1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6460 OF 2008
VIJENDRA KUMAR & ORS. …APPELLANTS
VERSUS
THE COMMISSIONER, A.P. CHARITABLE
& RELIGIOUS INSTITUTIONS & ENDOWMENT
DEPARTMENT & ANR. …RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
1. The appellants in their relentless pursuit for a
declaration that the temple, which is the subject
matter of the lis is their private place of worship and
not a public shrine, has put to challenge the
determination to the contrary made by the High Court
vide impugned judgment and order dated 10.07.2007
rendered in Letters Patent Appeal No. 393 of 1992.
Thereby the verdict of the Single Judge in the writ
petition filed by the appellants had been affirmed.
2
2. We have heard Mr. V.V.S. Rao, learned senior counsel
for the appellants and Mr. P. Venkat Reddy, learned
counsel for the respondents.
3. The background facts in short need be outlined at the
threshold for the desired comprehension of the issue
seeking resolution. The flow of events demonstrate
that the grandfather of the respondents, Ram Harak
Tiwari (since deceased) had acquired the premises in
question from one Kondaiah by sale deed dated
18.12.1302 Fasli corresponding to 18.12.1893 (as per
English Calendar) and as claimed by them had
installed the family idol of Shri Hanuman Ji made of
silver which was movable and not attached to the
earth exclusively for the worship by the family
members. The suit temple, as is asserted by the
respondents, came to be registered in the Books of
Endowment (Muntakab of Registry of Endowment)
recording the name of Gokarnath Tiwari, the father of
the appellants as the endower of Wakf (that is the
temple) on 16th Aban 1345 Fasli (corresponding to the
3
year 1936 as per the English Calendar). The extract
from the Registry of Endowment discloses that the
entry had been made as per the order of the Minister,
Ecclesiastical Department as contained in File
No.60/1 of 1945 Fasli (corresponding to the year 1933)
of the Directorate of Endowment. This document also
indicated that it had been published in the
contemporary Official Gazette. According to the
appellants, the initial structure was temporary in
nature being a tin shed and was later on converted
into a permanent one with RCC roof by obtaining due
sanction from the concerned municipal authority.
4. As the matter stood at that, in the year 1965 the
appellants received a letter from the Endowment
Department requiring them to submit an
account/budget of the temple on the ground that the
same had been endowed by their father for public
purpose. The appellants filed their counter in case
No.28 of 1968 before the Deputy Commissioner,
Andhra Pradesh Charitable Hindu Religious
4
Institutions and Endowments, Government of Andhra
Pradesh, Hyderabad, instituted by one Mr. Laxmanrao
and another, where they denied that the temple had
ever been dedicated or endowed to the public by their
father. They claimed as well that all the investments
made in the structure/premises were with the funds of
the family and with the due sanction of the municipal
authorities.
5. After the death of their father, Gokarnath Tiwari on
21.06.1969, the appellants continued to manage the
affairs of the temple and conduct the worship therein
as an exclusive family affair.
6. The appellants thereafter in the year 1975 filed an
application under Section 77 of the Andhra Pradesh
Hindu Charitable and Religious Institutions and
Endowment Act of 1966 (hereafter to be referred to as
“the Act”) with the same contention.
7. This proceeding, later on, under Section 92 of the Act,
was transferred to the Deputy Commissioner
(Endowment) at Guntur for disposal and was
5
numbered as OA 66 of 1975. By order dated
28.2.1977, this application of the appellants was
dismissed with the observation that the suit temple
was a public temple.
8. Situated thus, the appellants instituted the suit being
OS 58 of 1977 in the Court of Chief Judge, City Civil
Court, Hyderabad under Section 78 of the Act praying
for an affirmation that the suit temple was a private
property and claimed for a decree, inter alia for a
declaration:
a) That the order dated 28.2.1977 of the
Deputy Commission, Endowment, Guntur
proclaiming the temple to be a public temple
was null and void and inoperative in
law;
b) That the entry in the Register of
Endowments dated 11.11.1342 Fasli on
the basis of which the respondents claim
that the suit temple has been endowed by
their father was null and void and not
binding on them.
9. In the plaint, the appellants while restating the above
facts and reaffirming their claim that the temple was
6
their private property, elaborated that they had been
paying the taxes for the property along with the
electricity charges and that they did not receive/collect
any donation or accept any offerings from the public
for the maintenance of the suit temple and that the
same had never been dedicated to the public. They
thus, reiterated that the temple was their exclusive
private property from the time of their grand-father.
10. In their written statement, the respondents
contended that the grand-father and the father of the
appellants were only the Pujari (Worshipper/Priest) of
the suit temple and that the same was public in
nature, where large number of devotees daily visited
and worshiped the deity by making variety of offerings.
They asserted that the temple had been endowed by
the father of the appellants for charitable purposes for
the benefit of the public and that such endowment had
been registered in the Book of Endowment in the year
1342 Fasli (corresponding to 1933) pursuant to which
“Muntaqab” had been issued and have been duly
7
published in the Hyderabad Gazette. They also pleaded
that the suit was beyond time. According to them, the
temple being registered as Public Endowment, the
appellants were obligated in law to submit the budget
of income and expenditure thereof to the Endowment
Department.
11. In the suit, both sides adduced oral and
documentary evidence in support of their rival stands,
elaboration whereof is inessential. It is, however,
significant to refer to the document Exh.B6, the
extract of the entry in the Register of Endowment as
sought to be introduced by DW5, an erstwhile staff of
the Directorate of Endowment. The said document, the
Gazette publication whereof is not in dispute, prima
facie appears to be one on the basis of an extract from
File No. 60/2 of the Endowment Department of the
year 1342 Fasli (correspondingly year 1933) and has
been made on the order of the Minister, Ecclesiastical
Department conveyed through letter of the Secretary,
Judicial and Police etc. dated 11 Mehar 1345 Fasli
8
(corresponding to year 1936). The above endorsement
seems to be subscribed by the then Superintendent,
Endowments. This document, amongst others, records
the name of P. Gokarnath Tiwari, the father of the
appellants to be the endower of the premises identified
to be the suit temple with the object of “Wakf”. The
father of the appellants has been described therein to
be the (Pujari/Priest) of the temple. A copy of the
extract also appears to have been forwarded to the
father of the appellants describing him to be the
endower apart from the other public authorities, as
mentioned therein. An endorsement by the
Superintendent Endowments to this effect also is
available on the document.
12. Suffice it to state that this document appears to
be in a prescribed form with the necessary columns to
register the particulars of a public endowment, if
made, to be entered in the Register of Endowment,
maintained by the Director of Endowments, Govt. of
Hyderabad (as it was then). As a corollary, if this
9
document is admissible in law with all its probative
worth, it would determinatively clinch the issue in
favour of the respondents.
13. The Trial Court, however, by the judgment and
order dated 20.7.1981 decreed the suit of the
appellants whereupon the respondents have filed an
appeal under Section 96 of the Civil Procedure Code
before the High Court. The Trial Court qua Exh.B6
was of the view that though it contained an entry in
the Book of Endowments indicating that the father of
the appellants had endowed the property in the lis for
Wakf, as the Ecclesiastical Department did not take
steps for exercising its supervision for over four
decades and therefore the appellants and their
predecessors had continued to treat the same as their
private property, the validity of the entry was doubtful.
It however noted that the entry had remained
unchallenged within one year, it could not be
expunged as well. Eventually, however the Trial Court
held the entry as null and void for the sole reason that
10
till 1965, the Department did not bother to supervise
the suit temple and the appellants continued to treat
the same as their private property by paying municipal
tax, remodeling the structures with two permissions
from the Municipality etc.
14. The learned Single Judge, on an assessment of
the materials on record, reversed the findings of the
Trial Court and held that the temple was a public
temple, both in view of the proved fact that it was
being visited by the members of the public in profuse
numbers daily with offerings in cash and kind, but
also in view of the entry in the Register of Endowment,
Exh.B6, which even otherwise in view of Section 114(e)
of the Indian Evidence Act, 1872 permitted a
presumption of validity of official acts pertaining
thereto. The learned Single Judge, on this
consideration, negated the plea of the appellants that
neither such an endowment had been made by their
father nor any notice had been received by them with
regard thereto at any point of time. Mentionably, the
11
appellants in the suit had contended that their father
did not apply to the Ecclesiastical Department for the
endowment, as alleged and it could have been the
mischief of some of their neighbours to make such an
application under the forged signatures of their father.
According to them, the temple was their family place of
worship, which of course in view of its location, used
to be visited by the members of the public for which,
however, the same did not get transformed into a
public temple.
15. The appellants preferred Letters Patent Appeal
before the Division Bench of the High Court, which
rendered the judgment impugned. As the text thereof
would demonstrate, the High Court dwelt upon the
decisions cited at the Bar, amongst others on the
characteristics and determinants to ascertain the true
nature of a temple, private or public and eventually
affirmed that the temple involved as held by the
learned Single Judge was indeed public in nature. In
arriving at this conclusion, the High Court, inter alia
12
recorded that the evidence established, that the
members of the public do visit the temple as a matter
of right with no restriction to their access at any point
of time and that there was no material to prove that
the endower had left extensive properties belonging to
him or the family for the purpose of maintenance of
the temple for their exclusive purposes and instead it
was being run and maintained by public offerings.
Apart from taking note of the entry in the Register of
Endowments, published in the Official Gazette, the
High Court also minuted that there was nothing on
record to authenticate that there was any prohibition
to the acceptance of public subscriptions or offerings
for the temple. The presumption of validity of official
acts in terms of Section 114(e) of the Indian Evidence
Act, 1872 as drawn by the learned Single Judge, was
affirmed as well qua Exh.B6 . The temple was thus
proclaimed to be a public temple.
16. Mr. Rao, learned senior counsel for the appellants
has strenuously argued that the temple property had
13
been and is the exclusive asset of the appellants and
their family as is amply established by the materials
on record and thus, the finding to the contrary being
against the weight thereof, is palpably illegal and
unsustainable in law and on facts. According to the
learned senior counsel, the private temple is a place of
worship of the appellants and their family members
and by virtue of its present location due to the
alteration in the topographical orientations from time
to time, it is situated by the public thoroughfare for
which the members of the public, while passing by the
way, do worship and offer their services without any
further involvement. The learned senior counsel has
insisted that such association of the members of the
public solely due to religious sentiments per se would
not convert the temple, which is otherwise an
exclusive family property of the appellants, into a
public institution. Mr. Rao in categorical terms denied
that the temple had ever been endowed by the father of
the appellants as it sought to be represented by the
14
entry in the Register of Endowment, Exh.B6 and urged
that no notice ever had been served on the appellants
or their father at any point of time which therefore,
renders this instrument non est in law and of no
probative worth. According to him, mere publication
of this document in the Official Gazette is not of any
decisive significance whatsoever. Mr. Rao has urged
that the overall finding that the temple is a public
temple is patently erroneous and is liable to be
set-aside.
17. The learned counsel for the respondents, to the
contrary has asserted that not only the appellants
have failed to demonstrate by adducing cogent and
convincing evidence that the temple and the premises
thereof had not been endowed to the public, the
contemporaneous entry in the Register of Endowments
maintained in the official course of business and
published in the Official Gazette leaves no manner of
doubt that the temple is a public temple. The
concurrent findings to this effect being based on
15
credible evidence on record, no interference is called
for, he maintained.
18. We have extended our thoughtful consideration
to the rival assertions. Noticeably, though the
appellants had throughout contended that the temple
and its premises are their private property, they admit
that they had received a notice/letter from the
Endowment Department in the year 1965 asking them
to submit the account/budget of the expenditure
thereof. Though, they did file their counter in Case
No. 28 of 1968 instituted by one Mr. Laxman Rao and
another in the office of the Deputy Commissioner,
Andhra Pradesh Charitable Hindu Religious Institution
and Endowments, Govt. of Andhra Pradesh contending
that the temple had never been dedicated or endowed
to the public at any point of time, they chose to file the
application under Section 77 of the Act before the
Deputy Commissioner, Hyderabad only in the year
1975. This is more so inspite of the fact that their
stand was not accepted by the Endowment
16
Department in the earlier proceeding.
19. Be that as it may, the Deputy Commissioner,
Guntur on the proceedings registered on their
application under Section 77 of the Act, having
declared the temple to be a public temple, they
instituted the suit for setting-aside the said
determination, which has eventually culminated in the
order impugned in the present appeal.
On an analysis of the evidence adduced by the parties,
the attention to which had been drawn in course of the
arguments it is obvious that the document Exh.B6 has the
potential of being of definitive significance to decide the
issue as to whether the temple is a private temple or a
public one. The oral evidence adduced by the parties are
more or less evenly balanced and therefore does not
demand any dilation. Apropos Exh.B6, to reiterate, it is per
se in a prescribed form and is an extract from File No. 60/2
of the Endowment Department available in 1342 Fasli (year
1933). The entry is of the year 1345 Fasli (year 1936) and
has been made as per the order of the Minister,
17
Ecclesiastical Department in the Register of Endowment,
maintained by the Director of Endowment, Govt. of
Hyderabad. This document discloses that P. Gokarnath
Tiwari, the father of the appellants had endowed the suit
temple for “Wakf”, i.e. public/charitable purpose, he being
shown as the Pujari (Priest) thereof. It is not disputed that
this document had been published in the Official Gazette, a
copy thereof, as the document endorses, had also been
forwarded to the father of the appellants referring to him as
the endower of the property. On an overall consideration of
the features of this document, it would prima facie appear,
if all legal essentialities of procedure in connection
therewith had been adhered to, that an endowment had
indeed been made by the father of the appellants. Added to
this as well, is the rebuttable presumption of validity of
official acts which can be permissibly drawn in terms of
Section 114(e) of the Indian Evidence Act, 1872.
20. This notwithstanding, we, in course of the
hearing, had enquired from the Assistant
Commissioner, Endowments, who was present in
18
court as to the legally prescribed procedure prevalent
at the relevant point of time for registration of the
endowment of the kind as involved. This is more so in
view of the insistent stand of the appellants that such
endowment had never been made by their father and
that no notice with regard thereto had ever been
received by him or them. They also indicated that this
could be the handiwork of some mischievous
neighbours of theirs. It is a matter of record that in
between the proceedings with regard to the status of
the temple, there was also a suit filed by the neighbors
of the appellants for a right of passage which did end
in a compromise and as claimed by them (appellants),
the ownership of the temple premises had been
established.
21. The officer concerned accordingly laid before us a
copy of the Endowment Regulations, sanctioned by the
Nizam of Hyderabad in 1349 Fasli (1940 AD), which
amongst others laid down the procedure for
compilation of the Book of Endowments, as per
19
Regulations 3 to 8. In substance these provisions
stipulated that the Book of Endowments would be
prepared in the office of the Endowment Department
and would contain all endowments which are in force
or which would be brought into force in future under
the relevant rules. It made it to be the duty for every
trustee or endower of an endowment to inform in
writing with regard to an endowment, in case it was an
immoveable property which had not been entered in
the “Book of the Endowments”, to the Director of the
Endowments concerned. As per Regulation 5, every
person had the right to inform the Director of
Endowment Department of the Taluq with regard to an
endowment which had not been entered in the Book of
Endowments and to the Director of Endowments in
case the property was situated in Hyderabad.
Regulation 6 predicated that on the receipt of every
such intimation or any other reliable information in
some other way, the Director of Endowment of the
Taluq if satisfied prima facie about any property to
20
have been endowed but not entered in the Book of
Endowments, would publish a notification in the
Tehsil Office and if the property was immovable, to
publish it in any prominent place and also at the place
where the endower resided, in addition to other places
where he thought fit and also have the same published
in the Gazette. As per Regulation 7, if no person raised
objection within the period mentioned in the
notification and if the property was found to be legally
endowed, the same would then be registered. In case,
however any objection was made within the period
specified by any person, who was interested or was
concerned with the endowed property in any capacity,
the Director of Endowments of the Taluq was required
to hold an enquiry as to whether the property had
been legally endowed or not and if proved to have been
endowed legally, to enter the same in the Book of
Endowments, together with intimation to be given to
the Director of Endowment Department, Hyderabad
Govt. Remedies to the person aggrieved have also
21
been provided. Incidentally, however, these
Endowments Regulations are of 1940 AD, i.e.
subsequent to the year of entry contained in Exh.B6.
On being queried by us, the Assistant Commissioner,
Endowment apprised the Court that the same
procedure prevailed under the earlier regulations
which are in Urdu language and are being presently in
the process of getting translated. This position has not
been disputed on behalf of the appellants. The
exercise as prescribed for registering any endowment,
under the aforementioned Regulations clearly accords
with the procedure, contemplated in law having regard
to the consequence of endowment of a private property
for public/charitable purposes. For obvious reasons,
we refrain from elaborating further in absence of better
particulars.
22. In view of the above Regulations however, and
noticing the persistent stand of the appellants that
their father had not endowed the suit premises to
render the temple a public temple and that neither he
22
nor they had ever received any notice in connection
therewith, we are of the considered opinion, in the
backdrop of the series of litigation including the suit
filed by the neighbours of the temple premises, that it
would be in fitness of things that an opportunity be
granted to the parties to adduce all evidence, oral and
documentary, at their disposal available to them to
finally and conclusively determine as to whether the
temple and its premises had been endowed by the
father of the appellants, as otherwise evidenced by
Exh.B6 or otherwise in accordance with the law and
the procedure prescribed therefor for further
consequential action, as warranted. We are inclined to
adopt this course, to reiterate, in view of the equally
balanced oral evidence on record and the formidable
significance of Exh.B6, the entry in the Register of
Endowments, which if has been prepared by following
the procedure, as prescribed by law then prevalent,
would seal the issue in favour of the respondents.
23. It is worthwhile to mention that DW5, who
23
exhibited this document, however, expressed his
ignorance as to the manner in which the same had
been prepared. There is no indication as well that this
document had been proved by him with reference to
the original records. In cross-examination, this
witness has conceded as well that he had no personal
knowledge about the application made for registering
the suit temple in the Book of Endowments and that
he was not aware as to when the “Muntaqab” had been
issued. In this view of the matter, the assertion on
behalf of the appellants that the Gazette Notification of
this document per se in absence of the proof of the
procedure of making of this entry as required in law,
would not be decisive, cannot be lightly brushed aside.
As it is, the presumption of validity of official acts, is
essentially rebuttable and can be dislodged by
convincing evidence to the contrary.
24. In the wake of the above and on a consideration
of the totality of the facts and circumstances of the
case, this appeal is disposed of with a direction to the
24
appellants to file an appropriate representation before
the concerned authority under the Act in support of
their claim that the temple and its premises are the
exclusive private property of theirs and their family
and had not been endowed for wakf or
charitable/public purposes. This should be done
within a period of four weeks herefrom. Needless to
say, the authority concerned would issue notice to the
Department to file their response and thereafter afford
adequate opportunity to both the sides to adduce
evidence and decide the issue as to whether the temple
and the premises involved are private or public in
nature by recording reasons., It is too trite to mention
that in undertaking this exercise, the adjudicating
authority would take note of all relevant facts and the
law applicable. The exercise, as ordered, should be
completed within a period of six months from the date
of filing of the representation by the appellants. In the
attendant facts and circumstances, we direct that the
status quo of the property involved, as on date shall be
25
maintained till the adjudication, as directed, is over.
The parties are hereby directed to co-operate so as to
enable the authority to meet the deadline of time fixed
by this Court.
25. The impugned judgment and order is set-aside.
We make it clear that we have not offered any final
comments on the merits of the case and the authority
would adjudicate the issue without being influenced
by any observation made hereinabove.
26. The appeal is thus, allowed in these terms. No
costs.
…........................................J.
[N.V. RAMANA]
…........................................J.
[AMITAVA ROY]
NEW DELHI;
DECEMBER 15, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6460 OF 2008
VIJENDRA KUMAR & ORS. …APPELLANTS
VERSUS
THE COMMISSIONER, A.P. CHARITABLE
& RELIGIOUS INSTITUTIONS & ENDOWMENT
DEPARTMENT & ANR. …RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
1. The appellants in their relentless pursuit for a
declaration that the temple, which is the subject
matter of the lis is their private place of worship and
not a public shrine, has put to challenge the
determination to the contrary made by the High Court
vide impugned judgment and order dated 10.07.2007
rendered in Letters Patent Appeal No. 393 of 1992.
Thereby the verdict of the Single Judge in the writ
petition filed by the appellants had been affirmed.
2
2. We have heard Mr. V.V.S. Rao, learned senior counsel
for the appellants and Mr. P. Venkat Reddy, learned
counsel for the respondents.
3. The background facts in short need be outlined at the
threshold for the desired comprehension of the issue
seeking resolution. The flow of events demonstrate
that the grandfather of the respondents, Ram Harak
Tiwari (since deceased) had acquired the premises in
question from one Kondaiah by sale deed dated
18.12.1302 Fasli corresponding to 18.12.1893 (as per
English Calendar) and as claimed by them had
installed the family idol of Shri Hanuman Ji made of
silver which was movable and not attached to the
earth exclusively for the worship by the family
members. The suit temple, as is asserted by the
respondents, came to be registered in the Books of
Endowment (Muntakab of Registry of Endowment)
recording the name of Gokarnath Tiwari, the father of
the appellants as the endower of Wakf (that is the
temple) on 16th Aban 1345 Fasli (corresponding to the
3
year 1936 as per the English Calendar). The extract
from the Registry of Endowment discloses that the
entry had been made as per the order of the Minister,
Ecclesiastical Department as contained in File
No.60/1 of 1945 Fasli (corresponding to the year 1933)
of the Directorate of Endowment. This document also
indicated that it had been published in the
contemporary Official Gazette. According to the
appellants, the initial structure was temporary in
nature being a tin shed and was later on converted
into a permanent one with RCC roof by obtaining due
sanction from the concerned municipal authority.
4. As the matter stood at that, in the year 1965 the
appellants received a letter from the Endowment
Department requiring them to submit an
account/budget of the temple on the ground that the
same had been endowed by their father for public
purpose. The appellants filed their counter in case
No.28 of 1968 before the Deputy Commissioner,
Andhra Pradesh Charitable Hindu Religious
4
Institutions and Endowments, Government of Andhra
Pradesh, Hyderabad, instituted by one Mr. Laxmanrao
and another, where they denied that the temple had
ever been dedicated or endowed to the public by their
father. They claimed as well that all the investments
made in the structure/premises were with the funds of
the family and with the due sanction of the municipal
authorities.
5. After the death of their father, Gokarnath Tiwari on
21.06.1969, the appellants continued to manage the
affairs of the temple and conduct the worship therein
as an exclusive family affair.
6. The appellants thereafter in the year 1975 filed an
application under Section 77 of the Andhra Pradesh
Hindu Charitable and Religious Institutions and
Endowment Act of 1966 (hereafter to be referred to as
“the Act”) with the same contention.
7. This proceeding, later on, under Section 92 of the Act,
was transferred to the Deputy Commissioner
(Endowment) at Guntur for disposal and was
5
numbered as OA 66 of 1975. By order dated
28.2.1977, this application of the appellants was
dismissed with the observation that the suit temple
was a public temple.
8. Situated thus, the appellants instituted the suit being
OS 58 of 1977 in the Court of Chief Judge, City Civil
Court, Hyderabad under Section 78 of the Act praying
for an affirmation that the suit temple was a private
property and claimed for a decree, inter alia for a
declaration:
a) That the order dated 28.2.1977 of the
Deputy Commission, Endowment, Guntur
proclaiming the temple to be a public temple
was null and void and inoperative in
law;
b) That the entry in the Register of
Endowments dated 11.11.1342 Fasli on
the basis of which the respondents claim
that the suit temple has been endowed by
their father was null and void and not
binding on them.
9. In the plaint, the appellants while restating the above
facts and reaffirming their claim that the temple was
6
their private property, elaborated that they had been
paying the taxes for the property along with the
electricity charges and that they did not receive/collect
any donation or accept any offerings from the public
for the maintenance of the suit temple and that the
same had never been dedicated to the public. They
thus, reiterated that the temple was their exclusive
private property from the time of their grand-father.
10. In their written statement, the respondents
contended that the grand-father and the father of the
appellants were only the Pujari (Worshipper/Priest) of
the suit temple and that the same was public in
nature, where large number of devotees daily visited
and worshiped the deity by making variety of offerings.
They asserted that the temple had been endowed by
the father of the appellants for charitable purposes for
the benefit of the public and that such endowment had
been registered in the Book of Endowment in the year
1342 Fasli (corresponding to 1933) pursuant to which
“Muntaqab” had been issued and have been duly
7
published in the Hyderabad Gazette. They also pleaded
that the suit was beyond time. According to them, the
temple being registered as Public Endowment, the
appellants were obligated in law to submit the budget
of income and expenditure thereof to the Endowment
Department.
11. In the suit, both sides adduced oral and
documentary evidence in support of their rival stands,
elaboration whereof is inessential. It is, however,
significant to refer to the document Exh.B6, the
extract of the entry in the Register of Endowment as
sought to be introduced by DW5, an erstwhile staff of
the Directorate of Endowment. The said document, the
Gazette publication whereof is not in dispute, prima
facie appears to be one on the basis of an extract from
File No. 60/2 of the Endowment Department of the
year 1342 Fasli (correspondingly year 1933) and has
been made on the order of the Minister, Ecclesiastical
Department conveyed through letter of the Secretary,
Judicial and Police etc. dated 11 Mehar 1345 Fasli
8
(corresponding to year 1936). The above endorsement
seems to be subscribed by the then Superintendent,
Endowments. This document, amongst others, records
the name of P. Gokarnath Tiwari, the father of the
appellants to be the endower of the premises identified
to be the suit temple with the object of “Wakf”. The
father of the appellants has been described therein to
be the (Pujari/Priest) of the temple. A copy of the
extract also appears to have been forwarded to the
father of the appellants describing him to be the
endower apart from the other public authorities, as
mentioned therein. An endorsement by the
Superintendent Endowments to this effect also is
available on the document.
12. Suffice it to state that this document appears to
be in a prescribed form with the necessary columns to
register the particulars of a public endowment, if
made, to be entered in the Register of Endowment,
maintained by the Director of Endowments, Govt. of
Hyderabad (as it was then). As a corollary, if this
9
document is admissible in law with all its probative
worth, it would determinatively clinch the issue in
favour of the respondents.
13. The Trial Court, however, by the judgment and
order dated 20.7.1981 decreed the suit of the
appellants whereupon the respondents have filed an
appeal under Section 96 of the Civil Procedure Code
before the High Court. The Trial Court qua Exh.B6
was of the view that though it contained an entry in
the Book of Endowments indicating that the father of
the appellants had endowed the property in the lis for
Wakf, as the Ecclesiastical Department did not take
steps for exercising its supervision for over four
decades and therefore the appellants and their
predecessors had continued to treat the same as their
private property, the validity of the entry was doubtful.
It however noted that the entry had remained
unchallenged within one year, it could not be
expunged as well. Eventually, however the Trial Court
held the entry as null and void for the sole reason that
10
till 1965, the Department did not bother to supervise
the suit temple and the appellants continued to treat
the same as their private property by paying municipal
tax, remodeling the structures with two permissions
from the Municipality etc.
14. The learned Single Judge, on an assessment of
the materials on record, reversed the findings of the
Trial Court and held that the temple was a public
temple, both in view of the proved fact that it was
being visited by the members of the public in profuse
numbers daily with offerings in cash and kind, but
also in view of the entry in the Register of Endowment,
Exh.B6, which even otherwise in view of Section 114(e)
of the Indian Evidence Act, 1872 permitted a
presumption of validity of official acts pertaining
thereto. The learned Single Judge, on this
consideration, negated the plea of the appellants that
neither such an endowment had been made by their
father nor any notice had been received by them with
regard thereto at any point of time. Mentionably, the
11
appellants in the suit had contended that their father
did not apply to the Ecclesiastical Department for the
endowment, as alleged and it could have been the
mischief of some of their neighbours to make such an
application under the forged signatures of their father.
According to them, the temple was their family place of
worship, which of course in view of its location, used
to be visited by the members of the public for which,
however, the same did not get transformed into a
public temple.
15. The appellants preferred Letters Patent Appeal
before the Division Bench of the High Court, which
rendered the judgment impugned. As the text thereof
would demonstrate, the High Court dwelt upon the
decisions cited at the Bar, amongst others on the
characteristics and determinants to ascertain the true
nature of a temple, private or public and eventually
affirmed that the temple involved as held by the
learned Single Judge was indeed public in nature. In
arriving at this conclusion, the High Court, inter alia
12
recorded that the evidence established, that the
members of the public do visit the temple as a matter
of right with no restriction to their access at any point
of time and that there was no material to prove that
the endower had left extensive properties belonging to
him or the family for the purpose of maintenance of
the temple for their exclusive purposes and instead it
was being run and maintained by public offerings.
Apart from taking note of the entry in the Register of
Endowments, published in the Official Gazette, the
High Court also minuted that there was nothing on
record to authenticate that there was any prohibition
to the acceptance of public subscriptions or offerings
for the temple. The presumption of validity of official
acts in terms of Section 114(e) of the Indian Evidence
Act, 1872 as drawn by the learned Single Judge, was
affirmed as well qua Exh.B6 . The temple was thus
proclaimed to be a public temple.
16. Mr. Rao, learned senior counsel for the appellants
has strenuously argued that the temple property had
13
been and is the exclusive asset of the appellants and
their family as is amply established by the materials
on record and thus, the finding to the contrary being
against the weight thereof, is palpably illegal and
unsustainable in law and on facts. According to the
learned senior counsel, the private temple is a place of
worship of the appellants and their family members
and by virtue of its present location due to the
alteration in the topographical orientations from time
to time, it is situated by the public thoroughfare for
which the members of the public, while passing by the
way, do worship and offer their services without any
further involvement. The learned senior counsel has
insisted that such association of the members of the
public solely due to religious sentiments per se would
not convert the temple, which is otherwise an
exclusive family property of the appellants, into a
public institution. Mr. Rao in categorical terms denied
that the temple had ever been endowed by the father of
the appellants as it sought to be represented by the
14
entry in the Register of Endowment, Exh.B6 and urged
that no notice ever had been served on the appellants
or their father at any point of time which therefore,
renders this instrument non est in law and of no
probative worth. According to him, mere publication
of this document in the Official Gazette is not of any
decisive significance whatsoever. Mr. Rao has urged
that the overall finding that the temple is a public
temple is patently erroneous and is liable to be
set-aside.
17. The learned counsel for the respondents, to the
contrary has asserted that not only the appellants
have failed to demonstrate by adducing cogent and
convincing evidence that the temple and the premises
thereof had not been endowed to the public, the
contemporaneous entry in the Register of Endowments
maintained in the official course of business and
published in the Official Gazette leaves no manner of
doubt that the temple is a public temple. The
concurrent findings to this effect being based on
15
credible evidence on record, no interference is called
for, he maintained.
18. We have extended our thoughtful consideration
to the rival assertions. Noticeably, though the
appellants had throughout contended that the temple
and its premises are their private property, they admit
that they had received a notice/letter from the
Endowment Department in the year 1965 asking them
to submit the account/budget of the expenditure
thereof. Though, they did file their counter in Case
No. 28 of 1968 instituted by one Mr. Laxman Rao and
another in the office of the Deputy Commissioner,
Andhra Pradesh Charitable Hindu Religious Institution
and Endowments, Govt. of Andhra Pradesh contending
that the temple had never been dedicated or endowed
to the public at any point of time, they chose to file the
application under Section 77 of the Act before the
Deputy Commissioner, Hyderabad only in the year
1975. This is more so inspite of the fact that their
stand was not accepted by the Endowment
16
Department in the earlier proceeding.
19. Be that as it may, the Deputy Commissioner,
Guntur on the proceedings registered on their
application under Section 77 of the Act, having
declared the temple to be a public temple, they
instituted the suit for setting-aside the said
determination, which has eventually culminated in the
order impugned in the present appeal.
On an analysis of the evidence adduced by the parties,
the attention to which had been drawn in course of the
arguments it is obvious that the document Exh.B6 has the
potential of being of definitive significance to decide the
issue as to whether the temple is a private temple or a
public one. The oral evidence adduced by the parties are
more or less evenly balanced and therefore does not
demand any dilation. Apropos Exh.B6, to reiterate, it is per
se in a prescribed form and is an extract from File No. 60/2
of the Endowment Department available in 1342 Fasli (year
1933). The entry is of the year 1345 Fasli (year 1936) and
has been made as per the order of the Minister,
17
Ecclesiastical Department in the Register of Endowment,
maintained by the Director of Endowment, Govt. of
Hyderabad. This document discloses that P. Gokarnath
Tiwari, the father of the appellants had endowed the suit
temple for “Wakf”, i.e. public/charitable purpose, he being
shown as the Pujari (Priest) thereof. It is not disputed that
this document had been published in the Official Gazette, a
copy thereof, as the document endorses, had also been
forwarded to the father of the appellants referring to him as
the endower of the property. On an overall consideration of
the features of this document, it would prima facie appear,
if all legal essentialities of procedure in connection
therewith had been adhered to, that an endowment had
indeed been made by the father of the appellants. Added to
this as well, is the rebuttable presumption of validity of
official acts which can be permissibly drawn in terms of
Section 114(e) of the Indian Evidence Act, 1872.
20. This notwithstanding, we, in course of the
hearing, had enquired from the Assistant
Commissioner, Endowments, who was present in
18
court as to the legally prescribed procedure prevalent
at the relevant point of time for registration of the
endowment of the kind as involved. This is more so in
view of the insistent stand of the appellants that such
endowment had never been made by their father and
that no notice with regard thereto had ever been
received by him or them. They also indicated that this
could be the handiwork of some mischievous
neighbours of theirs. It is a matter of record that in
between the proceedings with regard to the status of
the temple, there was also a suit filed by the neighbors
of the appellants for a right of passage which did end
in a compromise and as claimed by them (appellants),
the ownership of the temple premises had been
established.
21. The officer concerned accordingly laid before us a
copy of the Endowment Regulations, sanctioned by the
Nizam of Hyderabad in 1349 Fasli (1940 AD), which
amongst others laid down the procedure for
compilation of the Book of Endowments, as per
19
Regulations 3 to 8. In substance these provisions
stipulated that the Book of Endowments would be
prepared in the office of the Endowment Department
and would contain all endowments which are in force
or which would be brought into force in future under
the relevant rules. It made it to be the duty for every
trustee or endower of an endowment to inform in
writing with regard to an endowment, in case it was an
immoveable property which had not been entered in
the “Book of the Endowments”, to the Director of the
Endowments concerned. As per Regulation 5, every
person had the right to inform the Director of
Endowment Department of the Taluq with regard to an
endowment which had not been entered in the Book of
Endowments and to the Director of Endowments in
case the property was situated in Hyderabad.
Regulation 6 predicated that on the receipt of every
such intimation or any other reliable information in
some other way, the Director of Endowment of the
Taluq if satisfied prima facie about any property to
20
have been endowed but not entered in the Book of
Endowments, would publish a notification in the
Tehsil Office and if the property was immovable, to
publish it in any prominent place and also at the place
where the endower resided, in addition to other places
where he thought fit and also have the same published
in the Gazette. As per Regulation 7, if no person raised
objection within the period mentioned in the
notification and if the property was found to be legally
endowed, the same would then be registered. In case,
however any objection was made within the period
specified by any person, who was interested or was
concerned with the endowed property in any capacity,
the Director of Endowments of the Taluq was required
to hold an enquiry as to whether the property had
been legally endowed or not and if proved to have been
endowed legally, to enter the same in the Book of
Endowments, together with intimation to be given to
the Director of Endowment Department, Hyderabad
Govt. Remedies to the person aggrieved have also
21
been provided. Incidentally, however, these
Endowments Regulations are of 1940 AD, i.e.
subsequent to the year of entry contained in Exh.B6.
On being queried by us, the Assistant Commissioner,
Endowment apprised the Court that the same
procedure prevailed under the earlier regulations
which are in Urdu language and are being presently in
the process of getting translated. This position has not
been disputed on behalf of the appellants. The
exercise as prescribed for registering any endowment,
under the aforementioned Regulations clearly accords
with the procedure, contemplated in law having regard
to the consequence of endowment of a private property
for public/charitable purposes. For obvious reasons,
we refrain from elaborating further in absence of better
particulars.
22. In view of the above Regulations however, and
noticing the persistent stand of the appellants that
their father had not endowed the suit premises to
render the temple a public temple and that neither he
22
nor they had ever received any notice in connection
therewith, we are of the considered opinion, in the
backdrop of the series of litigation including the suit
filed by the neighbours of the temple premises, that it
would be in fitness of things that an opportunity be
granted to the parties to adduce all evidence, oral and
documentary, at their disposal available to them to
finally and conclusively determine as to whether the
temple and its premises had been endowed by the
father of the appellants, as otherwise evidenced by
Exh.B6 or otherwise in accordance with the law and
the procedure prescribed therefor for further
consequential action, as warranted. We are inclined to
adopt this course, to reiterate, in view of the equally
balanced oral evidence on record and the formidable
significance of Exh.B6, the entry in the Register of
Endowments, which if has been prepared by following
the procedure, as prescribed by law then prevalent,
would seal the issue in favour of the respondents.
23. It is worthwhile to mention that DW5, who
23
exhibited this document, however, expressed his
ignorance as to the manner in which the same had
been prepared. There is no indication as well that this
document had been proved by him with reference to
the original records. In cross-examination, this
witness has conceded as well that he had no personal
knowledge about the application made for registering
the suit temple in the Book of Endowments and that
he was not aware as to when the “Muntaqab” had been
issued. In this view of the matter, the assertion on
behalf of the appellants that the Gazette Notification of
this document per se in absence of the proof of the
procedure of making of this entry as required in law,
would not be decisive, cannot be lightly brushed aside.
As it is, the presumption of validity of official acts, is
essentially rebuttable and can be dislodged by
convincing evidence to the contrary.
24. In the wake of the above and on a consideration
of the totality of the facts and circumstances of the
case, this appeal is disposed of with a direction to the
24
appellants to file an appropriate representation before
the concerned authority under the Act in support of
their claim that the temple and its premises are the
exclusive private property of theirs and their family
and had not been endowed for wakf or
charitable/public purposes. This should be done
within a period of four weeks herefrom. Needless to
say, the authority concerned would issue notice to the
Department to file their response and thereafter afford
adequate opportunity to both the sides to adduce
evidence and decide the issue as to whether the temple
and the premises involved are private or public in
nature by recording reasons., It is too trite to mention
that in undertaking this exercise, the adjudicating
authority would take note of all relevant facts and the
law applicable. The exercise, as ordered, should be
completed within a period of six months from the date
of filing of the representation by the appellants. In the
attendant facts and circumstances, we direct that the
status quo of the property involved, as on date shall be
25
maintained till the adjudication, as directed, is over.
The parties are hereby directed to co-operate so as to
enable the authority to meet the deadline of time fixed
by this Court.
25. The impugned judgment and order is set-aside.
We make it clear that we have not offered any final
comments on the merits of the case and the authority
would adjudicate the issue without being influenced
by any observation made hereinabove.
26. The appeal is thus, allowed in these terms. No
costs.
…........................................J.
[N.V. RAMANA]
…........................................J.
[AMITAVA ROY]
NEW DELHI;
DECEMBER 15, 2017.
