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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.

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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

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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

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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

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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 tem- ple 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

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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

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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

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(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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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.