THE POOHARI FAKIR SADA VARTHY OF BONDILIPURAM v. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS

Citation: [1962] SUPP. 2 S.C.R. 276; 1961 INSC 360

Court: Supreme Court of India

Bench: BHUVNESHWAR PRASAD SINHA , P.B. GAJENDRAGADKAR, RAGHUBAR DAYAL

Judgment date: 1961-12-22

Case summary

1961 INSC 360. Supreme Court of India judgment dated 1961-12-22. THE POOHARI FAKIR SADA VARTHY OF BONDILIPURAM v. THE COMMISSIONER, HINDU RELIGIOUS AND...

Judgment text

111111 D1. :4mbtr 22 276 SUPREME OOURT REPORTS (1962) SUPP. THE POOHARI FAKIR SADA VARTHY OF BONDILIPURAM v. THE COMM£SSIO:IBR, HINDU RELIGIOUS A~D CHARITABLE ENDOWMENTS (B. P. SINHA, P. B. GAJENDRAGADKAR AND RAGHUBAR DAYAL, J,J,) Hindu Latcr-Endowmml-T•mpk-Public Tempfo- Conditi<>n,• of-ltw. m Regi•ter-Entries-lf could be accepted at IA•ir fo mplc as well. The grants simply mention them to be for the expenses of Fakirs, in the name of Poohari Fakir Sadavarthy, and uot for the temple. The ncin·rtference to the temple in the various doeum(>f·ts is consistRnt with the temple being . for the pr iv ate woI'llhip of the bead of the l::ladav:r. rti Institution and being an adjunct to that institution, as in that case there was to be no grant to the temple and the grant had to be to the Sadi. varti institution or to its head. It is alfo a matter for surprise that no in- dependent grant to this temple was made subse- quent to its coming into existence.

Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known insti- tution in that part of the country, where, it bas been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the varioua docu- ments of the period between 1608 and 1803 A. D. , that the vario11s endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution it. sP. lf, it being always in the name of the Bavajee in charge of that institution.

Before disOU88ing the entries in the inam regiaten which carry great weight, we may first refer to the Ru \es i11 pursuance of which the entries in the Inam registers were ma Jolumn II meant for recording the name of the grantor and the year of the grant, mentions,_ under it, Mafusu Khan Nawab dated Hijiri 1155. ' · (8) In column 13, Man9asa Palahari Bairagi is mentioned as the original grantee. (9) Under column 18, referring to rela- tionship to original grantee or subsequent registered holders, is written 'Sadavarti 1961 Tile PLahori Folcir Sadavarthy fl/ BQndil:tiuram v. 1·he Commtssiontr, HU. du Rtli~iou. s and Charitable Endowments Raghubt1r DO)al J. 1961 l A. P. ,lt. ri Folcir sua-1/t;J af BiMilituram v. Tl&, COflflfliJsioNr, H1M Bt1i1iqw a"d Cluzrita61~ &dOUM1t11t1 286 SUPREME COURT REPORTS [1962) SUPP. Bairagi mattam and the temple of Sri Jagan- nadha. swami in Balaga Trustee Palaha. ra Mahant Barta Dasu Bavaji'.

It is clear from the fact that the grant wu con- sidered 'a charitable grant' that the grant waa not taken to bti for the purposes of the temple, but was taken to be & grant for the purpOBeB Sadavarti. This is also clear from the Statement of Bartud088 Bavaji that it is only a part of the prooeeds which is spent on the temple and not a major portiop of the proceeds, 11s his statement is to the effect that the proceeds are appropriated to the expenses atten- dant on the temple 'to sonl\l extent'. There is no suggestion that the temple was in existence in 1739 A. D. when the grant was made. This makes it clear that no grant could have been made for the expensCI! of the temple and that a small portion of the prooeeds was naturally spend on the temple by the Bavaji after the temple had been constructed. Any stat! 'ment in these entries about the grant be- ing both for Sadavarti and for the expeJlllt's of the temple appears to be due to the wrong inference of the person making the enquiry.

He could easily commit such an error on account of the existeaoe of a temple at the time of the enquiry and on ac- count of the expreesion 'divine servioe'. The 'divine service' really. meant, as would appear from the expression in the Clther document& of the period 1698 to 1802 A. D. , servi rayers for the stability and continuity of the State. The expression that the grant was 'hereditary' also supports the conclusion that the grant was to the Bavajee personally and not to the teμiple even if the temple existed a. t the time of the original grant. In fact, the s~ izranted by Seetaram Ranzi Maha. raja and produced before the enquiry officers explicitJy stated that the prooeeda of the village were to be appropria tt'd for Sadavarti. i··· 2 S. C. R. SUPREME COURT REPORTS 287 This extract therefore supports the case of the appellants even though the name of the temple has been mentioned along wit;_h Sadavarti Bairagi. The confirmation of the grant, tax.

free, was recommen- ded by the Deputy Collector, Inam Commissioner, under Rule 3, Clause ( 1 ). The order of the Offi- ciating Inam Commissioner dated July 1864 is : 'Confirmed on present :tenure', and column 9 descri- bed the tenure as 'tax free'. Exhibit P-51 is the extract from the Inam Regis- ter in the Zamindari estate of Tekkaly in the Chica- cole Taluk, Ganjam District, and relates to the village Chinna Z:wanapalli. The report of the Deputy Collector shows that the claim of the then Bavajee was that the village was granted in the name of Gopaladoss, trustee and priest of the mattam in Hijari 1165, corresponding to 1752 A. D. It further records : "It is explained by the Zamindar's shiris- tadar on behalf of the Zamindar that this was granted for the support of the mattam and this is not a personal grant. This was entered in the permanent settlement account as an agrahar. The object of the grant is to feed Bairagis and etc.

, who travel between Benaras and Rameswaram or supply victuals clothes and etc. This branch of charity is known by the name of 'sadavarti'. The proceeds of this village with the other villages, which granted for the support of the charity are appropriat· ed to sadavarti and to worship the idols in the temple of the mattam ...... As this is gran- ted on the whole for, the support of the charity branch, it should, I think, be confir. med on its present tenure. " The entries under the various columns are practi· cally on the lines of the entries in Exhibit P·50. The entries in this register also support the case of the appellants to the extent that the original grant 1101 The Poohari Fokif' Sadavarthy OJ Bondilipu1(1. m v, 'l'ht Commislioner, Hindu Religious ond Ct. aritable Endowments Rugl1uba1 Dayal J. ! HI Tlte PooAori Faki , in 1752 A. D. , waa to the then Bavajee and Ill'&& for the purposes of the charity. Exhibit l'-52 is the extract from the RegiBter of !

n&ms with rC1poct to village V 11. llZ&ngi. It records very clearly : "The object of this grant is to give 'sada- varti' to travellel'8, that is, distributing alms and supplying victuals to travellers. This grant was made during the reign of •Alangir Padsha'. Ever since the Inam is continued undisturbed. About century ago, the trustees built a temple of Jagannadh&&wamy. Now in addition to distributing alms and giving Sadavarti to Bairagis a. nd others, the idol in the temple is worshipped aqd annual festivals &re made. It appears that the Trustee is defraying charges to meet the object of the grant and that he is not mis-appropriating the proceeds of the Inam in any way. '' The inam was confirmed as & charity grant to Mand. l8U S&davarty Charity according to the terms of the grant. This extract is of great importance as it, in clear term~, mentions that the object of the grant was to give sadavarti t-0 travellers and that it was confirmed as a charity grant to this charity.

It speaks of the erection of the temple and still states that the Trustee was defraying the charges to meet the object of the grant. This indicates that the expenses of the temple were taken to be inci- dental to the expenses of the entire sa. davurti a. nd that the temple was just an adjunct to the sadavarti institution. Exhibit P-7, Parwana dated November 15, 1722, corresponding to 14th day of R:ibial Awwal 1135 Hijiri, refers to the grant of this dllage to Poohari Fakir ti&dave. rti. Exhibit P-53 is the extract from th. i Register of Inams relating to village Ragolu in Chiu.. cole 2 S. C. R. SUPREME COURT REPORTS 289 Taluk. It records : 'In the sanad it wat-1 mentioned that the iuam was given for the support of fakirs to the original grantee about a century ago. The other notes in this extra. ct are practically identical with those in Exhibit P-52.

The final order of the Inam Commissioner was also in terms similar, and was 'confirmed to the fakirs the sadavarti charity according to the grant, free, -there being no excess'. It is interesting to note that in column 2 (general ola. ss to which inam belongs) is noted 'Dewadayam', i. e. , dedicated to God ; that in column 8 meant for the description of the inam is noted : 'for the sup• port of Pagoda of Sri Jagannadhaswami in·Bondili· puram', and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754-55 A. D. It is olear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa. Pa. lahari Baira. gi in Column 13) about a century ago ~nd that it was the trustees of the institution who with the 88. nads of the previous rulers. Therefore in consideration . , 2 S. C. R.

SUPREME COURT REPORTS 291 of the blessings to follow, it has been confir- med as of yore. " · J9Gl Thi l'oo,... i Fail1 Sadavarthy of Bontliliputom v. It was the result of this wrong vie. w of the· enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as 'service. ' nt Commissionf1, Hindu Rtligioru . 4n4 Charitabl1 EnJow111111ts The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity.

The observations of the Privy Council in Arunachellam's Case (') that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry . or entries in any particular column or columns be acotepted at their face value without giving due consideration to other matters recorded in the entry itselr. We have already stated that the 'divine service' referred to in this entry does not refer to any religious wmship but to the prayers to be offered by the grantee for the preservation of the State. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being, constructed a temple and appropriated · the income for carrying out the worship of the temple. No document states that the temple was constructed b.

v the Bavajee after obtaining the consent of the ruler for the time being, Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The 1 1) (1919)L R. 461. A. 204. 1901 n .. PooN. ri Fair s11t1 .. 11111p of B"'4i/~11111 "· n, Cnnnissioo wrnmt B. ,Jru! NJr D111al I. IHl Tu Poolo4ri F. J. ir SaJ-tliyof BolU/ilii"'""' •• Tlw CommiJJiontr, ff;,,. , Rtli1ious and Clwilobu EnloWflllltlS Rqbbcr D~ J. 296 SUPREME COURT REPORTS [1962] SUPP. We need not consider the statements of the witnesses with respect to the features associaud with 1hc public temple and which are said to be absent in the temple in suit. It is admitted by the respondent's witness that there is a Tulsi plant before the shrine.

It is strenuously urged for the appellants that no public haa a Tulsi Kotta, and this contention seems to find support from the statem1·nt made by the respondent's witneBS in re- examinl\tion that generally, in Oriya temples no flag-staffs are located and Tulsi plants are groj\'Il instead. The description of the tt-mple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with tho inference from the other evidence that the tem. pie is not a public temple. The statement of th ne City 6091" where as the City Exchange had not come into existence till December 1948. The Supreme Court granted special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn. On April 3, 1959, Saroj Ranjan, another brother of N. R. Sarkar, laid a complaint on the same facts and ail~tions Ifill The Poolrari Fakir Bad .. a. rlh;y of Bondillrpuram v. The Commissioner, Hindu.

Reli1ious anti Charitable Endownunts Raghuhor Da;yal J. 1'6J Dicnnber 2 t

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