# [1962] Supp. 2 S.C.R. 276

- **Citation:** [1962] Supp. 2 S.C.R. 276
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** CIVIL APPELLATE JurusDICTlON: Civil Appeal No. 87of1959
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1962-supp-2-s-c-r-276-2607
- **Pages:** 22

## Headnote

Hindu
Latcr-Endowmml-T•mpk-Public
TempfoConditi<>n,• of-ltw.m Regi•ter-Entries-lf could be accepted
at IA•ir fo<:e
valu•-Hindu ReligioU8 li:nrku:menta Act, 1926
(Macl. 2 of 1927), "· '9. cl. 12.
The Emperor Aurangazeb made certain pranu to one
Mukuldas Babajee, founder of the
institution Poohari Fakir
Sadavarthy, for the purpose of his maintenance and to carry
on th~ distribution bf Sadavarthy to Fakirs etc. The sixth
head of the institution built a shrine for his private worship.
Tt was adjunct to the aforesaid institution, and the public had
no access to it without the permission of Mahant. The income
from
various properties granted to the founder and his
disciples had b<en regularly utilised for the maintenance of
the head of the institution and for distributing charities for the
Sadhus ancl pilgrims; a part was spent on the expenses of the
worship in
the temple. The
Board of Commissioners for
Hindu Religious and Charitable Endowments, Madras held
that the ternple in suit was a public temple. The sole qu<stion
for determination was whether this institution
WJ.S a public
temple as defined in thr Act.
Held,
that an institution would be a public
temple
within the Hindu Religious
Endowments Act, 1926, if two
conditions arc satisfied;
firstly, that it wa.; a
place of puhlic
religious W<•rship
and secon<lly,. that it wa~ dedicatr-'1 to, or
was for the benefit of, or was
used as of right by the Hindu
Community. or any section
thereof, as a place of religious
worship.
\..\/hen there~ ~ood evidence about the temple being a
prh·ate onf", th.e mere
~a~t that a numbrr of people \\'orship
at the templt~, 15 not suff1c1ent to come to the conclusion th
the temple must be a public
temple to which those people ,)l
as a
matter of right a~ it is not
us11al for
the owner of tgo
te?1p1e
to
disallow visitors to the temple, eVcn if it be ~e
private one.
Tn the pre"nt case the
description of the temple with
rr<:prrt to it" r.on~truction, equipment, practice:ir;, observances
•
2 s.c.R.
SUPREME COURT REPORTS
277
and the form of worship
are not inconsistent with the
inference from the other evidence that the temple is not a
public temple. The temple is not a temple as defined in the
Act and it is not used as of right by Hindu Community, or
any section thereof, as a place of religious worship.
Held, furtiter that the Inam Register is of great evidentiary value, but that does not mean that the entry or entries
in any particular column or columns be r..ccepted at their face
value without giving due consideration to other matters
recorded in the entry itself.
CIVIL APPELLATE JurusDICTlON: Civil Appeal
No. 87of1959.
Appeal from the judgment and decree dated
April 6, 1955, of the forruer Andhra High Court in
A.S.O. No. 134/50.
T. V. R. Tatachari, for the appellants.
Bhinui,pankaram, K. R. Chaudhuri anc! T. M. Sen,
for the tespoudent.
1961. December 21. The Judgment of the
Court was delivered by :
RAGHUBAR DAYAL, J.-This is an appeal on
a certificate granted by the High Court of Andhra
Pradesh, against the judgment and order of the
High Court reversing the judgment and order of
the District Judge, ViZ!lgapatam, holding that the
place of worship in suit was not a temple as defined
in the Madras Hindu Religious Endowments Act,
11126 (Madras Act II of l927), hereinafter called
the Act.
On March28, 1947,theBoardofCommissioners
for Hindu Religious & Charitable Endowments,
Madras, held the institution in suit to be a tern ple
as defined in the Act. The appellants, thereafter
filed a petition under s. 84(2) of the Act, in the Court
of the District Judge, Vizagapatam, and prayed for
the setting aside of the order of the Board. They
alleged that the institution, known as the Poohari
Fakir Sa.davarthy, at Bondilipuram, Chicacole, a
ongstanding institution, was st&i:ted by one Malukdas
J9GI
Tiu Poohari Fok
Sadavarthv tJf
BunJi/ipurarn
v.
The Commiuiontr.
Hindu R..:Ji~ ious and
Cluzritahl6
Endowments
Raghubar D..,.J J.
1~1
n, Pooi.ri Fakir
su-•"1 of
Boodilipiuv.
7L G.

## Text

_Characters 0–39,965 of 43,118. This is a partial read: ask again with offset=39965 for what follows._

111111
D1.:4mbtr 22
276 SUPREME OOURT REPORTS (1962) SUPP.
THE POOHARI FAKIR SADA VARTHY OF
BONDILIPURAM
v.
THE COMM£SSIO:IBR, HINDU RELIGIOUS
A~D CHARITABLE ENDOWMENTS
(B. P. SINHA, P. B. GAJENDRAGADKAR
AND
RAGHUBAR DAYAL, J,J,)
Hindu
Latcr-Endowmml-T•mpk-Public
TempfoConditi<>n,• of-ltw.m Regi•ter-Entries-lf could be accepted
at IA•ir fo<:e
valu•-Hindu ReligioU8 li:nrku:menta Act, 1926
(Macl. 2 of 1927), "· '9. cl. 12.
The Emperor Aurangazeb made certain pranu to one
Mukuldas Babajee, founder of the
institution Poohari Fakir
Sadavarthy, for the purpose of his maintenance and to carry
on th~ distribution bf Sadavarthy to Fakirs etc. The sixth
head of the institution built a shrine for his private worship.
Tt was adjunct to the aforesaid institution, and the public had
no access to it without the permission of Mahant. The income
from
various properties granted to the founder and his
disciples had b<en regularly utilised for the maintenance of
the head of the institution and for distributing charities for the
Sadhus ancl pilgrims; a part was spent on the expenses of the
worship in
the temple. The
Board of Commissioners for
Hindu Religious and Charitable Endowments, Madras held
that the ternple in suit was a public temple. The sole qu<stion
for determination was whether this institution
WJ.S a public
temple as defined in thr Act.
Held,
that an institution would be a public
temple
within the Hindu Religious
Endowments Act, 1926, if two
conditions arc satisfied;
firstly, that it wa.; a
place of puhlic
religious W<•rship
and secon<lly,. that it wa~ dedicatr-'1 to, or
was for the benefit of, or was
used as of right by the Hindu
Community. or any section
thereof, as a place of religious
worship.
\..\/hen there~ ~ood evidence about the temple being a
prh·ate onf", th.e mere
~a~t that a numbrr of people \\'orship
at the templt~, 15 not suff1c1ent to come to the conclusion th
the temple must be a public
temple to which those people ,)l
as a
matter of right a~ it is not
us11al for
the owner of tgo
te?1p1e
to
disallow visitors to the temple, eVcn if it be ~e
private one.
Tn the pre"nt case the
description of the temple with
rr<:prrt to it" r.on~truction, equipment, practice:ir;, observances
•
2 s.c.R.
SUPREME COURT REPORTS
277
and the form of worship
are not inconsistent with the
inference from the other evidence that the temple is not a
public temple. The temple is not a temple as defined in the
Act and it is not used as of right by Hindu Community, or
any section thereof, as a place of religious worship.
Held, furtiter that the Inam Register is of great evidentiary value, but that does not mean that the entry or entries
in any particular column or columns be r..ccepted at their face
value without giving due consideration to other matters
recorded in the entry itself.
CIVIL APPELLATE JurusDICTlON: Civil Appeal
No. 87of1959.
Appeal from the judgment and decree dated
April 6, 1955, of the forruer Andhra High Court in
A.S.O. No. 134/50.
T. V. R. Tatachari, for the appellants.
Bhinui,pankaram, K. R. Chaudhuri anc! T. M. Sen,
for the tespoudent.
1961. December 21. The Judgment of the
Court was delivered by :
RAGHUBAR DAYAL, J.-This is an appeal on
a certificate granted by the High Court of Andhra
Pradesh, against the judgment and order of the
High Court reversing the judgment and order of
the District Judge, ViZ!lgapatam, holding that the
place of worship in suit was not a temple as defined
in the Madras Hindu Religious Endowments Act,
11126 (Madras Act II of l927), hereinafter called
the Act.
On March28, 1947,theBoardofCommissioners
for Hindu Religious & Charitable Endowments,
Madras, held the institution in suit to be a tern ple
as defined in the Act. The appellants, thereafter
filed a petition under s. 84(2) of the Act, in the Court
of the District Judge, Vizagapatam, and prayed for
the setting aside of the order of the Board. They
alleged that the institution, known as the Poohari
Fakir Sa.davarthy, at Bondilipuram, Chicacole, a
ongstanding institution, was st&i:ted by one Malukdas
J9GI
Tiu Poohari Fok
Sadavarthv tJf
BunJi/ipurarn
v.
The Commiuiontr.
Hindu R..:Ji~ ious and
Cluzritahl6
Endowments
Raghubar D..,.J J.
1~1
n, Pooi.ri Fakir
su-•"1 of
Boodilipiuv.
7L G.mais1iorur,
BIUo Rtli1ioos a.d
C.hOTila/JU
F.Me~ls
R.,iruw Doyal J.
278 SUPREME COURT REPORTS [1962] SUPP.
Bavajee, some time during the reign of the
Moghul Emperor, Aurangazeb. The Emperor, in recognition of the Bavajee's piety and devotion to
God, made certain grants to him with the object
and purpose of enabling him to maintain himself
and carry on the distribution of Sadavarthy to
Fakirs and Sadhus and to pray to God for the prosperity of the Empire and Emperor, according to
what was stated in the well-known historical works
like Bhakthamala by Maharaja P.a.ghunandha Singh
Deo of Rewa.
The institution flourished and continues up to
this day. The original plaintiff No. 2, Rajaram
Das Ba vajee, was the ninth in succeeeion from tho
founder Malukdas Bavajee. He died during the pendoncy of the proceedings and is now represented
by appellant No. 2, Mahant Gangaram Das Bavajee.
Sithaldas Bavajee, the sixth head of the institution,
who lived in the first half of the Nineteenth Century built a temple and installed therein certain
idols for his private worship. The shrine was an
adjunct of the institution l'oohari Fakir Sadavarthy.
It is alleged to be a private temple known as Jagannadhaswami temple, Balaga, and ia meant for
the worship of the Mahant and hla disciples, one of
whom conducts the daily worship.
The income from the various properties granted to Malukdas
Bavajee
c5r
his
suooeesors
had been regularly utilised for the maintenance of
tJie head of the institution and for distributing
charities to the aadhus and pilgrima passing through
Balaga. A part of the income waa, however spent
on the expenses of the worship in the temple and
the incidental expensea connected with it.
The respondent Board denied that Jagannadhaswami temple was a private place of worship,
that the public had no acoess to it without the
permission of *he Bavajee and alleged ~t the tem·
pie po88llll8ed f.11 the features of a plaoe of public
2 S.C.R.
SUPREME COURT REPORTS
279
religious worship and was dedicated to or for the
benefit of or used as of right by the Hindu community as a place of religious worship.
The appellants examined five witnesses, including plaintiff No. 2, in support of their case. The
respondent examined one witness. The plaintiffs
also filed a number of documents. The respondent
filed a few documents \Vhich included the Board's
order dated March 28, 1947, and its enclosure.
The learned District Judge concluded, from
the evidence, that Jagannadhaswami temple was
not a temple as defined in the Act, it being a private
temple existing
for the benefit of the appellants
only. He therefore set aside the impugned order
of the Board. On appeal, the High Cuurt came to
a different conclusion and allowed the appeal. It
mainly relied on the entries in the Inam registers
with respect to the institution and on the following
facts which it considered to be established :
(i) the temple is a very old temple
constructed in or about the year 1750 ;
(ii) the temple has the structure and
polity of a public temple ;
(iii) there are utsava vigrahams and
va.hanams,;
(iv) it has a big compound wall with
the gate opening into the Chinna Bazaar
R.oa.d;
(v) regular
worship is
performed
every day at th• scheduled time ;
(vi) there is an arohaka who per·
forms worship•;
(vii) a larg~ number of pilgrims attend
every day and partake in the food given
after na.ivedyam to the God ;
1961
The Poohari Fcki,
S11davarlhy of
Bondilipuran1
v,
The Corrtmi.uioner,
Hindu R1lig,ous and
Ch<ritabU
Endowmmts
Boghuhar Daylll J,
If fl
Tit Pooluui F.kir
B-t/I} •f
/Jo..tili;wcm
....
7}, c ..... wiofur.
Hm R.litioru 11114
CUriloJ.11
g
I
JPh
280 SUPREME COURT REPORTS [1962] SUPP.
(viii) there are utsavams and the rathotsa.vam which is particula1 ly conducted on
large scale and is attended by members
of the ·public .
The High Court relied on the statement of the
solitry wituees examined for the Board and rejected the statements of the witneeses examined for
the appellants.
The sole question for determination in this
appeal is whether this institution is a 'temple' as
defined in the Act. Clause ( 12) of s. 9 of tho Act
reads:
" 'Temple' means a place, by whatever designation known, used as a placo of public
religious worship and dedicated to, or for the
benefit of, or used as of right by, the Hindu
community, or any section thereof, as a .place
of religious worship.''
Tbe institution in suit will be a. temple if two conditions are statisfied. One is that is a place of
public religious worship and tho other is that it is
dodicatod to or is for the benefit of, or is used as of
right by, the Hindu community, or any section
thereof, as a place of religious worship. We are
of opinion that the oral and documentary evidenoe
fully establish the appellants' cue that it is not a
temple as defined in the Act.
The documents on record and bearing dates
from 1698 to 1803 A. D. mention the grants to be for
the purposes of the Bavajee, i.e., the head of the
institution. The first document, Exhibit P-1, (is of
the Hiiri year 1117, correaponding to 1698 A.D.,
and purports to be oxoctlt6d by Ibrahim Khan,
Bahadur, a humble servant of Badahah Alamgir
Ghazi., i.e.,
Emperor
Aur~azeb. This order
Bays:
"The village of Cheedivalaaa, Boonamali
Pargana Haveli (town) towards Ki.ling of tho
:.l S.C.R.
SUPREME COURT REPORTS
281
said Sirkar, has been fixed and continued as a
complete inam in favour of Poohari (Poojari)
Fakir Sadabarty in accordance with the Sanads
of the previous rulers. Meanwhile, in view of
the claims of the said person it has been confirmed as per endorsement in accordance with
momooli (usage) and mustamir (continuing,
lasting long). It is necessary that the said
village be placed in the enjoyment of tho Eaid
person so that, utilising the incomes thereof
for his own maintenance, he may engage himself in praying for the stability of the State
till eternity."
The purpose of the other grants is stated in
practically similar terms aud it ia necessary to quote
them. Nllne of the grants of land or other property on record bears a date subsequent to that of
thfl year 1803 A.D.
The documents, Exhibits P-47,
P-48 and P•49 are orders of the Collectors and refer
to the villages of Cheedivalasa. and Thallavalasa,
and the last two state that the income of these two
villages was given for s'.ldavarthy (feeding) for the
respective year to Phalari (Phulhari) Bavaji. There
is no mention in any of these two documents that
any grant was being made for the purposes of the
temple or for the purposes of the Ba.vaji as well as
for those of a. temple.
The only reference to the construction of the
temple is in Exhibit P-52, an extra.ct from the
Register of Ina.ms dated May 22, 1865, with respect
to village Vanza.ngi. The name of the village, however, does not appear in the document itself. It is
stated in this document :
"About century ago, the trustees built a
temple of Ja.ga.nnadhaswamy.''
According to this note, the temple may be said to
have been built in a.bout 1760 A.D. The documents
of the period from 1761 to 1803 A.D. Exhibits P-31
1961
The Pooh1ri Fa!ir
Sar/arJarthy of
BondUipw111n
v.
Tiu Commissiontr,
Hindu Religious anlf
Charita616
Eru/otlmunts
Ratkuhar Dayal J.
1961
TAI Fooh•ri Fo4ir
~ada1 arth;· oj
Bondilipurmn
v.
Tiu Conm:iJJi.rur,
Hilttiu Rtlitious tllCd
C/ta,;1abl1
Endowmtnls
28~ t:ilJl'RE.ME COt:HT HEJ'ORTS [l!JG2] SUFI.
to P.4!J, do not record that the grants under them
were for th<' expenses of the t<>mplc as well. The
grants simply mention them to be for the expenses
of Fakirs, in the name of Poohari Fakir Sadavarthy,
and uot for the temple. The ncin·rtference to the
temple in the various doeum(>f·ts is consistRnt with
the temple being . for the pr iv ate woI'llhip of the
bead of the l::ladav:r.rti Institution and being an
adjunct to that institution, as in that case there was
to be no grant to the temple and the grant had to
be to the Sadi.varti institution or to its head.
It is alfo a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence. Some one
religiously and charitably disposed could have
thought of endowing some property to this public
temple erected by the Head of a well-known institution in that part of the country, where, it bas been
held judicially, there is a presumption of a temple
being a public temple. We may make it clear that
among the documents referred to, we are not at the
moment including entries in the Inam registers. It
follows from an examination of the varioua documents of the period between 1608 and 1803 A.D.,
that the vario11s endowments were for the Fakir or
Bavajee who ran the Sadavarti institution and that
none of the grants was for the temple or even for
the Sadavarti institution it.sP.lf, it being always
in the name of the Bavajee in charge of that
institution.
Before disOU88ing the entries in the inam regiaten
which carry great weight, we may first refer to the
Ru \es i11 pursuance of which the entries in the Inam
registers were ma<lc, after due investigation. The
various extracts from the Inam registers which have
been filed show that the propoeala for the grant
were confirmed under rnle 3, clause (I), tax free.
This makes it of importance to consider the rule
2 S.C.R.
SUPREME COURT REPORTS
283
thus referred to. It is one of the rules for the adjudioation and settlement of the inam lands of the
Madras Presidenoy and is quoted at page 219 in the
case reported as Arunachellam Ohetty v. Venkatachalapathi Guruswamigal (I) :
"If the inam was given for religions or
ch:i.ritable objeots, such as for the support of
temples, mosques, oolleges, choultries, and
other public buildings or institutions, or for
serviees therein, whether held in the nam11s of
the institutions or of tho persons rendering
the servioes; it will be continued to the present holders and their successors, and will
not be subject to further interference, so long
as the buildings or institutions are maintained
in an efficient state, and the services continue
to be performed according to the conditions of
the grant."
It was also said at page 217 :
"But the Inam Register for the year 1864
has been produced, and to it their Lordships
attach importance. It is true that the ma.king
of this Register was for the ultimate purpose
of determining whether or not the lands were .
tax free .. But.it must not be forgotten that
the preparation of this Register was a great
a.ct of staw, and its preparation and contents ·
were the subject of much· consideration under ·
elaborawly detailed reports and minutes. It
is to be remembered that the Inam Commissioners through their officials made inquiry on
tbe spot, heard evidence and examined documents, and with regard to each individual
property the Government was put in possession not only of the conclusion come to as to
whether the land was tax free, but of a statement of the history and tenure of the property
itself. While their Lordships do not doubt
that such a. report would not displace actual
(1) (1919] L. R. 4<i I. A. 204.
11111
Ihe Poohari Fak it
badavarthy of
Bondilipuram
v.
Thi Commissio,.er,
Hindu Religious and
Charitable
Endowments
Raghubar DaJal J.
1161
l lw P..ur; Fakir
s,...,..,.J•f
Bo..tilir'•m
Vt
Tlw eon-;,,;,.,,
H- Rmt"'u Md
CMr/UH1
94_,.,
284 SUPREME COURT REPORTS [19t2) SUPP.
and authentic ovidenoe in individual oaaee;
yet the. Board, when auch ia not available,
cannot fail to attach the utmoat importance,
as part of the history of the property, to the
information set forth in the Inam Register."
Exhibit P-50 is the "xtract from the ln&m
Register No. 48 relating to village Tallavalasa. in the
Taluk of Chicacole in the distriot of Ga.njam. The
note of the Deputy Colleotor, In!l.m Commissioner,
records inter alia the followmg particulars :
(l) The. villa.ge w1111 granted originally by
tho Na.wa.b Ma.fuz Khan in Hiziri 1155 corresponding with A.D. l 73Q to one Ina.mda.r
Bai.ra.gi; a.s tho original sanad is not forthcoming it is impoaaible to mention here with·
out entering into deta.ils. the object of the
grant and the tenure of the village. This
mokha.sa jaha.giri is in posaession of the person
in column (11) who is known by the name of
Pala.hara
Ma.ha.nt Bartudoss
Bavaji,
'a
Ba.iragi'.
(2) Th.is Bartudoss Bavaji pleaded that
this village and three other villa.gee were
granted in tho distriot by the former Rulera
for Sadavarti and for oert&in other Divine
Service, and that the prooeeds of them were
appropriated to the expenses attendant on
the temple of Sri Jagannadha.swami to some
extent and to distributing
Sadavarti or
supplying viotuals, fire-wood, eto., or dreeaed
food to Bairagis and others resorting to
Rameew&l'am from Bena.rae and vice versa.
(3) This Bartudoes Ba!'a.ji pr~oed a
ea.natl of Sri Seetaram Ra.nz1 Ma.hara.JS., the
former zamindar of Vizianagaram in Vizagapa.tam district, granted to one Gopaladaae
Palahari Bavaji, dated Subhakrutu
year,
corresponding with A.D. 1782. This Sanad
2 8.0.&.
81.JPREME OOURT REPORTS
285
showed that the said Gopaladass was then a
manager of the branch of charity and that
ibis village was granted free from any tax in
lieu of th~ income in the villages of Balaza,
Petranivalasa and Serumohannadpuram which
were granted originally by the authorities for
the support of the charity and which were
resumed and incorporated with circar lands.
The sanad explicitly stated that the proceed~
of the village were to be appropriated for
Sadavarti.
(4) On the whole it appears that this
mokhasa was granted for •Sadavarti' and for
the support of the temple of Sri J agannadhaswami in Balaga. There is a Bairagi Mattam
in Balaga and a temple of Sri Jagagnadhaswami. ........ This is therefore a charitable
grant. To keep up the object of grant, I
think the village may be confirmed on its
present tenure.
(5) Column 8, meant for noting the description of the inam, mentioned:
'Granted for the support for the Sadavarti
Bairagi msttam in Balaga and of the temple
of Sri Jagannadbaswami in the same village
now efficiently kept up.'
16) In column 10, under the heading
'hereditary, unconditional for life only or for
two or ythre lives' is mentioned 'hereditary'.
(7 > Jolumn II meant for recording the
name of the grantor and the year of the grant,
mentions,_ under it, Mafusu Khan Nawab
dated Hijiri 1155.
'
· (8) In column 13, Man9asa Palahari
Bairagi is mentioned as the original grantee.
(9) Under column 18, referring to relationship to original grantee or subsequent
registered holders,
is
written 'Sadavarti
1961
Tile PLahori Folcir
Sadavarthy fl/
BQndil:tiuram
v.
1·he Commtssiontr,
HU.du Rtli~iou.s
and Charitable
Endowments
Raghubt1r DO)al J.
1961
l A. P.,lt.ri Folcir
sua-1/t;J af
BiMilituram
v.
Tl&, COflflfliJsioNr,
H1M Bt1i1iqw a"d
Cluzrita61~
&dOUM1t11t1
286 SUPREME COURT REPORTS [1962) SUPP.
Bairagi mattam and the temple of Sri Jagannadha.swami in Balaga Trustee Palaha.ra
Mahant Barta Dasu Bavaji'.
It is clear from the fact that the grant wu considered 'a charitable grant' that the grant waa not
taken to bti for the purposes of the temple, but was
taken to be & grant for the purpOBeB Sadavarti.
This is also clear from the Statement of Bartud088
Bavaji that it is only a part of the prooeeds which
is spent on the temple and not a major portiop of
the proceeds, 11s his statement is to the effect that
the proceeds are appropriated to the expenses attendant on the temple 'to sonl\l extent'. There is no
suggestion that the temple was in existence in 1739
A. D. when the grant was made. This makes it
clear that no grant could have been made for the
expensCI! of the temple and that a small portion of
the prooeeds was naturally spend on the temple by
the Bavaji after the temple had been constructed.
Any stat!'ment in these entries about the grant being both for Sadavarti and for the expeJlllt's of the
temple appears to be due to the wrong inference of
the person making the enquiry. He could easily
commit such an error on account of the existeaoe
of a temple at the time of the enquiry and on account of the expreesion 'divine servioe'. The 'divine
service' really. meant, as would appear from the
expression in the Clther document& of the period
1698 to 1802 A.D., servi<ie by way of J>rayers for
the stability and continuity of the State.
The expression that the grant was 'hereditary'
also supports the conclusion that the grant was to
the Bavajee personally and not to the teμiple even
if the temple existed a.t the time of the original
grant. In fact, the s~ izranted by Seetaram
Ranzi Maha.raja and produced before the enquiry
officers explicitJy stated that the prooeeda of the
village were to be appropria tt'd for Sadavarti.
i···
2 S.C.R. SUPREME COURT REPORTS
287
This extract therefore supports the case of the
appellants even though the name of the temple has
been mentioned along wit;_h Sadavarti Bairagi. The
confirmation of the grant, tax.free, was recommended by the Deputy Collector, Inam Commissioner,
under Rule 3, Clause ( 1 ). The order of the Officiating Inam Commissioner dated July 1864 is :
'Confirmed on present :tenure', and column 9 described the tenure as 'tax free'.
Exhibit P-51 is the extract from the Inam Register in the Zamindari estate of Tekkaly in the Chicacole Taluk, Ganjam District, and relates to the
village Chinna Z:wanapalli. The report of the
Deputy Collector shows that the claim of the then
Bavajee was that the village was granted in the
name of Gopaladoss, trustee and priest of the
mattam in Hijari 1165, corresponding to 1752 A.D.
It further records :
"It is explained by the Zamindar's shiristadar on behalf of the Zamindar that this was
granted for the support of the mattam and
this is not a personal grant. This was entered
in the permanent settlement account as an
agrahar. The object of the grant is to feed
Bairagis and etc., who travel between Benaras
and Rameswaram or supply victuals clothes
and etc. This branch of charity is known by
the name of 'sadavarti'. The proceeds of this
village with the other villages, which granted
for the support of the charity are appropriat·
ed to sadavarti and to worship the idols in
the temple of the mattam ...... As this is granted on the whole for, the support of the
charity branch, it should, I think, be confir.
med on its present tenure."
The entries under the various columns are practi·
cally on the lines of the entries in Exhibit P·50.
The entries in this register also support the case of
the appellants to the extent that the original grant
1101
The Poohari Fokif'
Sadavarthy OJ
Bondilipu1(1.m
v,
'l'ht Commislioner,
Hindu Religious
ond Ct.aritable
Endowments
Rugl1uba1 Dayal J.
!HI
Tlte PooAori Faki<
Sad...,.,._, of
Bondilipura1
..
'f1N C«nmissiontr,
Hi,,Ju R1li1iot1J
and c11m;1obk
ENiowmttds
288
SUPREME OOURT REPORTS (11162] SUP'.>,
in 1752 A. D., waa to the then Bavajee and Ill'&& for
the purposes of the charity.
Exhibit l'-52 is the extract from the RegiBter of
!n&ms with rC1poct to village V 11.llZ&ngi. It records
very clearly :
"The object of this grant is to give 'sadavarti' to travellel'8, that is, distributing alms
and supplying victuals to travellers. This
grant was made during the reign of •Alangir
Padsha'. Ever since the Inam is continued
undisturbed. About century ago, the trustees
built a temple of Jagannadh&&wamy. Now
in addition to distributing alms and giving
Sadavarti to Bairagis a.nd others, the idol in
the temple is worshipped aqd annual festivals
&re made. It appears that the Trustee is
defraying charges to meet the object of the
grant and that he is not mis-appropriating the
proceeds of the Inam in any way.''
The inam was confirmed as & charity grant to
Mand.l8U S&davarty Charity according to the terms
of the grant. This extract is of great importance
as it, in clear term~, mentions that the object of the
grant was to give sadavarti t-0 travellers and that
it was confirmed as a charity grant to this charity.
It speaks of the erection of the temple and still
states that the Trustee was defraying the charges
to meet the object of the grant. This indicates that
the expenses of the temple were taken to be incidental to the expenses of the entire sa.davurti a.nd
that the temple was just an adjunct to the sadavarti
institution.
Exhibit P-7, Parwana dated November 15, 1722,
corresponding to 14th day of R:ibial Awwal 1135
Hijiri, refers to the grant of this dllage to Poohari
Fakir ti&dave.rti.
Exhibit P-53 is the extract from th.i Register of
Inams relating to village Ragolu in Chiu..cole
2 S.C.R.
SUPREME COURT REPORTS
289
Taluk. It records : 'In the sanad it wat-1 mentioned
that the iuam was given for the support of fakirs
to the original grantee about a century ago. The
other notes in this extra.ct are practically identical
with those in Exhibit P-52. The final order of the
Inam Commissioner was also in terms similar, and
was 'confirmed to the fakirs the sadavarti charity
according to the grant, free, -there being no excess'.
It is interesting to note that in column 2 (general
ola.ss to which inam belongs) is noted 'Dewadayam',
i.e., dedicated to God ; that in column 8 meant for
the description of the inam is noted : 'for the sup•
port of Pagoda of Sri Jagannadhaswami in·Bondili·
puram', and that the entry in column 11 indicates
that Anavaruddin Khan Bahadur made the grant
in Hijiri 1171 corresponding to 1754-55 A. D. It is
olear that the note about the land being dedicated
to God is wrong in view of the definite statement that
the Sanad mentioned that the inam was given for the
support of fakirs to the original grantee (Mandasa.
Pa.lahari Baira.gi in Column 13) about a century ago
~nd that it was the trustees of the institution who
<:onstructed the temple. When the temple was
constructed by the trustees of the fostitution, viz.,
the Sada.varti institution, the original grant could
not have been to the temple or to God. The entries
in this extral't confirm th<' eonstruction we have
placed on similar entries in Exhibit P-52 and other
extracts indicating the grant to the temple.
Exhibit P-54 is the extract from the Inam
Register of No. 85 '.l'allavalasa in the Taluk of
CQ.icacole in the Di;trict of Ganjam. It is mentioned
in this that Pratapa Rudra Naraya.na Devu granted
this village to Falar Gosayi for the support of the
'Bavajee' or Swami, in Hiziri 1141 which would
correspond to about 174 7 A. D. It is also noted
in the report that the object of the gr1mt was that
the proceed; should be appropriated for divine
purpose and that the proceeds were appropriated to
the temple and sadavarti. The note 'for the support
11111
Thi Poohari Fllklt
Sadavartliy of
Bondilipuram
V,
Tht Commi.r.siow
Hindu Religious b4
Charita/J/1
EnJoWl'lllnts
Ra1huhar Dayal J,
IHI
-1111 p oj_,; Fol;,
s ........ of
BM' •tlil/prv.
n. C....iu'-,
HiMu RllWiotu Aa4
Qo,jJdlo
&'·=-•'1
290 SUPREME OOURT REPORTS (1962) SUPP.
of the pagoda of Jagann&dhaswami' in column 8
meant for the desoription of the in.am,
again,
appears to
be
an
entry m&de
under
an
erroneous impression. There was no temple in
existe11.oe when the grant wa.e made in about 1747
A. D.
Exhibit P-55 is an extract frc m the Register
of Inams in the village of Balaga of Chicaoole taluk
dated August 13, 1881. It mentions, under the
heading 'by whom granted and in what year,' •the
grant was made by Rajah Narayan& Gazapati raz
Bahadur under orders of Alamgir P&dsha on !4th
Mii.y of Hiziri ll 71 OOITeHponding with English
years 1754-55'. It is also noted : the Sanad granted is in existence.' It is etated therein that
as these lands appear from a former firman to have
been
granted to
Sadavarti
Mandass
Bavaji
for planting topes and ralsing buildings; they should
be restored to him in pursuance of the loDl(·
standing right. This mean• that the firma.n, which
was not forth coming during the ina.m enquiry,
dated from very early times. It must bo noted
again that this extract also describes the inam
as Devadayam," i. e., dedicated to God. Again,
clearly, this entry is wrong in view of tho sanad
which was in existence clearly ~tating that the lands
were granted under a firm9n
to
Sadavarti
llfandass Bavaji for planting tapes and raising
buildings and also in view of what is rerorded in
Exhibit P-12, a parvana of 1742 A.D., under the
seal of Nawnb Jafer Ali Khan. It records:
"It has been proved that Ma.mfa~: the
succe~sor of Poohari (Poojari) Faq it· ::;adabarti
has, per endorsement full six kattis of land,
free from assessment, in the villa~e of Balaga
anrl etc., villages of the ea.id Ha.veli Sircar,
fixed for the expenses of t'~e coming a.nd going
Fakirs in accordanc1> with the 88.nads of the
previous rulers. Therefore in consideration
.,
2 S.C.R. SUPREME COURT REPORTS
291
of the blessings to follow, it has been confirmed as of yore."
·
J9Gl
Thi l'oo,...i Fail1
Sadavarthy of
Bontliliputom
v.
It was the result of this wrong vie.w of the· enquiry
officer that the Inam Commissioner confirmed
the grant free of quit rent so long as the service
was kept up, presumably the service of the deity, as
the distribution of charity would not be properly
described as 'service.'
nt Commissionf1,
Hindu Rtligioru .4n4
Charitabl1
EnJow111111ts
The fact that the Inam Commissioner treated
the grant relating to Exhibit P-50 to be in
support
of Sadavarti and
for support of the
temple of Sri Jagannadhaswami, would not make
the grant for the purposes of the temple when
the temple was itself not in existence at the
time the grant was made and when a later sanad
referring to it definitely stated that the original
villages were granted for the purposes of charity.
The
observations
of the
Privy Council in
Arunachellam's Case (') that in the absence of the
original grant the Inam Register is of great
evidentiary value, does not mean that the entry
. or entries in any particular column or columns be
acotepted at their face value without giving due
consideration to other matters recorded in the
entry itselr. We have already stated that the
'divine service' referred to in this entry does not
refer to any religious wmship but to the prayers
to be offered by the grantee for the preservation
of the State.
We do not find anything on record to support
the observations in the High Court judgment that
the Bavajee, with the consent of the Ruler for the
time being, constructed a temple and appropriated ·
the income for carrying out the worship of the
temple. No document states that the temple was
constructed b.v the Bavajee after obtaining the
consent of the ruler for the time being, Exhibits
P-52 and P-53 just mentioned that the trustees
built a temple of Sri Jagannadhaswami. The
11)
(1919)L R.461.A.204.
1901
n .. PooN.ri Fair
s11t1 .. 11111p of
B"'4i/~11111
"·
n, Cnnnissioo<r
HiodM&l".
b4
a.~
&u»_,,
R .. ltu6., D'!J'<I J.
292 SUPREME OOURT REPORTS [1962] SUPP.
expreesion 'trustees' refers to the trustees of the
Sa.davarti institution and not to the trustoea of the
temple · a.s such. There is nothing in these docu·
ments to support the view that the temple was
built with the consent of the ruler for tho time
being.
Tho appellants examined five witn<'BBeS to support
their case that the Hindu public have no right to
offer worship in the temple which is a private
temple. The learned Judges described the statement of Jana.rdhana Prasad Bhatt, P.W. 4, a.s
worthless.
~o particular reliance is placed on his
statement by the appellants in this Court. The
appellants, however. contend that the statements
of the other witnesses have been rejected by the
High Court for inadequate reasons.
The first witneBB is Iswara Sa.tyanarayana
Sarma, P.W. I. He was aged 83 at the time of his
depo1ition in 1949. He was a Sanskrit and Telugu
Pandit in the Municipal High School and practised
a.a an Ayurvedic Doctor. He has given reasons
for the view that the temple is not a public temple.
It is not neceasa.ry to refer to thom. His statement
has been rejeot.ed a.a he was considered to be
interested in the Mahant who had been his patient
and a.a the' statement made by him that' people
including the sishya.s, i.e., the disciples. take per·
mission of the Mahant for worshipping, was collBidered artificial. This witness "did not state that
even disciples had to take permiBBion of the Mahant
for worship and so the latter reason waa based
on an erroneous impression of his statement, Tbe
mere fact that the Mahant oonsulls him for hie
ailments and the ailments of other eadhus is no
ground for him to make false statements. He is
not under obligation to tho Mahant. It may be
that the Mahant is tmder obligation to him.
The next witntl88 is P. Kameswara Rao,
P.W.2. He is aged about 30 years. He was the
2 S.C.R. SUPREME COURT REPORTS
293
Additional Publio Prosecutor of Vizagapatam, had
been Municipal Councillor for a i!ecade, President
of the Co-operative Central Bank and resided close
to the temple. He was in a very good position to
know about the public worshipping at the temple
as a matter of right. He stated that he never
found the public using the temple and that he
himself might have visited the temple roughly about
a hundred times. He was put a direct question in
cross-examination and gave a clear-cut answer.
He denied from personal knowledge that the place
was used a.s a place of public religious worship and
that members of the publio who wne Hindus had
a right of a.coess to the temple for purpo~es of
religious worship. It may be mentioned that the
question also ref~rred to the temple being built
as a place of public religious worship and the
answer would include a denial of this fact. It is
obvious that the witness could not have known
anything about it. He seemed to have overlooked
the significance of this part of the question. We
do not consider that his denying this fact on
personal knowledge affects his veracity in any way,
and especially, when he further stated that his
persona.I knowledge consisted of three facts : (ij his
attending the Ra.thayatrfl. and seeing that no
offerings of barati and da.ksliina. were made ; (ii) his
not seeing any membei: of the public entering the
temple whenever he entered into the temple;
and (iii) whenever he entered the temple, he took
the permission Of the mahant. The learned Judges
rejected his testimoney with this observation :
"The evidence of this witness is more
like an advocate supporting the case of
mahant than that of a witness, who has come
into the witness box to speak of facts. The
aforesaid facts based on his personal knowledge afford a very slender foundation for the
conclusion which this witness has so boldly
asserted in the witness box."
1911
Th• Pooliari Fakir
Bada1'artliy of
Bondilipuram
v.
TM Commissioner,
H indo B•ligious
and Cliaritobl1
EndouJllUlll
llag1"'5ar Dayal J.
IPII
n.p-.;pu;,
s-.."rl•f
s.Milil*'4"'
'·
TIN Com•,1i•sio1W.
B-.. R.liti11t11
mCINriWI•
gm.-,,,.
ll ... 16or D9<fl J.
294
SUPREME COURT REPORTS SUPP. [1962]
The expression 'the aforesaid facts' had
reference to the facts on which his personal
knowledge was based. Thes facts, in our opinion,
afford good ground for the view exprcsPect by him
that the temple was not a public temple.
He
visited the temple so many times, and never saw
any member of the public visit it. He himself
took permission from the Mahant when he entered
the temple. Nothing could be better corroboration
of his own statement than his own personal conduct
m seeking permission from the Mahant. We do
not see any good relll!on for discrediting his testimony.
The next witness is G. Venkata Rno, P.W. 3,
aged 48 years. HB is a chairman of the Municipal
Council, Chicacole, Secretary & Vice-President of
the Co-operative Central Bank. His statement has
been considered to be very artificial.
His statement that whenever he visited the temple he asked
the permission of the Mahant ia good corroboration
of his statement that he considered the temple to
be & private temple and not & public one. The
facts that the Mahant is also a Municipal Commissioner and consults him occasionally as a doctor,
are no good grounds to discred~t him.
The last witness is the plaintiff' No. 2, the
predecessor
of
the
appellant No. 2.
He is
undoubtedly interested in the suooes of the proceedings started by him. But that alone is no reason
to ignore his statement altogether.. In fact, his
statement should be accepted in view of the support
it gets from the statements of the other three
witnea11es just referred to.
It is very significant. as pointed out by
le&rned counsel for the appellants, that none from
the Hindu public of the place has been examined
for the respond~nt in supi;iort olits contention. that
the Hindu pubhc go t.o thlB temple for worship as
a matter of right. Quite a good number of people
2 S.C.R.
SUPREME COURT REPORTS
295
should have been available for the purpose if it was
a fact.
The respondent, on the other hand, examined
only M. Adinarayana Rao, who had been Inspector of Hindu Religious Endowments Board of the
Chicacole division.from 1946 to 1948. He certainly
states that the temple in suit is a public temple in
which all people can go as a matter of right for
worship. It is a moot question as to how he can
make such a statement even if he had seen a number of people entering the temple and worshipping
there, which itself is not a fact. When there be
good evidence about the temple being a private
one, the mere fact that a number of people worship
at the temple is not sufficient to come to the conclusion that the temple must be a public temple to
which those people go as a matter of right as it is not
usual for the owner of the temple to disiillow
visitors to the temple, even if it •be a private one.
Ile stated that there were several festivals like
Nethroshasevam, the car festival and kalyanam.
In cross-examination he had to admit that he had
not visited the kalyan festival and did not know
when it was celebrated. This is sufficient to indicate that he is a zealous witness. He stated that
there was an archak, but he could not give the
aroha.k's name. Ordinarily, it need not have been
expected of him to have known the archa.k's name.
But, considering that he was an Inspector of the
Board and had visited the temple officially also and
had to submit a report, it is rather difficult to
believe that if he had realy found an arohak, a
priest other than the Maha.nt and his disciples, he
would not have considered it essential for the purposes of his enquiry to know his name. We see no
reason to prefer his shaky statement to the
statements of the witnesses examined for the
appellants.
11H11
Thi PHhari Fakir
SarlalJa!'thy of
Bondilipuram
v.
The Commissi1111er,
Hindu R'ligiaus
and Clraritable
Jlll111'>wrnmt
B.,Jru!NJr D111al I.
IHl
Tu Poolo4ri F.J.ir
SaJ-tliyof
BolU/ilii"'""'
••
Tlw CommiJJiontr,
ff;,,., Rtli1ious and
Clwilobu
EnloWflllltlS
Rqbbcr D~ J.
296 SUPREME COURT REPORTS [1962] SUPP.
We need not consider the statements of the
witnesses with respect to the features associaud
with 1hc public temple and which are said to be
absent in the temple in suit. It is admitted by the
respondent's witness that there is a Tulsi plant
before the shrine. It is strenuously urged for the
appellants that no public haa a Tulsi Kotta, and
this contention seems to find support from the
statem1·nt made by the respondent's witneBS in reexaminl\tion that generally, in Oriya temples no
flag-staffs are located and Tulsi plants are groj\'Il
instead. The description of the tt-mple with respect
to its construction, equipment, practices, observances
and the forms of worship are not inconsistent with
tho inference from the other evidence that the tem.
pie is not a public temple.
The statement of th<• respondent's witness
that generally Oriya temples have no flag-staffs
and have Tulsi plants has significance in one other
connection also .• It was said in Mundancheri
Koman v.