JAGAT NARAYAN, J - (1.) THESE are connected applications arising out of a suit under sec. 92 C.P.C. instituted by Madan Gopal Kabra and Lakashmi Narain Kabra against Raja Pratap Singh and Goverdhanlal Kabra in respect of three temples situated at Kucharnan.
(2.) IT was not disputed before me that all these three temples were founded by the ancestors of Raja Pratap Singh. The oldest of these temples is that of Natwar Lal Ji which was founded in Smt. 1756. This temple is situated inside the kot, that is, the wall enclosure containing the places of the Thakur of Kucharnan. IT may be mentioned here that defendant No. 1 is a direct descendant of the Thakurs of Kucharnan. The next oldest temple is that of Chatur Bhujji, the prathishtha of which was performed in Smt. 1855 by one Surajmal, presumably the then Thakur of Kucha-man vide Ex. A. 5. The third temple was built in Smt. 1969 by the wife of Raja Sher Singh the then Thakur of Kucharnan. Its Prathishtha ceremony was performed by Raja Shersingh in the same year vide Ex.A-4. Both these temples were constructed just outside the Kot on land belonging to the Thakur of Kucharnan. There is a covered passage leading from the Kot to the back of these temples for use by the ladies to the family of the Thakur for having Darshan in these two temples. It is also not disputed that these temples were endowed with considerable properties by the ancestors of defendant No. 1. The accounts of the income and expenditure of these properties were entered both in the account books of the Thakur of Kuchman as well as in the Bahis maintained in the temples. The properties attached to the temples were managed by the Thakur of Kucharnan till March, 1952 when the then Thakur Raja Hari Singh (adoptive father of defendant No. 1) constituted a committee of four trustees, including himself, to manage the endowed properties by means of trust deed Ex. 1 dated 19.3.52 which was registered on 26.3.52. The trustees were RajaHari Singh deceased, Raja Pratap Singh defendant No.1. Goverdhanlal Kabra defendant No. 2 and Madan Gopal plaintiff No.1 The suit was instituted after obtaining the consent in writing of Advocate General for the removal of defendant No. 1 from trusteeship, for directing accounts, settling a scheme and for granting such other reliefs as the court may deem proper to do having regard to the circumstances of the case. The suit was resisted by Raja Pratap Singh defendant No. 1 inter alia on the ground that the temples in suit are private temples and the religious trusts, for the upkeep and maintenance of the temples, are consequently private trusts to which sec. 92 CPC is not applicable. The trial of the suit by the learned District Judge Merta did not proceed smoothly. The plaintiffs sought permission to file a replication to the written statement of defendant No. 1. This permission was not granted. There was interference on the part of learned District Judge with the cross-examination of the witnesses of defendant No. 1. The plaintiffs prayed that defendant No. 1 should be examined as a witness first in accordance with the rules framed by this Court. The learned District Judge overruled their objection. Defendant No. 1 had applied for a local inspection before the examination and cross-examination of his witnesses was over. The plaintiffs objected to such a local inspection being made before the evidence of the parties had been concluded. The learned District Judge however overruled this objection also and made a local inspection. On 7.1.63 the plaintiffs filed an application for issuing notice of the suit to the Devasthan Commissioner under sec. 72 of the Rajasthan Public Trusts Act (No. 42 of 1959) and not to proceed further with it till this has been done. The learned District Judge recorded an order on this application that he shall not determine the question whether or not it is necessary to give notice to the Devasthan Commissioner till after he had recorded the entire evidence in the suit and given a finding on issue No. 1. The plaintiffs thereafter intimated to the court that they intended to move the High Court for the transfer of the case and prayed for an adjournment. This was declined by learned District Judge who proceeded to examine the remaining witnesses of Defendant No.l including defendant No.l himself. It is noteworthy that even on 2.2.63 when defendant No. 1 was present in court the learned District Judge insisted on examining his other witnesses first and only examined him in the end. The plaintiffs did not participate in the proceedings when their request for adjournment was disallowed with the result that the three witnesses who were examined on that date were not cross-examined. The plaintiffs have filed civil revision application No. 50/63 against the order of the learned District Judge dated 2.2.63 refusing to stay proceeding in the suit till after notice had been given to the Devasthan Commissioner. S. B. Civil Miscellaneous Transfer Application No. 8/63 has been filed for the transfer of the suit from the court of the learned District Judge to some competent court. Taking civil revision No. 50/63 first, section 72 of the Rajasthan Public Trusts Act 1959 runs as follows : - "Proceedings involving question affecting public purpose - (1) In any suit or legal proceeding in which it appears to the court that any question affecting a public religious or charitable purpose is involved, the court shall not proceed to determine such question until after notice has been given to Commissioner. (2) If upon receipt of such notice or otherwise the Commissioner makes any application in that behalf, he shall be added as a party at any stage of such suit or proceeding." The expression "appears to the court" occurs in Sec. 24 Evidence Act and came up for interpretation before their Lordships of the Supreme Court in Pyare Lal vs. State of Rajasthan (1). Their Lordships gave the following interpretation to this expression : - "The crucial word is the expression "appears". The appropriate meaning of the word "appears" is seems. It imports a lesser degree of probability, than proof. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down." The learned District Judge should have accordingly considered the material which was before him on 7.1.63 when the present application was moved before him and should have decided on the basis of it whether or not it appeared that the temples in suit were or at any rate some of them were public temples to which sec. 72 was applicable. A perusal of the provisions of the Rajasthan Public Trusts Act 1959 goes to show that it is the intention of the Legislature that the question as to whether or not trust is a public trust should be determined finally only after notice to the Devasthan Commissioner where it appears to the court prima facie that the trust is a public one. It follows that as soon as a prima facie case is made out the court should stay further proceedings and give notice to the Devasthan Commissioner. Further proceedings should take place only after the Devasthan Commissioner has had an opportunity of applying to the court for being impleaded as a party to the suit. If such an application is made the court is bound to implead him a party under Sec. 72(2(2). The view taken by the learned District Judge that he would decide the question only after recording the entire evidence in the case and after recording a finding on issue No. 1 framed in the suit is wholly erroneous. The next question which arises for determination is whether prima facie it has been established that temples in suit or some of them are public temples. A public trust is one which is constituted either for the benefit of the public at large or of some considerable portion of it, answering a particular description. A private trust on the other hand provides for the material or spiritual benefit of individuals and families. In Hindu law it is competent for a donor to create a religious trust, the benefit of which is confined to the members of a particular family. The essential test to distinguish a private from public temple is whether the right of worshipping the idol is limited to the members of a particular family or group or extends to all persons professing the Hindu religion. In Deoki Nandan Vs. Murlidhar (2) the S.C. observed "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". Rules can certainly be framed by those in charge of a public temple to ensure good order and decency of worship and to prevent over-crowding at the temple, but subject to these rules, the right of entrance into a public temple for purposes of worship is a free right which cannot be prohibited or sold. In Nar Hari Shastri Vs. Shri Badrinath Temple Committee (3) the Supreme Court observed that while it is the right of every Hindu to enter into a public Hindu temple for worship, it is open to the trustees to regulate the time of public visits and to enforce rules to ensure good order and decency of worship and prevent over-crowding.
(3.) IN Deoki Nandan's case (2) there was evidence to the effect that while the founder's wife was doing Puja within the temple, the outsiders in whose presence she used to observe purdah were stopped from entering the temple. The Supreme Court observed - "We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did hot worship at the temple as a matter of right. It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression to the regard which the entire villagers must have had for the wife of the founder who was a pardanashih lady, when she came in for worship, and cannot be construed as a denial of their rights." In Pujari Lakshmana Goundan vs. Subramania(4) the question for decision was whether the Hindu temple was or was not dedicated by the founder to the public. It was proved that the founder Lakshmanna Goundan installed the idol at his house, and allowed Brahmins and other Hindus of various castes to worship the idol as if it was a public one. On certain days in each week the Hindu public was admitted by him, free of charge, to worship in the greater part of the temple, to one part only on payment of fees, and to the inner shrine apparently not at all. With the income which he derived from offerings and fees at the temple he efficiently maintained the temple as if it were a public temple and discharged all the expenses connected with the temple and the worship of the idol. On these facts the Privy Council held that they could come to no other conclusion than that Lakshmana Goundan held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference is that he had dedicated the temple to the public. Another circumstance which fortifies inference of temple being a public one is that repairs and additions to the temple building are made with public subscriptions and that festivals in the temple are performed with the aid of public funds. In Gulabchand vs. Shri Balaji (5) proof that the members of the public had contributed towards constructions of temple and in Sarat Chandra vs. Ravindranath (6) proof that the members of the public had contributed towards the extension of the building were held to support the inference that the temple was a public one. In State of Bihar Vs. Smt. Charusila Dasi (7) the settlor had created a trust for the construction of two temples in one of which the deity was to be installed and there was a further provision for the establishment of a charitable hospital and dispensary for medical, surgical and maternity advice and aid to Hindu females. As the latter were indisputably public charities, it was held by the Supreme Court that the intention clearly was that the temple also should be a public endowment. The location of the temple outside a private building is also a circumstance to be taken into consideration in this connection. In Mahadeva Vs. Commissioner Hindu Religious Endowments (8) the fact that the temple was outside the dwelling house of the founder was held to be a circumstance in favour of its being regarded as a public temple. Adverting to this aspect of the question the Supreme Court observed in Deoki Nandan's case(2) "there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. In the above case other circumstances taken into consideration were that some of the idols were permanently installed on a pedestal within the temple precincts, that the Puja in the temple was performed by a Pujari appointed from time to time and that there was no other temple in the village and the temple in suit was constructed at the instance of villagers for providing a place of worship for them. At page 141 it was observed - "The ceremonies relating to dedication are Sonkalpa, Uthsarga and Prathishtha. determination and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership on the property, the result whereof being that it becomes impressed with the trust for which he dedicates it...... ......It will be seen therefrom that while the Sankalpa means Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutobyeh). It would, therefore, follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public." ;