PETITIONER:
MAHANT SHRI SRINIVASA RAMANUJ DAS
Vs.
RESPONDENT:
SURAJNARAYAN DASS & ANR.
DATE OF JUDGMENT:
06/05/1966
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SARKAR, A.K. (CJ)
HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION:
1967 AIR 256 1966 SCR 436
ACT:
Orissa Hindu Religious Endowments Act, 1939 (Orissa 4 of
1939), Math, Characteristics of-Distinction between public
and private trust-Math, if governed by Act-Onus of proof of
showing that Math is outside Act-Gazetteer-Statements in-If
evidence
HEADNOTE:
The Commissioner of Hindu Religious Endowments, Orissa, de-
manded contribution under s. 49 of the Hindu Religious
Endowments Act and took steps to enforce certain other
provisions of the Act against the appellants and certain
properties. These properties, the appellant.% claimed, were
not math as defined in the Act and the public had no free
access to its premises 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
properties constituted a 'religious endowment' to which 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 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 head ship 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. [441E]
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 succession 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. [441F]
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 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 en-
dowment 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 become subject to
the provisions of the Act. [441H-442B]
437
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 promote Hindu religion, there would be
no point in shutting the benefit of the institution to
anyone among the Hindus. [442C-D]
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-F]
[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 establishing prima facie that the Math
was not a math as defined in the Act and that the various
properties were not endowed properties. [443H]
(3) The gazetteer could le consulted on matters of public
history. [447B]
(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.
JUDGMENT:
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, Addl. Solicitor-General, Dipak Datta Chaudhuri
and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Raghubar 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 Mahant 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(1) 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
be popularly known as (i) Srinivas Kote; (ii) Rajagopal
Math; and (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. Embarachari 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 Ka of the plaint were his personal properties,
those in Schedule Ka-1 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
'krayadan' 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 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 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 endowment' to which the
Act applied. Thereafter the plaintiff instituted this suit
and prayed for the setting aside of the decision of the
Commissioner and for a declaration that the Act did not
apply to the properties in suit.
439
The Commissioner, defendant No. 2, contested the suit
asserting that the properties in suit were public debonair
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 gover-
nance of certain Hindu Religious Endowments. Section 2,
sub-s. (a), states that the Act applies, save as
thereinafter 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 connection with them is
discontinued either temporarily or permanently
and includes the premises of maths or
temples."
440
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 of this
Act."
According to sub-s. (13) 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. (1) of s. 12 requires the Commissioner to maintain a
register for every math or temple and all title deeds and
other documents relating 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 commencement of the Act as the Commissioner may
fix. Sub-s. (3) authorises the Commissioner to make such
enquiry as he may 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, pilg
rims or
worshippers resorting to such math or temple:-
Provided that the Commissioner may, for
reasons to be setforth in writing, restrict
and place under 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 temple shall pay
annually contributions at specified rates for meeting the
expenses of the Commissioner when the annual income exceeds
a specified amount.
441
Under 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:-
"(1) 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 (1) 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 Commis-
sioner 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; 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.
There is ample evidence on the record to show that the Emar
Math was presided over by the Mahant, that the Mahant
exercised spiritual headship over the disciples, and that
the succession 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. It was for such an object that one
would have a body of disciples. It is in evidence that the
Mahant 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.
It is not disputed for the appellant that the institution is
a 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.
442
Further, if the premises of the Emar Math-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 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 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 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 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. We say nothing as
to whether there can be a private math or not. Mukherje a
states at p. 390, in his 'Law of Endowment', 1st Edition:-
"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
1767 when a piece of land was gifted to Emar Gosain on which
a portion of the present Math stands. However, there is no
evidence, whoever 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
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 Mahant. 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(1) 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 Mahant 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 of 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. (1) may, within 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. (1) 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
(1) L.R. 65 I.A. 252.
444
order of 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 The Act applies to public maths. It is urged for the
appellant that it is not proved to be a public math, while
the respondent contends to the contrary. Undoubtedly, the
Math had been in existence for over two centuries. Oral
evidence about the founding of the Math could 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 are 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 Ramayan, are recited daily in
the temple of Raghunathji. 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 both in the
temple and in the Gundicha Mandir. They also manage the
Amrit Manchi properties the proceeds from which are utilised
for offering 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 for the Math. The first document of importance in
this respect is Exhibit 110 of 1767. It is a deed of gift
by a private person in favour of Sadhu Emar Gosain, the
Adhikari of Ramanuj Kote Math. P.W. 2 states that Ramanuj
Kote belongs to Emar Math area. This description supports
the conclusion that the Math, though under a different name,
had been in existence from before the time of Emar Gosain.
The plaint alleges that the premises in suit had been known
by different names. The gift deed states that the donee
will enjoy the property gifted in perpetuity. The idea of
perpetuity is further emphasised when it is said in the gift
deed:-
"Your Chelas, Sishyas and Anusisllyas shall
all enjoy this property for ever in perpetuity
until the sun and moon last."
This stipulation shows that it was not a gift personally to
Emar, that the gift was for the benefit of chelas, sishyas
and anusisllyas and that it was in favour of persons
indeterminate in number. The
445
fact that the chelas are distinguished from sishyas and
anusisllyas 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 Mahant Mohan Dass in 1857 in
favour of his disciple who was the subsequent Mahant by the
name Mahant 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 Mahant,
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 Math (Abhyagata) etc., and
committing no laches in this and remaining in
observance of his own religion, shall manage
all affairs".
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 to 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
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, anusishyas 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 Mahant Mohan Das possessed any
private property and that such private property was to go to
Raghunandan Das who was to succeed him on the gaddi or to
somebody else, The only conclusion from such an omission can
be that Mahant
446
Mohan Das did not consider any, property, to be his own
personal property. Whatever he possessed 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 in-
struction to chelas or disciples, and
generally of encouraging a religious life.
The heads of these religious houses who are
called Mahants or Mathadharis are elected from
among the chelas, and are assisted in the
management of their properties by Adhikaris
who may be described as their business
managers. 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 Emar 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
Vaishnava Maths exist in Puri. The lands of
the latter are known as Amruta Manchi
(literally nectar food), because 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 Kishore 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 Swargadwar viz., Sankaracharya math
with a fine library of old manuscripts and
Sabkarananda math which has a branch at
Bhubaneshwar. Most of the maths are naturally
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 custody 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 respondent. But it
can take into consideration in weighing the evidence or any
direct inferences from established facts that the documents
might have favored 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 properties were acquired or received in
donation by the Mahant in ],is 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 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
448
which specifically mentioned the purchase or the gift to be
by or to 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 Math acts ostensibly in his own name. Though the
documents relating to purchase of properties have been
produced, no evidence was led to show that they were
purchased from the personal assets of the Mahant.
Presumably if there was such evidence, 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 may be made to Sitaram Days Banasi v. H.R.E. Board
Madras(1) and to Raghbir Lala v. Mohammad Said(1). 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 purchased 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 Baishnabas. The 19th day of Mass,
Anka 2.
1. Rahang, Ph. Alisa-117 Batis and 15
Manas.
2. Out of Bania Kera-10 Batis.
3. Chabiskud, Ph. Tinikud-18 Batis."
Of the three properties mentioned in this order, the first
one belongs to Schedule Ka-1, the second to Schedule Kha and
the third to Schedule Ka-2, attached to the plaint. The
property in Schedule Ka-1 is the property which is said to
have been acquired by the plaintiff and his ancestors. The
property in Schedule Ka-2 is the property said to be
acquired by the plaintiff's
(1)I.L.R. 1937 Mad. 197:- A.I.R. 1937 Mad. 186-187.
(2) A.I.R. 1943 P.C. 79.
449
ancestors for personal services to Lord Jagannath while the
properties in Schedule Kha are said to be acquired subject
to a charge of offering Bhog to Lord Jagannath. The order
makes no distinction in the nature of the objects for which
the three properties are given. In fact it shows that the
income from all the three properties was to be utilised in
offering Bhog to Lord Jagannath, and for distributing the
prasad among the Vaishnavas who would visit the place.
There is nothing in this order that any of the properties
was for the personal enjoyment and possession of the Mahant
alone. It is not possible to hold that the properties
covered by the same grant should fall in different
categories as is the case, according to the schedules
attached to the plaint.
Apart from (these general considerations, the documentary
evidence on record does not support the case of the
plaintiff with respect to the properties in schedule Ka-1
and Ka-2. It may also be mentioned at this stage that there
is no document on record with respect to the properties in
schedules Kha and Ga. We have already referred to document
Exhibit 110, the gift deed with respect to the land which
forms part of the site of the Math. Exhibit 112 refers to
certain land given to the Adhikari of Emar 'Math for
building a temple for the God. The document states that the
drain for the gruel from the temple of Lord Jagannath used
to pass over this land and that this drain had to be
shifted. It is difficult to believe that the land which was
being used in connection with a public temple would have
been given for the purpose of personal enjoyment by the
Mahant or for the purpose of constructing a private temple.
The land mentioned in Exhibit 115 and Exhibit 1.16 were
acquired by the Mahant on payment of certain amounts. He
was further required to pay certain amount towards the
'Kotha Bhoga' of Lord Jagannath. Exhibit 117 relates to a
land purchased by the Mahant. He was required to pay
certain amount towards Chamar Seba of Lord Jagannath.
Exhibit 118 mentions that certain land which the Mahant had
purchased was being assigned to his Math in order that he
might enjoy it for all times to come. This clearly brings
out that the land purchased by the Mahant from some person
was made over to the Math. He was exempted from payment of
all sorts of extra taxes or other similar duties. Exemption
from revenue and taxes appears to have been granted because
it was understood that the lands were of the ownership of
the Math and not the personal properties of the Mahant.
Even this property which has been clearly assigned to the
Math, according to this document is mentioned in Schedule
Ka-1, indicating thereby that no particular care had been
taken in preparing the schedule which just included the
properties which had been acquired by sale deeds.
450
Exhibit 1 19 sanctions certain purchases by Mahant
Samujamatra and states that he will enjoy the same for all
time to come on dedication of all sorts of requirements for
Gundichaghar Chali (House of Lord Jagannath). No other
demand towards Kotha should be made on him. This again
clearly indicates that the property was dedicated for
meeting the expenses of Gundichaghar Chali and was exempted
from any other demand towards the Kotha presumably the Kotha
Bhog of Sri Lord referred to in Exhibits 115 and 116. This
property is included in Schedule Ka-2.
It appears that the various maths at Puri were founded by
saints following different cults, but devoted to Lord
Jagannath. They had to offer seva to Lord Jagannath in
different forms, e.g., offering Bhog and getting back Maha
Prasad, Chamar Seva ie., fanning of the Lord etc. For Bhog
or other services which required expenses, the saints were
in need of funds and naturally the devotees of the saints
would make gifts to them to enable them to perform these
services. Gifts of property to the Mahants or exempting the
Mahants to pay taxes etc. with respect to the lands
purchased by them was therefore merely to provide them with
funds necessary for rendering services to Lord Jagannath, on
behalf of the Math and also to meeting the necessary
expenses in running of the Maths which would include
expenses on the maintenance of the buildings, feeding of the
Mahant and the disciples and such other persons who came to
reside at the Math and also for distributing food to the
poor. The documents referred to above make this amply clear
and thus show that the properties to which they relate do
not belong to the Mahant personally but really belonged to
the Math. It makes no difference to the nature of the
properties whether they were purchased by the Mahants in
their own names or in the names of the Math.
Some properties have been shown to be purchased by the
chelas of the Mahants previous to their occupying the gaddi
of the Mahant, that is to say, such properties were
purchased when they were mere chelas and not mahants. It is
therefore submitted for the appellants that these properties
could not be held to be math properties now. It is true
that the presumption that the properties that were obtained
during the period when they were not Mahants cannot be
presumed to be properties purchased or acquired for the
Math. But the fact remains that when they themselves became
Mahants such self-acquired properties did not appear to have
been treated in any separate manner. Proceeds from such
properties were mixed up with the proceeds of the other
property. Letters, Exhibits C & D, by Mahant Gadadhar Das
to the Commissioner speak of the entire mingling of the
accounts of the private and Math properties. Some witnesses
of the plaintiff stated that Gadadhar Das told them later
that he had made wrong statement in those letters for
ulterior purposes. Courts below did not rightly believe
such statements. Further, it
451
may be noted that it appears from the sale deed, Exhibit 77,
executed in favour of Gadadhar Ramanuj Das, Chela of Mahant
Raghunandan Ramanuj Das in 1909, that the founder owed a sum
of Rs. 400/- to the Mahant Guru of Gadadhar and that this
sum was adjusted towards the purchase price of the property
conveyed under this deed. Mahant Mohan Das, by his will
Exhibit 140, permitted his Chela Raghunandan, who was
nominated to succeed him to get his own name gradually
mutated in respect of the lands and zamindaris standing in
the name of the Mahant. It follows therefore that the mere
fact that certain properties were ostensibly purchased by
the chelas does not necessarily mean that those properties
were either acquired as their personal properties' or that
they continued to be their personal properties after they
succeeded to the gaddi.
The plaintiff has failed to produce the expenditure accounts
with respect to the income from the properties in suit. He
has not produced the consolidated budget which is prepared.
That could have indicated whether the income and expenditure
over the property in suit was treated as of the Math or not.
Accounts showing the sources of money from which the
properties were acquired have not been produced. These
omissions, together with statements in letters Exhibits C &
D, are sufficient to support the findings of the Courts
below that even these properties had been treated as Math
properties.
We are therefore of opinion that the properties mentioned in
Schedules Ka-1 and Ka-2, alleged to be the personal
properties of the Mahant, are not his personal properties
but are properties of the Math.
We may now consider the properties in schedule Kha said to
be the Amrut Manohi properties of Lord Jagannath and held by
the plaintiff as marfatdar. The plaintiff alleges that
these properties were acquired either by purchase or
'krayadan' or by way of gift subject to a charge of some
offering to Lord Jagannath which depended upon the
individual judgment and discretion of the plaintiff, and
that the public had no concern with the enjoyment or
management of the usufruct thereof. The Gazetteer makes a
reference to such properties and states:--
"Both Saiva and Vaishnava Maths exist in Puri.
The lands of the latter are known as Amruta
Manohi (literally nectar food), because 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 Manohi lands of the
Temple itself which are under the
superintendence of the Raja".
453
MAHANT SHRI SRINIVASA RAMANUJ DAS
Vs.
RESPONDENT:
SURAJNARAYAN DASS & ANR.
DATE OF JUDGMENT:
06/05/1966
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SARKAR, A.K. (CJ)
HIDAYATULLAH, M.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION:
1967 AIR 256 1966 SCR 436
ACT:
Orissa Hindu Religious Endowments Act, 1939 (Orissa 4 of
1939), Math, Characteristics of-Distinction between public
and private trust-Math, if governed by Act-Onus of proof of
showing that Math is outside Act-Gazetteer-Statements in-If
evidence
HEADNOTE:
The Commissioner of Hindu Religious Endowments, Orissa, de-
manded contribution under s. 49 of the Hindu Religious
Endowments Act and took steps to enforce certain other
provisions of the Act against the appellants and certain
properties. These properties, the appellant.% claimed, were
not math as defined in the Act and the public had no free
access to its premises 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
properties constituted a 'religious endowment' to which 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 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 head ship 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. [441E]
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 succession 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. [441F]
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 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 en-
dowment 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 become subject to
the provisions of the Act. [441H-442B]
437
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 promote Hindu religion, there would be
no point in shutting the benefit of the institution to
anyone among the Hindus. [442C-D]
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-F]
[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 establishing prima facie that the Math
was not a math as defined in the Act and that the various
properties were not endowed properties. [443H]
(3) The gazetteer could le consulted on matters of public
history. [447B]
(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.
JUDGMENT:
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, Addl. Solicitor-General, Dipak Datta Chaudhuri
and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Raghubar 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 Mahant 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(1) 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
be popularly known as (i) Srinivas Kote; (ii) Rajagopal
Math; and (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. Embarachari 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 Ka of the plaint were his personal properties,
those in Schedule Ka-1 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
'krayadan' 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 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 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 endowment' to which the
Act applied. Thereafter the plaintiff instituted this suit
and prayed for the setting aside of the decision of the
Commissioner and for a declaration that the Act did not
apply to the properties in suit.
439
The Commissioner, defendant No. 2, contested the suit
asserting that the properties in suit were public debonair
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 gover-
nance of certain Hindu Religious Endowments. Section 2,
sub-s. (a), states that the Act applies, save as
thereinafter 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 connection with them is
discontinued either temporarily or permanently
and includes the premises of maths or
temples."
440
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 of this
Act."
According to sub-s. (13) 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. (1) of s. 12 requires the Commissioner to maintain a
register for every math or temple and all title deeds and
other documents relating 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 commencement of the Act as the Commissioner may
fix. Sub-s. (3) authorises the Commissioner to make such
enquiry as he may 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, pilg
rims or
worshippers resorting to such math or temple:-
Provided that the Commissioner may, for
reasons to be setforth in writing, restrict
and place under 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 temple shall pay
annually contributions at specified rates for meeting the
expenses of the Commissioner when the annual income exceeds
a specified amount.
441
Under 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:-
"(1) 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 (1) 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 Commis-
sioner 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; 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.
There is ample evidence on the record to show that the Emar
Math was presided over by the Mahant, that the Mahant
exercised spiritual headship over the disciples, and that
the succession 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. It was for such an object that one
would have a body of disciples. It is in evidence that the
Mahant 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.
It is not disputed for the appellant that the institution is
a 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.
442
Further, if the premises of the Emar Math-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 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 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 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 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. We say nothing as
to whether there can be a private math or not. Mukherje a
states at p. 390, in his 'Law of Endowment', 1st Edition:-
"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
1767 when a piece of land was gifted to Emar Gosain on which
a portion of the present Math stands. However, there is no
evidence, whoever 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
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 Mahant. 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(1) 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 Mahant 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 of 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. (1) may, within 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. (1) 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
(1) L.R. 65 I.A. 252.
444
order of 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 The Act applies to public maths. It is urged for the
appellant that it is not proved to be a public math, while
the respondent contends to the contrary. Undoubtedly, the
Math had been in existence for over two centuries. Oral
evidence about the founding of the Math could 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 are 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 Ramayan, are recited daily in
the temple of Raghunathji. 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 both in the
temple and in the Gundicha Mandir. They also manage the
Amrit Manchi properties the proceeds from which are utilised
for offering 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 for the Math. The first document of importance in
this respect is Exhibit 110 of 1767. It is a deed of gift
by a private person in favour of Sadhu Emar Gosain, the
Adhikari of Ramanuj Kote Math. P.W. 2 states that Ramanuj
Kote belongs to Emar Math area. This description supports
the conclusion that the Math, though under a different name,
had been in existence from before the time of Emar Gosain.
The plaint alleges that the premises in suit had been known
by different names. The gift deed states that the donee
will enjoy the property gifted in perpetuity. The idea of
perpetuity is further emphasised when it is said in the gift
deed:-
"Your Chelas, Sishyas and Anusisllyas shall
all enjoy this property for ever in perpetuity
until the sun and moon last."
This stipulation shows that it was not a gift personally to
Emar, that the gift was for the benefit of chelas, sishyas
and anusisllyas and that it was in favour of persons
indeterminate in number. The
445
fact that the chelas are distinguished from sishyas and
anusisllyas 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 Mahant Mohan Dass in 1857 in
favour of his disciple who was the subsequent Mahant by the
name Mahant 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 Mahant,
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 Math (Abhyagata) etc., and
committing no laches in this and remaining in
observance of his own religion, shall manage
all affairs".
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 to 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
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, anusishyas 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 Mahant Mohan Das possessed any
private property and that such private property was to go to
Raghunandan Das who was to succeed him on the gaddi or to
somebody else, The only conclusion from such an omission can
be that Mahant
446
Mohan Das did not consider any, property, to be his own
personal property. Whatever he possessed 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 in-
struction to chelas or disciples, and
generally of encouraging a religious life.
The heads of these religious houses who are
called Mahants or Mathadharis are elected from
among the chelas, and are assisted in the
management of their properties by Adhikaris
who may be described as their business
managers. 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 Emar 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
Vaishnava Maths exist in Puri. The lands of
the latter are known as Amruta Manchi
(literally nectar food), because 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 Kishore 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 Swargadwar viz., Sankaracharya math
with a fine library of old manuscripts and
Sabkarananda math which has a branch at
Bhubaneshwar. Most of the maths are naturally
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 custody 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 respondent. But it
can take into consideration in weighing the evidence or any
direct inferences from established facts that the documents
might have favored 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 properties were acquired or received in
donation by the Mahant in ],is 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 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
448
which specifically mentioned the purchase or the gift to be
by or to 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 Math acts ostensibly in his own name. Though the
documents relating to purchase of properties have been
produced, no evidence was led to show that they were
purchased from the personal assets of the Mahant.
Presumably if there was such evidence, 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 may be made to Sitaram Days Banasi v. H.R.E. Board
Madras(1) and to Raghbir Lala v. Mohammad Said(1). 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 purchased 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 Baishnabas. The 19th day of Mass,
Anka 2.
1. Rahang, Ph. Alisa-117 Batis and 15
Manas.
2. Out of Bania Kera-10 Batis.
3. Chabiskud, Ph. Tinikud-18 Batis."
Of the three properties mentioned in this order, the first
one belongs to Schedule Ka-1, the second to Schedule Kha and
the third to Schedule Ka-2, attached to the plaint. The
property in Schedule Ka-1 is the property which is said to
have been acquired by the plaintiff and his ancestors. The
property in Schedule Ka-2 is the property said to be
acquired by the plaintiff's
(1)I.L.R. 1937 Mad. 197:- A.I.R. 1937 Mad. 186-187.
(2) A.I.R. 1943 P.C. 79.
449
ancestors for personal services to Lord Jagannath while the
properties in Schedule Kha are said to be acquired subject
to a charge of offering Bhog to Lord Jagannath. The order
makes no distinction in the nature of the objects for which
the three properties are given. In fact it shows that the
income from all the three properties was to be utilised in
offering Bhog to Lord Jagannath, and for distributing the
prasad among the Vaishnavas who would visit the place.
There is nothing in this order that any of the properties
was for the personal enjoyment and possession of the Mahant
alone. It is not possible to hold that the properties
covered by the same grant should fall in different
categories as is the case, according to the schedules
attached to the plaint.
Apart from (these general considerations, the documentary
evidence on record does not support the case of the
plaintiff with respect to the properties in schedule Ka-1
and Ka-2. It may also be mentioned at this stage that there
is no document on record with respect to the properties in
schedules Kha and Ga. We have already referred to document
Exhibit 110, the gift deed with respect to the land which
forms part of the site of the Math. Exhibit 112 refers to
certain land given to the Adhikari of Emar 'Math for
building a temple for the God. The document states that the
drain for the gruel from the temple of Lord Jagannath used
to pass over this land and that this drain had to be
shifted. It is difficult to believe that the land which was
being used in connection with a public temple would have
been given for the purpose of personal enjoyment by the
Mahant or for the purpose of constructing a private temple.
The land mentioned in Exhibit 115 and Exhibit 1.16 were
acquired by the Mahant on payment of certain amounts. He
was further required to pay certain amount towards the
'Kotha Bhoga' of Lord Jagannath. Exhibit 117 relates to a
land purchased by the Mahant. He was required to pay
certain amount towards Chamar Seba of Lord Jagannath.
Exhibit 118 mentions that certain land which the Mahant had
purchased was being assigned to his Math in order that he
might enjoy it for all times to come. This clearly brings
out that the land purchased by the Mahant from some person
was made over to the Math. He was exempted from payment of
all sorts of extra taxes or other similar duties. Exemption
from revenue and taxes appears to have been granted because
it was understood that the lands were of the ownership of
the Math and not the personal properties of the Mahant.
Even this property which has been clearly assigned to the
Math, according to this document is mentioned in Schedule
Ka-1, indicating thereby that no particular care had been
taken in preparing the schedule which just included the
properties which had been acquired by sale deeds.
450
Exhibit 1 19 sanctions certain purchases by Mahant
Samujamatra and states that he will enjoy the same for all
time to come on dedication of all sorts of requirements for
Gundichaghar Chali (House of Lord Jagannath). No other
demand towards Kotha should be made on him. This again
clearly indicates that the property was dedicated for
meeting the expenses of Gundichaghar Chali and was exempted
from any other demand towards the Kotha presumably the Kotha
Bhog of Sri Lord referred to in Exhibits 115 and 116. This
property is included in Schedule Ka-2.
It appears that the various maths at Puri were founded by
saints following different cults, but devoted to Lord
Jagannath. They had to offer seva to Lord Jagannath in
different forms, e.g., offering Bhog and getting back Maha
Prasad, Chamar Seva ie., fanning of the Lord etc. For Bhog
or other services which required expenses, the saints were
in need of funds and naturally the devotees of the saints
would make gifts to them to enable them to perform these
services. Gifts of property to the Mahants or exempting the
Mahants to pay taxes etc. with respect to the lands
purchased by them was therefore merely to provide them with
funds necessary for rendering services to Lord Jagannath, on
behalf of the Math and also to meeting the necessary
expenses in running of the Maths which would include
expenses on the maintenance of the buildings, feeding of the
Mahant and the disciples and such other persons who came to
reside at the Math and also for distributing food to the
poor. The documents referred to above make this amply clear
and thus show that the properties to which they relate do
not belong to the Mahant personally but really belonged to
the Math. It makes no difference to the nature of the
properties whether they were purchased by the Mahants in
their own names or in the names of the Math.
Some properties have been shown to be purchased by the
chelas of the Mahants previous to their occupying the gaddi
of the Mahant, that is to say, such properties were
purchased when they were mere chelas and not mahants. It is
therefore submitted for the appellants that these properties
could not be held to be math properties now. It is true
that the presumption that the properties that were obtained
during the period when they were not Mahants cannot be
presumed to be properties purchased or acquired for the
Math. But the fact remains that when they themselves became
Mahants such self-acquired properties did not appear to have
been treated in any separate manner. Proceeds from such
properties were mixed up with the proceeds of the other
property. Letters, Exhibits C & D, by Mahant Gadadhar Das
to the Commissioner speak of the entire mingling of the
accounts of the private and Math properties. Some witnesses
of the plaintiff stated that Gadadhar Das told them later
that he had made wrong statement in those letters for
ulterior purposes. Courts below did not rightly believe
such statements. Further, it
451
may be noted that it appears from the sale deed, Exhibit 77,
executed in favour of Gadadhar Ramanuj Das, Chela of Mahant
Raghunandan Ramanuj Das in 1909, that the founder owed a sum
of Rs. 400/- to the Mahant Guru of Gadadhar and that this
sum was adjusted towards the purchase price of the property
conveyed under this deed. Mahant Mohan Das, by his will
Exhibit 140, permitted his Chela Raghunandan, who was
nominated to succeed him to get his own name gradually
mutated in respect of the lands and zamindaris standing in
the name of the Mahant. It follows therefore that the mere
fact that certain properties were ostensibly purchased by
the chelas does not necessarily mean that those properties
were either acquired as their personal properties' or that
they continued to be their personal properties after they
succeeded to the gaddi.
The plaintiff has failed to produce the expenditure accounts
with respect to the income from the properties in suit. He
has not produced the consolidated budget which is prepared.
That could have indicated whether the income and expenditure
over the property in suit was treated as of the Math or not.
Accounts showing the sources of money from which the
properties were acquired have not been produced. These
omissions, together with statements in letters Exhibits C &
D, are sufficient to support the findings of the Courts
below that even these properties had been treated as Math
properties.
We are therefore of opinion that the properties mentioned in
Schedules Ka-1 and Ka-2, alleged to be the personal
properties of the Mahant, are not his personal properties
but are properties of the Math.
We may now consider the properties in schedule Kha said to
be the Amrut Manohi properties of Lord Jagannath and held by
the plaintiff as marfatdar. The plaintiff alleges that
these properties were acquired either by purchase or
'krayadan' or by way of gift subject to a charge of some
offering to Lord Jagannath which depended upon the
individual judgment and discretion of the plaintiff, and
that the public had no concern with the enjoyment or
management of the usufruct thereof. The Gazetteer makes a
reference to such properties and states:--
"Both Saiva and Vaishnava Maths exist in Puri.
The lands of the latter are known as Amruta
Manohi (literally nectar food), because 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 Manohi lands of the
Temple itself which are under the
superintendence of the Raja".
453
