1. This first appeal is directed against the judgment and order passed by the Assistant Judge of Nasik at Nasik in Civil Misc. Application No. 50 of 1974 made under section 72 of Bombay Public Trusts Act whereby the Court below dismissed the said application and maintained the order passed by Joint Charity Commissioner, Bombay in Appeal No. 2 of 1972 under section 70 of Bombay Public Trusts Act.

2. The facts necessary and relevant for disposal of first appeal are:

3. On 27-5-1952, Ambadas Baburao Parashare made an application before the Assistant Charity Commissioner, Pune Region, Pune stating therein that the temple viz. Shri Ganga Godavari Mandir, Panchavati, Nasik is not a public trust and that the said Mandir is a private temple. Inter alia, in the application he stated that the temple Shri Ganga Godavari Mandir was constructed by him on a small private land in order to serve God; the said temple is part of the immovable property bearing City Survey No. 5678 and Municipal No. 4458; and that this temple was not a public trust and therefore, there are no documents of the trust. The Assistant Charity Commissioner held on enquiry and vide his order dated 11-12-1994 recorded that the applicant Ambadas Baburao Parashare was owner of the temple and there was no evidence to show that he dedicated temple to the public. He, therefore, held that the said temple was not a public trust and accordingly, refused registration. For about eight years, the matter remained quiet but in the year, 1962 two sons of Ambadas namely Mahadeo and Govind filed revision application before the Joint Charity Commissioner against the order of Assistant Charity Commissioner passed on 11-12-1994 refusing to register the temple as public trust. In the said revision application, Mahadeo and Govind impleaded their brother Gangadhar as opponent No. 1 and Ambadas as opponent No. 2. The Joint Charity Commissioner after hearing the parties held that further enquiry was necessary to find out whether the said temple was public trust or not and accordingly, by order dated 29-10-1963 remanded the application made by Ambadas and registered as Misc. Application No. 4 of 1953 for fresh hearing and consideration by Assistant Charity Commissioner, Pune. The order passed by the Joint Charity Commissioner, Maharashtra State, Bombay remanding the matter for fresh enquiry was challenged unsuccessfully before this Court and order of remand was maintained. After remand, Mahadeo and Govind filed fresh application on 2-3-1970 (Exhibit 17) praying therein that the temple Shri Ganga Godavari Mandir is not private temple but a public trust and be registered as such. Gangadhar and Ambadas were impleaded as opponent No. 1 and opponent No. 2 respectively in the said application. Curiously Ambadas who was impleaded as opponent No. 2 filed written statement wherein he supported the stand taken out by Mahadeo and Govind that the temple was a public trust which was totally inconsistent with his application made on 27-5-1952 stating therein that the said temple was constructed by him on a small private land and it was not a public trust nor any trust has been created by him and that the source of income of the trust was private. Gangadhar, however, contested the said application made by Mahadeo and Govind. An inspection of the property was made by the Assistant Charity Commissioner on 21-9-1970 and he recorded the statements of various persons and thereafter by his order dated 15-12-1970 held that Shri Ganga Godavari Mandir was a public trust and ordered its registration as public trust under the Bombay Public Trusts Act, 1950. The order of Assistant Charity Commissioner passed on 15-12-1970 was challenged by Gangadhar in appeal before the Joint Charity Commissioner who by his judgment and order dated 20th June, 1974 dismissed the appeal. The concurrent orders passed by the Assistant Charity Commissioner on 15-12-1970 and the Joint Charity Commissioner dated 20th June, 1974 were challenged in Misc. Civil Application before the Assistant Judge, Nasik who as indicated above, dismissed the civil application and maintained the order passed by the Assistant Charity Commissioner on 15-12-1970 and confirmed in appeal by Joint Charity Commissioner on 20th June, 1974 giving rise to the present first appeal. The sole question involved in this first appeal is whether the temple viz. Shri Ganga Godavari Mandir is a public trust.

4. With the assistance of the learned counsel for parties, I have gone through the entire evidence on record, oral as well as documentary. Waman in his deposition stated that he donated one silver Sinhasan to the temple in memory of his father, cost of which was about Rs. 1000/- and he was shown the constitution of the temple. He further deposed that Ambadas used to send invitations for attending Utsavs. His evidence was recorded on 16-7-1970, and at that time he was 40 years old. The temple admittedly was constructed in the year 1930 and thus, it would be seen that at that time either he was not born or was only infant. He has not disclosed the date or the year in which he donated the silver Sinhasan. In his cross-examination, he admitted that whenever he visited Nasik, he stayed with Ambadas and used to take meals with him. He would give ‘Dakshina’ to Ambadas whenever some religious work was done by him. Prabhakar Laxman Take was 30 years old when his evidence was recorded on 16-7-1970. He was also not born when temple was constructed. He deposed that he had donated silver Maharan and Kalas which was gold plated to the temple. According to him Ambadas was their Upadhyay. He also deposed that he sent contribution of Rs. 10/- and Rs. 5/- on various occasions. In his cross-examination, he admitted that he went to the temple in the year 1953 and thereafter, he had no occasion to visit the temple. He could not say whether other idols were kept along with the main idol. He also admitted that after 1953, he had not sent any money to Ambadas or any donation to temple. Purshottam Laxman Dixit is priest and he deposed that he, his father and 25 Brahmins did ‘Pran-pratistha’ and ‘Utsarga’ ceremonies of the temple which continued for three days. He also stated that the temple was dedicated to public for Jap, Japya, Abhisheka, Puja, Darshan etc. Homa Havan etc. was done and Ambadas and his wife made ‘Sankalp’. In the cross-examination, however, he was unable to give exact year of the ceremony. He could not say when the building work of the room in which this temple is situated was completed. He also did not remember when the idol was installed in the room. He further admitted in his cross-examination that there was no mention about the building in the Utsarg ceremony. He also admitted that he was very friendly with Ambadas. Govind is one of the sons of Ambadas who filed revision application along with his brother Mahadeo against the order passed by the Assistant Charity Commissioner holding that the temple Shri Ganga Godavari Mandir was not a public trust but a private temple. He testified that Shri Ganga Godavari Mandir is situated in the ground floor of the building constructed on City Survey No. 5678 having Municipality No. 4458. This temple was built by his father Ambadas who made the public trust of this temple and the temple was open to public in the year 1930 after Pran Pratistha and Utsarg Vidhi. According to him, his father Ambadas was managing the temple as representative of public and has kept a writing about the history of the temple. A reserve fund was created for the upkeep of the temple and various Utsavas were performed. He also stated in his deposition that his father got printed receipt-books for fund and the accounts of this temple were kept separately in account book which was written and signed by his father. An account was also opened in Nasik District Central Co-operative Bank Ltd., in the name of Sansthan Shri Ganga Godavari Mandir, Panchavati, Nasik in the year 1937. He deposed that the idol in the temple was donated by late Ganpatrao Kashinath Mahatre from Bombay; silver Mahirap, the Kalas and Megha Dambari were donated by Laxman Narayan Take and Sinhasan was donated by Wamanshet Kedari Shetye. He also gave details of the persons who donated marble stones, coloured china clay tiles, silver plating of the wooden door; silver prabhaval and various silver and golden ornaments, furniture and other articles like wooden cupboard, chair, jhopala, vyas-pitts, chauranga, Asanas, clothes, silver chakra, Jajam, galiche, bichayat, mirrors, zumbras, bells and brass lamps etc. He, however, admitted that in the year 1956, his brother Gangadhar refused to allow him to enter the temple and since then he had not visited the temple for Darshan. In cross-examination, he had given the family history and admitted that his father Ambadas owned various properties and partition was effected long back and the property being City Survey No. 5678 and Municipal No. 4458 on the ground floor of which temple is located, came in partition of his brother Gangadhar. He also admitted that the said property bearing City Survey No. 5678 (Municipal No. 4458) was owned by Anandibai and the said property was taken on lease by Ambadas for 99 years on a municipal rent of Rs. 10/-. He further admitted that at the time when the said property was taken on lease, there was some built up portion as well as vacant land and Ganga Mandir was constructed on the portion which was vacant. According to him, at the time of partition, the property Ganga Niwas bearing Municipal No. 4456 came in share of his brother Mahadeo and Chintaman. He admitted in his cross-examination that all the properties owned by Ambadas have the prefix of ‘Ganga’ as Ganga Niwas, Ganga Bhuwan, Ganga Sadan and Ganga Vihar. He also admitted in his cross-examination that in his statement before the City Survey Authorities, he stated that the properties being Survey No. 5678 and 5677 have been allotted to Gangadhar and he has no concern whatsoever in the said property. He further admitted that in the statement before the City Survey Authorities he did not state that the property allotted to Gangadhar excluded the ground floor and he never applied to City Survey Office to give separate City Survey number for the ground floor. He did not dispute that the property is three storied and that the temple is housed on the part of the ground floor and rest of the property is a residential building occupied by Gangadhar and the tenants. It was also admitted by him that Gangadhar had to pay Rs. 10/- towards monthly rent to Anandibai and portion of the rent to be paid to Gangabai and portion of Municipal assessment was not debited in the accounts of temple. He also admitted that before partition, the entire family of Ambadas used to stay in the property bearing Municipal No. 4458 and in some portion of the property bearing Municipal No. 4457 and that after partition their family idols are kept near the main idol of Devi. In his cross-examination, he further admitted that there was no document evidencing trust made by his father Ambadas and that Ambadas or his family members ever informed the Municipality that portion of the house is trust property. Another witness Shriram Gopal Deshpande whose age was also 40 years at the time of recording of his testimony on 29-7-1970, deposed that the flooring in the temple was donated and so also the idol of the temple. He has also deposed that there is a offeratory box kept in the Mandir. In his cross-examination, he admitted that in the back-side of the temple, Gangadhar resides and on the first and second floors of the building, the tenants are housed. Ramchandra Narayan Shouche is the other witness. He deposed that many people go for Darshan every day. Darshan of the idol can be had also from outside. He has also deposed that there was a offeratory box. In his cross-examination, he admitted that he knew Ambadas since his childhood. He and Ambadas are permanent workers in Ahilya Ram Vyayam Mandir and in the suit filed by Ambadas against one of his tenants, he gave his evidence.

5. On the other hand, Gangadhar examined himself in support of his stand that the temple is a private temple and not a public trust. He gave the family tree of his family and stated that their family profession was priest work. Their Yajmans are mostly from Konkan and Bombay and they visit Nasik for religious ceremonies performed through them. The Yajmans would give ‘dakshina’ and ‘Dan’ in cash as well as kind. In his deposition, he stated that his father Ambadas received huge earnings from priest work. When he started this profession, he had only one ancestral property bearing Municipal No. 4457, by name Ganga Bhawan and later he purchased properties ‘Ganga Niwas’ (Municipal No. 4456), ‘Ganga Vihar’ (Municipal No. 4429) and ‘Ganga Sadan’ (Municipal No. 4269). The property Municipal No. 4458 was owned by Anandibai which was taken on lease by his father Ambadas for a period of 99 years on 14-10-1921 vide registered rent note (Exhibit 73). At that time, the said property was known as ‘Ganga Mandir’ and the said name is still continued. On the vacant portion of the leased property, his father constructed three storied building and on the ground floor of the said building his father built ‘Deo Ghar’ since there was no ‘Deo Ghar’ in the old house. After the building was completed, the idols of family were kept on the ground floor and since then, their family idols are kept there. The Puja, Archana etc. used to be earlier performed by Ambadas and thereafter by him. The idol of ‘Ganga’ was installed in the year 1930. He stated that the property is known as ‘Ganga Mandir’ not because the idol of ‘Ganga’ was installed but because ‘Ganga’ is their family God. He gave details of partition held in the year 1954. The property bearing Municipal No. 4458 viz. Ganga Mandir came to his share. He also deposed in his testimony that after coming into force of the Bombay Public Trusts Act, his father made application for registration of two public trusts, one Kapaleshwar and the other Pataleshwar because these were public trusts but since Ganga Mandir was not a public trust, he made an application that it was a private temple and not public trust. In his cross-examination, he stated that ‘Utsarga’ of the temple was not performed but ‘Pranpratishtha’ was made. He denied the suggestion that property Municipal No. 4458 was given to him excluding the temple. He deposed that there is no space for Pradakshana. Laxman Vithoba Chaphekar who was examined by Gangadhar deposed that on the ground floor there is sitting hall of the Mandir and that Gangadhar resides in the said building. Manohar Krishnaji Lele in his deposition deposed that he stays near Ganga Mandir and that on the ground floor of the said house is an idol and Gangadhar also resides in the said property. Vasant Atmaram Gokhale in his testimony deposed that during his visit to Nasik, he did not notice outsiders coming to the temple for darshan nor he found any offeratory box. He also deposed that there is no accommodation for Pradakshina. The documentary evidence filed by Govind is in the nature of receipt books, accounts and the registers.

6. Pertinently, it may be observed that the proceedings started on the basis of the application made by Ambadas on 27-5-1952 before the Deputy/Assistant Charity Commissioner bringing to his notice that the temple Shri Ganga Godavari Mandir is not a public trust; it is constructed on a small private land and that he has not created any trust and therefore there are no documents of trust. The said application appears to have been made after coming into force of the Bombay Public Trusts Act, 1950 with an intention to bring to the notice of the authorities under the Public Trusts Act that the said temple Ganga Godavari Mandir was not a public trust. The Assistant Charity Commissioner recorded the statement of Ambadas on 11-12-1954 wherein he deposed that he himself has built the temple and he has not built it for the benefit of public. He also deposed that the temple was not kept open for the public and he had built the temple from his own funds. On the basis of the statement of Ambadas, the Assistant Charity Commissioner by his order dated 11-12-1954 held that Ambadas was owner of the temple and there was no evidence to show that he had dedicated the temple and accordingly, held that the said temple was not a public trust. No person from public was aggrieved by the said order and it appears that dispute arose between the sons of Ambadas and accordingly, his two sons Govind and Mahadeo challenged the order passed by the Assistant Charity Commissioner in revision almost after eight years. The Joint Charity Commissioner who was revisional authority was persuaded by the aspect that the proper enquiry was not held by the Assistant Charity Commissioner to find out whether the temple was public trust or private trust and therefore, remanded the matter for fresh enquiry and hearing. After remand, though the enquiry was to be made on the application made by Ambadas that the temple ‘Ganga Godavari Mandir’ was not a public trust but a private temple but curiously a fresh application appears to have been made on 2-3-1970 before the Assistant Charity Commissioner by Mahadeo and Govind impleading Gangadhar and Ambadas as opponents. In response to the said application, Ambadas took up entirely different stand which was totally inconsistent that of his earlier application. Surprisingly, though the written statement was submitted by Ambadas on 11th March, 1970 and the evidence appears to have been recorded by the Assistant Charity Commissioner in the month of July to September, 1970, Ambadas did not choose to examine himself. Admittedly, Ambadas died many years thereafter.

7. Section 2(13) of the Bombay Public Trusts Act, 1950 defines public trust as follows:—

“(13) “public trust” means an express or constructive trust for either a public religious or charitable purpose or both, and includes a temple, a math, a wakf, (church, synagorgue, agiary or other place of public religious worship,) (a dharmada) or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.”

8. The temple is defined under section 2(17) of the Act of 1950 which reads thus:—

“(17) “temple” means a place by whatever designation known and 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 public religious worship.”

9. The aforesaid definitions of public trust and temple came up for consideration before the Apex Court in Bala Shankar Maha Shankar Bhattjee v. Charity Commissioner, Gujarat State, 1995 Supp (1) SCC 485 : AIR 1995 SC 167. After referring to the aforesaid definitions of public trust and temple, the Apex Court in para 7 held thus:—

“7. A bare conjoint reading of the two definitions would show that public trust is of an inclusive definition to bring within its ambit, an express or constructive trust for which a public religious or charitable purpose or for both which includes a temple a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for religious or charitable purpose or for both and a registered society under Societies Registration Act. A public place by whatever designation is temple when it is used as a place of public religious worship. It must be dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof, as a place of public religious worship.”

10. The question whether the temple or the trust is a private trust or public trust had come up for consideration before various courts including the Apex Court from time to time. In Deoki Nandan v. Murlidhar, AIR 1957 SC 133, the Apex Court highlighted the distinguishing features between the private and the public trust. The distinction between a private and a public trust, the Apex Court observed 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. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof. Referring to the text in Mayukha, the Apex Court observed that according to texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like, and not for religious foundations, and that in the case of temples, the proper word to use is ‘Prathista’ and not ‘Uthsarga’ and therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The Apex Court held that in the case of temples, ‘Prathista’ takes the place of ‘Uthsarga’ in dedication of temples and the question as to its scope of dedication is a mixed question of law and fact, the decision of which must depend on the question of public and private endowment to the facts found. In Devki Nandan's case (supra) the Apex Court was seized of a case where idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site and after referring to Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, 15 Beng LR 167, page 186(J), observed that it is a factor to be taken into account in deciding whether an endowment is private or public where the place of worship is located inside a private house or a public building. It was found in the Deoki Nandan's case that idol was permanently installed on a pedestal within the temple precincts; the puja in the temple was performed by archaka appointed from time to time and that there was no temple in the village and the evidence was available that the temple was built at the instance of villagers for providing place for worship for them. In the background of these facts, the Apex Court held the temple ‘Thakurdwara of Shri Radhakrishnaji’ in the village of Bhadesia in the district of Sitapur as a public temple. In Hari Bhanu Maharaj Of Baroda v. Charity Commissioner, Ahmedabad, (1986) 4 SCC 162 : AIR 1986 SC 2139, the Supreme Court was dealing with a Math viz. Laxman Maharaj Math and the question was whether Laxman Maharaj Math is a public trust or a private trust. The Apex Court observed that one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building and another relevant feature which must enter the field of perception when judging whether a Math or Mandir is a public or private one is the size of the construction and its proportion to the entire extent of the property. In paras 11 and 12 of the report, the Apex Court observed thus:—

“11. Another infirmity noticed in the judgment of the High Court is that it has not focussed its attention to the juxtaposition of the Math with the residential portion of the property occupied by the appellant and his brothers and the members of their families. The Charity Commissioner has observed that the residential portions of the appellant's family are situated on the western and eastern portions and besides there are also shops on the western and southern sides. The High Court has adverted to these features and has observed that “the Manager with his family resided in a part of premises adjoining the room wherein idols are installed”. Whenever a dispute arises as to whether a Mandir is a public or private temple, one of the features taken into consideration by Courts for deciding the issue is the location of the Mandir with reference to the residence of the persons claiming rights of private ownership. This position has been set out in several cases but we may refer only to two of them viz. Peesapati v. Kanduri, 1915 Mad WN 842 : 18 Mad LT 543 : AIR 1916 Mad 462, Deoki Nandan v. Murlidhar, 1956 SCR 756 : AIR 1957 SC 133. The decisions lay down that one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building. In this case the Mandir is within the precincts of the residential quarters of the appellant but the High Court has failed to give due consideration to this aspect of the matter.

12. Another relevant feature which must enter the field of perception when judging whether a Math or Mandir is a public or private one is the size of the construction and its proportion to the entire extent of the property. In this case the evidence is that the total extent of the property is 150′ × 170′ whereas the extent of space occupied by a Samadhi and the Mandir is only 16′ × 12′. It is therefore, obvious that the Math occupies only a small area in the total extent of the property. Admittedly, the other extent of the property is being enjoyed and has always been enjoyed by the appellant and his ancestors for their private use and occupation. This would not be the case if the Math or Mandir was a public institution. Instead of drawing the proper inference from the smallness of area of the Math, the High Court has been influenced by the fact that a Sabha Mandap measuring 42′ × 28′ and having 37 pillars and having a partitioned portion of 10′ × 7′ paved with marble at the entrance of the Mandir, is in existence, and it is strongly suggestive of the public character of the institution. It has also attached importance to the provision of two collection boxes, one for grains and one for cash in the Sabha Mandap and to the provision of a collection box near each of the two Samadhis. The High Court has failed to realize that the Sabha Mandap did not form part of the original construction made in the year 1835 A.D The Sabha Mandap had been built by Bhanu Maharaj about 100 years later i.e in the year 1927. It goes without saying that on the basis of a construction made nearly 100 years later, no inference can be drawn regarding the character of the Math at the time of its origin. The necessity for constructing a large Sabha Mandap may have arisen in 1927 due to the increase in the number of the members of the family and also for conveniently giving Dharmopdesh and religious lectures to invitees as the appellant and his ancestors were earning their livelihood by such religious activities. It is also in evidence that the members of the family were teaching Sanskrit to students. In such circumstances, the High Court was wrong in holding that notwithstanding the small size of the Math, the presence of the Sabha Mandap conflicts with the claim that the Math is of private character.”

11. Both the judgments in Deoki Nandan (supra) and Haribhanu Maharaj (supra) were considered by the Apex Court in Bala Shankar Maha Shankar Bhattjee (supra). The Supreme Court also considered in addition to the aforesaid two judgments, the definition of public trust defined in Black's Law Dictionary. Ram Saroop Dasji v. S.P Sahi, AIR 1959 SC 951, Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas, (1969) 2 SCC 853 : AIR 1970 SC 2025, Bihar State Board of Religious Trust v. Mahant Shri Biseshwar Das, (1971) 1 SCC 574 : AIR 1971 SC 2057, T.D Gopalan v. Commissioner of Hindu Religious and Charitable Endowments, (1972) 2 SCC 329 : AIR 1972 SC 1716, T.V Mahalinga Iyer v. State of Madras, (1981) 1 SCC 445 : AIR 1980 SC 2036, Shri Radhakanta Deb v. Commissioner of Hindu Religious Endowments, (1981) 2 SCC 226 : AIR 1981 SC 798, Jammi Raja Rao v. Shri Anjaneyaswami Temple Valu, (1992) 3 SCC 14 and Kappor Chand v. Ganesh Dutt, 1993 Supp (4) SCC 432 and held in paras 19, 20, 21 thus—

“19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the Community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temples now well settled. In the case of former the beneficiaries are specific individuals, in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.

20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple, gift of properties by the public or grant by the ruler or Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the head man leaves, the temple are not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference.

21. Dedication to the public may be proved by evidence or circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the family itself is not a circumstance to conclude that the temple is a private trust. In a given case management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity, it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid.”

12. In Bala Shankar Maha Shankar Bhattjee the Kalika Mataji Temple was held public temple since all the lands gifted to the deity stood in the name of the deities; the Gazette and the historical evidence of the temple would show that the village was the pilgrimage centre; location of the temples on the top of the hill away from the village and worshipped by the people of Hindus at large congregated in thousands without any let or hindrance and as of right and devotees were giving their offerings in large sums in discharge of their vows. It is true that there was no proof of dedication to the public but the Apex Court found that it was lost in antiquity and no documentary evidence, in that behalf was available.

13. The principles laid down by the Apex Court in various judgments cited above upon application to the facts of the case in hand, it would be seen that Ambadas was “Upadhyay” (Priest) by profession. The ancestral property inherited by Ambadas was “Ganga Bhavan”. From his profession of priesthood, he purchased various properties viz. property Municipal No. 4456 known as ‘Ganga Niwas’ property Municipal No. 4429 known as ‘Ganga Vihar’ and property Municipal No. 4269 known as ‘Ganga Sadan’. He acquired the property Municipal No. 4458 on lease from Anandabai in the year 1921 for a monthly rent of Rs. 10/-. The leased property viz. property Municipal No. 4458, (C.T.S No. 5678) had a constructed portion as well as the vacant land. In the rent note (Exhibit 73) which is registered, it is recorded that lessee would be entitled to construct at his cost the temple of Shri Ganga Mandir or any other deity. It is further provided that the said temple shall be removed on expiry of lease and the property shall be given back to the lessor on 13th October, 2020. The property Municipal No. 4458 (C.T.S No. 5678) admeasures 84.9 ft. × 37.8 ft.

14. Ambadas constructed the three storey building on the vacant land. On the portion of the ground floor is the suit temple. The properties of Ambadas were partitioned in the year 1954 and the property Municipal No. 4458 (Ganga Mandir) came in share of Gangadhar. Prior to partition and after partition Gangadhar and his family have been residing at the back of the temple on the ground floor. The first floor and the second floor are rented out to various tenants. The temple continues to be part of the building which came in share of Gangadhar is in City Survey Records and its Municipal taxes etc. are paid by Gangadhar and after his death by his legal representatives of the entire building including the temple. The evidence on record is sufficient to establish that the temple is situate in the residential precincts and occupies only small portion of the entire property of Municipal No. 4458. The circumstances that the temple is part of the building which is constructed on the vacant land of Municipal No. 4458 taken on lease and the lessee Ambadas or for that matter, his successor in interest is liable to demolish the said temple and the construction at their cost on expiry of lease i.e on 13th October, 2020 would indicate that there could not have been dedication of the temple in perpetuity. The dedication of the temple in perpetuity is necessary attribute of public temple. It is true that some of the circumstances for an endowment being public trust are shown in the present case which are also highlighted by the Court below but the predominant factor that the temple forms part of residential precincts and that too a small portion of the entire property clearly indicates the nature of temple as private temple and not public temple. The Assistant Judge was not right when he observed that long lease of 99 years was sufficient to bring characteristic of permanency of the temple. It may be that the land and the property was obtained on lease for the purpose of construction but the fact that any construction on the vacant land was liable to be removed on expiry of lease clearly demonstrates the lack of characteristic of permanency which showed that the temple was constructed for private purposes. After all, the essence of the trust for public or religious purpose lies in its characteristic of permanency and if a temple is constructed on leased property though for a long duration of 99 years, it cannot be said that it has a characteristic of permanency. Moreover, the very location of the temple on the portion of the ground floor which is also used for residence and the fact that the two other floors viz. first and second floors are occupied for residential purposes by tenants are strong indicator of the fact that the temple Ganga Mandir was not public temple. As already noted above, the facts that main idol of ‘Ganga Godavari’ was donated and so also the silver kalas, Megh Dambari, marble stones, the tube lights, the photo frames by different persons and that there were many slabs of the donors, may satisfy some of the tests to find out whether religious endowment is public but these facts are not conclusive to establish that the temple ‘Shri Ganga Godavari Mandir’ is the public temple and rather predominant factors already indicated above clearly demonstrate that the said temple is private temple. For all these reasons, I am satisfied that the temple ‘Shri Ganga Godavari Mandir’ cannot be held to be a public trust within the meaning of section 2(13) read with section 2(17) of the Bombay Public Trusts Act in the light of the discussion already made above. Consequently, the judgment and the order passed by the Assistant Judge, Nasik on 15th October, 1981 affirming the order passed by the Joint Charity Commissioner on 20th June, 1974 and the order passed by the Assistant Charity Commissioner on 15-12-1970 is quashed and set aside and it is held that Shri Ganga Godavari Mandir, Panchavati, Nasik is not a public trust under the Bombay Public Trusts Act, 1950.

15. The first appeal stands allowed in the aforesaid terms with no order as to costs.

Appeal allowed.