COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, MYSORE versus RATNAVARMA HEGGADE (DECEASED) BY HIS L.RS.

BEG J.--1 agree with the order proposed by my learned brother Shinghai. But, (would like to indicate my own reasons in this case for reaching this conclusion.

p. 900, margin F

The following facts appear from the petition filed on· 22nd July. J 949, by the Heggade or trustee of the Manjunatha tem~le, and fr~1m affidavits and other documents filed either in support or m_ oppos:tt,111 to it, in the Court of the District Judge of South Kannara, proceedings under Section 84(2) of the Madras Hindu "Religious Endowments Act of 1927, (hereinafter referred to as 'the Act') : In 1926, the Manjunatha temple was exempted by a Government notification from the operation of the provisions of the Madras Hindu Religious Endowments Act 1923. On 28th June, 1945, the Board, which had been set up under Section 10 of the Act of 1927, informed the Heggade that it was examining the position afresh whether the exemption which had been granted in 1926 should be withdrawn. ·After due enquiry, the Board had moved the Government on 26th October, 1945, to cancel the exelIY'tion and it was cancelled by the Government on 10th December, 1945, under the provisions of Act 2 of 1927. On 7th February, 1946, the Heggade had made an application to the Government to review the. cancellation. Thereupon, the Government directed the Board to enquire into the whole question again. That enquiry before. the Board took place on 27th July, 1946. The Board gave its decision on 9th March, 1949, holding that the temple was covered by the provisions of the Act.

pp. 900–901, margin F

It was in circumstances stated above that the Heggade had made an application before the District Judge after the coming into force on May 15, 1946, of the amending of Act 10 of 1946. The whole proceeding before the District Judge took place as a fresh and original trial in the course of which detailed oral and documentary evidence was produced in support of the respedive cases by the two sides to the dispute which were : the Heggade of the. Jain Dharamasthala, of which the temple was said to be a part, and the Board of Commissioners under the Act (probably substituted by the Commissioner after the repeal of the Act and its substitution by other enactments on the subjeclf).

p. 901, margin C

There was no argument before us on the question whether the proceedings were governed by the provisions of Jhe Act before its amendment in 1946 or its provisions as they stood after the amendment. But, it appears to me that the case proceeded on the footing that the amended Act, which had come into force before the Heggade had petitioned to the District Judge, governed the rights of the parties and the scope of the enquiry. The question whether the Institution known as Dharmasthala included the Manjunatha temple or whether Manjunatha temple could be said to have a separate legal entity of its own as an Institution seems to me to be covered by the provisions of Section 84 as they stood both before the amendment in 1946 and after it was amended in 1946. An appea.J to the High Court, however, lay"under the amended provisions only. There was no objection to the appeal to the High Court on the ground that the unamended provisions did not contain such a right. Here, I may, for the purpose of clarifying the exact scope of the enquiry out of which the case now before us by special leave has arisen, reproduce the provisions of Section 84 of the Act both before and after its amendment in 1946. .

p. 901, margin E

The unamended provisions of Section 84 read as follows : ·"84 (1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple js an· excepted temple, such dispute shall be decided by the Board.

p. 901, margin G

(2) Any pers0n affected by a decision under sub-section Cl) . may, within one year, apply to the Court to modify or set aside such decision, but, subject to the result of such application, the order of the Board shall

p. 902, margin A

be final". After the amendment by Act X of 1946, Section 84 reads as follows :

p. 902, margin A

"84(1) If any dispute arises as to- (a) whether an institution is a math or temple as d<;llned

p. 902, margin B

in this Act, (b) whether trustee is a hereditary trustee as defined in

p. 902, margin B

this Act or not, or • ( c) whether any property or money endowed is a specific endowment as defined in this Act, or not. Such dispute shall be decided by the Board and no Court in the exercise of its original jurisdiction shall

p. 902, margin B

take cognizance of any such dispute. (2) Any person affected by a decision under sub-section ( 1), may within six months apply to the Court to

p. 902, margin C

· modify or set aside such decision. ( 3) From every order of a District Judge, on an application under sub-section (2), an appeal shall lie to the High Court within three months from the date of the

p. 902, margin D

order. ( 4) Subject to the result of an application under ·mbsection (2) or of an appeal under Sub-section (3), the decision of the Board shall be final. (Substituted

p. 902, margin D

by Madras Act X of 1946)".

p. 902, margin E

The case of the Heggade or the managing trustee was far from consistent. He took up the foHowing positions : firstly, that the temple was "private" and not a public temple and was exempt from the provisions of the Act for that reason; secondly, that the temple was a Jain institution, or, an integral part of it, and, therefore, excluded from the purview of the Act; and, thirdly, that the temple, even if it was to be deemed to be a Hindu temple, as a place at which the Hindu public could worship as of right, was really not separable from the larger Jain institution, so that, irrespective. of the clmracter of worship or the beliefs of the worshippers at the temple, it was not an institution which could be viewed separately from the Dharamasthala or be held to be just a Hindu temple as an "institution". The Board considered the Heggade's case to be "that the Institution is a unique institution where a Hindu temple was founded and managed by a Jain family". A subtle distinction was thus made between the temple as a place of worship and as a part of a larger Jain i:tstitution. Although, I am douotful of the correctness of this distinction, on facts, yet, for the reasons given below, I do not consider this to be a fit case for interference with . the findings of the High Court, accepting the correctness of this distinction, on the particular facts of the case before us.

p. 902, margin E

It seems to me that the question whether the Manjunatha temple .could be described as a Hindu temple as defined by the Act, could be conclusively answered by a reference to a number of admissions of the Heggade and his witnesses. Indeed, the exemption of the temple from the provisions of the Act by the State Government in exercise of its powers under Section 3 ( 1) of the Act, could be sought by the Heggade only on the assumption that the temple cor:tstituted a Hfadu _religious endowment which ought to be exempted from the operations -of the provisions of the Act. If it was exempt by virtue of a statutory provision from the provisions of the Act, as a Jain institution, there was no need for an order to exempt it. The scope of proceedings which have come up before us seems to go no further than resolution of certain disputes. They may, however, involve making of certain ·declaratioi!s.

p. 903, margin A

The origin of the temple was said to be given in a document con· taining a st!tement of 1806, by the then Dharmasthala Heggade, _produced by the managing Heggade, which runs as follows :

p. 903, margin C

"There was formerly a woman called Amoo Devi Ba!lalthi placed there by the favour of God to perform the ceremonies. The God's name was Durga Amba Kallarkie, but was subsequently changed to Kanya Kumari. God appeared to the woman in a dream and revealed himself to her telling her he would remain in her house and she should therefore procure a bed and a light for him to perform ceremonit:;s, also that she should build another house near to his to . perform ceremonies in and that her children and heirs should accordingly succeed her. Under this arrangement, the temple shall ever flourish. -As related before, the God in the shape of a woman revealed himself to Ballalthy and the Ballalthy acted accordingly. In the 1396 Sal!v'ahanam, the Peer of Udipi, Wadirajaswamy, arrived at Dharmasthala where the Ballalthy ordered him to prepare his dinner and on the next day to leave the place. The Peer replied ; "This is the residence of Devil. I must establish God in it before I eat my dinner". On this, the Ballalthy consulted he God in her sleep, who appeared and encouraged her, desired her to give the Peer whatever was required and told her he would establish the Kuddera God there saying 'you will tell this to the Peer who on hearing it will eat his dinner'. When I bring the God from Kuddera you will have a place prepared on the left hand side for his residence and a Brahrnin appointed to perform ceremonies. "On the same evening the Manjunatha (Kudder God) was brought and a house built and he was lodged in it on the next morning, this was all seen. The Ballalthi informed the Peer of this. He accordingly came and after dining departed. Somfj,ime afterwards the Ballalthy built a house on the right hand side and made it the residence of the God and Brahrnins were appointed to perform ceremonies to both. The old God (viz., that of the Ballalthy) some time afterwards told the Ballalthy he had appointed the devil Kulataya to preside over the offerings and therefore she must build a house for him, to expend all the religious offerings properly. should any dispute arise, proper investigations were to be ma~k. 'Some delay being macle in the collection of the offerings by Kulataya, Annappa, another Devil was fixed, for whom another residence was buiit and four people were chosen to superintend the charities which the offerings admitted of ... -",

pp. 903–904, margin C

As the Board observed, it appeared that Sri Maujunatha idol was installed on the occasion of Vadirajaswamy of Udipi's visit to the Dharmasthala. This was taken to be the introduction of the worship of God as opposed to that of the Devil. Sri Manjunatha was the installed God. It was asserted that this was in accordance with Jain beliefs. It was said that God spoke through the Heggade ~ho acted as the oracle and used to answer questions put to him by devotees at special se.>sions arranged for this purpose. It was. however, clear that Hindus in general were not prohibited from worshipping at 'his temple. They had worshipped here long enough freely and publicly to acquire the right to worship as members of the Hindu public in general. This right, I think, could not now be denied to them whatever be its origin.

p. 904, margin B

After an elaborate discussion of the nature of beliefs and worship, the Board had concluded : " .. .it is clear that Shri Manjunatha Temple, Dharmasthala, Puttur Taluk, South Kanara District is a 'temple' as defined in Madras Act II of 1927 and we decide accordingly".

p. 904, margin C

When the matter went up before the District Judge under Section 24, sub. s. (2) of the Act, the District Judge, after discussing the evidence, recorded his conclusion as follows :

p. 904, margin C

"Therefore it appears to me that taking into consideration all these circumstances the claim of the petitioner that this Shri Manjunatha Shrine though it may be a Hindu one in his private temple seems to be well-founded and it is not a temple which is either express'1y dedicated to the Hindu public or which has been used or resorted to by the Hindu public as of right".

p. 904, margin E

It is difficult for me to understand when; the District Court found the law which requires "express" dedication for use by the Hindu public or why he thought ·that the, public had not acquired a right to worship. Its findings, at any ·rate, carried with them the implication that, although there was a dedication, it was f~r "privat<:" ~urposes. I find it· difficult to conceive of such a transact10n. Ded1catJon to a deity necessarily implies a cessation of individual"human ownership.

p. 904, margin F

The dispute was then taken to the High Court of Mysore, which reached the conclusion, after a detailed discussion of the whole evidence:

p. 904, margin G

"If, 'Sri Manjunatha' were a Hindu deity exclusively and not a deity worshipped by the Jains as well, it is inconceivable that the name 'Manaya' should be found among 9 Jains also.. In our opinion, Sri Manjunatha is a deity worshipped both by the Hindus as well as the Jains in accordance with th~ir respective faiths and it is neither an exclusively Hindu

pp. 904–905, margin G

deity nor an exclusively Jain deity''. It then stated its views as follows :

p. 905, margin A

"Since the iYstitution is n~t a 'Temple' as defined. in the Act, the further question whether it is a private temple of Nellya?i Beedu family .as contended by the Neggade does not anse for determination. The proceedings before the Board and the Court below are under the Act. In view of our finding that the Institution is not a 'temple' under the Act, the Board has no jurisdiction over the Institution. Having helal that the A'tt has no application to the Institution and the Board has no jurisdiction over it as contended by the Heggade, the Court below shou~d have desisted from giving any inding on the question whether it is a private temple of Nellyadi Beedu family. We express no opinion on the said issue".

p. 905, margin A

The High Court's view seemed to be that there was a "dedication" but for mixed purposes outside the Act. Jain beliefs, as distinct from generally held and accepted Hindu beliefs, the origin and nature of the endowments, the established practices and_ customs relating to management of the temple, the receipt and disbursement of income of what was held to be a single institution called Dharmasthala, had been taken into account by the High ~ourt in order to decide whether "the institution" is a "temple" as defined in the Act or something more. Its opinion seemed to be that the rea·l question to be decided here was not whether there was a temple, as defiend by the Act, but whether the temple, which existed there, was an inseparable part and parcel of a Jain institution which was outside the Act, or, it was an institution which, taken by itself, was covered by the Act. If the temple was, so to speak, a mere appendage of the larger ni.ultipurposed institution, all the parts of which were managed as a single entity, the temple could not, in the opinion of the High Court, be "the institution".

p. 905, margin C

Although, I am prepared to accept the High Court's findings on questions of fact, I do not find it possible to agree with the High Court's view that, if a place of worship is open to both fains and Hindus in general, or, has a mixed character, it is not a temple within the meaning of that term as defined in Section 9, sub. s. (12) of the Act. A11 that Section 9, sub. s. (12) requires is that it should be a place of worship either dedicated for the benefit of or used as of right by the Hindu commtmity or a section thereof as a place of religious worship. The word exclusively is not there at all so as to justify any exclusion of a place of worship from the definition of a temple on the ground that the place of worship is not confined to worship,_ as a matter of right, to either Hindus as members of the general pubhc or to any section of Hindus.

p. 905, margin F

The Act does not define the term "Hindu". This word has had a fairly wide connotation. . In origin, it indicated peopl~ living in ~he Indus region. It is only by subsequent usage and extension of meanmg that the word acquired a religious, and, therefore, in this sense, a more ,limited significance. But, in some contexts, the term "Hindu", even· today, stands for Indiims in general. In foreign countries all Indians are sometimes described as "Hindus". Even as a term used for Indians professing a particular type of belie~s, which are presumed to have an indigenous origin, it is wide enough to include Jains and Sikhs. Hence, this is the meaning given to the term Hindu in the Hindu Succession Act. In a statute dealing with religious endowments, the term, even though not defined, may be presumed to stand for people of this country , with certain religious beliefs held or forms of religious worship practised by people of this country originally. But, this would also embrace a very wide sector of the public. And, in any event, there is nothing whatsoever in the definition of "temple" by the. Act to justify the inference that Jains or any other group of person must be excluded from worship before it can be a "temple".

pp. 905–906, margin H

For reasons given above, I am unable to read into the definition • of the word, "temple'', given in the Act, the idea of excluding from the benefits of the Act temples open for worship to Hindus of all sects and beliefs. This means that a place of worship where Jains. as a section of Indian citizens, even when distinguished by their special doctrines and practices from the rest of the Hindus, worship together with Hindus of other sects, could not be a temple outside the Act. All that the Act requires is that Hindus in general, or even a section of Hindus, should be able to worship there as of right. This requirement is, in my opinion, satisfied by Shri Manjunatha temple on the findings of the High Court which I accept, not without hesitation, as correct. The view I have taken above is, however, not enough, in my opinion, to dispose of an issue under section 84 ( 1) (a) of the Act. It has to be borne in mind that the issue to be decided under Section 84(1)(a) of the Act is whether an "institution" is a math or temple as defined in the Act. It is not whether a particular place is a temple, in the sense that it is set apart for worship by the Hindu public in general or a section of it. It is whether an "institution" itself is a temple as defined by the Act.

p. 906, margin C

The term temple has been defined in section 9(12) of the Act as follows ~

p. 906, margin F

"9(12) '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

p. 906, margin F

religious worship". · • It, therefore, becomes necessary, in order to decide a dispute under Section 84(1) (a) whether a particular place is a temple as contemplated by the Act. But, that is not enough for the decision of the whole issue to be decided under Section 84(1) (a) of the Act. For that purpose, attention has to be also directed towards deciding the question whether the "institution" to be considered is a temple and nothing more. If the temple, as a place of worship, is an integral part of an institution, so that it is not separable as an institution, in itself. the mere fact that there is a 'temple', as defined by the Act, where ...

p. 906, margin F

(Beg, J.) Hindu members of the public worship as .a matter of right, will not do. In .such a case, the "institution" is not the temple, although a temple can, by itself, be an institution. The term "institution" is not defined in ilie Act of 1927, although, in the more elaborate provisions of Madras 'Hindu Religious and Charitable Endowments Act XXII of 1959, there is now a definition of the term "religious institution" as well showing that this concept is wider than that of a temple.

p. 907

If, therefore, there is a distinction between the meanings of "temple" merely as a place of worship, as defined in Section 9 (12) , and a "temple" as an institution, as there seems to me to be, an authority deciding the issue whether it is an "institution", as contemplated by Section 84(1) (a) of the Act, will have to consider whether the history, the beliefs lying at the inception and sought to be propagated, the forms of worship meant to be kept alive, the prevalent customs and practices, the exact nature and process of the endowments connected with the iitistitution, the established rules for its management, the objects to be carried out by those in charge of the endowment, taken together, w'ould justify the inference that a particular "temple", as defined by the Act, is also a separate or separable institution by itself or is just an integral and organically inseparable part of an institution or organisation .outside the Act. These wider· aspects, which may not appear to be relevant at first sight, seem quite necessary to consider when we closely examine the nature of the issue contemplated by Section 84(1) (a) of the Act and decided by the High Court.

p. 907, margin B

In the case before us, the findings of the High Court show that the institution or organisation of which Manjunatha temple is an inseparable part, is predominantly Jain in character. On such a finding, it would be exempt from the operation of the Act by reason of the explanation to section 2 exduding Jain "religious endowments" from the benefits of the Act. It may be that very good grounds could be given for holding that the temple is a separable or separate entity dedicated, by user, for worship by Hindus in general, without restriction of worship by Jains only as a matter of right. But, as two views seem to' be reasonably open on the question-whether it is such a separate or separable institution or entity : I do not consider it fit to be reopened by us under Article 136.

p. 907, margin D

A consideration of the property which belongs to or is "endowed for the support of maths or temples or for performance of any service or charity connected therewith and includes the premises of maths or temples" may also become necessary so as to determine the character of an endowment as a part of the "institution" and the process by which it took place. The institution endowed, on the findings of the High Court, being" more than or wider than the Manjunatha temple, is not just a Hindu temple although a temple, by itself, could be such an institution if it were a separable entity.

p. 907, margin F

The origin and process of dedication is not always found ·embodied in a document. Where the dedication itself is evidenced by a document, its objects, such as they may be, can be determined by interpreting the document which makes the task of the authorities deciding the question generally easier. There are, however, many cases in 8 -1338SCJ/76 which ded!cation or endowment of prqperty for a particular purpose has to be mferred from immemorial user of a property in a particular manner or from the conduct of a party, such as permission to build a road for use by the public or permission to bury the dead on a piece of land. The. last mentioned type of case may also give rise sometimes to an estoppel against the owner of the land.

pp. 907–908, margin G

Cases where an inference of "dedication" results from what may be considered immemorial user or a kind of permissible user giving rise to an estoppel, because others have spent money or done some act on the strength of a licence or permission to use the land for a particular purpose, are not uncommon in our country. They should not, as Lord Macnaghten hinted in Bholanath Nu11di v. Midnapore Zemindary Co. Ltd.,( be complicated by resorting to the jfeculiar English notions of dedication, when he said :

p. 908, margin B

"It appears to their Lordships that on proof of the.fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed. · Unfortunately however (in the lower Courts) the question was overlaid, and in some measure obscured, by copious references to English authorities and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions".

p. 908, margin C

After quoting the passage, set out above, Lord Radcliffe, in Lakshmidlwr Misra & Ors. v. Rangalal & Ors.,e) pointed out (at p. 58) about such dedications in English law :

p. 908, margin D

"But dedication is only known to English Jaw as something equivalent to an irrevocable licence granted by the owner of soil to the use of the public. Dedication of a piece of <land to a limited section of the public, such as the inhabitants of a village, is a claim unknown in law, and evidence limited to such special user would not justify· a finding of dedication: see Poole v. Huskinson, ( 1843) 11 M. & W. 827: (63 R.R. 782), Hildrath'v. Adamson, (1860) 8 C.B. (N.S.) 587; (125 R.R. 794). Bermondsey v. !5rown, (1865) l Eq. 204: (147 R.R. 124)".

p. 908, margin E

It was explained in Lakshmidhar Misra's case (supra) that the doc1sine of lost grant originated in English law "as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user". Prescription, by a con\Oention, was deeme.d to start in 1189, when Normans conquered England. The reat basis of such rights in English .law seemed to be prescr!pti'?n. In this very case differences were pomted out between a ded1cat10n and a customary right enjoyed by people of a locality to use a particular piece of land on certain ,occasions. It was indicated here that a dedication, by presumed Jost gra~t, in English law, unlike customary rights. which (2) A.T.R. 1950. P.C. 56. may become attached to land, postulates a grantee and the creation ·or an estate.

pp. 908–909, margin E

Although certain essential or basic prerequisites of a valid trust in English law, such as the three reasonable certainties laid down by

p. 909, margin A

Lord Eldon in Knight v. Knight(l)-that of the obligation to be carried , out, that of the subject matter or of property affected by it, and that ,of the object to be served or the persons. to be benefited-are required in this country too for valid endowments no less than they are in England, yet, valid dedications can be inferred, under our la~ without showing compliance with at least some of the technical requirements of · English law.

p. 909, margin A

Dedicat!ons in Hindu law do not require acceptance of propert)' dedicated for a religious or a public purpose. In Monohar Ganesh V. Lakhmiravi-( a rule of Hindu law coming down from ancient times was thus stated : ·

p. 909, margin B

"A Hindu who wishes to establish a religious or charitable institution may, according to his law, express his purpose and endow it, and the ruler wilf give effect to the bounty or at least protect it so far, at any rate, as is consistent with his own Dharma or conception of morality".

p. 909, margin C

Neither a document nor express words are essential for a dedication for a religious or public purpose in our country. Such dedication may be implied froll! user permitted for public and religious purposes for sufficient length of time. The conduct of those whose property is presumed to be deiicated for a religious or public purpose and other circumstances are taken into account in arriving at the inference of such a dedication. Although religious ceremonies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indispensable (see : B. K. Mukherjea on the "Hindu Law of Religious and Charitable Trusts"-Third Edn. 1970 p. 80).

p. 909, margin D

The question of an implied dedication by user by the public is particularly important in cases like the one before us where a claim that a trust is private or sectarian in nature is set up against a wider claim on behalf of the general public. In Deoki Nandan v. Murlidhar( this Court said :

p. 909, margin E

"the distinction between a private and a public trust is . that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment".

p. 909, margin F

In B. K. Mukherjea's Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1970)-(3rd edition), we find the following passage at page 143 :

p. 909, margin G

(I) l. L.R.

p. 909, margin H

"In cases where no express dedication is proved, the character of the endowment must always be a legal inference from proved facts. As in the case of highways, long user is undoubtedly a material element from which an inference of dedication may arise. If the public have been in the habit of worshipping in the temple in an open and unconcealed. manner, for a long period of time, and were never denied. aiiy access to it, that would be a strong evidence of dedication. With regard to period of user, no hard and fast rule has been laid down. 'There is no minimum which must be fulfilled, and there is no maximum which compels the inference'. Each case would depend upon its own circumstances·. Besides user by the public, conduct of the founder afld his; descendants is also relevant, and if they in fact held out the temple to be a public temple, a very strong presumJJtion of

p. 910

dedication would arise". Cases are also cited there where reliance had been placed upon circumstances such as the structure or the location of a temple outside a private residence or dwelling so as to be exposed to public view and worship by members of the general public to infer dedication for the public.

p. 910, margin C

In Pujari Lakshmana Goundan v. Subramaniya, ( t) the questiorr. for determination was whether a Hindu temple founded between 1841 and 1856 had been dedicated for use by the public by its founder whohad executed no deed showing this. But, the ~under. Lakshmana Goundan, was shown to have installed an idol at his house and allowed Brahmins and Hindus to worship the idol as if it was a public place of worship. The Hindu public was admitted free of charge, though only on certain days in the week, in the greater part of the temple, and, in one part only on payment of a fee, and, in the inner shrine, not at all. It appears that the income from offerings and fees was spent by the Pujari founder on the temple and the idol as well as on himself. Nevertheless their Lordships of the Privy Council held that Lakshmana Go;mdan, having held out and represented the Hindu public that the temple was for their benefit, the inference was irresi·stible that he had dedicated the temple for use by the public. In B. K. Mukharji's Lectures (supra), the facts of this case have been cited as an example • of an application of the principle of estoppel. Our law reports abound with similar cases where dedication by founders or owners is inferred or presumed, irrespective of their own religious persuasions, from the purposes for whichr a piece of property has been used for long enough. In some cases; the elements of an estoppeI are present. But, the basis of such dedications seems, in many cases of this type, to be, strictly speaking, nothing more than a presumption from • certain facts. Perhaps we could describe it, in most cases of this sort, as a "deemed dedication" although it must not be confused with a fiction. It is, after all, an inference from facts which must exist and lead to the conclusion deduced.

p. 910, margin D

(I) 29 C.W.N. (P.C.)

p. 910, margin H

In view of this well established doctrine of implied endowment of !Property, by its long us~r for a: particular religious or pu~lic purpose, based on a presumed consent of the owner, I do not thmk that the High Court could be held to have reached a wrong conclusion even if It has inferred that, whatever be the origin of the Manjunatha temple, it had become a separate institution with an endowment of its own consisting at least of the land over which the temple had been built, the building, and the idol installed with free access to it by the Hindu public in general which made offerings even though Jains also worship there. ijevertheless, in view of the discussion of a good deal of evidence of 'the! peculiar composite character of the institution known as Dhannasthala, and, bearing in mind our general rule of practice that •we do not r*isturb findings of the final Court of fact where two views are possible, I do not propose to differ from the conclusion reached by the High Court that the temple was not a separate institution. The Manjunatha temple, on the findings of the :High Court, which we are upholding, had become an accretion or growth on the body, if one may ·so put it, of the institution kriown iii Dharmasthala, even though it could be removed from that body by a surgical operation. It is not for us to say, on the findings before us, whether a situation has arisen in which a surgical operation may be called for. Such an opinion can only be given upon the results of a more thorough investigation into the objects of the institution, its properties, the sources of its income, and the manner in which they are utilised than we have before us.

p. 911

The question which troubles me, however, is whether a religious :institution or even that part of it to which members of the public make -contributions, through their offering and gifts, is to be left entirely uncontrolled by authorities specially appointed by the State' inr order to see that such income or donations are not misused or are utilised for the purposes for which they are meant. It seems to me that religious beliefs, professions, and practices, which have a powerful hold over the minds and feelings of the people, particularly in our country, should not be permitted to become mere cloaks for exploiting the credulity of the simple minded and the ignorant and unsophisticated. When a religious institution becomes a means of obtaining money or material benefits, in rhe form of offerings or donations or gifts, as it genrally does, from members of the. public, a danger of its misuse can only be effectively averted by appropriate supervision. It seems to me that this is the whole purpose of the Act. The income from the public, through a religious institution, seems to me to bring in that secular aspect which justifies interference by State authorities through adequate supervision. Howe,ver, these are matters which so far as religious endowments, such as the one before us, held to be predominantly Jain, for the reasons given by the High Court, are concerned, thl'l State Government can take into account in deciding whether it should exercise its powers under Section 3(2) of the Act, to extend. the benefits of the Act to them, or, if necessary, to amend the Act.

pp. 911–912, margin D

The District Court did not specifically frame or try any issue on the question whether any endowment existed at all. It had' ' framed. the following points for determination:

p. 912, margin A

"(1) Is the Sri Manjunatha Devaru only a part of the institution known as Dharmastbala and not a separate institution in itself? (2) Is the Dharmasthala, a ch~i!!lble institution? •

p. 912, margin A

(3) Is the Dharmasthala and in particular thf Manjunatha Devaru not an exclusively Hindu place of worship ? If not do not the provisions of the Hindu Religious Endowments Act apply?

p. 912, margin B

( 4) Is the Manjunatha Devaru a private place of worship.

p. 912, margin C

(5) Is the order of the Board dated 9th March 1949 liable to be set aside?"

p. 912, margin C

The High Court also did not give the finding that no endowment whatsoever exists. The extent of property covered by any endowment was also not really investigated as to issue. was framed on it. A tleast the structure of the temple with the idol installed and the • ground upon which the temple stands must be deemed to be dedicate4 even though these may not, for purposes of management, form separable units. The High Court took the ·view that the dispute falling under Section 84(1) (a) could be disposed of by deciding issues or points numbered 1 and 3 only. The District Court had chosen to resolve the principal dispute that arose by deciding issue No. 4. Other questions were treated as merely subsidiary or even unnecessary to decide. ·

p. 912, margin D

I have tried to indicate above what seemed to me to be the real nnture of the proceedings in the course of which a dispute covered by Section 84 (1) (a) of the Act arose and also the principles on which su:-h a dispute should, in my opinion, be resolved, although I do not consider it necessary, in exercise of the special. powers of _this Court under Art. 136 to interfere with the High Court's findings of fact, because I think that the powers of the Government which is not evena party, acting under Section 3 of the Act, are not restricted by decisions given by Courts in resolving a dispute covered by Section- 84( 1) of the Act. All that the Government was bound to do under· Section 3 of the Act was to consult the Board. The Madras Hindu Religious and Charitable Endowments Act of 1959, which contains 1he law governing the subject today, has section 2 relating to a general' power to extend the provisions of the Act to Jain public religious institutions and endowments as a mater of policy, irrespective of the character of management, whether good or bad and Section 3, for the· extension of the pmvisions '.)f the Act to pqrticular Jain religious and cha1itable institutions, in cases of mismanagement, after due A inquiry. These powers are not, in any way, affected by the dispute which has been brought before us under the provisions of an Act repealed iong ago.

pp. 912–913, margin F

For the reasons given above, I concur with the order proposed by my learned brother Shinghal that this appeal be dismissed and parties be left to bear their own costs throughout. e V.P.S. Appeal dismissed .

p. 913