran sought to draw a parallel to demonstrate how empty space
itself, absent any idol or distinguishing features, was the subject of worship and
constituted a valid deity upon which juristic personality could be conferred.

188. The arguments urged by Mr Parasaran in his reply raise three questions
for our determination: First, whether a Swayambhu deity may be recognised
absent a physical manifestation; second, whether land can constitute a
manifestation of the deity; and third, whether legal personality can be conferred
on immovable property per se.

189. A Swayambhu deity is a manifestation of God that is self-revealed‘ or
discovered as existing‘ as opposed to a traditional idol that is hand-crafted and
consecrated by the prana pratishta ceremony. The word swayam‘ means self‘ or
on its own‘, bhu‘ means to take birth‘. A Swayambhu deity is one which has
manifested itself in nature without human craftsmanship. Common examples of
these deities are where a tree grows in the shape of a Hindu God or Goddess or
where a natural formation such as ice or rock takes the form of a recognised
Hindu deity.

190. Dr Dhavan contended that any case of Swayambhu deity would
necessarily need to be based on: (i) some evidence of the manifestation of God
in a material form followed by; (ii) faith and belief that a particular piece of
corporeal property represents the divine; and (iii) in the absence of traditional
prana parishta ceremonies of consecration, some institutionalised worship
constituting recognition by the religion itself that the manifestation was a deity. In
this view, a Swayambhu deity is premised on faith and belief coupled with a
physical manifestation and religious recognition.

191. A Swayambhu deity is the revelation of God in a material form which is
subsequently worshipped by devotees. The recognition of a Swayambhu deity is
based on the notion that God is omnipotent and may manifest in some physical
form. This manifestation is worshipped as the embodiment of divinity. In all these
cases, the very attribution of divinity is premised on the manifestation of the deity
in a material form. Undoubtedly, a deity may exist without a physical
manifestation, example of this being the worship offered to the Sun and the Wind.
But a Swayambhu is premised on the physical manifestation of the Divine to
which faith and belief attaches.

192. The difficulty that arises in the present case is that the Swayambhu deity
seeking recognition before this Court is not in the form ordinarily associated with
the pantheon of anthropomorphised Hindu Gods. The plaintiffs in Suit 5 have
sought to locate the disputed land as a focal point by contending that the very
land itself is the manifestation of the deity and that the devotees‘ worship not only
the idols of Lord Ram, but the very land itself. The land does not contain any
material manifestation of the resident deity Lord Ram. Absent the faith and belief
of the devotees, the land holds no distinguishing features that could be
recognised by this court as evidence of a manifestation of God at the disputed
site. It is true that in matters of faith and belief, the absence of evidence may not
be evidence of absence. However, absent a manifestation, recognising the land
as a self-manifested deity would open the floodgates for parties to contend that
ordinary land which was witness to some event of religious significance
associated with the human incarnation of a deity (e.g. the site of marriage, or the
ascent to a heavenly abode) is in fact a Swayambhu deity manifested in the form
of land. If the argument urged by Mr Parasaran that there is no requirement of a
physical manifestation is accepted, it may well be claimed that any area of
religious significance is a Swayambhu deity which deserves to be recognised as
a juristic personality. This problem is compounded by the fact that worship to a
particular deity at a religious site and to the land underlying a religious site are for
all intents and purposes, indistinguishable. Hence, in order to provide a sound
jurisprudential basis for the recognition of a Swayambhu deity, manifestation is
crucial. Absent that manifestation which distinguishes the land from other
property, juristic personality cannot be conferred on the land.

193. It is conceivable that in certain instances the land itself would possess
certain unique characteristics. For example, it may be claimed that certain
patterns on a sea-shore or crop formations represent a manifestation of the
divine. In these cases, the manifestation is inseparable from the land and is tied
up to it. An independent question arises as to whether land can constitute the
physical manifestation of the deity. Even if a court recognises land as a
manifestation of a deity, because such land is also governed by the principles of
immoveable property, the court will need to investigate the consequences which
arise. In doing so the court must analyse the compatibility of the legal regime of
juristic personality with the legal regime on immoveable property. It is necessary
now to turn to this.

Property vested in a deity and property as a deity

194. There is a significant distinction between property vested in a foundation
(as in Roman law) or a deity as a juristic person (as in Hindu Law) and property
per se being a juristic person. Where the property vests in a foundation
constituted for a pious purpose, it retains its characteristics as immoveable
property. This remains true even in cases where the property vests in the deity in
an ideal sense. The purpose of conferring juristic personality is to ensure both a
centre of legal relations as well as the protection of the beneficial interest of the
devotees. It does not however, alter the character of the property which vests in
the juristic person. It remains subject to the framework of the law which defines
all relationships governing rights or interests claimed in respect of property and
the liabilities which attach to jural transactions arising out of property.

195. This distinction, which highlights the features of immoveable property
received articulation by the Privy Council in The Mosque, Masjid Shahid Ganj v
Shiromani Gurdwara Parbandhak Committee, Amritsar.121 In that case, a
mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of
dedication, Sheikh Din Mohammad and his descendants were appointed as
Mutawallis. Since 1762, however, the building together with the court-yard, well
and adjacent land, was in the occupation and possession of the Sikhs. The land
adjacent to the mosque became the site of a Sikh shrine. At the time of theannexation by the British in 1849, the Sikhs were in possession of both the mosque and the adjacent lands.


121 AIR 1940 PC 116


196. Thereafter, the building was demolished by or with the connivance of its
Sikh custodians. A suit was instituted in 1935 against Shiromani Gurdawara
Parbandhak Committee – who were in possession of the disputed property,
seeking a declaration that the building was a mosque in which the plaintiffs and
all the followers of Islam had a right to worship along with a mandatory injunction
to reconstruct the building. One of the 18 plaintiffs was the mosque itself – the site and the building. The Privy Council assessed the contention that the mosque and the adjoining properties were a juristic person. Rejecting the contention, Justice George Rankin held:

The argument that the land and buildings of a mosque are not
property at all because they are a juristic person involves a
number of misconceptions. It is wholly inconsistent with many
decisions whereby a worshipper or the mutwalli has been
permitted to maintain a suit to recover the land and buildings
for the purposes of the wakf by ejectment of a trespasser…
That there should be any supposed analogy between the
position in law of a building dedicated as a place of prayer for
Muslims and the individual deities of the Hindu religion is a
matter of some surprise to their Lordships… the procedure in
India takes account necessarily of the polytheistic and other
features of the Hindu religion and recognizes certain doctrines
of Hindu law as essential thereto, e.g. that an idol may be the
owner of property…

The decisions recognizing a mosque as a juristic person appear to be confined to the Punjab : 153 PR 1884; Shankar Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula
Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6 In none of those cases was a mosque party to the suit, and in none except perhaps the last is the fictitious personality
attributed to the mosque as a matter of decision. But so far as they go these cases support the recognition as a fictitious person of a mosque as an institution – apparently hypostatizing an abstraction. This, as the learned Chief Justice in the present case has pointed out, is very different from conferring personality upon a building so as to deprive it of its character as immovable property.

(Emphasis supplied)

197. The Privy Council noted that if the mosque was a juristic person, this may
mean that limitation does not apply to it and that it is not property but an owner
of property. Underlying the line of reasoning adopted by the Privy Council is that
the conferral of legal personality on immovable property could lead to the
property losing its character as immoveable property. Immoveable property, by its
very nature, admits competing proprietary claims over it. Immoveable property
may be divided. However, the recognition of the land itself as a juristic person
may potentially lead to the loss of these essential characteristics. Where juristic
personality was recognised in corporeal property itself such as the idol, it served
the larger purpose for which juristic personality was conferred – to ensure the
execution and protection of the pious purpose set out by a donor and the ultimate
protection of the beneficial interest of the worshippers. However, to confer legal
personality on immoveable property leads to consequences that fundamentally
have no nexus to the limited purpose for which juristic personality is conferred. It
sets apart immoveable property on which a juristic character is conferred from all
other species of immoveable property. This will lead to the claim that the legal
regime which applies to the latter (ordinary immoveable property‘) will not apply
to that class of immoveable property which is recognised as a juristic person in
and of itself. The principles of adverse possession and limitation would, if the
argument were to be accepted, not apply to the land as a legal person which is
incapable of being possessed. The conferral of legal personality in the context
of endowments was to ensure the legal protection of the endowed property, not
to confer upon the property legal impregnability by placing it outside the reach of
the law. The elevation of land to the status of a juristic person fundamentally
alters its characteristics as immoveable property, a severe consequence against
which a court must guard. Nor is it a valid safeguard to postulate that the court
will decide on a case to case basis where a particular immoveable property
should have a juristic status. Absent any objective standard of application the
process of drawing lines will be rendered inherently subjective, denuding the
efficacy of the judicial process.

198. The land in question has been treated as immoveable property by all the
parties to the present dispute, including those from the Hindu community until
1989. The litigation over the disputed property dated back to 1885, and at no
point, until Suit 5 in 1989 was a plea taken that the land in question was anything
possessed of a juristic personality. Apart from the reasons which have been
outlined above, it would not be open for the court to treat the property differently
now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.
Addressing title claims in a conventional framework

199. The facts of the present case raise questions of access of the devotees to
the site of religious worship and the question of who has title to the land. The
former may be protected by the court in several ways without the creation of an
artificial legal person. The protection against mismanagement squarely falls
within the domain of who should be recognised as a shebait, and this is
addressed elsewhere in the course of the present judgement. Generally
speaking, the court is empowered to address such situations upon an application
under Section 92 of the Code of Civil Procedure 1908. The question of title can
be adjudicated upon using the existing legal regime applicable to immoveable
property. There is no reason bearing on necessity or convenience that would
compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5
that juristic personality must be conferred on the disputed land.

200. The conferral of juristic personality is a legal innovation applied by courts in
situations where the existing law of the day has certain shortcomings or such
conferral increases the convenience of adjudication. In the present case, the
existing law is adequately equipped to protect the interests of the devotees and
ensure against maladministration without recognising the land itself as a legal
person. Where the law is capable of adequately protecting the interests of the
devotees and ensuring the accountable management of religious sites without
the conferral of legal personality, it is not necessary to embark on the journey of
creating legal fictions that may have unintended consequences in the future.
There is therefore no merit in the argument that faith and belief, and the
protection of faith and belief alone may necessitate the conferral of legal
personality on the second plaintiff. On the contrary, there exists a substantial risk
with adopting this argument. It may be contended by a section of a religion that a
particular plot of land is the birth-place, place of marriage, or a place where the
human incarnation of a deity departed for a heavenly abode; according to the
faith and belief of the devotees. Corporeal property may be associated with
myriad incidents associated with the human incarnation of a deity each of which
holds a significant place in the faith and belief of the worshippers. Where does
the court draw the line to assess the significance of the belief as the basis to
confer juristic personality on property? In the absence of an objective criterion,
the exercise will be fraught with subjectivity. Adopting the argument of the
plaintiffs in Suit 5 may result in the conferral of legal personality on all such
claims to land. This conferral would be to the detriment of bona fide litigants
outside the faith – who may not share the same beliefs and yet find their title
extinguished. Further, such conferral of legal personality on immovable property
would be on the basis of the faith and belief of the devotees, which is
fundamentally subjective and incapable of being questioned by this Court.

201. The purpose for which juristic personality is conferred cannot be evolved‘
into a trojan horse that permits, on the basis of religious faith and belief, the
extinguishing of all competing proprietary claims over property as well stripping
the property itself of the essential characteristic of immoveable property. If the
contention urged on the behalf of the plaintiffs in Suit 5 is accepted, it results in a
position in law where claims to absolute title‘ can be sustained merely on the
basis of the faith and belief of the devotees. The conferral of legal personality on
corporeal property would immunise property not merely from competing title
claims, but also render vast swathes of the law that are essential for courts to
meaningfully adjudicate upon civil suits, such as limitation, ownership,
possession and division, entirely otiose. At best, the contention urged on behalf
of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of
religious significance for the devotees. It cannot however be extended to sustain
proprietary claims to the law or to immunise the land from proprietary or title
based claims of others by conferring juristic personality on the land itself.
Commitment to constitutional values

202. A final observation must be made on this aspect of the case which is of
significant importance. The rejection of the contention urged on behalf of the
plaintiffs in Suit 5 touches upon the heart of our constitutional commitment to
secularism. The method of worship on the basis of which a proprietary claim may
be sustained is relatable to a particular religion. The conferral of legal personality
on idols stemming from religious endowments is a legal development applicable
only to a practice of the Hindu community. The performance of the parikrama is
a method of worship confined largely to Hinduism. Putting aside the fact that the
argument raised by the plaintiffs in Suit 5 is a novel extension of the law
applicable to Hindu religious endowments, this is a significant matter which
requires our consideration.

203. Religious diversity undoubtedly requires the protection of diverse methods
of offering worship and performing religious ceremonies. However, that a method
of offering worship unique to one religion should result in the conferral of an
absolute title to parties from one religion over parties from another religion in an
adjudication over civil property claims cannot be sustained under our
Constitution. This would render the law, which ought to be the ultimate impartial
arbiter, conferring a benefit on a party with respect to her or his legal claims, not
on the basis of the merits of a particular case, but on the basis of the structure or
fabric of the religion to which they belong. If the contention urged on behalf of the
plaintiffs in Suit 5 is accepted, the method of worship performed by one religion
alone will be conferred with the power to extinguish all contesting proprietary
claims over disputed property.

204. It is true that the connection between a person and what they consider
divine is deeply internal. It lies in the realm of a personal sphere in which no other
person must intrude. It is for this reason that the Constitution protects the
freedom to profess, practice and propagate religion equally to all citizens. Often,
the human condition finds solace in worship. But worship may not be confined
into a straightjacket formula. It is on the basis of the deep entrenchment of
religion into the social fabric of Indian society that the right to religious freedom
was not made absolute. An attempt has been made in the jurisprudence of this
court to demarcate the religious from the secular. The adjudication of civil claims
over private property must remain within the domain of the secular if the
commitment to constitutional values is to be upheld. Over four decades ago, the
Constitution was amended and a specific reference to its secular fabric was
incorporated in the Preamble. At its heart, this reiterated what the Constitution
always respected and accepted: the equality of all faiths. Secularism cannot be a
writ lost in the sands of time by being oblivious to the exercise of religious
freedom by everyone.

205. It is for all the reasons highlighted above that the law has till today yet to
accept the conferral of legal personality on immoveable property. Religiosity has
moved hearts and minds. The court cannot adopt a position that accords primacy
to the faith and belief of a single religion as the basis to confer both judicial
insulation as well as primacy over the legal system as a whole. From Shahid
Gunj to Ayodhya, in a country like ours where contesting claims over property by
religious communities are inevitable, our courts cannot reduce questions of title,
which fall firmly within the secular domain and outside the rubric of religion, to a
question of which community‘s faith is stronger.

On a consideration of all the factors outlined above, it is thus held that the second plaintiff in Suit 5 Asthan Shri Ram Janam Bhumi‘ is not a juristic person.


Ram Lala is Juristic person but Ram Janmabhumi is not a juristic person as hold by Allahabad High Court

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