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1952 Supreme(Ori) 6
HIGH COURT OF ORISSA
Das, C. J. And Panigrahi, J.
BALA KRISHNA KAR - Appellant
Versus
GANESH PRASAD BHAGAT - Respondent
First Appeal 15 Of 1947
Decided On : JANUARY 29, 1952
B.Mohapatra, R.K.DAS, S.MISRA
The court applied well-recognised tests to determine whether the temple is public or private, including the nature of the object and purpose of the endowment, the nature of the dedication, the authority of the donor to divert the funds, the existence of any reversionary right in the donor, and the user by the public. The court found that the temple is an ancient public temple, the origin of which is not known and there is no evidence either of its construction or its dedication. It is also clear that the endowment of the properties by the Tapanidhi family was a real dedication for the benefit of the idol and was neither illusory nor nominal.
Headnote:
Endowments - Character of Temple - Orissa Hindu Religious Endowments Act, 1939 - Section 64 - The court found that the suit temple of Baldev Jieu in Jaginipur is an 'excepted temple' within the meaning of the Orissa Hindu Religious Endowments Act of 1939. The judgment of the learned Subordinate Judge declaring the suit temple and the endowments attached to it to be the private 'devottar' properties of the plaintiffs is set aside. First Appeal No. 14 of 1947 is accordingly allowed and the plaintiffs' Suit No. 32 of 1944 is dismissed with costs. Title Suit No. 11 of 1945 filed by Balakrishana Kar, praying that the order of the Endowments Commissioner dated 14-3-44 declaring the temple to be an 'excepted temple' be set aside, is also dismissed and First Appeal No. 15 of 1947 arising out of this suit is dismissed with costs.
Fact of the Case:
The main question that arises for decision is about the character of the suit temple, and whether the plaintiffs are the hereditary trustees thereof. The case for the plaintiffs is that the temple and the endowments attached to it are the private 'devotter' properties of the plaintiffs. The learned Subordinate Judge found that the temple and the endowments attached to it are the private 'devotter' properties of the plaintiffs and set aside the order of the Endowments Commissioner. He declared the plaintiff's suit and dismissed the suit filed by Balakrushna Kar. The present appeals have been filed against these judgments.
Finding of the Court:
The court found that the suit temple of Baldev Jieu in Jaginipur is an 'excepted temple' within the meaning of the Orissa Hindu Religious Endowments Act of 1939. The judgment of the learned Subordinate Judge declaring the suit temple and the endowments attached to it to be the private 'devottar' properties of the plaintiffs is set aside. First Appeal No. 14 of 1947 is accordingly allowed and the plaintiffs' Suit No. 32 of 1944 is dismissed with costs. Title Suit No. 11 of 1945 filed by Balakrishana Kar, praying that the order of the Endowments Commissioner dated 14-3-44 declaring the temple to be an 'excepted temple' be set aside, is also dismissed and First Appeal No. 15 of 1947 arising out of this suit is dismissed with costs.
Issues: The main question that arises for decision is about the character of the suit temple, and whether the plaintiffs are the hereditary trustees thereof.
Ratio Decidendi: The court applied the well-recognised tests to determine whether the temple is public or private, including the nature of the object and purpose of the endowment, the nature of the dedication, the authority of the donor to divert the funds, the existence of any reversionary right in the donor, and the user by the public. The court found that the temple is an ancient public temple, the origin of which is not known and there is no evidence either of its construction or its dedication. It is also clear that the endowment of the properties by the Tapanidhi family was a real dedication for the benefit of the idol and was neither illusory nor nominal.
Final Decision: The court held that the suit temple of Baldev Jieu in Jaginipur is an 'excepted temple' within the meaning of the Orissa Hindu Religious Endowments Act of 1939. The judgment of the learned Subordinate Judge declaring the suit temple and the endowments attached to it to be the private 'devottar' properties of the plaintiffs is set aside. First Appeal No. 14 of 1947 is accordingly allowed and the plaintiffs' Suit No. 32 of 1944 is dismissed with costs. Title Suit No. 11 of 1945 filed by Balakrishana Kar, praying that the order of the Endowments Commissioner dated 14-3-44 declaring the temple to be an 'excepted temple' be set aside, is also dismissed and First Appeal No. 15 of 1947 arising out of this suit is dismissed with costs.
PANIGRAHI, J.
( 1 ) THESE two consolidated appeals arise out of two suits tried together by the subordinate Judge, Cuttack, and are covered by the same judgment. Title Suit no. 32 of 1944 was filed by Ganesh Prasad Bhagat and others (hereinafter referred to as the plaintiffs) against the appellant, as representing the public, for a declaration that the suit temple of Baldev Jieu and the endowments connected therewith, in Jaginipur Zamindari, are the private 'devotter' properties of the plaintiffs and thati the order passed by the Commissioner of hindu Religious Endowments, under Sub-section (2) of Section 64 of the Orissa hindu Religious Endowments Act. 1939 (Orissa Act IV (4) of 1939) declaring the said temple to be an "excepted temple" Is wrong. Title Suit No. 11 of 1945 is a representative suit filed by Balakrushna Kar, the appellant before us, on behalf of the general public, against the Bhagatas, plaintiffs in Title Suit No. 32 of 1944, for a declaration that the suit temple and its endowments are the public endowments, and that the order of tile commissioner declaring the temple to be an "exempted temple" is erroneous and should be set aside. In both the suits, the main question that arises for decision is about the character of the suit temple, and whether the plaintiffs are the hereditary trustees thereof.
( 2 ) THE learned Subordinate Judge found that the temple and the endowments attached to it are the private 'devotter' properties of the plaintiffs and set aside the order of the Endowments Commissioner. He declared the plaintiff's suit and dismissed the suit filed by Balakrushna Kar, The present appeals have been filed against these judgments.
( 3 ) THE case for the plaintiffs in Title Suit No. 32 of 1944 is that Baldev Jieu, jagannath, Subhadra and Sudarsan, were the family idols of an up-country ascetic living at Puri and that he gave the idols to his 'pujari', a Brahmin of jaginipur, who took them to his village, and, after performing the 'seba puja' for some time, made them over to a Sanyasi who owned extensive properties including the zamindary of Jaginipur. The Sanyashi, it is said belonged to the bharati Sect of the Dasnami Order and styled himself as Tapanidhi Goswamy. It is alleged that these Goswamis belonging to the Bharati cult, marry and beget children and generally lead the life of a 'gruhastha' and their sons are known as 'chelas' and their residence is known as 'mutt. ' One Topandhi purusottam Goswami who had five sons executed a deed of gift described as a "danachopa" dated 29-7-1856 (Ex. 4) by which he dedicated his village of jaginipur to the deities mentioned above and created an endowment in favour of the deities. He also appointed four of his sons and his grandson (the son of a predeceased son), as the trustees for conducting the daily worship of the dieties and the usal festivals connected with that worship. It is said that the temple in which the idols are installed, as well as a tank known as Chandan Tank were constructed during the time of the Bharatis. The plaintiffs subsequently acquired the zamindary of Jaginipur and other properties of the deities, together with the right of worship, by several deeds of sale and through Court sales, between the years 1906 and 1938, from the ' five branches of Purusottam Goswami, the creator of the endowment. (His Lordship reviewed the evidence on both sides and proceeded:)
( 4 ) ON a review of the entire evidence on both sides the following facts emerge:
(1) The origin of the installation of the dieties in the temple in question is lost in obscurity; (2) The idols have been in existence for about 200 years and are taken out in procession on particular occasions; (3) They have acquired a local reputation and are regarded as the presiding deities of several villages around; (4) They are located in a temple of massive structure which belongs to the same class of architecture as we find in public temples. The temple is enclosed by a compound wall; (5) Th
