Raghubar Dayal, J.

1. This is an appeal on a certificate granted by the High Court of Andhra Pradesh, against the judgment and order of the High Court reversing the judgment and order of the District Judge, Vizagapatam, holding that the place of worship in suit was not a temple as defined in the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), hereinafter called the Act.

2. On March 28, 1947, the Board of Commissioners for Hindu Religious and Charitable Endowments, Madras, held the institution in suit to be a temple as defined in the Act. The appellants, thereafter, filed a petition under S. 84(2) of the Act, in the Court of the District Judge, Vizagapatam, and prayed for the setting aside of the order of the Board. They alleged that the institution known as the Poohari Fakir Sadvarthy, at Bondilipuram, Chicacole, a long-standing institution, was started by one Malukdas Bavajee, some time during the reign of the Moghul Emperor, Aurangazeb. The Emperor, in recognition of the Bavajees piety and devotion to God, made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthi to Fakirs and Sadbus and to pray to God for the prosperity of the Empire and the Emperor, according to what was stated in the well-known historical works like Bhakthamala by Maharaja Raghunadha Singh Deo of Rewa.

3. The institution flourished and continues up to this day. The original plaintiff No.2, Rajaram Das Bavajee, was the ninth in succession from the founder Malukdas Bavajee. He died during the pendency of the proceedings and is now represented by appellant No.2, Mahant Gangaram Das Bavajee. Sithaldas Bavajee, the sixth head of the institution who lived in the first half of the Nineteenth Century, built a temple and installed therein certain idols for his private worship. The shrine was an adjunct of the institution Poohari Fakir Sadavarthi. It is alleged to be a private temple known as Jagannadhaswami temple, Balaga, and is meant for the worship of the Mahant and his disciple, one of whom conducts the daily worship.

4. The income from the various properties granted to Malukdas Bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through Balaga. A part of the Income was, however, spent on the expenses of the worship in the temple and the incidental expenses connected with it.

5. The respondent Board denied that Jagannadhaswami temple was a private place of worship, that the public had no access to it without the permission of the Bavajee an alleged that the temple possessed all the features of a place of public religious worship and was dedicated to or for the benefit of or used as of right by the Hindu community as a place of religious worship.

6. The appellants examined five witnesses including plaintiff No. 2, in support of their case. The respondent examined one witness. The plaintiffs also filed a number of documents. The respondent filed a few documents which included the Boards order dated March 28,1947, and its enclosure.

7. The learned District Judge concluded, from the evidence, that Jagannadhaswami temple was not a temple as defined in the Act, it being a private temple existing for the benefit of the appellants only. He therefore set aside the impugned order of the Board. On appeal, High Court came to a different conclusion and allowed the appeal. It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established :

(i) the temple is a very old temple constructed in or about the year 1750;

(ii) the temple has the structure and polity of a public temple;

(iii) there are utsava vigrahams and vahanams;

(iv) it has a big compound wall with the gate opening into the Chinna Bazaar Road;

(v) regular worship is performed every day at the scheduled time;

(vi) there is an archaka who performs worship;

(vii) a large number of pilgrims attend every day and partake in the food given after naivedyam to the God;

(viii) there are utsavams and the rathotsavam which is particularly conducted on large scale and is attended by members of the public.

The High Court relied on the statement of the solitary witness examined for the Board and rejected the statements of the witnesses examined for the appellants.

8. The sole question for determination in this appeal is whether this institution is a temple as defined in the Act. Clause (12) of S.9 of the Act reads:

"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 religious worship.

The institution in suit will be a temple if two conditions are satisfied. On is that it is a place of public religious worship and the other is that it is dedicated to, or is for the benefit of or is used as of right by the Hindu community, or any section thereof, as a place of religious worship. We are of opinion that the oral and documentary evidence fully establish the. appellants case that it is not a temple as defined in the Act.

9. The documents on record and bearing dates from 1698 to 1803 A.D. mention the grants to be for the purposes of the Bavajee; i.e., the head of the institution The first documents, Exhibit P-1, is of the Hijri year 1117, corresponding to 1698 A.D. and purports to be executed by Ibrahim Khan, Bahadur, a humble servant of Badshah Alamgir Ghazi, i.e., Emperor Aurangazeb. This order says :

"The village of Cheedivalasa, Boonamali Pargana Haveli(town) towards Kaling of the Said Sirkar, has been fixed and continued as a complete inam in favour of Poohari (Poojari) Fakir Sadabarti in accordance with the Sanads of the previous rulers. Meanwhile, in view of the claims of the said person it has been confirmed as per endorsement in accordance with momooli (usage) and mustamit (continuing lasting long). It is necessary that, the said village be placed in the enjoyment of the said person so that, utilising the incomes thereof for his own maintenance, he may engage himself in praying for the stability of the State till eternity.

10. The purpose of the other grants is stated in practically similar terms and it is not necessary to quote them. None of the grants of land or other property on record bears a date subsequent to that of the year 1803 A.D. The documents, Exhibits P-47, P-48 and P-49 are orders of the Collectors and refer to the villages of Cheedivalasa and Thallavalasa, and the last two state that the income of these two villages was given for sadavarthi (feeding) for the respective year to Phalari (Pbulhari) Bavaji. There is no mention in any of these two documents that any grant was being made for the purposes of the temple or for the purposes of the Bavaji as well as for those of a temple.

11. The only reference to the construction of the temple is in Exhibit P-52, an extract from the Register of Inams dated May 22, 1865, with respect to village Vanzangi. The name of the village, however, does not appear in the document itself. It is standing this document:

"About century ago, the trustees built a temple of Jagannadhaswamy.

According to this note, the temple may be said to have been built in about 1760 AD. The documents of the period from 1761 to 1803 A.D. Exhibits P-31 to P 49. do not record that the grants under them were for the expenses of the temple as well. The grants simply mention them to be for the expenses of Fakirs, in the name of Poohari Fakir Sadavarty, and not for the temple. The non- reference to the temple in the various documents is consistent with the temple being for the private worship of the head of the Sadavarti Institution and being an adjunct to that institution, as in that case there was to be no grant to the temple and the grant had to be to the Sadavarti institution or to its head.

12. It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence. Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known institution in that part of the country, where, it has been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the various documents of the period between 1698 and l803 A.D., that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself, it being always in the name of the Bavajee in charge of that institution.

13. Before discussing the entries in the Inam registers which carry great weight, we may first refer to the Rules in pursuance of which the entries in the Inam registers were made, after due investigation. The various extracts from the Inam registers which have been filed show that the proposals for the grant were confirmed under R. 3, c1.(1), tax free. This makes it of importance to consider the rule thus referred to. It is one of the rules for the adjudication and settlement of the inam lands of the Madras Presidency and is quoted at page 219 of Ind App: (at p.66 of AIR) in the case reported as Arunachallam Chetty v. Venkatachalapathi Guruswamigal, 46 Ind App 204: (AIR 1919 PC 62) :

"If the inam was given for religious or charitable objects, such as for the support of temples mosques, colleges, choultries, and other public buildings or institutions, or for services therein, whether held in the names of the institutions or of the persons rendering the services; it will be continued to the present holders and their successors, and will not be subject to further interference, so long as the buildings or institutions are maintained in an efficient state and the services continue to be performed according to the conditions of the grant."

It was also said at page 217 (of Ind App): (at p.65 of AIR):

"But the Inam Register for the year 1864 has been produced and to it their Lordships attach importance. It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this Register was a great act of state and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissions through their officials made inquiry on the spot, heard evidence and examined documents, and with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases; yet the Board, when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register.

14. Exhibit P-50 is the extract from the lnam Register No. 48 relating to village Talavalasa in the Taluk of Chicacole in the district of Ganjam. The note of the Deputy Collector, Inam Commissioner, records inter alia the following particulars:

(1) The village was granted originally by the Nawab Mafuz Khan in Hiziri 1155 corresponding with A.D. 1739 to one Inamdar Bairagi; as the original sanad is not forthcoming it is impossible to mention here without entering into details, the object of the grant and the tenure of the village. This mokhasa jahagiri is in possession of the person in column (11) who is known by the name of Palahara Mahant Bartudoss Bavaji a Bairagi.

(2) This Bartudoss Bavaji pleaded that this village and three other villages were granted in the district by the former Rulers for Sadavarti and for certain other Divine Service, and that the proceeds of them were appropriated to the expenses attendant on the temple of Sri Jagannadhaswami to some extent and to distributing Sadavarti or supplying victuals, fire-wood, etc., or dressed food to Bairagis and others resorting to Rameswaram from Benaras and vice versa.

(3) This Bartudoss Baveji produced a sanad of Sri Seetaram Ranzi Maharaja, the former zamindar of Vizianagaram in Vizagapatam district, granted to one Gopaladass Palahari Bavaji dated Subhakrutu year corresponding with AD. 1782. This Sanad showed that the said Gopaladass was then a manager of the branch of charity and that this village was granted free from any tax in lieu of the income in the villages of Balaza, Petranivalasa and Serumohannadpuram which were granted originally by the authorities for the support of the charity and which were resumed and incorporated with circar lands. The sanad explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.

(4) On the whole it appears that this mokhasa was granted for Sadavarti and for the support of the temple of Sri Jagannadhaswami in Balaga There is a Bairagi Mattam in Balaga and a temple of Sri Jagannadhaswami ..........This is therefore a charitable grant. To keep up the object of grant, I think the village may be confirmed on its present tenure.

(5) Column 8, meant for noting the description of the inam, mentioned :

Granted for the support for the Sadavarti Bairagi mattam in Balaga and of the temple of Sir Jagannadhaswami in the same village now efficiently kept up.

(6) In column 10, under the heading hereditary, unconditional for life only or for two or more lives is mentioned hereditary.

(7) Column 11 meant for recording the name of the grantor and the year of the grant, mentions, under it, Mafusu Khan Nawab, dated Hijiri 1155.

(8) In column 13, Mandasa Palhari Bairagi is mentioned as the original grantee.

(9) Under column 18 referring to relationship to original grantee or subsequent registered holders, is written Sadavarti Bairagi mattam and the temple of Sri Jagannadhaswami in Balaga Trustee Palahara Mahant Barta Dasu Bavaji.

15. It is clear from the fact that the grant was considered a charitable grant that the grant was not taken to be for the purposes of the temple, but was taken to be grant for the purposes Sadavarti. This is also clear from the statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds, as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent. There is no suggestion that the temple was in existence in 1739 A.D., when the grant was made. This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spent on the temple by the Bavaji after the temple has been constructed. Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry. He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service. The divine service really meant, as would appear from the expression in the other documents of the period 1698 to 1802 A.D. service by way of prayer for the stability and continuity of the State.

16. The expression that the grant was hereditary also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant. In fact, the sanad granted by Sectaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.

17. This extract therefore supports the case of the appellants even though the name of the temple has been mentioned along with Sadavarti Bairagi. The confirmation of the grant, tax free, was recommended by the Deputy Collector, Inam Commissioner, under R.3,cl. (1). The order of the Officiating Inam Commissioner dated July 1864 is: Confirmed on present tenure, and Column 9 described the tenure tax free.

18. Exhibit P-51 is the extract from the Inam Register in the Zamindari estate of Tekkaly in the Chicacole Taluk, Ganjam District, and relates to the village Chinna Zavanapalli. The report of the Deputy Collector shows that the claim of the then Bavajee was that the village was granted in the name of Gopaladoss, trustee and priest of the mattam in Hijari 1165, corresponding to 1752 A.D. It further records :

"It is explained by the Zamindars shiristadar on behalf of the Zamindar that this was granted for the support of the mattam and this is not a personal grant. This was entered in the permanent settlement account as an agrahar. The object of the grant is to feed Bairagis and etc. who travel between Benaras and Rameswaram or supply victuals clothes and etc. This branch of charity is known by the name of sadavarti. The proceeds of this village with the other villages, which granted for the support of the charity are appropriated to sadavarti and to worship the idols in the temple of the mattam.........As this is granted on the whole for the support of the charity branch, it should, I think, be confirmed on its present tenure."

The entries under the various columns are practically on the lines of the entries in Exhibit P-50. The entries in this register also support the case of the appellants to the extent that the original grant in 1752 A.D. was to the then Bavajee and was for the purposes of the charity.

19. Exhibit P-52 is the extract from the Register of Inams with respect to village Vanzanji. It records very clearly:

"The object of this grant is to give sadavarti to travellers, that is, distributing alms and supplying victuals to travellers. This grant was made during the reign of Alangir Padsha. Ever since the Inam is continued undisturbed. About century ago, the trustees built a temple of Jagannadhaswamy. Now in addition to distributing alms and giving Sadavarti to Bairagis and others, the idol in the temple is worshipped and annual festivals are made. It appears that the Trustee is defraying charges to meet the object of the grant and that he is not mis-appropriating the proceeds of the Inam in any way."

The Inam was confirmed as a charity grant to Mandasu Sadavarty Charity according to the terms of the grant. This extract is of great importance as it, in clear terms, mentions that the object of the grant was to give sadavarti to travellers and that it was confirmed as a charity grant to this charity. It speaks of the erection of the temple and still states that the Trustee was defraying the charges to meet object of the grant. This indicates that the expenses of the temple were taken to be incidental to the expenses of the entire sadavarti and that the temple was just an adjunct to the sadavarti institution.

20. Exhibit P-7, Parwana dated November 15, 1722, corresponding to 14th day of Rabial Awwal, 1135 Hijiri refers to the grant of this village to Poohari Fakir Sadavarti.

21. Exhibit P-53 is the extract from the Register of Inams relating to village Ragolu in Chicacole Taluk. It records : In the sanad it was mentioned that the inam was given for the support of fakirs to the original grantee about a century ago. The other notes in this extract are practically identical with those in Exhibit P-52. the final order of the Inam Commissioner was also in terms similar, and was confirmed to the fakirs the sadavarti charity according to the grant, free, there being no excess. It is interesting to note that in column 2 (general class to which inam belongs) is noted Dewadayam, i.e., dedicated to God; that in column 8 meant for the description of the inam is noted: for the support of Pagoda of Sri Jagannadhaswami in Bondilipurarn, and that the entry in column 11 indicates that Anavaruddin khan Bahadur made the grant in Hijiri 1171 corresponding to 1754-55 A.D. It is clear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa Palahari Bairagi in Column 13) about a century ago and that it was the trustees of the institution who constructed the temple. When the temple was constructed by the trustees of the institution, viz, the Sadavarti institution, the original grant could not have been to the temple or to God. The entries in this extract confirm the construction we have placed on similar entries in Exhibit P-52 and other extracts indicating the grant to the temple.

22. Exhibit P-54 is the extract from the Inam Register of No. 85 Tallavalasa in the Taluk of Chicacole in the District of Ganjam. It is mentioned in this that Pratap Rudra Narayana Devu granted this village to Falar Gosayi for the support of the Bavajee or Swami in Hiziri 1141 which would correspond to about 1747 A.D. It is also noted in the report that the object of the grant was that the proceeds should be appropriated for divine purpose and that the proceeds were appropriated to the temple and sadavarti. The note for the support of the pagoda of Jagannadhaswami in column 8 meant for the description of the inam again, appears to be an entry made under an erroneous impression. There was no temple in existence when the grant was made in about 1747 A.D.

23. Exhibit P-55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk, dated August 13, 1881. It mentions, under the heading by whom granted and in what year, the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hizira 1171 corresponding with English years 1754 55. It is also noted: the Sanad granted is in existence. It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings, they should be restored to him in pursuance of the long-standing right. This means that the firman, which was not forthcoming during the inam enquiry, dated from very early times. It must be noted again that this extract also describes the inam as Devadayam, i.e., dedicated to God. Again, clearly, this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P-12, a parvana of 1742 A. D. under the seal of Nawab Jafer All Khan. It records :

"It has been proved that Mandas, the successor of Poohari (Poojari) Fakir Sadavarti has per endorsement full six kattis of land, free from assessment, in the village of Balaga and etc., villages of the said Haveli Sircar, fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers. Therefore in consideration of the blessings to follow, it has been confirmed as of yore."

It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as service.

24. The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.

25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.

26-32. Their Lordships then considered the evidence in the case and continued as under :

33. We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.

34. The statement of the respondents witness that generally Oriya temples have no flag-staffs and have Tulsi plants has significance in one other connection also. It was said in Mundacheri Koman v. Achuthan Nair, 61 Ind App 405 at p. 408: (AIR 1934 PC 230 [LQ/PC/1934/76] at p.231) that in the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments from public charitable trusts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa. The presumption with respect to the temples in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated.

35. We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship. We therefore allow the appeal with costs throughout, set aside the order of the Court below and restore the order of the District Judge, Vizagapatam, setting aside the order of the Board dated March 28, 1947.

36. Appeal allowed.