# 43G ·,,I \ " 1'1AHANT 'SHIU SRINIV ASA RAl\IANUJ nAs v. SURAJri'emises and had no right of entry or worship of the deity installed therein: The Commissioner held that the properties were math as defined in the Act. and that the proi;erD ties constituted a 'religious endowment' to wh1ch the Act applied. Thereafter, the appellants instituted a suit and prayed for setting . aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit. The trial Court dismissed the suit, which on appeal was confirmed by the High Court. In appeal by special. leave. · HELD: .The appeal must be dismissed. (1) ·An institution comes within the definition of 'Math' if it satisfies three 'conditions (i) that the institution re for the promotion of the Hindu religion; (iH that it be presided over by a person whose duty is to erigage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person .devolves in accordance with the directions of the founder of the institution or is regulated by usage. f 441El ' There was ample evidence on the record·to show that the property was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the successfon to the office of the Mahant was regulated by the usage of the institution. There could be no question that such an institution must have been for the promotion of the Hindu religion. [ 441Fl Religious endowment includes the premises of the Math. If the premises of the property had been used both for secular purposes and for religious purposes, it according to the explanation to sub-s. (12) of s. 6, shall be deemed to be a religious endowment and its adminis- ~ration shall be governed by the provisions of the Act. This makes 1t clear that the premises of the math is not only deemed to be a religious endowment, but is deemed to be a Hindu Public religious endowme~t to which the Act applies, as the provisions of the Act govern 1ts administration. It follows that an institution which comes within the ~efu;ition of math un9'.er the Act, ipso facto, comes within the expression Hmdu public religious endowment' and therefore become subject to the provisions of the Act. [441H-442Bl E F G H .. \- • •• • MARANT P,AMANUJ v. STJP.AJNARAY~.N (Dayal, J.) 437 A The definition of 'temple' requires that the place would be a temple if it be used as a place of public religious worship. There is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion. The use of the word ;public' was not necessary in connection with an institution for such promotion of the Hindu religion as. any institution for such Promotion of the Hindu religion must be of a public nature. the object being to B promote Hindu religion, there would be no point in shutting the benefit 01f the institution to anyone among the Hindus. [442C-D] c D E The distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head ## Text _Characters 0–39,933 of 49,466. This is a partial read: ask again with offset=39933 for what follows._ 43G ·,,I \ " 1'1AHANT 'SHIU SRINIV ASA RAl\IANUJ nAs v. SURAJri'emises and had no right of entry or worship of the deity installed therein: The Commissioner held that the properties were math as defined in the Act. and that the proi;erD ties constituted a 'religious endowment' to wh1ch the Act applied. Thereafter, the appellants instituted a suit and prayed for setting . aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit. The trial Court dismissed the suit, which on appeal was confirmed by the High Court. In appeal by special. leave. · HELD: .The appeal must be dismissed. (1) ·An institution comes within the definition of 'Math' if it satisfies three 'conditions (i) that the institution re for the promotion of the Hindu religion; (iH that it be presided over by a person whose duty is to erigage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person .devolves in accordance with the directions of the founder of the institution or is regulated by usage. f 441El ' There was ample evidence on the record·to show that the property was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the successfon to the office of the Mahant was regulated by the usage of the institution. There could be no question that such an institution must have been for the promotion of the Hindu religion. [ 441Fl Religious endowment includes the premises of the Math. If the premises of the property had been used both for secular purposes and for religious purposes, it according to the explanation to sub-s. (12) of s. 6, shall be deemed to be a religious endowment and its adminis- ~ration shall be governed by the provisions of the Act. This makes 1t clear that the premises of the math is not only deemed to be a religious endowment, but is deemed to be a Hindu Public religious endowme~t to which the Act applies, as the provisions of the Act govern 1ts administration. It follows that an institution which comes within the ~efu;ition of math un9'.er the Act, ipso facto, comes within the expression Hmdu public religious endowment' and therefore become subject to the provisions of the Act. [441H-442Bl E F G H .. \- • •• • MARANT P,AMANUJ v. STJP.AJNARAY~.N (Dayal, J.) 437 A The definition of 'temple' requires that the place would be a temple if it be used as a place of public religious worship. There is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion. The use of the word ;public' was not necessary in connection with an institution for such promotion of the Hindu religion as. any institution for such Promotion of the Hindu religion must be of a public nature. the object being to B promote Hindu religion, there would be no point in shutting the benefit 01f the institution to anyone among the Hindus. [442C-D] c D E The distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute, therefore, at least a section of the public. Maths, in general, consequently, are public maths. [ 442E-Fl [QUAERE: Whether there can be a private math or not?] (2) The onus was initially on the appellant-plaintiff to show that the order of the Commissioner was wrong and this he could only show by estatlishing pri.ma facie that the Math was not a math as defined in the Act and that the various properties were not endowed properties. [ 443Hl (3) The gazetteer could re consulted on matters of public history. r447Bl ( 4) The documentary evidence on the record did not support the case of the appellant, but showed that the properties were those of the math. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 205 of 1964. Appeal by special leave from the judgment and decree dated November 30, 1961 of the Orissa High Court in First Appeal No. 63 of 1957. A. K. Sen and P. K. Chatterjee, for the appellant. Niren de, Addi. Solicitor-General, Dipak Datta Chaudhuri F and R. N. Sachthey, for respondent No. 2. G H The Judgment of the Court was delivered by Raghuhar Dayal, J. This appeal, by special leave, is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri, dismissing the suit instituted by Mahan! Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the decision of the Commissioner of Endowments dated July 20, 1946, under s. 64(]) of the Orissa Hindu Religious Endowments Act, 1939 (Act 4 of 1939), hereinafter called the Act, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint. The allegations in the plaint are as follows. The premises on which the residential quarters of the plaintiff existed was said to 438 SUPP.EYE OOURT REPORTS fiii66) SUPP. ~.C.R. be popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; and A (iii) Emar Math, according to the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari. It was alleged that these premises, though known as Emar Math, was not a 'math' as defined in the Act. The public had no free access to its premises and had no right of entry or worship of the deity installed therein. Embaracrari and his ancestors were alleged to be grahasts. His successors to the Emar Math were celibate. Srinivasachari was the grand-father of Embarachari. It is alleged that he acquired a portion of the present site of the plaintiff's residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large plot of land adjacent to Srinivas Math as an absolute gift and constructed buildings thereon. The buildings therefore became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji. The plaintiff alleged that the properties described in Schedule B c Ka of the plaint were his personal properties, those in Schedule D Ka-I as acquired through absolute gifts to the plaintiff or his ancestors and those in Ka-2 as gifted to or purchased by the plaintiff or his predecessors and that they were wrongly recorded in the settlement papers in the name of the plaintiff as marfatdar of Lord Jagannath. The properties in Schedule Kha are alleged to be Amrit Manohi properties of Lord Jagannath held by the plaintiff as marfatdar and to have been acquired either by purchase or 'krayaE dan' or by way of gift subject to the charge of some offering to Lord Jagannath. The properties in Schedule Ga were alleged to be owned and possessed by the plaintiff as marfatdar of various private deities. It was alleged that none of the properties in these schedules was however dedicated to the public and that the public had no interest in or right to any of the properties. The properties therefore did not constitute 'public religious endowments' within F the meaning of the Act which, accordingly, could not apply to them. The Commissioner of Hindu Religious Endowments, Orissa, hereinafter called the Commissioner, demanded contribution under s. 49 of the Act and took steps to enforce certain other provisions of the Act against the plaintiff and the properties in suit. This led G the plaintiff to formally ask for a decision under s. 64(1) of the Act. The Commissioner decided against him on July 20, 1946 and held that the Emar Math was a 'math' as defined in the Act and that the properties constituted a 'religious endo\\Tnent' to which the Act applied. Thereafter the plaintiff instituted this suit and prayed for the setting aside of the decision of the Commissioner H and for a declaration that the Act did not apply to the properties in suit. • • .. " A ' B ···"'I c D E F G H MAl!AN'r RAMANUJ v. SURAJNARAYAN (Dayal, J.) 439 The Commissioner, defendant No. 2, contested the suit asserting that the properties in suit were public debottar properties and were public endowments to which the Act applied. It was further contended that the premises of Emar Math was a 'math' as defined in the Act and the public had a right to go there and had been actually going there from time immemorial. The trial Court accepted the contentions of the defendant Commissioner and dismissed the suit. The High Court, on appeal by the plaintiff, agreed with the findings of the trial Court and accordingly dismissed the appeal. Two main contentions have been raised before us. One is that the Emar Math in suit is not a public math and that therefore the Act does not apply to it. The other is that the properties in Schedule Ka were the personal property of the appellant-plaintiff and that the properties in schedules Kha and Ga were private debottar properties of the plaintiff. Before dealing with the contentions, we may refer to the object and the relevant provisions of the Act. The Act was enacted for the better administration and governance of certain Hindu Religious Endowments. Section 2, sub-s. (a), states that the Act applies, save as !hereinafter provided, to all Hindu public religious endowments which, according to the Explanation to that sub-section, do not include Jain religious endowments. 'Math' is defined in sub·s. (7) of s. 6 as: "'math' means an institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headships over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage; and includes places of religious worship other than a temple and also places of instruction or places for the maintenance of vidyarthies or places for rendering charitable or religious services in general which are or may be appurtenant to such institution." Sub-s. (10) of s. 6 defines the expression 'person having interest' to mean, in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs. Sub-s. (12) of s. 6 defines 'religious endowment' or 'endowment' as meaning: "all property belonging to, or given or endowed for the support of maths or temples or for the performance of any service or charity connected therewith whether or not such maths or temples be in ruins or the worship in ~ncction with them is discontinued either temporarily "cir permanently and includes the premises of maths or temples." 440 Slll'REl4E COURT BllPORTS (l!l6GJ Pl_TPI'. ~.C II. The explanation thereto reads: "Where an endowment has been made or property given for the support of an institution which is partly of a religious and partly of a secular character or for the performance of any service or charity connected therewith, or where an endowment made or property given is appropriated partly to religious and partly to secular uses, such endowment or property or the income therefrom shall be deemed to be a religious endowment and its administration shall be governed by the provisions ot this Act." According to sub-s (JJ) of s. 6, 'temple' is defined as follows: "'temple' means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship and also includes any cultural institution or mandab or library connected with such a place of public religious worship." General superintendence of all religious endowments vested in the Commissioner under s. 11 of the Act. Clause (b) of sub-s. (I) of s. 12 requires the Commissioner to maintain a register for every math or temple and all title deeds and other documents rebting thereto. Sub-s. (2) provides that the register shall be prepared. verified and signed by the trustee of the math or temple or by his authorised agent and submitted by him to the Commissioner within such period after the rnmmencement of the Act a>; the Commissioner may fix. Sub-s. rn authorises the Commissioner to make such enquiry as he mav consider necessary and to direct that the register be approved with such alterations. omissions or additions as he thinks fit to order. Section 13 requires the annual verification of the entries in this register. Section 46 reads: "The trustee of a math or temple may. out of the funds of the endowments in his charge, after satisfying adequately the purposes of the endowments. incur expenditure on arrangements for securing the health. safety or convenience of disciples, pilgrims or worshippers resorting to such math or temple: Provided that the Commissioner may. for reasons to be setforth in writing. restrict and place unc!cr such control as he may think fit the exercise by the trustee of his discretion under this section." Section 49 provides that every math or temple and every specific endowment attached to a math or t~mple shall pay annual_ly._contributions at specified rates for meetmg the exoenses of the Commissioner when the annual income exceeds a specified amount. A ., • B c D E G H • - A B D E G MAHAJ'l:T RAMANtlS v. StJRASNARAYAN (Dayal, J.) 441 tinder s. 51 (1), the amount of contributions payable by a math under s. 49 was to be assessed on and notified to the trustee of the math, temple or specified endowment concerned in the prescribed manner. The trustee can object to the assessment and has to pay such amount as be finally determined by the Commissioner on considering the objection. Section 64 reads: "(!) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Commissioner. (2) Any person affected by a decision under subsection (]) may, within one year, institute a suit in the Court to modify or set aside such decisions; but subject to the result of such suit, the order of the Commissioner shall be final." Before we deal with the contention about the Emar Math being not a public math, we may first consider what the Commissioner had to do under s. 64(1) of the Act. The Commissioner had to decide under that sub-section whether the Emar Math was a math as defined in the Act. He held that it was and we have to see whether he was right in so doing. An institution comes within such a definition if it satisfies three conditions: (i) that the institution be for the promotion of the Hindu religion; (ii) that it be presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; an'.! (iii) that the oflice of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage. There is ample evidence on the record to show that the Emar Math was presided over by the Mahan!, that the Mahant exercised spiritual headship over the disciples, and that the succession to the oflice of the Mahant was regulated by the usage of the institution. There could be no question that such an institution must have been for the promotion of the Hindu religion. It was for such an object that one would have a body of disciples. It is in evidence that the Mahanl used to preach and had a large number of disciples who were attracted by the high reputation the Mahant enjoyed. It is said that Embarachari was regarded with great respect in his times and that it was on account of such respect that the gift of the land evidenced by the Deed, Exhibit 110, executed sometime is 1767, was made in his favour. Jt is not disputed for the appellant that the institution is :i H math. What is disputed is that it is not a public math as required by the Act. The premises of the Emar Math constituted a religious endowment, which includes the premises of maths or temples. ' -.-i- - ' . ~. - '. ' 442 - .\ _ (1966] SUPP. s.C.R. -~-~-- ---·---- ·. \ SUPREME COURT REPORTS . , Further, if the premises of the Emar Math had been used both for secular purposes arid for religious purposes, it, according to the explanation to sub-s. (12) of s. 6, shall be deemed to be a religious endowment and its administration shall be governed by the provisions of the Act. This makes it clear that the premises of the Math is not only deemed to be a religious endowment, but is deemed to be -a Hindu public religious endowment to which the Act applies, as the provisions of the Act govern its administration. It follows that an institution which comes within the definition of 'math' under the· Act, ipso facto comes within the expression 'Hindu public religious endowment' and therefore becomes subject to the provisions of the Act. · In this connection, reference may be made to the definition · of 'temple'. While the definition of 'temple' requires that the place would be a temple if it be used as a place cif public religious worship, there is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion. The - use of the word 'public' was not necessary in connection with an institution for the promotion of the Hindu religion as any institution for such promotion of the Hindu religion must be of a public nature; the object being to promote Hindu religion, there would be no point in shutting the benefit of the institution to anyone among the Hindus. - The distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or so:ne section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute therefore at least a section of the public. Maths, in general, consequently, are public maths. We say nothing as to whether there can be a private math or not. Mukherjea states at p. 390, in !1is 'Law of Endowment', !st Edition: 1. "By private math should be meant those institutions - ·· where the head or superior holds the property not on behalf of an indeterminate class of persons or a section of the public but for a determinate body of individuals, viz.; the family or descendants of the grantor." · ·In the-present case, there is no evidence as to who actually founded the Math by granting the property to the spiritual preceptor. The earliest. evidence on the record is of year I 767 when a piece of land was gifted to Emar Gosain on which a portion of the present Math stands. However, there is no evidence, wl1ocver the founder be, that any particular family is the only body of persons who is interested in the Math. The spiritual family of the preceptor consisting of his disciples and the disciples in succession, cannot be deemed to be such a private family for whose benefit __ ..,..,,_....,_ A n ,. . c D E p G u A B c D E F .. G H MAHANT RAMANUJ v. SURAJNARAYAN (Dayal, J.) 443 the Math is founded and on that account the Math be called a private Math. The body of disciples and the disciples' disciples etc., is a very unascertainable body. The Emar Math is therefore not such a private math. Much has been said on either side with respect to the onus in connection with the Math being public or not. Onus loses its importance when the parties have led evidence sufficient to determine the matter in dispute. The High Court agreed with the trial Court that the onus was on the plaintiff-appellant to establish that the institution was the private property of the Mahan!. It is said in para 10 of its judgment that the initial burden of showing that the Commissioner's decision was wrong was on the plaintiff and that apart from the appellant's position as plaintiff he had a heavy burden to establish affirmatively that the institution was the private property of the Mahant. It is contended for the appellant that the initial onus lay on the defendant-respondent to establish that the Math was a public math. Reliance is placed on several cases of which reference may be made to Parma Nand v. Nihal Chand(') in which the Privy Council approved of the view of the High Court that it was for the defendants to prove that the plaintiff who was admittedly in possession of the property held it on a trust created for a public purpose of a charitable and religious nature. The application was made to the District Judge by some representatives of the Hindu public alleging that the Baghichi Thakaran was a public endowment for religious and charitable purposes, and calling upon Mahan! Narain Das to furnish details of the nature and purposes of the trust. Narain Das then instituted the suit which ultimately went to the Privy Council. Section 5(3), the Charitable and Religious Trusts Act, 1920 (Act 14 c;f 1920) provides for the stay of proceedings before the Judge under s. 3 of that Act, in order that the person denying the public nature of the trust may institute a suit for a declaration that the property was not trust property. There was no decision of any binding nature by the Court or by any authority which was to be avoided by the plaintiff instituting a suit for a declaration that the property was not trust property. In the present case the suit was instituted in pursuance of s. 64(2) of the Act which provides that any person affected by a decision under its sub-s. (I) may, within1 one year, institute a suit in the Court to modify or set aside such decision and that, subject to the result of such a suit, the order of the Commissioner shall be final. The plaintiff-appellant instituted this suit for the setting aside of the order of the Commissioner under sub-s. (I) of s. 64 holding the institution to be a 'math' as defined in the Act and the property belonging to it endowed properties. This order of the Commissioner is final, subject to the result of the suit. The plaintiff has to get over it to avoid that decision. The onus is therefore initially; on the plaintiff to show that the (') L,R, 65 I.A. 252. 444 SUPREME COURT UPORTS [1966) SUPP. 8.C.R. orJcr or the Commissioner is wrong and this he can only show by establishing prima facie that the Math is not a math as defined in the Act and that the various properties were not endowed properties. Learned counsel for the parties have argued on the basis that \he Act applies to public matbs. It is urged for the appellant that it is not proved to be a public math, while the respondent contends lo the contrary. Undoubtedly, the Math had been h existence for over two centuries. Oral evidence about the founding of the Math :ould not be possible after such a long period. The mahant of the Math has not come in the witness box. The Courts below have held the Math to be a public math on the basis of several considerations. These arc that the Mahants had been celibate and therefore not likely to have personal ownership in the property including even the dakshinas or cash offered to them, by disciples or other devotees. Religious books. viz.. the Bhagavad Gita and the Ramaynn. are recited daily in the temple of Ragbunathji. There was also the image of Ramanuj. the founder of the cult. This image is carried in procession for five days around the compound of the main temple of Lord Jagannath at Puri. This could be to provide darshan to the devotees of the Vaishnav faith. Some ascetics called babajis reside at the math and are fed by the math authorities. The buildings of the math are many. much beyond the requirements of the Mahant and the few resident disciples. The Mahants of this Math have the privilege of rendering service to Lord Jagannath bo1h in the temple and in the Gundicha Mandir. They also manage the Amrit Manchi properlies the proceeds from which are utilised for olTering bhog to Lord Jagannath and the Maha Prasad therefrom is distributed to the poor pilgrims and the Vaishnav visitors. Apart from these considerations. certain documents relied upon by the High Court tend to favour the finding that Emar Math is a public math and that the various properties, though ostensibly acquired by the Mahants, were really acquired f- . c D F ' .. G H • •. ·~ .. A B c D E MAllANT RAMANUJ V. RURAJNAP.AYAN (Dayai, J.J 145 fact that the chelas are distinguished from sishyas and anusisbyas shows that the chela is the nominee of the Guru for the purpose of succession and that though the chela would succeed to the Gaddi. he would hold the properties not for personal enjoyment but for the benefit of sishyas and their sishyas-indicating that the property was trust property. Further, the land donated by this document admittedly is a portion of the site on which the Math stands. The gift of such land could be for no other object but for the purpose of the construction of the Math and therefore a gift to the Math, though it would normally be in the name of the Mahant, the head of the Math. Another document of importance in this connection is the Will, Exhibit 140. executed by Mahan! Mohan Dass in 1857 in favour of his disciple who was the subsequent Mahan! by the name Mahan! Raghunandan Das. This Will, besides speaking of the careful training given to Raghunandan Das making him fit to succeed to the gaddi, states : "After me the said Raghunandan as my successor in the Mahantai Gaddi shall become the Mahan!, Malik and Gadanashin and shall continue to exercise ownership and possession in respect of all the properties as he is doing now and shall enjoy as the rightful owner and Malik of all the movable properties of and connected with this Math both within this part of the country and outside (Desh Bideshare) and shall continue to manage the rendering and supplying of the fixed Sheba Puja offerings and Bhog etc. of Shri Jagannath Mohaprabhu in accordance with the traditional customs and shall give food and shelter, as he is doing now. to Bhaishnab guests and other persons arriving in the Ma.th (Abhyagata) etc., and committing no ]aches in this and remaining in observance of his own religion, shall manage all affairs". F The last expression with respect to giving of food and shelter to Vaishnay guests and other persons arriving in the Math etc. indicates that visitors. belonging lo the Ramanuj Sampraday, used to visit the Math when on a pilgrimage to the Lord Jagannath Temple and the Mathadhish of Emar Math used to give shelter and food to them and the will enjoined the nominee to· continue that practice. Such a practice shows that the beneficiaries of the Math properties were G again indeterminate in number. The gift being to the Math, though ostensibly in the name of the Mahant, the Mahant held the properties as a trustee for the indeterminate class of beneficiaries, viz., sishyas, nnusi,hyas and visitors. This stamps the Math with the public character. It is significant to note that there is not a word in this document to the effect that Mahan! Mohan Das possessed any H private property aud that such private property was to go to Raghu·· nandan Das who was to succeed him on the gaddi or to somebody else. The only conclusion from such an omission can l;>~ that Mahant l s1;P1EYE COURT REPORTS (1966] SUP!'. s.c.n. Mohan Das did not consider any property to be his own personal propcfrty. Whatever he posaessed and over which he exercised ownership was considered to be the property of the Math or properties connected with the Math and that his successor was to exercise ownership and possession over all such properties. We therefore hold that the Emar Math is a math as defined in the Act and that it is a public math. The history of the Emar Math, according to the passage in the Puri Gazetteer, fits in with our finding. The High Court has relied on what has been stated in the Puri Gazetteer of O'Malley of 1908, at pp. 112-113. The relevant portion of the passage relied on is the following: "No account of Jagannath worship would be complete without some account of the maths in Puri. Maths are monastic houses originally founded with the object of feeding travellers, beggars, and ascetics. of giving religious instruction to chelas or disciples, and generally of encouraging a religious life. The heads of these religious houses who are called Mahant~ or Mathadharis are elected from among the chelas, and ere assisted in the management of their properties by Adhikaris who may be described as their business managel'll. They are generally celibates but in certain maths married men may hold the office. Mahants are the gurus or spiritual guides of many people who present the maths with presents of money and endowments in land. Thus, the Sriramdas or Dakshinaparswa Math received rich endowments from the Mahrattas its abbot having been the guru of the Mahratta Governor; While the Mahant of Emnr Math in the eighteenth century who had the reputation of being a very holy ascetic, similarly got large offerings from his followers. Both Saiva and Vnishnava Maths exist in Puri. The lands of the latter arc known as Amruta Manchi (literally nectar food), bee<1use they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims. beggars and ascetics; they are distinct from the Amruta Manchi lands of the temple itself which are under the superintendence of the Raja. In 1848 Babu Brij Kishorc Ghose roughly estimated the annual income of 28 maths from land alone at Rs. 1.45,400 and this income must have increased largely during the last sixty years. There are over 70 maths in Puri Town. The Chief Saiva maths are located in the sandy tract near Swarga· dwar. viz., Sankaracharya math with a fine library of old manuscripts 1nd Sabkarananda math which has a branch pi J;lbuban~shwar. Most of the maths are naturally A r B 0 ... D E F .. G ,i.\ H ' >· ... -~ .·~ ' .. A B c D E F MAUANT RAMANUJ v. SURAJNAP.AYAN (Dayal, J.) 447 Vaishnava. The richest of the latter are Emar, Sriramdasa and Raghavadasa the inmates of which are Ramats or followers of Ramananda." It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence. These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head. The Gazetteer can be consulted on matters of public history. The next question relates to the nature of the properties in suit. The oral evidence about the foundation of the Math or about the various acquisitions of property by purchase or by gift is nil. Whatever a witness has deposed has not been on the basis of his personal knowledge. This is natural when the Math was founded about two hundred years ago and when most of the acquisitions had taken place long ago. The best person to speak, though not from personal knowledge, could have been the Mahant himself. He can base his knowledge on the documents about the history of the Math and the acquisition of the properties. Such documents must naturally be in the custQldy of the Mahant. The Mahant has not come in the witness box. All the documents have not been produced. In fact it is the plaintiff alone who produced a number of documents but he had picked and chosen from among the documents in his possession. Some documents which could have thrown some light on the question under determination have not been produced. It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the responden,t. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent's case. The documents relied upon for the appellant relate to acquisition of properties by purchase or gift and are in the name of the Mahant of the Math. Such documents being in the name of the Mahant alone, do not necessarily lead to the conclusion that the G properties were acquired or received in donation by the Mahant in his personal capacity for his personal use and possession. An inference that they were acquired by the Mahant for the Math is equally possible and in fact is to be preferred to what appears on the face of the documents. The onus of proof being on the appellant, it was possible for him to establish his case from the documents H available to him. But he has chosen not to place at the disposal of the Court all the relevant documents. It is significant to note that not a single document has been produced by the plaintiff Sl'PIUOM& COURT REPORTS [1966] SUPP. s.o.B, which specifically mentioned the purchase or the gift to be by or to A the Math itself. It is difficult to believe that the'Math acquired no property during the long period of its existence. The Mahant as the head of the institution acts for the Math and is its real representative. All the dealings for and on behalf of the Math must be conducted by the Mahant and it should be no wonder if the Mahant acting for the !\·lath acts ostensibly in his own name. Though the B .. documents relating to purchase of properties have been produced, no evidence was led to show that they were purchased ffom the personal assets of the Mahant. Presumably if there was such evi· dence, it would have been produced. The only possible inference which can be drawn is that they were purchased from the assets of the Math. Reference mav be made to Sitaram Dass Banasi v. H.R.E. Board Madras(') and to Raghbir Lala v. Mohammad Said('). In the former case, Varadachariar, J. said: "From the few sale deeds filed in the case, it no doubt appears that some of those properties were pur· chased in the name of the prior Mahant; but it being admitted that he was an ascetic and celibate and the head of the institution, the probabilities are that they were purchased with the funds of the institution." and in the latter it was said: "No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have importance." Reference may also be made in this connection to the Order. Exhibit 136, of the Maharaja of Puri, to Dewan Bhramarbar Ray. The order states: "The Maharaja hereby grants this Sananda taking Rs. 3,000 that he has granted the following 145 Batis and 15 Manas of land. that the income of this land will be utilised in Bhog of Lord Jagannath and distributed among the coming Raishnabas. The 19th day of Mass. Anka 2. l. Rahang. Ph. Alisa-117 Batis and 15 Manas. 2. Out of Bania Kera-IO Batis. 3. Chabiskud, Ph. Tinikud-18 Batis." c D E F G Of the three properties mentioned in this order, the first one belongs to Schedule Ka· I. the second to Sc~edulc Kha and t~e third to Schedule Ka-2, attached to the plamt. The property m Schedule Ka-I is the property which is said to have been ac· quired by the plaintiff and h_is ancestors. 1:he property in. S~h~- H dule Ka-2 is the property said to be acqmred by the plamuff s (') IJ,.R. 193D!ad.197: A.I.B. 1937 !.rad. 18&-187. (') A.I.R. t9,3P.O. 79. ' ' itAHAl